Redding v. Ameriprise et al
Filing
22
MEMORANDUM OPINION (c/m to Plaintiff 4/13/12 sat). Signed by Chief Judge Deborah K. Chasanow on 4/13/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JAMES REDDING
:
v.
:
Civil Action No. DKC 11-3141
:
AMERIPRISE AUTO &
HOME INSURANCE, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this action
are motions (1) to dismiss by Defendants Ameriprise Auto & Home
Insurance
(“Ameriprise”),
Neurocare
Associates,
LLC
(“Neurocare”),1 and Rosa Rehab, LLC (“Rosa Rehab”) (ECF Nos. 4,
6,
13),
and
(2)
to
dismiss
or,
alternatively,
for
summary
judgment by Defendant Peter Mann (ECF No. 11).
Also pending are
two papers filed by Plaintiff James Redding:
(1) a motion for
leave to file supplemental appendix (ECF No. 19), and (2) a
surreply
that
dismissal
of
will
the
be
construed
complaint
as
against
a
motion
Mr.
Mann
for
voluntary
pursuant
to
Fed.R.Civ.P. 41(a)(2) (ECF No. 20).
The relevant issues have been briefed, and the court now
rules pursuant to Local Rule 105.6, no hearing being deemed
1
Neurocare filed a Statement of Corporate Affiliation and
Financial Interest pursuant to Local Rule 103.3, stating that it
was misnamed in the complaint and that its proper name is
Neurocare Associates, P.A.
(ECF No. 7).
The clerk will be
directed to change Neurocare’s name on the docket accordingly.
necessary.
For the reasons that follow, the motions to dismiss
filed by Ameriprise, Neurocare, and Rosa Rehab will be granted,
as will Plaintiff’s request for voluntary dismissal as to Mr.
Mann.
Plaintiff’s
motion
for
leave
to
file
a
supplemental
appendix will be denied, and Mr. Mann’s motion to dismiss or,
alternatively, for summary judgment will be denied as moot.
I.
Background
A.
Factual Background
The following limited facts are either asserted or can be
inferred
from
Plaintiff’s
sparse
complaint.
Around
2004,
Plaintiff was involved in an automobile accident and suffered
injuries to his back.
surgery
at
Neurocare.2
He subsequently underwent cervical disc
Several
months
after
his
surgery,
Neurocare directed him to undergo “lower back therapy” at Rosa
Rehab.
(ECF No. 1, at 5).
Neurocare’s instructions to Rosa
Rehab specifically “excluded neck manipulation.”
(Id.).
On
November 5, 2008, Dr. Aekta Erry, a physician at Rosa Rehab,
entered the chiropractic services room and “immediately began
jerking Plaintiff’s head from side to side while Plaintiff was
2
Plaintiff later learned that Neurocare had “placed its
patients at risk” by violating several of Maryland’s “Radiation
Management” regulations with regard to its use of radiation
machines. (ECF No. 1, at 5).
Plaintiff’s complaint does not contain numbered paragraphs
or page numbers.
Accordingly, the page numbers cited here are
those provided by the ECF system.
2
laying on his back.”
(Id.).
“Any relief that Plaintiff had
acquired from Neurocare[’s] . . . [prior] surgical procedure was
destroyed.”
(Id. at 6).
Plaintiff’s
left
arm
Indeed, Dr. Erry’s procedure “caused
to
atrophy
and
weaken,”
“damage[d]
Plaintiff’s cervical discs,” and added to Plaintiff’s “ongoing
medical costs.”
Neurocare
for
(Id.).
When Plaintiff attempted to contact
follow-up
medical
care,
it
refused
due
to
“biomedical contamination issues” as well as complaints about
Dr. Erry’s actions.
In
addition
Plaintiff
and
to
(Id.).
these
Ameriprise,
events,
litigation
Plaintiff’s
company, following the accident.
ensued
automobile
between
insurance
Mr. Mann represented Plaintiff
during part of this litigation, and the parties entered into a
binding arbitration agreement to resolve Plaintiff’s outstanding
claims.
the
According to Plaintiff, Ameriprise “refused to honor”
agreement
when
it
“knowingly
engaged
in
a
conflict
of
interest by acquiring the services of a public officer with
alleged past business relationships” with its law firm.
4).
(Id. at
Plaintiff fired Mr. Mann for “fail[ing] to alert” him about
this conflict.
(Id.).
Although Plaintiff requested that Mr.
Mann return all case documents to him after terminating the
representation, Mr. Mann refused to do so.
3
B.
Procedural Background
On November 3, 2011, Plaintiff, proceeding pro se, filed a
three-count
complaint
in
this
court
Neurocare, Rosa Rehab, and Mr. Mann.
against
Ameriprise,
In count one, he alleges
fraud against Ameriprise; in count two, he alleges a claim for
“breach of fiduciary duty” against Mr. Mann;3 and in count three,
he alleges negligence claims against Neurocare and Rosa Rehab.
Plaintiff
seeks
$500,000
in
damages,
an
injunction
against
Neurocare to “repeat Plaintiff’s surgical procedure without cost
to Plaintiff, and the return of Plaintiff’s documents from Mr.
Mann,”
and
[Ameriprise]
for
to
the
court
transfer
all
to
“[o]rder
future
American
charitable
Express
contributions
from District of Columbia churches to: Paralyzed Veterans of
America organizations.”
(Id. at 7).
On December 14, 2011, Ameriprise filed a motion to dismiss
for failure to state a claim.
(ECF No. 4).
Two weeks later,
Neurocare moved to dismiss on the ground that Plaintiff had
3
The allegations in count two briefly reference Ameriprise,
but they only appear to do so in an effort to clarify
Plaintiff’s claim against Mr. Mann.
Ameriprise interprets the
complaint in this manner, moving to dismiss the entire complaint
against it by arguing that count one (but not count two) fails
to state a claim.
Plaintiff responds by opposing Ameriprise’s
request for dismissal, but he does so only by asserting that
count one asserts a plausible cause of action.
Accordingly,
count two will be construed as asserting a breach of duty claim
against Mr. Mann only.
4
failed to file his medical malpractice claim with the Health
Care
Alternative
bringing
suit,
Dispute
as
Resolution
required
by
Office
the
(“HCADRO”)
Maryland
before
Health
Care
Malpractice Claims Act, Md. Code Ann., Cts. & Jud. Proc. §§ 32A-01 et seq.
filed
“Opposition
to
On December 30, 2011, Plaintiff
to
Dismiss,”
addressing only the arguments raised by Ameriprise.
(ECF No.
9).
an
(ECF No. 6).4
Defendants’
Motion
Neurocare replied to Plaintiff’s opposition approximately
three weeks later.
(ECF No. 17).
Ameriprise has not filed a
reply.
On January 3, 2012, Mr. Mann filed a motion to dismiss or,
in the alternative, for summary judgment on Plaintiff’s claim
for “breach of fiduciary duty.”
(ECF No. 13).
In the motion,
Mr. Mann asserted that he had made Plaintiff’s files available
for pick-up at an earlier date, and that Plaintiff had failed to
retrieve
them.
Plaintiff
subsequently
opposed
Mr.
Mann’s
motion, but stated that he would “immediately present a motion
to dismiss the complaint against Mr. Mann” if Mr. Mann would
promptly provide him with those files.
(ECF No. 15, at 3).
On
January 19, 2012, Mr. Mann replied to Plaintiff’s opposition,
noting that he had provided Plaintiff with all of his files as
4
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), the court mailed a notice to Plaintiff after each
Defendant had filed a dispositive motion.
(ECF Nos. 5, 8, 12,
14).
5
requested.
“reply
to
Approximately
[Mr.
Mann]’s
one
week
reply”
and
later,
Plaintiff
requested
that
filed
the
a
court
“enter an Order dismissing Plaintiff’s Complaint against” Mr.
Mann.
(ECF No. 20, at 1-2).
During this time, Rosa Rehab also filed a motion to dismiss
Plaintiff’s
medical
Neurocare.
On January 19, 2012, Plaintiff filed a document “in
opposition
to
malpractice
Defendant’s
motion
claim
to
on
the
dismiss,”
same
ground
addressing
as
the
merits of Rosa Rehab’s argument regarding his failure to comply
with the Maryland Health Care Malpractice Claims Act.
18, at 1).
(ECF No.
He simultaneously submitted a “motion for leave to
file supplemental appendix,” which included a letter from the
Department of Health and Mental Hygiene (“DHMH”) regarding a
2008 complaint he had filed against Dr. Erry.
(ECF No. 19).
January
another
26,
2012,
Plaintiff
filed
yet
On
document
specifically opposing “Rosa Rehab’s Motion to Dismiss,” which
presented additional arguments regarding applicability of the
Maryland Health Care Malpractice Claims Act.
5
(ECF No. 21).5
Plaintiff filed this supplemental brief within the time
period set forth in Local Rule 105(2)(a) and Federal Rule of
Civil Procedure 6(d).
Accordingly, the arguments presented
therein will be considered when resolving Rosa Rehab’s motion to
dismiss.
6
II.
Plaintiff’s Request to Dismiss Mr. Mann From This Action
Will Be Granted
In his complaint, Plaintiff requested that Mr. Mann return
all files relating to his automobile accident.
returned
those
files,
Plaintiff
requested
After Mr. Mann
that
the
“dismiss[] Plaintiff’s Complaint against” Mr. Mann.
20, at 1-2).
court
(ECF No.
Given the nature of Plaintiff’s request, this
filing will be construed as a motion for voluntary dismissal
made pursuant to Federal Rule of Civil Procedure 41(a).
Despite
the
use
of
the
word
“action”
in
the
Rule,
a
majority of courts – including this court and others throughout
the
Fourth
Circuit
–
have
permitted
plaintiffs
to
move
for
voluntary dismissal of fewer than all defendants pursuant to
Rule 41(a).
See, e.g., Wilson v. City of San Jose, 111 F.3d
688, 692 (9th Cir. 1997) (concluding that a plaintiff may move
under Rule 41(a) to dismiss “some or all of the defendants” in a
case); DirecTV, Inc. v. Benson, 333 F.Supp.2d 440, 443 & n.3
(M.D.N.C. 2004) (using Rule 41 to dismiss only one defendant
from a case and noting that the Fourth Circuit had accepted this
approach “sub silentio” (citing Manning v. S.C. Dep’t of Highway
& Pub. Transp., 914 F.2d 44, 46 (4th Cir. 1990))); Ownby v.
Cohen, No. A. 3:02CV00034, 2002 WL 1877519, at *3 & n.1 (W.D.Va.
Aug.
15,
2002)
(citing
Wright
&
Miller,
supra,
for
the
proposition that a plaintiff may dismiss an action against fewer
7
than all defendants by filing a Rule 41(a) motion); Eniola v.
Leasecomm Corp., 214 F.Supp.2d 520, 523 (D.Md. 2002) (permitting
dismissal
of
only
one
defendant
pursuant
to
Rule
41(a)(1));
Leroux v. Lomas & Nettleton Co., 626 F.Supp. 962, 965 (D.Mass.
1986) (“[W]here Rule 41 speaks of an ‘action,’ this means all of
the claims against any one defendant, and not necessarily all of
the claims against all defendants.”).
Here, Mr. Mann had filed
a motion to dismiss or, alternatively, for summary judgment –
which he supported with several exhibits - prior to Plaintiff’s
motion for voluntary dismissal.
Thus, Rule 41(a)(2) applies.
Rule 41(a)(2) provides that “an action may be dismissed at
the plaintiff’s request only by court order, on terms that the
court considers proper.”
voluntary
dismissals
prejudiced.”
The purpose of this rule is “to allow
unless
the
parties
will
be
unfairly
Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir.
1987) (citations omitted).
The factors that should guide a
district court in deciding a motion under Rule 41(a)(2) include
“[any]
opposing
party’s
effort
and
expense
in
preparing
for
trial, excessive delay and lack of diligence on the part of the
movant, insufficient explanation of the need for a voluntary
dismissal, and the present stage of litigation.”
Miller v.
Terramite Corp., 114 F.App’x. 536, 540 (4th Cir. 2004) (quoting
Phillips USA, Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th
Cir. 1996)).
8
These factors all weigh in favor of granting Plaintiff’s
motion.
Plaintiff moved for voluntary dismissal of the action
against Mr. Mann on January 27, 2012, within days of receiving
the documents he had long sought, rendering his claim against
Mr. Mann moot.
Mr. Mann’s motion to dismiss or, alternatively,
for summary judgment will be denied as moot.
III. The Motions to Dismiss Filed by Ameriprise, Neurocare, and
Rosa Rehab Will Be Granted
A.
Standard of Review
Ameriprise, Neurocare, and Rosa Rehab have each moved to
dismiss
Plaintiff’s
claims
pursuant
to
Rule
12(b)(6).
The
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the
sufficiency
Charlottesville,
of
464
the
F.3d
complaint.
480,
483
Presley
(4th
Cir.
v.
City
2006).
of
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
9
At this stage, the court must consider all well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, the court need
not accept unsupported legal allegations.
Revene v. Charles
Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Nor must it
agree
allegations,
with
legal
conclusions
couched
as
factual
Iqbal, 556 U.S. at 678, or conclusory factual allegations devoid
of any reference to actual events, United Black Firefighters v.
Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
“[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but it has not ‘show[n] . . . that the pleader is entitled to
relief.’”
Iqbal,
556
U.S.
at
677-78
(quoting
Fed.R.Civ.P.
8(a)(2)).
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that
requires
the
reviewing
experience and common sense.”
Finally,
pleadings
“to
while
courts
less
stringent
court
to
draw
on
its
judicial
Id. at 679.
generally
standards
10
should
than
hold
formal
pro
se
pleadings
drafted by lawyers,” they may nevertheless dismiss complaints
that
lack
sufficient
a
cognizable
facts
under
legal
a
theory
cognizable
or
that
legal
fail
to
theory.
allege
Haines
v.
Kerner, 404 U.S. 519, 520 (1972); Turner v. Kight, 192 F.Supp.2d
391, 398 (D.Md. 2002), aff’d, 121 F.App’x. 9 (4th Cir. 2005).
B.
Plaintiff Fails to State Any Cognizable Claim Against
Ameriprise
Plaintiff’s fraud allegations against Ameriprise consist of
a single sentence stating that Ameriprise “knowingly engaged in
a conflict of interest by acquiring the services of a public
officer [who had] alleged past business relationships” with the
law
firm
Ameriprise
representing
has
moved
to
Ameriprise.
dismiss,
(ECF
contending
No.
that
1,
at
4).6
Plaintiff’s
assertion is insufficient to state a cause of action for fraud.
The elements of fraud in Maryland are:7
6
In his opposition, Plaintiff presents numerous new factual
allegations regarding this purported conflict of interest.
“[I]t is axiomatic,” however, “that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.”
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th
Cir. 1984); see also Zachair, Ltd. v. Driggs, 965 F.Supp. 741,
748 n.4 (D.Md. 1997) (reasoning that a plaintiff “is bound by
the allegations contained in [his] complaint and cannot, through
the use of motion briefs, amend the complaint”), aff’d, 131 F.3d
1162 (1998) (table opinion).
Accordingly, the new facts about
the alleged conflict that Plaintiff asserts in his opposition
papers need not be considered when resolving Ameriprise’s motion
to dismiss.
Even if they were considered, however, for the
reasons explained later in the memorandum opinion, Plaintiff’s
claim against Ameriprise would nonetheless be dismissed.
11
(1)
that
the
defendant
made
a
false
representation to the plaintiff, (2) that
its
falsity
was
either
known
to
the
defendant or that the representation was
made with reckless indifference as to its
truth, (3) that the misrepresentation was
made for the purpose of defrauding the
plaintiff, (4) that the plaintiff relied on
the misrepresentation and had the right to
rely on it, and (5) that the plaintiff
suffered compensable injury resulting from
the misrepresentation.
Md.
Envtl.
Trust
v.
Additionally,
active
“characterized
by
Gaynor,
370
concealment
deceptive
acts
Md.
of
or
89,
a
97
material
contrivances
(2002).
fact,
intended
to
hide information, mislead, avoid suspicion, or prevent further
inquiry into a material matter,” may also constitute common law
fraud
because
concealment
misrepresentation.
is
analogous
to
intentional
United States v. Colton, 231 F.3d 890, 899
(4th Cir. 2000) (citing Stewart v. Wyo. Cattle Ranche Co., 128
U.S. 383, 388 (1888)).
Separately, where a plaintiff alleges
fraud with regard to mere nondisclosure of a material fact, he
must establish that the defendant owed a duty of care to the
plaintiff.
Id.
(“[S]ilence
as
to
a
material
fact
(nondisclosure), without an independent disclosure duty, usually
does not give rise to an action for fraud . . . .”).
7
Although the complaint does not specify where the events
giving rise to this claim took place, neither party contends
that Maryland law does not apply.
12
In addition to satisfying Rule 8(a), a plaintiff asserting
fraud is subject to the heightened pleading standard set forth
in Rule 9(b).
Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783-84 (4th Cir. 1999).
Rule 9(b) states that “in all
averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity.
Malice,
intent, knowledge, and other condition of mind of a person may
be averred generally.”
“to
include
the
The word “circumstances” is interpreted
‘time,
place
and
contents
of
the
false
representation, as well as the identity of the person making the
misrepresentation and what [was] obtained thereby.’”
Superior
Bank, F.S.B. v. Tandem Nat’l Mortg., Inc., 197 F.Supp.2d 298,
313-14 (D.Md. 2000) (quoting Windsor Assocs. v. Greenfeld, 564
F.Supp. 273, 280 (D.Md. 1983)).
The purposes of Rule 9(b) are
to provide the defendant with sufficient notice of the basis for
the plaintiff’s claim, protect the defendant against frivolous
suits,
learned
eliminate
only
reputation.
objectives,
fraud
after
actions
discovery,
where
and
all
safeguard
Harrison, 176 F.3d at 784.
a
“court
should
of
hesitate
the
the
facts
are
defendant’s
In keeping with these
to
dismiss
a
complaint
under Rule 9(b) if the court is satisfied (1) that the defendant
has been made aware of the particular circumstances for which
she will have to prepare a defense at trial and (2) that [the]
13
plaintiff has substantial prediscovery evidence of those facts.”
Id.
Here, Plaintiff has failed to plead facts to state a claim
for fraud against Ameriprise.
The complaint neither identifies
any alleged false statements made by Ameriprise regarding the
conflict,
nor
does
it
assert
that
Ameriprise
concealed
this
conflict or otherwise failed to disclose it despite having a
duty to do so.
allege
that
Additionally, the complaint wholly fails to
Plaintiff
relied
on
any
misrepresentation,
concealment, or actionable nondisclosure and suffered injury as
a result.8
With no facts to support these key elements of
Plaintiff’s fraud claim, the complaint against Ameriprise must
be dismissed, and it is unnecessary to consider whether his
8
The additional facts set forth in Plaintiff’s opposition
related to the purported conflict also fail to state a claim for
fraud.
According to Plaintiff, Ameriprise wanted to select an
arbitrator from Creative Dispute Resolutions to arbitrate claims
between the parties because that company had connections with
Ameriprise’s law firm.
Ameriprise informed Plaintiff that it
“would agree to use William E. Hewitt, Jr. as the arbitrator.”
(ECF No. 9, at 6).
When Plaintiff discovered that Mr. Hewitt
had prior business relationships with this law firm, he opposed
Mr. Hewitt’s appointment. At the time that Plaintiff filed his
opposition on December 30, 2011, the parties had not yet agreed
upon an arbitrator.
Assuming arguendo that these assertions are sufficient to
constitute some form of concealment or actionable nondisclosure,
Plaintiff again fails to allege reliance or resulting injury.
Indeed,
these
new
facts
actually
support
the
opposite
conclusion.
14
allegations
satisfy
the
heightened
pleading
standard
of
Rule
9(b).9
C.
Plaintiff’s Failure to Comply with the Maryland Health
Care Malpractice Claims Act Requires Dismissal Without
Prejudice of His Claims Against Neurocare and Rosa
Rehab
Neurocare and Rosa Rehab have moved to dismiss the claims
against
them
because
Plaintiff
has
not
complied
with
the
conditions set forth in the Maryland Health Care Malpractice
Claims Act (“the Act”).10
The Act reflects Maryland’s response
9
Plaintiff states in his opposition that he has “allege[d]
facts about ‘conflict of interest,’ in addition to the
establishment of fraud.”
(ECF No. 9, at 8).
This statement
suggests that Plaintiff may have intended “Count One: Fraud” to
encompass more than one cause of action.
To the extent that
Plaintiff did intend this count to allege a separate cause of
action for “conflict of interest,” he cites no authority – nor
is the court aware of any – holding that “conflict of interest”
is a cognizable cause of action in this context.
10
Although some early cases suggested that compliance with
the Maryland Health Care Malpractice Claims Act was an issue to
be resolved under Rule 12(b)(1), see, e.g., Davison v. Sinai
Hosp. of Balt., Inc., 462 F.Supp. 778, 779 (D.Md. 1978), aff’d,
617 F.2d 361 (4th Cir. 1980), the Court of Appeals of Maryland
has since held that such compliance is not a jurisdictional
prerequisite, Tranen v. Aziz, 304 Md. 605, 612 (1985). Rather,
it is a “condition precedent” to instituting an action for
medical malpractice in Maryland state or federal courts.
Crawford v. Leahy, 326 Md. 160, 165 (1992); see also Lewis v.
Waletzky, 576 F.Supp.2d 732, 738 (D.Md. 2008) [hereinafter Lewis
I] (granting a motion to dismiss due to a plaintiff’s failure to
file her medical malpractice claims with HCADRO and noting that
failure to satisfy this requirement “does not take away the
subject matter jurisdiction” of a court (citing Oxtoby v.
McGowan, 294 Md. 83, 91-92 (1982))), unrelated question on
appeal certified by No. 09-1251, 2010 WL 1734976 (4th Cir. Apr.
30, 2010), certified question answered by 422 Md. 647 (2011).
15
to a “medical malpractice crisis” that began during the 1970s.
Davison,
462
F.Supp.
at
779
(D.Md.
1978).
Initially,
it
required plaintiffs asserting medical malpractice claims above a
certain
jurisdictional
amount
to
instituting an action in court.
undergo
arbitration
before
Lewis I, 576 F.Supp.2d at 736
(citing Davison, 462 F.Supp. at 779).11
The General Assembly
subsequently amended the Act, however, and permitted plaintiffs
to waive unilaterally the arbitration requirement.
Ann., Cts. & Jud. Proc. §§ 3-2A-06A, 3-2A-06B.
Md. Code
Despite this
change, the Act still requires a potential plaintiff to file his
medical
malpractice
claim
as
well
as
a
certificate
from
a
qualified expert with HCADRO prior to filing a claim in state or
federal court.
See id. § 3-2A-04(a)(1)(i) (stating that “[a]
person having a claim against a health care provider for damage
due to medical injury shall file the claim with the Director [of
HCADRO]”); id. § 3-2A-04(b)(1) (noting that a plaintiff must
file “a certificate of a qualified expert with the Director
attesting to departure from standards of care, and that the
departure from standards of care [was] the proximate cause of
11
Neither party contends that the damages sought in this
case do not satisfy the jurisdictional minimum set forth in the
Act.
16
the alleged injury, within 90 days from the date of the [HCADRO]
complaint”); Lewis I, 576 F.Supp.2d at 736 (citing cases).12
Plaintiff
assertion
that
does
his
not
contest
claims
Neurocare
against
them
and
Rosa
Rehab’s
are
for
medical
malpractice and, therefore, fall under the Act.13
Indeed, he
12
The parties apparently agree that Maryland law applies to
Plaintiff’s medical malpractice claims against Neurocare and
Rosa Rehab.
Even if they did not, however, because, “in the
choice-of-law context,” the Act’s requirements are procedural,
rather than substantive, they would apply to a medical
malpractice claim filed in any Maryland court regardless of
whether Maryland law otherwise governed the claim.
Lewis v.
Waletzky, 422 Md. 647, 658-67 & n.9 (2011) [hereinafter Lewis
II] (concluding that a plaintiff who brought suit in Maryland,
but may have suffered injury in the District of Columbia, was
nonetheless
required
to
comply
with
the
Act’s
filing
requirements).
In Lewis II, the Maryland Court of Appeals answered a
certified question from the Fourth Circuit regarding whether
“Maryland recognize[d] the public policy exception, or any other
exception, to lex loci delicti based on the Maryland Health Care
Malpractice Claims Act.” Id. at 652. The plaintiff in Lewis I,
who had not complied with the Act, had appealed to the Fourth
Circuit after the district court concluded that the public
policy exception required such compliance even though her
medical injury purportedly occurred in another jurisdiction.
The Maryland Court of Appeals noted that all parties had merely
“assumed that the filing requirement [was] part of Maryland’s
substantive law.”
Id. at 658.
Declining to “make the same
assumption,” the court extensively analyzed the “proceduralsubstantive distinction in the choice-of-law context” before
concluding that the Act is procedural. Id. at 658-67 & n.9.
13
As previously noted, in addition to allegations related
to Dr. Erry, Plaintiff asserts that Neurocare “placed its
patients at risk” by using radiation machines in a manner that
did not comply with state regulations.
(ECF No. 1, at 6).
Neurocare interprets all of Plaintiff’s allegations – including
this one – to allege medical malpractice and, therefore, to be
17
could not, as his claims against both Defendants purportedly
stem
from
either
doctor-patient
“render[ed]
or
relationships
fail[ed]
to
in
render
which
health
Defendants
care,”
thus
causing Plaintiff to suffer various injuries, including injuries
to his arm and cervical discs.
Brown v. Rabbitt, 300 Md. 171,
175 (1984) (“If health care is or should be rendered and damage
results
therefrom,
then
it
is
a
claim
under
the
Act.”).
Plaintiff also does not allege that he complied with the Act by
filing a claim and certificate of a qualified expert with HCADRO
before instituting this action.
Plaintiff requests that the court stay the case while he
complies with the Act’s procedural requirements because he was
allegedly informed in 2008 “that the only avenue to resolve
complaints
against
Maryland
complaints with DHMH.”
Physicians
was
to
(ECF No. 18, at 1).
decline Plaintiff’s request.
file
written
The court must
The Act’s requirements constitute
a “condition precedent” to pursuing medical malpractice claims
in all Maryland courts.
Carroll v. Konits, 400 Md. 167, 180-81
(2007); Su v. Weaver, 313 Md. 370, 377 (1988); see also Davison,
462 F.Supp. at 778-79 (concluding that the Act was applicable in
Maryland
state
and
federal
courts).
Indeed,
a
plaintiff’s
failure to satisfy them prior to bringing suit has long been
subject to the Act’s procedural requirements.
does not dispute this conclusion.
18
Plaintiff also
held to require dismissal without prejudice, regardless of the
circumstances.
Lewis I, 576 F.Supp.2d at 738 (reasoning that
the “Maryland Court of Appeals ha[d] taken a strong position”
against staying such suits); see also Anderson v. United States,
No.
CCB-08-3,
2009
WL
890094,
at
*2
(D.Md.
Mar.
26,
2009)
(explaining that Maryland courts would be obligated to dismiss
an action without prejudice, rather than stay the proceedings,
if a plaintiff had failed to comply with the Act’s procedural
requirements);
Breslin
v.
Powell,
(“[T]he
language
of
the
plain
421
[Act]
Md.
is
266,
clear,
270
and
(2011)
requires
dismissal without prejudice of the underlying claim for [failure
to comply with the Act’s requirements].”); Tranen, 304 Md. at
612 (“[T]he statutory context of these . . . directives plainly
shows
that
compliance
with
them
noncompliance mandates dismissal.”).14
claims
against
Neurocare
and
Rosa
is
mandatory
and
that
Accordingly, Plaintiff’s
Rehab
must
be
dismissed
without prejudice due to his failure to comply with the Act’s
procedural requirements.15
14
To the extent Plaintiff further intends to assert that
“good cause” exists for his failure to comply with the Act’s
procedural requirements, the relevant statutory provisions do
not contain a “good cause” exception. Given that numerous other
sections of the Act do contain such an exception, see, e.g., Md.
Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(5), the absence of the
exception in this context is instructive.
19
IV.
Plaintiff’s Motion for
Appendix Will Be Denied
Plaintiff
has
moved
Leave
for
leave
to
File
to
a
Supplemental
a
supplemental
file
appendix with the court regarding his medical malpractice claims
against Neurocare and Rosa Rehab.
Plaintiff appears to make two
unrelated requests for leave in the motion, making it difficult
to discern the motion’s exact purpose.
Regardless of which
request Plaintiff intended to make, however, Plaintiff’s motion
will be denied.
First, Plaintiff states that he is “mov[ing] for leave to
file documents with [HCADRO],” presumably while his case remains
pending in this court.
explained
above,
the
(ECF No. 19, at 1).
court
cannot
grant
For the reasons
this
request,
and
Plaintiff’s medical malpractice claims must be dismissed without
prejudice because he has not complied with the Act’s procedural
requirements.
Second, Plaintiff states that the “supplemental appendix
includes materials received from [HCADRO],” suggesting that his
15
Plaintiff also asserts that Rosa Rehab’s request for
dismissal “is based on discriminatory privileges and special
consideration,” which violates his federal rights. (ECF No. 21,
at 2-4).
As support for this argument, Plaintiff relies on
three cases in which John Peter Rosa, Rosa Rehab’s resident
agent, faced charges for various traffic offenses and did not
contend that the Act’s procedural requirements were applicable.
Because none of those cases involved Rosa Rehab or claims for
medical malpractice, however, they are inapposite in the present
action. Plaintiff’s argument must, therefore, be rejected.
20
purpose in submitting the motion was to file these existing
materials with the court.
(ECF No. 21, at 2).
The materials
attached to Plaintiff’s motion, however, are from DHMH, rather
than HCADRO.
It appears that Plaintiff may have attached them
as support for his assertion that DHMH instructed him to file a
complaint directly with that department.
and
Rosa
Rehab
moved
to
dismiss
But because Neurocare
pursuant
to
Rule
12(b)(6),
“matters outside the pleadings,” such as these materials, cannot
be considered.
IV.
Fed.R.Civ.P. 12(d).16
Conclusion
For
the
foregoing
reasons,
Plaintiff’s
request
for
voluntary dismissal of the complaint as to Mr. Mann will be
granted, as will the motions to dismiss filed by Ameriprise,
Neurocare, and Rosa Rehab.
Plaintiff’s motion for leave to file
a supplemental appendix will be denied, and Mr. Mann’s motion to
dismiss or, alternatively, for summary judgment will be denied
as moot.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
16
In any case, when resolving Neurocare’s and Rosa Rehab’s
motions to dismiss, the court assumed Plaintiff’s allegations
regarding DHMH’s instructions to be true.
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?