Shah, DO v. HCA South Atlantic et al

Filing 56

ORDER denying 42 Defendant ICC's Notice of Striking Exhibits, construed as a Motion to Strike, without prejudice for failure to comply with Local Rule 3.01(g); denying 46 Plaintiff's Motion for Leave to File. To the extent 47 and 51 Plaintiff's Responses seek leave to amend the Amended Complaint, such request is DENIED, without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 4/13/2015. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PURVIN SHAH, DO,
Plaintiff,
v.

Case No. 3:14-cv-1081-J-34JRK

ORANGE PARK MEDICAL CENTER, and
INTENSIVE CARE CONSORTIUM, INC.,
Defendants.
_____________________________________/
ORDER
THIS CAUSE is before the Court on several matters. On December 9, 2014, with
leave of Court, Plaintiff Purvin Shah, DO (Shah) filed Plaintiff’s First Amended Complaint and
Jury Demand (Doc. 33; Amended Complaint). Defendants Orange Park Medical Center, Inc.
(OPMC) and Intensive Care Consortium, Inc. (ICC) filed motions to dismiss the Amended
Complaint on January 9, 2015.

See Defendant Orange Park Medical Center, Inc.’s

Dispositive Motion to Dismiss Amended Complaint (Doc. 40; OPMC Motion); Defendant
Intensive Care Consortium, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint
(Doc. 41; ICC Motion). Shah filed responses in opposition to the Motions on January 30,
2015. See Plaintiff’s Response and Brief in Opposition to Defendant Orange Park Medical
Center, Inc.’s Motion to Dismiss (Doc. 47; Response to OPMC); Plaintiff’s Response and
Opposition to Defendant Intensive Care Consortium, Inc.’s Motion to Dismiss (Doc. 51;
Response to ICC). In addition, on January 29, 2015, Shah filed Plaintiff’s Motion for Leave
of Court to File Affidavits in Support of Plaintiff’s Response and Opposition to Defendants,
Orange Park Medical Center, Inc.’s and Intensive Care Consortium, Inc’s Motions to Dismiss

(Doc. 46; Motion for Leave). In the Motion for Leave, Shah requests leave to file four
affidavits in support of his Responses to the Motions to Dismiss. OPMC and ICC oppose
the Motion for Leave. See Defendants’ Response to Plaintiff’s Motion for Leave of Court to
File Affidavits in Support of Plaintiff’s Response to Defendants’ Motion to Dismiss (Doc. 50;
Response to Motion for Leave), filed January 30, 2015.
The Court first notes that Shah fails to include a memorandum of law in support of the
Motion for Leave, as required by Local Rule 3.01(a), United States District Court, Middle
District of Florida (Local Rule(s)).1 As such, the Court could deny the Motion for Leave on
this basis alone. Nonetheless, upon review of the Motion for Leave, the Court determines
that the Motion is due to be denied because it is without merit. The Motions to Dismiss are
brought pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)), and are
premised on the argument that the Amended Complaint fails to state a claim upon which
relief can be granted. See OPMC Motion at 1; ICC Motion at 1. Both Motions concern the
sufficiency of the allegations in the Amended Complaint and do not rely on any evidence
external to the Amended Complaint to support the legal arguments presented.2 See
1

Local Rule 3.01(a) provides that:

In a motion or other application for an order, the movant shall include a concise statement of
the precise relief requested, a statement of the basis for the request, and a memorandum of
legal authority in support of the request, all of which the movant shall include in a single
document not more than twenty-five (25) pages.
See Local Rule 3.01(a) (emphasis added).
2

The OPMC Motion does attach two exhibits. However, Exhibit A concerns a collateral matter, not
relevant to the legal arguments raised, and Exhibit B is a letter that Shah attached to the original Complaint.
See Plaintiff’s Complaint and Jury Demand (Doc. 1), Ex. A. Although the Amended Complaint cites to this
document as well, the letter was not included with that filing, apparently by mistake. See Amended Complaint
¶ 106. As such, OPMC filed this document with its Motion for ease of reference. See OPMC Motion at 8 n.7;
see also Response to Motion for Leave at 2 n.1. ICC attaches these same exhibits to its Motion, however it
(continued...)
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generally OPMC Motion; ICC Motion. When reviewing a Rule 12(b)(6) motion to dismiss for
failure to state a claim, “a court must limit its consideration to the complaint, the written
instruments attached to it as exhibits, ‘documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.’” See Jozwiak v. Stryker
Corp., No. 6:09-cv-1985-Orl-19GJK, 2010 WL 743834, at *2 (M.D. Fla. Feb. 26, 2010)
(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). If matters
outside the pleadings are presented on a Rule 12(b)(6) motion to dismiss, the Court must
either exclude the materials or treat the motion as one for summary judgment under Rule 56.
See Rule 12(d). Under the circumstances presented here, because discovery is ongoing
and the evidentiary record is still being developed, the Court finds it inappropriate to convert
the instant Motions to Dismiss into motions for summary judgment under Rule 56.3 See
Jozwiak, 2010 WL 743834 at *4. Accordingly, at this stage of the proceedings, the Court will
not consider the affidavits that Shah submitted and will deny the Motion for Leave.

2

(...continued)
appears that ICC did so inadvertently. See Defendant Intensive Care Consortium, Inc.’s Notice of Striking
Exhibits 41-1 and 41-2 to Docket Entry 41, Intensive Care Consortium, Inc.’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 42). Because one exhibit is not relevant to the legal arguments, and the other is a
document incorporated into the Amended Complaint, this evidence does not warrant converting the Motions
to Dismiss into motions for summary judgment, as discussed below.
3

Indeed, Shah states in his Motion for Leave that he “will be unable to respond to OPMC’s and ICC’s
allegations contained in their motions without being allowed to conduct discovery and depositions.” See Motion
for Leave at 2. Shah appears to fundamentally misunderstand the purpose of a Rule 12(b)(6) motion to dismiss.
Motions to dismiss for failure to state a claim test the sufficiency of the allegations in the subject complaint. See
McGowan v. Homeward Residential, Inc., 500 F. App’x 882, 884 (11th Cir. 2012). In considering the Motions
to Dismiss, the Court will accept the allegations in the Amended Complaint as true and construe all reasonable
inferences in Shah’s favor. See Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006). As
such, Shah need not submit evidence to support those allegations at this stage in the proceedings. To the
extent Shah is attempting to use the affidavits to supplement the allegations in the Amended Complaint, this
tactic is inappropriate. If Shah believes additional allegations are necessary to adequately state his claims, then
he should seek leave to file an amended complaint.
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In addition, upon review of Shah’s Response to OPMC and Response to ICC, the
Court notes that within the body of the Responses, Shah seeks leave to amend the
Amended Complaint. See Response to OPMC (Doc. 47) at 16; Response to ICC (Doc. 51)
at 12. Although not addressing the merits of the arguments presented at this time, the Court
takes the opportunity to advise Shah that the inclusion of these requests for affirmative relief
in the Responses rather than filing a motion is improper. See Rule 7(b)(1); see also
Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file
an amended complaint simply is imbedded within an opposition memorandum, the issue has
not been raised properly.”) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir.
1999)). Moreover, Shah has failed to comply with Local Rule 3.01(g) with respect to the
request to amend the Amended Complaint. Accordingly, the request to amend the Amended
Complaint is not properly before the Court and will not be considered. If Shah believes that
a second amended complaint may cure the alleged deficiencies identified by OPMC and
ICC, he may file an appropriate motion seeking this relief, if necessary,4 after complying with
Local Rule 3.01(g).
Finally, the Court notes that on January 9, 2015, ICC filed Defendant Intensive Care
Consortium, Inc.’s Notice of Striking Exhibits 41-1 and 41-2 to Docket Entry 41, Intensive
Care Consortium, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 42;

4

Even if it were proper to include a request for leave to amend in a response, the request would
otherwise be denied based upon Shah’s failure to satisfy the requirement that “[a] motion for leave to amend
should either set forth the substance of the proposed amendment or attach a copy of the proposed amendment.”
Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also McGinley v. Fla. Dep't of Highway Safety and
Motor Vehicles, 438 F. A’ppx 754, 757 (11th Cir. 2011) (affirming denial of leave to amend where plaintiff did
not set forth the substance of the proposed amendment); United States ex. rel. Atkins v. McInteer, 470 F. 3d
1350, 1361-62 (11th Cir. 2006) (same).
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Notice), which the Court construes as a motion to strike. In the Notice, ICC requests that the
Court strike Exhibits A (Doc. 41-1) and B (Doc. 41-2) to its Motion to Dismiss because “the
exhibits were inadvertently filed” with the ICC Motion and “are not pertinent to ICC’s Motion
to Dismiss.” See Notice at 1. However, ICC failed to provide certification under Local Rule
3.01(g), confirming that it has conferred with Shah in a good faith effort to resolve the issue
raised by the Notice and advising the Court whether Shah agrees to the relief requested.
Therefore, as ICC has failed to comply with the Local Rules, its request will be denied
without prejudice. Accordingly, it is
ORDERED:
1.

Plaintiff’s Motion for Leave of Court to File Affidavits in Support of Plaintiff’s
Response and Opposition to Defendants, Orange Park Medical Center, Inc.’s
and Intensive Care Consortium, Inc’s Motions to Dismiss (Doc. 46) is DENIED.

2.

To the extent Plaintiff’s Response and Brief in Opposition to Defendant Orange
Park Medical Center, Inc.’s Motion to Dismiss (Doc. 47), and Plaintiff’s
Response and Opposition to Defendant Intensive Care Consortium, Inc.’s
Motion to Dismiss (Doc. 51) seek leave to amend the Amended Complaint,
such request is DENIED, without prejudice.

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3.

Defendant Intensive Care Consortium, Inc’s Notice of Striking Exhibits 41-1
and 41-2 to Docket Entry 41, Intensive Care Consortium, Inc.’s Motion to
Dismiss Plaintiff’s First Amended Complaint, construed as a Motion to Strike,
is DENIED, without prejudice, for failure to comply with Local Rue 3.01(g).

DONE AND ORDERED at Jacksonville, Florida, this 13th day of April, 2015.

lc11
Copies to:
Counsel of Record
Pro Se Parties

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