United States District Court, S.D. West Virginia, Huntington Division
December 20, 2016
CHELSEA FOSTER, Administratrix of the Estate of JOSHUA OWEN STEWART, Plaintiff,
MOIRA A. TANNENBAUM, CNM, RN, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS CHIEF JUDGE.
before the Court is Defendant Moira A. Tannenbaum's
untimely Motion to Dismiss. ECF No. 8. Tannenbaum asserts
that Plaintiff Chelsea Foster did not comply with West
Virginia's pre-filing requirements for medical
malpractice cases and therefore the case should be dismissed.
brought this medical malpractice case after her son died from
complications during child birth in July 2015. Foster alleges
that Tannenbaum, a registered nurse midwife, breached the
standard of care when delivering her son. For the following
reasons the Court DENIES the Motion to
Virginia a plaintiff bringing a medical malpractice suit must
comply with certain pre-suit filing requirements. West
Virginia Code 55-7B-6 requires that a plaintiff “serve
by certified mail, return receipt requested” a notice
of claim on each healthcare provider that will be joined in
litigation at least thirty days before a suit is filed. The
notice must “include a statement of the theory . . . of
liability upon which a cause of action may be based”
and a “screening certificate of merit.” W.Va.
Code § 55-7B-6. The screening certificate of merit must
be completed by a healthcare expert and state the following:
(1) The expert's familiarity with the applicable standard
of care; (2) the expert's qualifications; (3) the
expert's opinion as to how the applicable standard of
care was breached; and (4) the expert's opinion as to how
the breach resulted in injury or death. Id.
March 15, 2016, Foster attempted to serve Tannenbaum via
certified mail with the notice of claim and a certificate of
merit at a Hurricane, West Virginia address found on the
“Find a Doctor” website curated by the Charleston
Area Medical Center. The return receipt stated that the mail
was unclaimed and could not be forwarded. As it happens, the
address to which the notice was sent was the address of a
medical practice for which Tannenbaum worked in 2014.
Tannenbaum was employed by a different medical center at the
time of the charged events.
April 16, 2016, Foster mailed the notice to Tannenbaum's
counsel. On April 28, 2016, Plaintiff's counsel phoned
Defendant's counsel to confirm that the Hurricane address
was the proper address for Tannenbaum. Plaintiff's
counsel affirms in an affidavit that Defendant's counsel
confirmed that the address was valid. Defendant's counsel
disputes the veracity of Plaintiff's counsel's
representation of the phone conversation. Defendant's
counsel maintains that she informed Plaintiff's counsel
that Tannenbaum was moving to Ann Arbor, Michigan and that
Tannenbaum may have practiced at the Hurricane address
sometime in the past.
on May 11, 2016, Tannenbaum was served with a summons and
complaint in this action at her residence in Michigan. It is
not clear from the briefing when or how Foster became aware
of Tannenbaum's residential address in Michigan.
filed this suit on May 2, 2016. Tannenbaum received service
of the summons and complaint on May 11, 2016. The Federal
Rules of Civil Procedure permits the defendant twenty-one
days to file a responsive pleading from the day he or she is
served. Fed.R.Civ.P. 12(1)(a)(i). Tannenbaum filed her
responsive pleading, the Motion to Dismiss, twenty-six days
after she was served. Tannenbaum did not include a motion for
leave of court to file out of time with her Motion to
Dismiss. On the same day Tannenbaum filed her Motion to
Dismiss, Foster filed a Motion for Default Judgment. The
Court denied the motion because Foster did not follow the
proper procedure for entering default against a defendant.
See Fed. R. Civ. P. 55. Rule 55(a) of the Federal
Rules of Civil Procedure requires that the moving party move
for and secure an entry of default before a default
judgment can be entered. Id.
Considering the Late-Filed Motion
an act . . . must be done within a specified time, the court
may, for good cause, extend the time on motion made
after the time has expired if the party failed to act because
of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B)
(emphasis added). “Unless another time is specified . .
. the time for serving a responsive pleading is within 21
days after being served with the summons and
complaint.” Fed R. Civ. P. 12(a)(1)(A)(i).
filed her Motion to Dismiss without an accompanying request
to file out of time nor did she attempt to make the showing
of excusable neglect that is required by the Federal Rules
for a court to consider late filings. Tannenbaum amazingly
believes that this Court's Order denying entry of default
judgment permitted Tannenbaum to file her Motion late. The
Court would like to disabuse the Defendant of that notion.
The effect of the Court's Order was, as is plainly stated
in the Order, to deny entry of default judgment because it
was procedurally improper. A defendant must first be found in
default before a court can enter default judgment
against the defendant. See Id. Thus, a motion for
default judgment before default has been entered is improper.
Id. The Court made no ruling concerning
Tannenbaum's Motion to Dismiss. Moreover, Tannenbaum
filed her Motion two days before the Court ruled on
Plaintiff's Motion. Tannenbaum, at the time of filing,
could not have misinterpreted an order that did not yet exist
to permit her to file her Motion late. The Court is under no
obligation to consider the Motion to Dismiss since Tannenbaum
has utterly failed to make the barest showing that her
obvious neglect was excusable.
the Fourth Circuit strongly favors the resolution of cases on
the merits and not on technical procedural grounds.
United States v. Shaffer Equip. Co., 11 F.3d 450,
453 (4th Cir. 1993). Where no prejudice results from the
belated filing courts are wont to consider it. See,
e.g., United States v. Mraz, 274 F.Supp.2d 750,
755-56 (D. Md. 2003) (court refused to enter default judgment
against defendant who answered three weeks late citing no
prejudice done to the government and the general preference
to resolve cases on their merits).
to consider the Motion to Dismiss would permit Foster to seek
default and default judgment, avoiding a resolution on the
merits-an outcome this Court will not sanction. See Malla
v. Rajamani, No. 1:08-cv-1319, 2009 WL 928689, at *1
(E.D. Va. Apr. 1, 2009). Moreover, Court does not believe any
prejudice befell Foster as a result of the late-filed Motion.
The Court, however, strongly encourages Defendant to observe
applicable Federal Rules, and where it cannot, request leave
of court. Accordingly, the Court will consider the Motion to
The Merits of the Motion to Dismiss
considering a motion to dismiss pursuant to Rule 12(b)(6), a
court follows a two-step approach: (1) “begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth,
” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009),
and then (2) “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
first step, the complaint must provide the plaintiff's
“grounds of . . . entitlement to relief” in more
factual detail than mere “labels and
conclusions.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotation marks omitted).
“[A] formulaic recitation of the elements of a cause of
action will not do.” Id. at 555. “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Iqbal, 556 U.S. at 679.
second step, a court must take the remaining factual
allegations in the complaint as true, and view them in the
light most favorable to the plaintiff. See Twombly,
550 U.S. at 555-56. The complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 555, 570 (internal quotation
marks omitted). Plausibility is established “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “The plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.” Id. (internal
quotation marks omitted).
Motion to Dismiss contends that Foster failed to comply with
West Virginia's pre-filing requirements for medical
malpractice suits in two ways: (1) Tannenbaum never received
the proper notice of the impending suit; and (2) the
screening notice is defective in a number of ways, and
therefore the suit should be dismissed. The Court will only
address Tannenbaum's first argument, the resolution of
which will resolve the Motion to Dismiss.
West Virginia Supreme Court of Appeals has explained the
purpose of West Virginia's pre-filing requirements as
twofold: “to prevent the making and filing of frivolous
medical malpractice claims and lawsuits; and to promote the
pre-suit resolution of non-frivolous medical malpractice
claims.” Hinchman v. Gillette, 618 S.E.2d 387,
394 ( W.Va. 2005). Of particular note, the Supreme Court of
Appeals held “[t]he requirement of a pre-suit notice of
claim and screening certificate of merit is not intended to
restrict or deny citizens' access to the courts.”
Id. The Court further instructed courts that when
determining whether a notice is legally sufficient, “a
principal consideration . . . should be whether a party . . .
defending the sufficiency of a notice . . . has demonstrated
a good faith and reasonable effort to further the statutory
purpose.” Id. at 395.
Supreme Court of Appeals has not had an occasion to rule on a
case that presents the same factual scenario as the parties
present to the Court here. Nonetheless, the Supreme Court of
Appeals' decision in Elmore v. Triad Hospitals
Inc., 640 S.E.2d 217 ( W.Va. 2006) (per curiam), is
instructive. There, a plaintiff bringing a medical
malpractice claim mailed the notice and screening certificate
to one of the defendant's workplaces. Id. at
219. Another employee signed for the papers and they were
placed in the internal delivery system to be delivered to the
defendant's workplace mailbox. Id. The defendant
did not receive the notice and screening certificate for five
days because he was working at another location. Id.
The plaintiff filed the case thirty-one days after the notice
was mailed. Id. The defendant finally received the
papers twenty-five days before suit was filed. Id.
Supreme Court of Appeals explained that the West Virginia
Legislature intended for the healthcare provider to be given
thirty days to evaluate the claim and determine whether to
invoke pre-suit mediation. Id. at 224. It went on to
hold that in light of its decision in Hinchman
warning courts not to use the notice requirements to deny
access to the courts, the trial court should not have
dismissed the case. Id. Rather, the trial court
should have stayed the case and permitted the parties the
choice to mediate the claim before the case proceeded in
court in order to honor the pre-suit requirements.
are, of course, differences between Elmore and this
case. In Elmore the defendant received notice,
albeit only twenty-five days, or so, before suit was filed.
Id. at 219. Here, it appears that Tannenbaum did not
receive notice until the suit was filed, completely obviating
the purpose of the pre-filing requirements. Yet, the Court
believes that Foster made a reasonable effort to further the
statutory purpose. The address to which she sent the notice
was, at one time, a proper address for Tannenbaum. Foster
also attempted to serve Tannenbaum through her counsel but
her counsel would not accept it. Tannenbaum's counsel was
not obligated to accept service of the notice, but
Foster's attempt to provide the notice to Tannenbaum
through her counsel shows a reasonable effort to further the
statutory purpose, as does her attempt to provide Tannenbaum
the notice at the Hurricane address.
important to this Court's decision to deny the Motion to
Dismiss is the Fourth Circuit's preference for cases to
be decided on the merits. Shaffer, 11 F.3d at 453.
The sentiment is equaled by the West Virginia courts.
Westmoreland v. Vaidya, 664 S.E.2d 90, 97 ( W.Va.
2008) (quoting Dimon v. Mansy, 479 S.E.2d 339,
344-45 ( W.Va. 1996)). In furtherance of this preference the
Supreme Court of Appeals has created a presumption that
assumes that when a medical malpractice case is dismissed for
a failure to comply with 55-7B-6 the dismissal is without
prejudice unless specifically stated otherwise. Davis v.
Mound View Health Care, Inc., 640 S.E.2d 91, 95 ( W.Va.
2006). The purpose the Court explained was to ensure that
55-7B-6 did not deny plaintiffs access to the courts for
simple procedural defects. Id.
this Court to grant the Motion to Dismiss, the Court would be
inclined to grant it without prejudice as the procedural
defect can be easily cured. And, the statute of limitations
will not bar Foster's claim until July 2017. See
W.Va. Code § 55-7B-4 (statute of limitations for medical
malpractice claim is two years). Consequently, the dismissal
would accomplish nothing except to waste the time and
resources of both parties.
result, the Court believes the most equitable result of
Tannenbaum's unpunctual Motion to Dismiss is to deny the
motion and stay the case such that Tannenbaum may have thirty
days to consider the claims against her and to invoke
mediation if desired. This outcome respects the purposes of
section 55-7B-6, while ensuring that the law does not
arbitrarily deny plaintiffs access to the courthouse.
Court also denies without prejudice Tannenbaum's
contention that Foster's screening certificate of merit
does not comply with West Virginia law. The Supreme Court of
Appeals in Hinchman v. Gillette determined that
during the thirty-day waiting period between service of the
notice and screening certificate and filing the case, the
defendant may inform the plaintiff of any objections to the
legal sufficiency of the notice and certificate. 618 S.E.2d
at 395. The plaintiff is then given a reasonable amount of
time, not to exceed thirty days, to respond to the
defendant's objections. Id. The defendant's
objections to the notice and certificate are thus preserved
for court review if the parties cannot resolve their
differences. Id. The stay in the case will permit
the parties to engage in this dialogue, and if the parties
cannot settle the case or even resolve their differences
about the sufficiency of the notice and certificate,
Tannenbaum may renew her motion to dismiss attacking the
legal sufficiency of the notice, and the parties may
otherwise continue this litigation.
Court DENIES the portion of the Motion to Dismiss, ECF No. 8,
based on Plaintiffs service of the notice of claim and
screening certificate of merit WITH PREJUDICE. The Court
DENIES the portion of the Motion to Dismiss, ECF No. 8, based
on the legal sufficiency of the notice of claim and screening
certificate of merit WITHOUT PREJUDICE. The Court further
STAYS the case for up to sixty days to permit Defendant time
to evaluate the claims against her, invoke mediation, or
object to the legal sufficiency of the notice of claim and
screening certificate of merit The parties shall inform the
Court of the status of the case at the end of thirty days. At
the conclusion of sixty days the parties shall make the
proper motion to either dismiss the case, resume it, or
request an additional stay. The stay will commence on January
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented parties.