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Foster v. Tannenbaum

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

December 20, 2016

CHELSEA FOSTER, Administratrix of the Estate of JOSHUA OWEN STEWART, Plaintiff,



         Pending 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.

         Foster 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 Dismiss.

         I. Factual Background

         In West 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.

         On 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.

         On 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.

         Nonetheless, 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.

         II. Procedural Background

         Foster 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.

         III. Discussion

         A. Considering the Late-Filed Motion

         “When 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).

         Tannenbaum 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 ...

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