United States District Court, S.D. West Virginia, Huntington Division
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,