DUGAN-HAND v. GRIFFITH et al

Filing 25

OPINION. Signed by Judge Renee Marie Bumb on 1/14/2021. (dmr)

[Dkt No. 24]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
REBECCA LEIGH DUGAN-HAND, as
Administratrix of ESTATE OF
ELIZABETH BAKER,
Plaintiff,

Civil No. 20-3075
(RMB/JS)

v.

OPINION

HEIDI GRIFFITH, M.D.;
ATLANTICARE PHYSICIAN GROUP,
P.A., t/d/b/a APG HOSPITALISTS
– ATLANTIC CITY; SIDDHARTH
BHIMANI, D.O.; ATLANTICARE
REGIONAL MEDICAL CENTER, INC.,
t/d/b/a ATLANTICARE REGIONAL
MEDICAL CENTER,
Defendants.

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon Defendants’ Motion,
styled “Motion for Summary Judgment Supplemental Submission.”
[Dkt. No. 24]

Defendants in this case are Heidi Griffith, M.D.;

Atlanticare Physician Group, P.A.; Siddharth Bhimani, D.O.; and
Atlanticare Regional Medical Center, Inc. (“Defendants”).
Plaintiff Rebecca Dugan-Hand (“Plaintiff”) has not filed
opposition to Defendant’s Motion. Moreover, the ten-day period

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to provide the Court with additional materials relevant to the
consideration of a Motion for Summary Judgment expired as of
December 19, 2020. [Dkt. No. 23]

Plaintiff has not provided the

Court with any such materials. For the reasons set forth herein,
Defendants’ Motion for Summary Judgement will be granted, and
Plaintiff’s claims will be dismissed with prejudice.

Facts
Plaintiff Dugan-Hand, as administratrix of the estate of
Elizabeth Baker, brings this suit against multiple Defendants.
Plaintiff’s Complaint brings forth claims of professional
medical negligence against Defendants Griffith and Bhimani, and
claims of vicarious liability against Defendants Atlanticare
Physician Group, P.A. and Atlanticare Regional Medical Center,
Inc.
Defendants filed a Motion to Dismiss for failure to provide
affidavits of merit on September 16, 2020. [Dkt. No. 19]

The

Court issued a Memorandum Order on December 9, 2020, instructing
the parties to file any additional materials relevant to the
consideration of a Motion for Summary Judgment within ten days
of that date. [Dkt. No. 23]

As instructed by the Court,

Defendant’s Motion to Dismiss would then be converted to a
Motion for Summary Judgment after the ten-day period. [Dkt. No.
23, pg. 3]

After the Court’s Memorandum Order, Defendants
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provided the Court with a Motion for Summary Judgment
Supplemental Submission on December 17, 2020. [Dkt. No. 24]

The

Court has not received any additional materials from Plaintiff,
to include affidavits of merit or opposition to Defendant’s
Motion for Summary Judgment.

Affidavit of Merit
Pursuant to N.J.S.A. 2A:53A-26, et seq., plaintiffs
bringing forth professional malpractice actions against
“licensed persons” must serve an expert’s affidavit as to each
defendant, stating that the defendant probably deviated from the
applicable professional standard of care.
The Third Circuit has held that “the affidavit of merit is
not a pleading requirement.” Nuveen Mun. Trust ex rel. Nuveen
High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d
283, 303 (3d Cir. 2012); see also Chamberlain v. Giampapa, 210
F.3d 154 (3d Cir. 2000).

“The requirement exists . . . so that

‘malpractice claims for which there is no expert support will be
terminated at an early stage in the proceedings.’” Nuveen, 692
F.3d at 303 (quoting Chamberlain, 210 F.3d at 160).

The Third

Circuit further instructed that “because the affidavit is not
part of the pleadings, dismissing an action based on the lack of
an affidavit necessarily seems to involve matters outside the
pleadings, which would require a court to consider a motion to
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dismiss for failure to state a claim as a motion for summary
judgment, as provided by Rule 12(d).” Nuveen, 692 F.3d at 303
n.13; see also Fed. R. Civ. P. 12(d)(“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.”)
Before the Court can convert a motion to dismiss into a
motion for summary judgment under Rule 56, “it must provide the
parties ‘reasonable opportunity’ to present all material
relevant to a summary judgment motion.” In re Rockefeller Center
Properties, Inc. Securities Litigation, 184 F.3d 280, 287-88 (3d
Cir. 1999) (quoting Fed. R. Civ. P. 12).

The Third Circuit

requires that the parties have “notice of the conversion,” and
that such notice “must be ‘unambiguous’ and must ‘fairly
apprise[]’ the parties that the court intends to convert the
motion.” Id. at 288 (quoting Rose v. Bartle, 871 F.2d 331, 340,
341-42 (3d Cir. 1989)).

The notice period need not be

extensive. See id. (citing Jones v. Automobile Ins. Co., 917
F.2d 1528, 1532-33 (11th Cir. 1990) for a ten-day period as an
example.)
This Court provided the parties with a ten-day period, and
Defendants filed a Motion for Summary Judgment Supplemental
Submission [Dkt. No. 24] within this time frame per the Court’s
Memorandum Order. [Dkt. No. 23]

Thus, the Court will consider
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Defendant’s Motion for Summary Judgment in light of the facts
presented.

Summary Judgment Standard
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.
A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id. “[W]hen a properly

supported motion for summary judgment [has been] made, the
adverse party ‘must set forth specific facts showing that there
is a genuine issue for trial.’”

Anderson, 477 U.S. at 250

(citing Fed. R. Civ. P. 56(e)).

In the face of a properly

supported motion for summary judgment, the nonmovant’s burden is
rigorous: he “must point to concrete evidence in the record”;
mere allegations, conclusions, conjecture, and speculation will
not defeat summary judgment.

Orsatti v. New Jersey State

Police, 71 F.3d 480, 484 (3d Cir. 1995); accord., Jackson v.
Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)
(“[S]peculation and conjecture may not defeat summary
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judgment.”)).

Failure to sustain this burden will result in

entry of judgment for the moving party.
The same basic legal analysis applies when a summary
judgment motion is unopposed, Anchorage Associates v. Virgin
Islands Board of Tax Review, 922 F.2d 168 (3d Cir. 1990),
however, the material facts put forth by the movant are deemed
undisputed pursuant to L. Civ. R. 56.1(a) (“any material fact
not disputed shall be deemed undisputed for purposes of the
summary judgment motion.”).
Analysis
Despite notice from the Court, Plaintiff has failed to
provide any Affidavits of Merit as to the Defendants, failed to
respond to the Court’s Memorandum Order with any additional
materials, and has failed to oppose Defendants’ Motion for
Summary Judgment. Plaintiff is far outside the 120-day time
limit as afforded by the applicable statute. N.J.S.A. 2A:53A-27.
Said statute directs the Court to add an additional period of up
to 60 days for good cause to the initial period of 60 days for
the Plaintiff to file an affidavit. These 120 total days have
since passed, as have the ten-day period imposed by the Court’s
Memorandum Order on December 9, 2020. [Dkt. No. 23]

Plaintiff

has not provided the Court with information of any circumstances
that would necessitate or warrant an extension of time.

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Plaintiff’s failure to produce an Affidavit of Merit within
this timeframe is considered a failure to state a cause of
action requiring the dismissal of the Complaint with prejudice.
N.J.S.A. 2A:53A-29; see also Cornblatt v. Barrow, 153 N.J. 218
(1998).

Even though Plaintiff is pro se, the Court cannot

determine any exceptional circumstances to allow Plaintiff an
extension to file Affidavits of Merit as Plaintiff has failed to
provide the Court with any possible reasoning. Thus, Plaintiff’s
claims will be dismissed with prejudice.

Conclusion
For the foregoing reasons, Defendant’s Motion for Summary
Judgment will be granted and Plaintiff’s Complaint will be
dismissed with prejudice.

An appropriate Order shall issue on

this date.

Dated: January 14, 2021

__________________________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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