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Griffin v. United States

United States District Court, M.D. North Carolina

May 28, 2019

MARILYN G. GRIFFIN, individually and as administrator of the estate, goods, chattels, and credits of MICHAEL GRIFFIN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., District Judge.

         This case was stayed pending the North Carolina Supreme Court's decision in Vaughan v. Mashburn. (See Doc. 31.) The North Carolina Supreme Court issued a final decision in that case on August 17, 2018. See Vaughan v. Mashburn, ____ N.C. ____, 817 S.E.2d 370 (2018). Per this court's order, Plaintiff filed a supplemental brief on August 20, 2018, notifying this court that the North Carolina Supreme Court had ruled in the Vaughan case and asking this court to deny Defendant's motion to dismiss based on that holding. (Doc. 33.) Defendant replied, arguing that Vaughan should not determine the outcome of this case and that this court should grant its motion to dismiss for failure to comply with North Carolina Rule of Civil Procedure 9(j). (Def.'s Reply to Pl.'s Supp. Filing (“Def.'s Reply”) (Doc. 34).) Plaintiff then filed a motion for leave to file an additional response “only . . . in the event the Court believes issues have been raised that have not been adequately addressed.” (Doc. 35.)

         Because this court believes that the motion to dismiss can be effectively addressed based on the parties' existing briefing, this court will deny Plaintiff's motion for leave to file an additional response. This court further finds, for the reasons described herein, that Defendant's motion to dismiss should be denied.

         I. FACTUAL & PROCEDURAL HISTORY

         Plaintiff filed her initial complaint in this court on September 29, 2015, as administratrix of the estate of her deceased husband, Michael Griffin. (See Doc. 1.) Plaintiff sought damages from Defendant under the Federal Tort Claims Act for alleged medical malpractice in Defendant's treatment of Mr. Griffin at a Department of Veterans Affairs hospital in Salisbury, North Carolina. (Id. ¶¶ II, XII, XL.) Specifically, Plaintiff alleges that, “[a]s a direct and proximate result of Defendant USA's agents' negligent care and treatment of Michael Griffin, Mr. Griffin's bladder cancer went undetected for an extended period of time.” (Id. ¶ XXX.) Plaintiff did not include a Rule 9(j) certification in her initial complaint.[1]

         Defendant then filed a motion to dismiss Plaintiff's complaint for failure to comply with North Carolina Rule of Civil Procedure 9(j), (Doc. 12), and a memorandum in support of that motion, (Doc. 13). Plaintiff filed an Amended Complaint, (Amended Complaint (“Am. Compl.”) (Doc. 14)), which was permitted pursuant to Fed.R.Civ.P. 15(a)(1)(A) within twenty-one days of the motion to dismiss. The Amended Complaint contains a Rule 9(j) certification and supporting affidavits. (Id. ¶ XLI, Exs. A & B.) Defendant moved to dismiss the Amended Complaint, incorporating its earlier arguments by reference. (See Docs. 17, 18.) Plaintiff responded, (Doc. 19), and Defendant replied, (Doc. 20). As described above, this court then stayed the case pending the final outcome of the Vaughan v. Mashburn case in state court. Both Plaintiff and Defendant filed supplemental pleadings addressing the Vaughan decision, (Docs. 33, 34), and Plaintiff filed a motion for leave to file an additional response brief, (Doc. 35).

         II. STANDARD OF REVIEW

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, the plaintiff must plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         When ruling on a motion to dismiss, this court must accept the complaint's factual allegations as true. Iqbal, 556 U.S. at 678. Further, “the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted). Despite this deferential standard, a court will not accept legal conclusions as true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at 678.

         III. ANALYSIS

         As an initial matter, Plaintiff “does not concede the Federal Tort Claims Act . . . requires a plaintiff filing an FTCA claim in federal court to comply with the North Carolina Rules of Civil Procedure, ” including Rule 9(j). (Am. Compl. (Doc. 14) ¶ XLI.) The Fourth Circuit has explicitly held, albeit in an unpublished opinion, that the Rule 9(j) certification requirement applies to an FTCA medical malpractice claim brought under North Carolina law. See Littlepaige v. United States, 528 Fed.Appx. 289, 292-93 (4th Cir. 2013). And this court has previously explained in detail why Rule 9(j) is applicable in the FTCA context. See Boula v. United States, No. 1:11CV366, 2013 WL 5962935, at *2 (M.D. N.C. Nov. 7, 2013). For the same reasons stated in Boula, this court finds that Rule 9(j) applies to this case.

         The next question is whether the North Carolina Supreme Court's holding in Vaughan compels the denial of Defendant's motion to dismiss here. In Vaughan, the plaintiff filed a lawsuit alleging medical malpractice but referred to an old version of North Carolina Rule 9(j) and therefore “omitted an assertion that all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry had been reviewed as required by the applicable rule.” Vaughan, 817 S.E.2d at 372 (internal quotations omitted). The plaintiff then moved for leave to file an amended complaint and an affidavit “indicating that [the plaintiff's medical expert had] reviewed plaintiff's medical care and related medical records before the filing of plaintiff's original complaint.” Id. at 373. The North Carolina Supreme Court reversed the trial court's denial of Plaintiff's motion for leave to amend and held as follows:

Because plaintiff's amended complaint corrected a technical pleading error and made clear that the expert review required by Rule 9(j) occurred before the filing of the original complaint, the amended complaint complied with Rule 9(j) and may properly relate back to the date of the original complaint under Rule 15(c).

Id. at 379-80. Specifically, the court emphasized that the Rule 9(j) certification process ÔÇťaverts frivolous actions by precluding any filing in the first place by a plaintiff who is unable to procure an expert who both meets the appropriate qualifications and, after reviewing the medical care and ...


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