United States District Court, E.D. North Carolina
Kaymani D. West United States Magistrate Judge
and Recommendation Plaintiff, proceeding pro se, filed this
medical-malpractice action pursuant to the Federal Tort
Claims Act (“FTCA”). This matter is before the
court on Defendant Daniel Gordon's Motion to Dismiss
pursuant to Rule 12(b)(2) and 12(b)(6) of the Federal Rules
of Civil Procedure. ECF No. 37. On July 19, 2017, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court advised Plaintiff of the dismissal procedure and
the possible consequences if she failed to adequately respond
to the Motion to Dismiss, see ECF No. 38, and
Plaintiff filed a Response to the Motion on July 28, 2017,
ECF No. 40. Additionally, Defendant United States filed a
Motion to Dismiss pursuant to Rule 12(b)(6), or in the
alternative a Motion for Summary Judgment. ECF No. 44. After
filing another order pursuant to Roseboro v.
Garrison, 528 F.2d 309, see ECF No. 47,
Plaintiff filed a Response to Defendant United States'
Motion on September 26, 2017, ECF No. 49. No Defendant filed
a Reply. This case was referred to the undersigned United
States Magistrate Judge for all pretrial proceedings pursuant
to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B)
and Local Civil Rule 73.02(B)(2)(e), D.S.C.
these Motions to Dismiss are dispositive, a Report and
Recommendation (“R&R”) is entered for the
a resident of Bennettsville, South Carolina, filed this
matter on April 18, 2017, alleging a malpractice claim
against Defendants arising from cancer treatment that she
received at veterans' medical facilities. ECF No. 1.
After initial review of her Complaint, the undersigned
authorized service upon Defendants Arle, Gordon, and the
United States. ECF No. 19. Though Plaintiff initially named
other parties as Defendants, the undersigned recommended that
Defendants VA (Veterans Administration) and individuals
Sengstaken, Acselrod, Sharma, and Lowe be dismissed without
prejudice because Plaintiff acknowledges this action is
properly before this court under the FTCA, and the only
proper party in an FTCA action is the United States. ECF Nos.
23, 26. The district judge adopted the undersigned's
recommendation that these parties be dismissed. ECF No. 50.
Complaint, Plaintiff maintains that early detection of cancer
and follow-up “would have save[d] less medical
treatment and life complications.” ECF No. 1 at 7.
Plaintiff represents that medical personnel, including
Defendants Arle and Gordon, decided what course of treatment
she should pursue after her first abnormal mammogram
screening occurred in 2004 at Carolina Image in Fayetteville,
North Carolina. Id. Further, Plaintiff alleges that
other doctors prescribed her tamoxifen, and “in 2009,
[she] received a letter that these medications together in
some women show a recurr[e]nce of cancer.” Id.
alleges that early detection and treatment of cancer would
have saved a breast mastectomy; “lymphnode dissection
secondary malig metastatic of neck, lungs, low back, upper
back, bones and all body life fun[c]tions.”
Id. at 8. Plaintiff reports she is experiencing
mental disorders; must have ongoing cancer treatment; and
that the cancer has “le[d] to terminal cancer.”
Id. Plaintiff maintains she has endured pain and
suffering and lost family time. Further, she represents that
“the hardship i[m]pacted the family, where [she] lost
[her] mother in 2009 from the life sentence given to
Plaintiff and los[s] of time with [her] love[d] ones.”
Standard of Review
Rule 8(a)(2) of the Federal Rules of Civil Procedure,
Plaintiff must only plead “a short and plain statement
of the claim showing that the pleader is entitled to relief,
in order to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). In order for Plaintiff's
Complaint to survive Defendants' Motions to Dismiss,
Plaintiff does not need to plead detailed factual allegations
in her Complaint. See Id. However, the United States
Supreme Court has held that a plaintiff's grounds for
relief requires more than just stating legal conclusions and
elements of a cause of action. See Papasan v.
Allain, 478 U.S. 265, 286 (1986) (noting that, on a
motion to dismiss, a court is “not bound to accept as
true a legal conclusion couched as a factual
allegation.”). Plaintiff's complaint must contain
sufficient factual allegations that make a claim for relief
plausible, not just possible. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Bell Atl. Corp., 550 U.S.
at 570. This court must accept Plaintiff's factual
allegations as true and draw all reasonable inferences in her
favor. See E.I. du Pont de Nemours & Co. v. Kolon
Indus., 637 F.3d 435, 440 (4th Cir. 2011).
Motions to Dismiss are before the court. First, Defendant
Gordon argues this court lacks personal jurisdiction over him
and that “the only information in Plaintiff's
Complaint . . . supports a finding that North Carolina is the
proper forum for this lawsuit as against Dr. Gordon.”
ECF No. 37 at 3. Additionally, Defendant Gordon maintains
that “Plaintiff's Summons is to a North Carolina
address, and her allegation  Section III [of her Complaint]
indicates that any alleged tortious act on the part of
[Defendant] Gordon occurred in North Carolina.”
Id. Additionally, Defendant Gordon argues that
Plaintiff's Complaint fails to meet minimum pleading
requirements and is untimely. Id. at 5-8. Finally,
Defendant Gordon argues that in her Complaint Plaintiff is
alleging medical malpractice and South Carolina state law
requires Plaintiff to file a Notice of Intent to File Suit
and an affidavit of an expert witness. Id. at 8.
Defendant United States argues that the Complaint should be
dismissed because Plaintiff failed to comply with South
Carolina pre-suit requirements of including an expert
affidavit to support her claims of medical malpractice
(Defendant Gordon's final argument). ECF No. 44-1 at 5.
Venue and Personal Jurisdiction
undersigned finds that the allegations in Plaintiff's
Complaint fail to reveal any basis for this Court to obtain
personal jurisdiction over any individual Defendant.
Plaintiff is suing North Carolina residents and a VA medical
facility located in North Carolina pursuant to the FTCA.
Accordingly, it is the recommendation of the undersigned that
this case be transferred in the interests of justice to the
United States District Court for Eastern District of North
Carolina for further handling. See 28 U.S.C. §
1406(a); see also Goldlawr v. Heiman, 369 U.S. 463
(1962); Porter v. Groat, 840 F.2d 255 (4th Cir.
1988); Glaxo Inc. v. Genpharm Pharmaceuticals, Inc.,
796 F.Supp. 872, 877 (E.D. N.C. 1992).
bedrock requirement in any civil action is that the district
court in which a Complaint is brought shall have personal
jurisdiction over the persons of the defendants. Rule 4(e)
Federal Rules of Civil Procedure (“Service Upon
Individuals Within a Judicial District of the United
States”) by its own title suggests that persons outside
a given judicial district cannot be brought into ...