Wilson v. USA

Filing 88

ORDER finding as moot 63 Motion for Summary Judgment; granting 69 Motion to Amend/Correct: For the reasons delineated in the attached order, the Court GRANTS Plaintiff's Motion to Amend/Correct the Amended Complaint and MOOTS Defendant' s Motion for Summary Judgment. The Court also PROVIDES Defendant United States 10 days after the Plaintiff files her Amended Complaint to refile any crossclaims as needed as a result of the filing. Signed by Magistrate Judge Gilbert C. Sison on 1/19/2023.(kbh)

Case 3:20-cv-01216-GCS Document 88 Filed 01/19/23 Page 1 of 6 Page ID #240

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DONNA WILSON,
Plaintiff,
vs.
USA, SSM MEDICAL GROUP, and
BANDY’S PHARMACY, INC.,
Defendants.

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Case No. 3:20-cv-01216-GCS

MEMORANDUM & ORDER
SISON, Magistrate Judge:
Pending before the Court are Defendant SSM Medical Group’s Motion for
Summary Judgment and Plaintiff’s Motion to Amend/Correct the Amended Complaint.
(Doc. 63, 69). Upon review of both Motions and the respective responses, the Court
GRANTS Plaintiff’s Motion to Amend/Correct the Amended Complaint (Doc. 69) and
MOOTS Defendant’s Motion for Summary Judgment (Doc. 63).
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Donna Wilson, Special Administrator of the Estate of Quinton A. Zapp,
filed her initial complaint on November 9, 2020, alleging that Defendant, United States of
America, by and through its employee physicians, acted negligently and carelessly by
proscribing and filling a prescription of Seroquel for 850mg daily (in excess of the
maximum daily dosage) and later allowing an early refill of that prescription of 120 pills.
(Doc. 1, p. 2). Plaintiff alleges that as a direct and proximate cause of the negligent acts

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that Quinton A. Zapp died on April 17, 2019. Id. On February 18, 2021, Plaintiff filed an
Amended Complaint adding SSM Medical Group (“SSM”) and Dr. Richard Ernst
(“Ernst”) as defendants asserting that they also acted negligently in proscribing and
filling the 850mg Seroquel prescription and by authorizing the early refill of the
medication at an improper dosage. (Doc. 18, p. 7-8).
District Judge Stephen P. McGlynn entered an Order on March 16, 2022,
dismissing Ernst because Plaintiff failed to serve him with a complaint within the 90-day
deadline for service (“90-day rule”) in accordance with Federal Rule of Civil Procedure
4(m). See FED. R. CIV. PROC. 4(m). Defendant SSM Medical Group then filed its Motion for
Summary Judgment on May 16, 2022. (Doc. 63). Plaintiff timely responded in opposition
on June 17, 2022. (Doc. 66). In light of Ernst’s dismissal from the action, Plaintiff filed a
Motion to Amend/Correct the Amended Complaint requesting that Plaintiff be allowed
to state a direct negligence claim against SSM. (Doc. 69). Defendants SSM and Bandy’s
Pharmacy, Inc. filed a response in opposition to the Motion and a response to the Motion
respectively on August 10, 2022. (Doc. 77, 78).
LEGAL STANDARDS
Rule 15 of the Federal Rules of Civil Procedure governs amended complaints. See
FED. R. CIV. PROC. 15. A complaint may be amended as a matter of course within 21 days
after serving it, or “if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading.” FED. R. CIV. PROC. 15(a)(1). In all other cases,
a party may only amend its pleadings with written consent of the opposing party or with

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leave of the Court. See FED. R. CIV. PROC. 15(a)(2). Leave, however, should be given freely
when justice so requires. Id.
DISCUSSION

In Plaintiff’s Motion to Amend/Correct the Amended Complaint, Plaintiff
requests that she be permitted to amend her complaint to include an independent
negligence claim against SSM, separate from the allegations previously made against
Ernst. (Doc. 69, p. 1-2). Additionally, in Plaintiff’s Response in Opposition to Defendant
SSM’s Motion for Summary Judgment, Plaintiff argues that the dismissal of Ernst should
be vacated under Rule 60 because Rule 4(m) of the Federal Rules of Civil Procedure does
not apply to service in a foreign country.1 (Doc. 66, p. 10). Vacating the March 16, 2022
Order dismissing Ernst would be improper because the dismissal was issued without
prejudice, and it is therefore not a final order. The Court, however, finds that justice
requires the Court to allow Plaintiff the opportunity to pursue foreign service of Ernst in
Thailand in accordance with Rule 4(f) of the Federal Rules of Civil Procedure. See FED. R.
CIV. PROC. 4(f). Therefore, the Court will permit Plaintiff to amend her complaint to not
only include the independent negligence allegations against SSM, but also to restate the
negligence allegations against Ernst.

1
Rule 4(m) of the Federal Rules of Civil Procedure states the following: “[i]f a defendant is not
served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the
plaintiff--must dismiss the action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period. Subdivision (m) does not apply to service in a foreign country under
Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).” FED. R. CIV. PROC. 4(m).

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As Plaintiff will likely pursue international service of Ernst, the Court reminds the
parties to bear in mind the costs of such service as they move forward. Under Federal
Rule of Civil Procedure 4(d)(1), “an individual, corporation, or association that is subject
to service under Rule 4(e), (f) or (h) has a duty to avoid unnecessary expenses of serving
the summons.” FED. R. CIV. PROC. 4(d)(1). Further, Rule 4(d)(2) states the following:
If a defendant located within the United States fails, without good cause, to
sign and return a waiver requested by a plaintiff located within the United
States, the Court must impose on the defendant:
(A)

the expenses later incurred in making service; and

(B)

the reasonable expenses, including attorney’s fees, of any
motion required to collect those service expenses.

FED. R. CIV. PROC. 4(d)(2). While the text of Rule 4(d)(2) does not explicitly include foreign
defendants on its face, defendants still possess an obligation to waive service in
accordance with their duty to avoid unnecessary expenses of serving summons per Rule
4(d)(1). The 1993 Advisory Committee’s notes illustrate this point. The Advisory
Committee stated that Rule 4(d):
operates to impose upon the defendant those costs that could have been
avoided if the defendant had cooperated reasonably in the manner
prescribed. This device is useful in dealing with defendants who are furtive,
who reside in places not easily reached by process servers, or who are outside
the United States and can be served only at substantial and unnecessary expense.”

See Rule 4(d) Advisory Committee Note (1993) (emphasis added). This implies, that while
there is not a per se obligation for courts to impose costs on a foreign defendant who fails

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to waive foreign service, the Court may possess discretion to assign the substantial costs
of foreign service to those defendants that fail to waive.
Additionally, while the 90-day rule does not apply to foreign service, the Court
must retain its ability to control its docket and to impose time limits on the period for
service. See Nylok Corp. v. Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005) (citing
O'Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 952 (7th Cir. 2000)). Therefore, the
Court shall provide Plaintiff with an additional 90 days to serve Plaintiff in Thailand after
the filing of the Amended Complaint. That time period may be extended accordingly if
good cause is shown for any delay. See, e.g., Lang Vo Tran v. Illinois Dep't of Corr., Civil
No. 09-302-GPM, 2011 WL 589833, at *1 (S.D. Ill. Feb. 10, 2011)(noting that where a
plaintiff makes no attempt to begin the process of foreign service within the specified
deadline that it may be proper for a court to dismiss the claim).
With respect to Plaintiff’s Motion to Amend/Correct the Amended Complaint, the
Court GRANTS the motion. The Court provides Plaintiff with 21 days to file an
Amended Complaint where she should further elaborate the independent negligence
claim against Defendant SSM. As Defendant SSM points out in its opposition to Plaintiff’s
Motion to Amend/Correct the Amended Complaint, the Court reminds Plaintiff to state
her independent negligence claim against Defendant SSM to identify any alleged
independent misconduct by SSM that rises to the level of negligence. (Doc. 77, p. 3-4).
Plaintiff should also restate her claim against Defendant Ernst with the Amended
Complaint. The Court also PROVIDES Defendant United States 10 days after Plaintiff

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files her Amended Complaint to refile any crossclaims as are needed as a result of the
filing.
Lastly, the Court finds that Defendant SSM’s Motion for Summary Judgment (Doc.
63) is MOOT given that Plaintiff’s Motion to Amend/Correct the Amended Complaint
(Doc. 69) has been granted.
CONCLUSION
For the above stated reasons, the Court GRANTS Plaintiff’s Motion to
Amend/Correct the Amended Complaint (Doc. 69) and MOOTS Defendant’s Motion for
Summary Judgment (Doc. 63).
IT IS SO ORDERED.
DATED: January 19, 2023.

Digitally signed by Judge Sison 2
Date: 2023.01.19 09:59:39 -06'00'

____________________________________
GILBERT C. SISON
United States Magistrate Judge

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