Opinion
Civil No. 3:18-CV-190
04-01-2019
ONOFRIO POSITANO, Plaintiff v. GEISINGER-GMC, Defendant
( Judge Caputo)
( ) REPORT AND RECOMMENDATION
I. Statement of Fact and of The Case
This pro se prisoner civil rights lawsuit comes before us for consideration of a second motion to dismiss filed by the defendant, Geisinger Medical Center. (Doc. 33.) This motion to dismiss seeks dismissal of Positano's amended complaint. (Doc. 32.)
Positano's original complaint, (Doc. 1), recited that Onofrio Positano was a state inmate who was housed at the State Correctional Institution at Frackville in February of 2016. According to Positano, in mid-February 2016, he was transported to the Geisinger Medical Center for an "invasive" medical procedure, a cardiac catheterization. (Id., ¶ 5.) During this procedure, the medical resident performing the catheterization allegedly punctured Positano's femoral artery, causing internal bleeding, bruising, pain and a large hematoma (Id., ¶¶ 5-8.) Positano alleged that, notwithstanding this injury suffered during this medical procedure, Geisinger staff returned him to prison in an unstable medical condition, where he suffered severe pain and discomfort for over two weeks as a result of this hematoma. (Id., ¶¶ 9-15.)
On the basis of these averments, Positano brought a federal statutory claim against Geisinger, alleging a violation of the Emergency Medical Treatment and Labor Act (hereinafter referred to as "EMTALA"), 42 U.S.C. § 1395 dd, in that Positano asserted that Geisinger Medical Center improperly transferred him in an unstable condition to an unqualified facility. Positano also brought a state law negligence tort claim against the defendant. (Id., ¶¶ 16-18.) However, notably absent from Positano's complaint was any allegation that this initial medical procedure he underwent, the cardiac catheterization, was an emergency procedure, a legal requirement for an EMTALA claim.
Geisinger moved to dismiss this complaint. In connection with litigation of this first motion to dismiss, we notified Positano of his obligation to timely respond to pleadings and advised him in clear and precise terms that a failure to timely respond to a motion to dismiss could result in that motion being deemed unopposed and granted. (Doc. 19.) Ultimately, upon completion of the briefing of this first motion to dismiss, we found that Positano's original complaint failed as a matter of law to state a viable claim under EMTALA, and recommended that this motion to dismiss be granted without prejudice to Positano attempting to file an amended complaint. (Doc. 22.)
The district court adopted this Report and Recommendation, (Doc. 24), and after pursuing a feckless interlocutory appeal which was dismissed, Positano filed an amended complaint on February 22, 2019. (Doc. 32.) In this amended complaint Positano eschewed his prior federal statutory claim under EMTALA. (Id.) Instead, Positano's amended complaint proceeds exclusively upon state law breach of contract and tort theories. (Id.) Yet, while Positano brings these state law claims against Geisinger, his amended complaint plainly states that both the plaintiff and the defendant reside in Pennsylvania. (Id.)
Given that Positano has affirmatively pleaded that his state law claims are claims involving residents of a single state, Pennsylvania, the defendant has moved to dismiss this complaint for lack of jurisdiction. (Doc. 33.) The deadline for responding to this motion has now passed with the filing of a response by Positano. Therefore the motion will be deemed ripe, and for the reasons set forth below it is recommended that this motion to dismiss be granted.
II. Discussion
A. Motion to Dismiss Rule 12(b)(6) —Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged . . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must "'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely
consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.'"Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. Standard of Review , Motion to Dismiss for Lack of Subject Matter Jurisdiction, Rule 12(b)(1)
The defendant has also moved to dismiss Positano's amended complaint for lack of jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. See Id.; PBGC v. White, 998 F.2d 1192, 1196 (3d Cir.1993). In reviewing a factual attack, the court may consider evidence outside the pleadings. See Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.1997) (citing Mortensen, 549 F.2d at 891); Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (footnote omitted) holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
Here, the defendant's motion presents a factual attack upon subject matter jurisdiction, arguing that this court lacks jurisdiction over Positano's state law claims due to the plaintiff's failure to recite diversity of citizenship, a requirement for federal jurisdiction. When presented with such a fact-bound jurisdictional challenge are cautioned that:
A factual challenge contests the existence of subject matter jurisdiction, apart from any pleadings. Id. In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case," even where disputed material facts exist. Mortensen, 549 F.2d at 891. In a factual challenge, the plaintiff has the
burden of persuasion to show that jurisdiction exists. Gould, 220 F.3d at 178; Mortensen, 549 F.2d at 891. If the defendant presents evidence contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiff's allegations and the plaintiff may present facts by affidavit or deposition or in an evidentiary hearing. Gould, 220 F.3d at 177; Mortensen, 549 F.2d at 891, 893 n. 18. "[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination." Gould, 220 F.3d at 177.Moyer Packing Co. v. United States, 567 F. Supp. 2d 737, 748 (E.D. Pa. 2008).
C. This Motion Should Be Deemed Unopposed.
At the outset, under the Local Rules of this Court, the plaintiff should be deemed to concur in this motion to dismiss, since the plaintiff has failed to timely oppose the motion or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation,
shall be filed within twenty-one (21) days after service of the movant's brief.Local Rule 7.6 (emphasis added).
It is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency 'if a party fails to comply with the [R]ule after a specific direction to comply from the court.'" Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)). In this case, the plaintiff has not complied with the Local Rules as he has not filed a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the court to consider:
[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed. R. Civ. P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ...."Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D. Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: 'that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.'" Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiff has failed to comply with Local Rule 7.6 by filing a timely response to this motion to dismiss. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the plaintiff to not oppose the motion.
D. Positano's State Law Claims Brought Against a Pennsylvania Defendant Should Be Dismissed.
In any event, Positano's amended complaint fails to state a claim which can be addressed in federal court for a single, simple reason: with respect to Positano's state law contract, negligence and medical malpractice claims, the amended pro se complaint fails to allege state law claims between citizens of two different states. It is well-settled that federal courts are courts of limited jurisdiction. As a general rule, there are two primary grounds for federal district court jurisdiction over a civil lawsuit. First, "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States." 28 U.S.C. § 1332(a)(1). This ground of federal jurisdiction is known as diversity jurisdiction. The second principal ground for invoking the jurisdiction of a federal court is known as federal question jurisdiction. Under this ground of jurisdiction, "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
Here, with respect to these state law claims, the amended complaint does not allege any "civil actions arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331, giving rise to federal question jurisdiction. Instead, Positano simply brings state law contract, malpractice and negligence tort claims in federal court. However, the plaintiff may not assert federal jurisdiction over these state torts, since we can only exercise federal jurisdiction over such state law claims in "civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between - (1) citizens of different States." 28 U.S.C. § 1332(a)(1) (emphasis added). In the instant case, this court's diversity jurisdiction simply does not provide a basis for exercising jurisdiction over this particular controversy, since the amended complaint recites that the plaintiff and the defendant are all citizens and residents of Pennsylvania. Given that the complaint reveals on its face that this lawsuit is not between citizens of different states, the plaintiff may not invoke diversity jurisdiction in this matter.
In light of this basic jurisdictional flaw in this complaint, we conclude that state tort claims set forth in this pleading simply do not meet the requirements prescribed by law for a federal lawsuit, since "the facts alleged in the complaint are [not] sufficient to show that the plaintiff has a 'plausible claim for relief,' " Fowler, 578 F.3d at 210-11, in federal court under this court's diversity jurisdiction. Indeed, at present, the complaint does not even contain "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), since the complaint actually seems to demonstrate on its face that federal jurisdiction does not lie here. In fact, this court has previously held that Pennsylvania residents may not maintain state law malpractice lawsuits against Pennsylvania doctors in federal court. In dismissing and refusing to reinstate a similar lawsuit, this court noted in terms that are equally applicable here that:
Plaintiff's Complaint indicates that both he and Defendant D[octor] are located and domiciled in Pennsylvania. Thus, there is not diversity jurisdiction over this action because 'complete diversity is lacking when the plaintiff is a citizen of one state and a defendant is a citizen of that same state.' Brett v. Brett, No. 12-3301, 2012 WL 5450879, at *1 (3d Cir. Nov. 8, 2012) (citing Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010)).Boldrini v. Bruno, No. CIV.A. 3:11-1401, 2013 WL 619610, at *2 (M.D. Pa. Feb. 19, 2013). Consequently, we have consistently concluded that where a pro se complaint brings state law claims and reveals on its face that there is no diversity of citizenship, screening dismissal of that pleading in favor of state court litigation is entirely appropriate. See e.g., AMALIA KLINE, Plaintiff, v. JESSE KLINE JR., et al., Defendants, No. 4:18-CV-2095, 2018 WL 6005458, at *6 (M.D. Pa. Oct. 31, 2018), report and recommendation adopted sub nom. AMALIA CRINA CARJAN KLINE, Plaintiff, v. JESSE KLINE, JR., THERESA MARIE PAGE LISA WOJOCHOWSKI, & LINDA COLLINS MINTZER, Defendants., No. 4:18-CV-02095, 2018 WL 5994406 (M.D. Pa. Nov. 15, 2018); Baker v. Leitzel, No. 1:18-CV-1366, 2018 WL 3640419, at *3 (M.D. Pa. July 11, 2018), report and recommendation adopted, No. 1:18-CV-1366, 2018 WL 3631289 (M.D. Pa. July 31, 2018); Mendez v. Strohlein, No. 3:17-CV-1141, 2017 WL 3084104, at *3 (M.D. Pa. June 29, 2017), report and recommendation adopted, No. 3:17-CV-1141, 2017 WL 3084094 (M.D. Pa. July 19, 2017).
This conclusion that non-diverse parties may not maintain a state law contract and malpractice claim in federal court applies here as well, and compels dismissal of this complaint. Yet, while these allegations do not state grounds for a lawsuit in federal court, this does not mean that Positano has no legal remedies available to him. Positano may bring these claims in state court. Those courts certainly stand ready to hear his claims. Martinez v. Ibrahim, No. 4:18-CV-2291, 2018 WL 6985120, at *3-4 (M.D. Pa. Nov. 30, 2018), report and recommendation adopted sub nom. Martinez v. Geisinger Hosp., No. 4:18-CV-02291, 2019 WL 144971 (M.D. Pa. Jan. 9, 2019). However, these claims may not proceed in federal court, a court of limited jurisdiction, and this state law claim involving non-diverse parties should be dismissed.
III. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the motion to dismiss the plaintiff's amended complaint (Doc. 33) be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or
where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 1st day of April 2019.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge