Schoolcraft v. The City Of New York et al
Filing
58
REPLY MEMORANDUM OF LAW in Support re: 26 MOTION to Dismiss.. Document filed by Jamaica Hospital Medical Center. (Radomisli, Gregory)
GJRJDA
667-82153
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--
------ ------------------------------x
ADRIAN SCHOOLCRAFT,
Plaintiff,
-against-
10C1V6005(RWS)
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY
INSPECTOR STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official Capacity CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in
his Official Capacity, SERGEANT KURT DUNCAN, Shield
No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax .Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, AND P.O.’s "JOHN
DOE" #1-50, Individually and in their Official Capacity (the
name John Doe being fictitious, as the true names are presently
unknown) (collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Official
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE’S "JOHN DOE" # 1-50, Individually and in their
Official Capacity (the name John Doe being fictitious, as the
true names are presently unknown),
Defendants.
.
’4
-4’
REPLY MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
BY DEFENDANT JAMAICA HOSPITAL MEDICAL CENTER
Of Counsel: Gregory J. Radomisli (GJR 2670)
1572681_i .DOC
TABLE OF CONTENTS
TABLE OF AUTHORITIES...........................................................................................................ii
PRELIMINARY STATEMENT ..................................................................................................... 1
POINT I
PLAINTIFF CANNOT MAINTAIN FEDERAL
CLAIMS AGAINST JAMAICA HOSPITAL BASED
UPON THE DOCTRINE OF RESPONDEAT SUPERIOR ................................................1
POINT II
PLAINTIFF CANNOT MAINTAIN CLAIMS FOR
CIVIL RIGHTS VIOLATIONS AGAINST JAMAICA
HOSPITAL BECAUSE IT IS NOT A STATE ACTOR....................................................3
A.
Defendants’ actions do not pass the state compulsion test .......................... 4
B.
Defendant’s actions do not pass the joint action/close nexus...................... 5
C.
Defendants’ actions do not pass the public function test............................. 7
POINT III
PLAINTIFF’S ALLEGATIONS OF STATE ACTION
AND CONSPIRACY DO NOT PASS MUSTER UNDER
Ashcroft v. Iqbal OR Bell Atlantic Corp. v. Twombly.........................................................8
POINT IV
THE COURT SHOULD DECLINE TO EXERCISE
SUPPLEMENTAL JURISDICTION OVER PLAINTIFF’S
STATE LAW CLAIM......................................................................................................... 8
CLUSION....................
-1
...........11
i
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. at_, 129 S.Ct. 1937 (2009).........................................................................................8
Back v. Hastings on Hudson Union Free School District,
365 F.3d 107 (2d Cir. 2004)........................................................................................................2
Bell Atlantic Corp v. Twombly,
550 U.S. 544, 127 S.Ct. 1955 (2007) .......................................................................................... 8
Blum v. Yaretsky,
457 U.S. 991, 102 S.Ct. 2777 (1982) .......................................................................................... 4
Bodek v. Bunis,
2007 WL 1526423 .................................................................................................................. 4, 6
Bowen v. Rubin,
385 F.Supp.2d 168 (E.D.N.Y. 2005)....................................................................................... 2, 3
Bullard v. City of New York,
240 F.Supp.2d 292 (S.D.N.Y. 2003)........................................................................................... 8
Coward v. Town and Village ofHarrison,
665 F.Supp.2d 281 (S.D.N.Y. 2009)........................................................................................... 1
Doe v. Harrison,
254 F. Supp.2d 338 (S.D.N.Y. 2003)................................................................................... 1, 4, 7
Fisk v. Letterman,
401 F.Supp.2d 362 (S.D.N.Y. 2005)........................................................................................... 4
Green v. City of New York,
465 F.3d 65 (2d Cir. 2006)...................................................................................................... 2, 3
Henneberger v. County of Nassau,
465 F.Supp.2d 176 (E.D.N.Y. 2006)........................................................................................... 1
In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation,
510 F.Supp.2d 299 (S.D.N.Y. 2007) ...................................................................................... 9,10
Jackson v. Metropolitan Edison Co.;
419 U.S. 345, 95 S.Ct. 449 (1974) .......................................................................................... 5, 7
Jeffes v. Barnes,
208 F.3d 49 (2d Cir. 2000 ).......................................................................................................... 2
Jessamy v. City of New Rochelle,
292 F.Supp.2d 498 (S.D.N.Y. 2003 )........................................................................................... 8
Johns v. Home Depot US.A., Inc.,
221 F.R.D. 400 (S.D.N.Y. 2004)................................................................................................. 4
1572681-1
Jouthe v. City of New York,
2009 WL 701110 (E.D.N.Y. 2009).............................................................................................4
Koulkina v. City of New York,
559 F.Supp.2d 300 (S.D.N.Y. 2008)...........................................................................................8
Lewis v. Kiymkevich,
2009 U.S.Dist.LEXJS 117713 (S.D.N.Y. 2009)......................................................................8, 9
Lopez v. Bay Shore Union Free School District,
668 F.Supp.2d 406 (E.D.N.Y. 2009)...........................................................................................3
Middleton v. City of New York,
2006 WL 1720400 (E.D.N.Y. 2006)....................................................................................... 4, 6
Monell v. Dep ’t of Soc. Sen’s.,
436 U.S. 658, 98 S.Ct. 2018 (1978) ........................................................................................2, 3
Moray v. Yonkers,
924 F.Supp 8 (S.D.N.Y. 1996)....................................................................................................3
Okunieffv. Rosenberg,
996 F.Supp. 343 (S.D.N.Y. 1993)................................................................................... 4, 5, 6, 7
Olivier v. Robert 1. Yeager Mental Health Center,
398 F.3d 183 (2d Cir. 2005)........................................................................................................2
Palaimo v. Lutz,
837 F.Supp. 55 (N.D.N.Y. 1993)................................................................................................. 5
Pangburn v. Culbertson,
200 F.3d 65 (2’ Cir. 1999)..........................................................................................................8
Rodriguez v. City of New York,
644 F.Supp.2d 168 (E.D.N.Y. 2008)...........................................................................................3
Rojas v. Alexander’s Department Stores, Inc.,
924 F.2d 406 (2d Cir. 1990)........................................................................................................2
Rubenstein v. Benedictine Hosp.,
790 F.Supp. 396 (N.D.N.Y. 1992)...............................................................................................5
Ruffler v. Phelps Memorial Hospital,
453 F.Supp. 1062 (S.D.N.Y. 1978)............................................................................................. 5
Sasscer v. Barrios-Paoli,
2008 WL 5215466 (S.D.N.Y. 2008) ...........................................................................................8
Sybaiski v. Independent Group Home Living Program Inc.,
2007 WL 1202864 (E.D.N.Y. 2007)........................................................................................... 7
Sykes v. McPhillips,
412 F.Supp.2d 197 (N.D.N.Y. 2006)................................................................................... 4, 5, 9
1572681-1
111
Tewksbury v. Dowling,
169 F.Supp.2d 103 (E.D.N.Y. 2001)
.6
Turturro v. Continental Airlines,
334 F.Supp.2d 383 (S.D.N.Y. 2004) ........................................................................................... 9
Zahra v. Town of Southold,
48 F.3d 674 (2d Cir. 1995).......................................................................................................... 3
Rules
12(b)(1)
.........................................................................................................................................................................
12(b)(6)
.....................................................................................................................................................................
1
1,3
12(c) ...............................................................................................................................................................................
1
...........................................................................................................................................................................
1
8(a)(2)
1572681-1
iv
PRELIMINARY STATEMENT
This Reply Memorandum of Law is respectfully submitted on behalf of defendant
HOSPITAL MEDICAL CENTER in further support of its motion for an Order
plaintiff’s Complaint pursuant to Rules 8(a)(2), 12(b)(1), 12(b)(6) and 12(c) of the
ederal Rules of Civil Procedure because plaintiff cannot maintain this action against the moving
based upon the doctrine of respondeat superior; or in the alternative, because the
defendant was not a state actor acting under color of law; declining to exercise
jurisdiction over plaintiff’s State law claims, and such other and further relief as
Court deems just and proper.
ARGUMENT
-
POINT-I
PLAINTIFF CANNOT MAINTAIN FEDERAL CLAIMS AGAINST JAMAICA
HOSPITAL BASED UPON THE DOCTRINE OF RESFONDEAT SUPERIOR
Plaintiff’s counsel tries to circumvent well-established law that § 1983 claims cannot be
under the. doctrine of respondeat superior or under a theory of vicarious liability by
ing the JAMAICA HOSPITAL MEDICAL CENTER ("JHMC"). The JHMC,
, is an inanimate entity, and can only "act" through its employees. As such, any claim
inst J}IMC must necessarily be based upon vicarious liability/respondeat superior.
Plaintiff must therefore necessarily allege that some individual played some type of role
the alleged constitutional violation.
See e.g. Coward v. Town and Village of Harrison, 665
Supp.2d 281, 308 (S.D.N.Y. 2009) (governmental bodies can act only through natural
Henneberger v. County of Nassau, 465
F.Supp.2d 176, 197 (E.D.N.Y. 2006)
municipal liability is dependent upon plaintiffs showing that the action of the employee in
was taken by, or attributable to, one of the entity’s authorized policy makers, and is
considered the act of the entity itself). In Henneberger, for example, the Court held
572681-1
because plaintiffs alleged that individual defendants sought to deprive plaintiffs of their
itutional rights while acting as policymakers for the defendant County, the County could be
liable for a constitutional deprivations arising therefrom.
465 F.Supp.2d at 197. Plaintiff’s
that he can state a cause of action against JHMC without having to allege specific
by some individual does not pass muster.
Although not articulated as such by plaintiff’s counsel, plaintiff’s counsel is presumably
to state a cause of action against JHMC based upon Monell v. Dep ’t of Soc. Sen’s., 436
.S. 658, 98 S.Ct. 2018 (1978), which establishes the principles under which a municipality, as a
icipal employer, can be held liable as an entity. Olivier v. Robert 1. Yeager Mental Health
398 F.3d 183, 192 (2d Cir. 2005), quoting Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.
-
1R000)
(a municipal employer thy be liable for
actions ’taken or caused by an official whose
represent [the employer’s] official policy" or by lawmakers whose edicts or acts "may
be said to represent official policy"; only municipal officials who have "final policymaking
may, by their actions, subject the government to § 1983 liability);
Back v. Hastings on
Union Free School District, 365 F.3d 107, 128 (2d Cir. 2004) (municipal employer can
be liable if its policy or custom "whether made by its lawmakers or by those whose edicts or
may failure be said to represent official policy" causes injury).
The decision in Monell has been applied to private corporations.
See e.g. Rojas v.
lexander ’s Department Stores, Inc., 924 F.2d 406, 408 (2d Cir. 1990); Green v. City of New
rork 465 F.3d 65, 82 (2d Cir. 2006). Thus, a private corporation can only be held liable for the
torts of its employees if the corporation’s employee acted pursuant to "official
or custom." Bowen v. Rubin, 385 F.Supp.2d 168, 176 (E.D.N.Y. 2005); see also Rojas v.
lexander ’s Department Stores, Inc., 924 F.2d 406, 408 (2d Cir. 1990) (a private employer is not
ible for the constitutional torts of its employees unless the employee acted pursuant to
-1
2
policy); Lopez v. Bay Shore Union Free School District,
668 F.Supp.2d 406, 417
.N.Y. 2009).
In Bowen v. Ruben, the Court discussed the various ways in which a private corporation
be liable under §1983. In all cases, liability was based upon some sort of action by its
Pursuant to the decision in Bowen, liability may be found when: 1) the employee’s
is taken by or attributable to one of the entity’s policymakers, so the action is considered
act of the entity itself; 2) a policymaking official was deliberately indifferent to the
tutional deprivations caused by her subordinates; or 3) plaintiffs can show that the alleged
practice was so persistent or widespread as to constitute an official policy or
385 F.Supp.2d at 177. For the purposes of a 12(b)(6) motion, plaintiff must at least
ftnake those allegations, which the plaintiff herein does not. See Zahra v. Town of Southold, 48
.3d 674, 685 (2d Cir. 1995); Rodriguez v. City of New York, 644 F.Supp.2d 168, 198 (E.D.N.Y.
); Moray v. Yonkers, 924 F.Supp 8, 12 (S.D.N.Y. 1996) (granting the 12(b)(6) motion by
City of Yonkers because plaintiff did not make any of the necessary allegations to set
a Monell claim). Accordingly, plaintiff cannot state a cause of action against JHMC.
POINT H
PLAINTIFF CANNOT MAINTAIN CLAIMS FOR CIVIL RIGHTS VIOLATIONS
AGAINST JAMAICA HOSPITAL BECAUSE IT IS NOT A STATE ACTOR
As in Green v. City of New York, 465 F.3d 65 (2d Cir. 2006), this Court need not reach
issue of whether JHMC can be considered a state actor because plaintiff has not sufficiently
a Monell claim against the Hospital. If, however, this Court finds that plaintiff did, then
s Complaint should be dismissed because JHMC is not a state actor.
1-1
3
A.
Defendants’ actions do not pass the state compulsion test
Under the state compulsion test, a state actor can be held responsible for a private
ision "only when it has exercised coercive power or provided such significant
overt or covert, that the choice must in law be deemed to be that of the State."
v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777 (1982). As stated in Doe v. Harrison, 254
Supp.2d 338, 341 (S.D.N.Y. 2003), state action through state compulsion in the context of
case "requires actual coercion by a state actor that impacts upon the private physician’s
ision-making." Given that the plaintiff has not identified any JHMC physician who treated
plaintiff or admitted the plaintiff to JHMC, other than the two codefendantsfor whom
cannot be held vicariously liableit is impossible for plaintiff to have successfully
that JHMC; the institution, was compelled to do anything.
Plaintiffs counsel valiantly attempts to distinguish the decisions in
Okunieff v.
996 F.Supp. 343 (S.D.N.Y. 1993) and Jouthe v. City of New York, 2009 WL 701110
.N.Y. 2009), but ignores the plethora of cases cited by defendant in its 10/12/10
of Law, in which allegations of interaction between the police and a private
were not sufficient to establish state action. See Fisk v. Letterman, 401 F.Supp.2d 362,
7 (S.D.N.Y. 2005); Bodek v. Bunis, 2007 WL 1526423 at *7; Middleton v. City of New York,
WL 1720400, *8 (E.D.N.Y. 2006); see also Johns v. Home Depot U.S.A., Inc.,
221 F.R.D.
404 (S.D.N.Y. 2004) (a private party who calls the police is not rendered a state actor even
the call caused plaintiff to be detained).
The decision in Sykes v. McPhillips, 412 F.Supp.2d 197 (N.D.N.Y. 2006) is instructive.
the plaintiff in the case at bar, who argues that that the JHMC staff "went so far as to permit
officers to stand over, physically abuse, restrain and imprison plaintiff within its facility"
7, plaintiff’s Memorandum of Law in Opposithm), the plaintiff in Sykes argued that the
-1
4
defendant hospital "accommodated the particularly security measures characteristic to
incarceration." 412 F.Supp.2d at 202. The Court in Sykes stated, however, that "this conduct is
nothing more than the common sense accommodation of security officers in the proximity of the
patient." 412 F.Supp.2d at 202. The Court specifically rejected plaintiffs claim that custody
was a dispositive factor to transform a private party’s actions into state action, which is
essentially what the plaintiff is arguing herein. 412 F.Supp.2d at 203.
In his Memorandum of Law in Opposition, plaintiff, citing paragraphs 171-174 in his
Amended Complaint, states that based upon their "forceful, coercive and fraudulent acts, NYPD
kept plaintiff locked under their guard in a room in the psychiatric ward" (p. 8). Those
allegations do not mean that the NYPD coerced the Hospital staff into admitting the plaintiff to
Hospital because they pertain to actions taken by the NYPD at the facility; not what the facility staff did as a result of the alleged coercion. Although plaintiff relies upon the decision
rendered in Palaimo v. Lutz, 837 F.Supp. 55 (N.D.N.Y. 1993) in support of his position, that
decision was based upon the decisions rendered in Rubenstein v. Benedictine Hosp., 790 F.Supp.
396 (N.D.N.Y. 1992) and Ruffler v. Phelps Memorial Hospital, 453 F.Supp. 1062 (S.D.N.Y.
1978), both of which were, for all intents and purposes, effectively overruled when the Second
Circuit affirmed this Court’s decision in Okunieff v. Rosenberg,
996 F.Supp. 343 (S.D.N.Y.
1998), aff’d 166 F.3d 507 (2d Cir. 1999).
B.
Defendant’s actions do not pass the joint action/close nexus
Under the joint action/close nexus test, a private individual can be deemed a state actor
when there is a sufficiently close nexus between the state and the challenged action of the private
individual so that the individual’s action may be fairly attributed to the State.
See Jackson v.
Edison Co., 419 U.S. 345, 95 S.Ct. 449 (1974). Plaintiff maintains that JHMC was
1572681-1
5
a joint actor with the NYPD when it "received and retained plaintiff at the behest of and upon
information provided solely by the NYPD defendants" (pp. 9-10, plaintiff’s Memorandum of
Law in Opposition). Even if true, however, that conduct would not constitute joint action.
See
Bodek v. Bunis, 2007 WL 1526423 at *7; Middleton v. City of New York, 2006 WL 1720400, *8
(E.D.N.Y. 2006).
Plaintiff’s citation to Tewksbury v. Dowling,
169 F.Supp.2d 103 (E.D.N.Y. 2001) is
unavailing. In that case, the defendants, citing Okunieff, argued that the private physicians who
hospitalized the plaintiff were not state actors because their decision was based upon their own
medical judgment. The Court stated that "if the decision to commit Tewksbury was based purely
on their own independent medical judgment, Defendants would be correct that they are not state
169 F.Supp:2d at 109 The court noted, however, that the physicians acknowledged that they had accepted the plaintiff as a patient over the telephone, that an independent examination
was not performed, and therefore, the initial decision to hospitalize the plaintiff was not a result
of their independent medical judgment. Id. In contrast, plaintiff’s Amended Complaint indicates
that the plaintiff was seen at JHMC and admitted after an examination was performed (Exhibit
"C" attached to the 10/12/10 Declaration of Gregory J. Radomisli, 11187, 188, 189).
Furthermore, in Tewksbury, one of the defendants, who was "indisputably" a state actor,
concluded that the plaintiff required hospitalization, telephoned the private defendant-physician,
who admitted the plaintiff to the private hospital "without any further examination." Id. at 110.
The Court found that because there was consultation among the County health professionals and
the private psychiatrists, there was state action. Moreover, as the Court noted, the plaintiff could
not have been hospitalized without the certification of the state-actor physician, pursuant to the
terms of §9.37 of the Mental Hygiene Law, which required that the Director of Community
Services certify a patient for immediate hospitalization. Id. Thus, the decision to hospitalize the
1572681-1
6
plaintiff at the private hospital was, in fact, a "joint" decision between state physicians and
private physicians, and one, according to MilL §9.37, that could only have been made with the
assistance of a state actor. In contrast, the decision to admit the plaintiff to JHMC was not made
in conjunction with any state psychiatrists, and was made pursuant to MHL §9.39
(See e.g.
Exhibit "C," attached to the Declaration of Gregory J. Radomisli, 1273), which does not require
any input from a state physician.
C.
Defendants’ actions do not pass the public function test
Under the public function test, the plaintiff must demonstrate that the private entity
assumed powers "traditionally exclusively reserved to the State." Jackson v. Metropolitan
Edison Co.-,5419 U.S. 345, 352; 95 SCt; 449(1974). -The Southern and Eastern District Courts of
New York, as well as the Second Circuit Court of Appeals, have held in various cases that care
of the mentally ill in New York was not a function that was "traditionally" and "exclusively"
reserved by the state. See Okunieff, 996 F.Supp. at 353-55; Sybaiski v. Independent Group Home
Living Program Inc., 2007 WL 1202864 at *5 (E.D.N.Y. 2007), aff’d, 2008 WL 4570642 (2d
Cir. 2008); Doe v. Harrison, 254 F.Supp.2d 338, 343 (S.D.N.Y. 2003).
Plaintiff’s arguments to the contrary blur the distinction between the public function test
and the joint action/state compulsion test. At p. 15 of his Memorandum of Law in Opposition,
plaintiff’s counsel states that "JI{MC was acting upon the initiative and at the behest of the
NYPD. . .. [T]he plaintiff has alleged that the NYPD had essentially used JHMC’s facility to
perform the function of their personal prison facility for confining plaintiff, which would
undoubtedly fall within the category of a public function." If this Court were to accept plaintiff’s
argument, the public function test would simply be absorbed by the joint action/state compulsion
test.
1572681.1
7
POINT ifi
PLAINTIFF’S ALLEGATIONS OF STATE ACTION
AND CONSPIRACY DO NOT PASS MUSTER UNDER
Ashcroft v. Ia/ia! OR Bell Atlantic Corp. v. Twombly.
Even if this Court finds that the plaintiff’s Amended Complaint contains the requisite
allegations to pass the state compulsion or joint action/close nexus tests, or sets forth a claim for
conspiracy under a pre-Ashcroft v. Iqbal, 556 U.S. at -, 129 S.Ct. 1937 (2009) or Bell Atlantic
Corp v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007) analysis, they do not pass muster under
recent United States Supreme Court precedent, as discussed in detail in defendant’s 10/10/10
Memorandum of Law. See Koulkina v. City of New York, 559
F.Supp.2d 300 (S.D.N.Y. 2008);
Lewis v. Krymkevich, 2009 U.S.Dist.LEXIS 117713 (S.D.N.Y. 2009); Sasscer v. Barrios-Paoli,
2008WL5215466(S.D.N.Y.2008).
Plaintiffs citations to Bullard v. City of New York, 240 F.Supp.2d 292 (S.D.N.Y. 2003),
Jessamy v. City of New Rochelle, 292 F.Supp.2d 498 (S.D.N.Y. 2003), and Pangburn v.
Culbertson, 200 F.3d 65 (2"’ Cir. 1999) in support of his claim that he states a cause of action are
irrelevant because all those decisions pre-date the Supreme Court decisions in Ashcroft and
Twombly.
POINT W
’-’1,
THE COURT SHOULD D
I111$’4
If this Court dismisses the plaintiff’s federal claims against Jamaica Hospital, it should
decline to exercise supplemental jurisdiction over the plaintiff’s state law claims in accordance
with 28 U.S.C. § 1367(a) and (c)(3).
Contrary to plaintiff’s contention, Courts have declined to exercise supplemental
urisdiction in cases like the one at bar. For example, in Turturro v. Continental Airlines, 334
1572681-1
8
F.Supp.2d 383 (S.D.N.Y. 2004), the Court dismissed plaintiffs § 1983 claims against two private
hospitals and a physician. The Court also declined to exercise supplemental jurisdiction over the
state law causes of action for false imprisonment, negligence and malpractice, even though the
§ 1983 claims against the state defendants remained. The Court made that decision "because the
claims in part" turned on potentially novel issues of New Jersey State Law. 334 F.Supp.2d at
398. Although JHMC does not anticipate novel issues of New York state law to be at stake, the
consideration of novel issues was only "in part" the basis for the Court’s decision.
Similarly, in Sykes v. McPhillips, 412 F.Supp.2d 197 (N.D.N.Y 2006), the Court
dismissed the federal claims against the defendant hospital and defendant physician, even though
the federal case would continue against the state defendants, noting that continuing the case was
ufficittojustify maintenance of the malpractice/negligence claim against the Hospital"
because there was "no nexus between the facts and circumstances to be demonstrated in the
federal action against [the state defendants] and the state law action against the Hospital." 412
F.Supp.2d at 204.
In In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, 510
F.Supp.2d 299 (S.D.N.Y. 2007), a case cited by the plaintiff, the Southern District, citing the
Second Circuit Court of Appeals, noted that when determining whether two disputes arise from
"a common nucleus of operative fact," "we have traditionally asked whether ’the facts
underlying the federal and state claims substantially overlapped. . . [or] the federal claim
necessarily brought the facts underlying the state claim before the court."
510 F.Supp.2d at 322
(citations and quotations omitted). The instant action clearly falls within the latter category.
Finally, the Magistrate’s decision in Lewis v. Krymkevich, 2009 U.S.Dist.LEXIS 117713,
adopted by the District Judge in 2009 US.Dist.LEXIS 117686 (S.D.N.Y. 2009), the Court
granted the private defendant Dr. Krymkevich’s motion to dismiss and refused to exercise
1572681-1
9
supplemental jurisdiction over the state claims, even though plaintiffs federal claims were going
to continue against other-defendants who were not dismissed from the action.
Plaintiffs attempts to create a common nucleus of facts between his claims against the
New York City Police Department and his medical malpractice claims against JHMC necessarily
fail. On p. 18 of plaintiffs counsel Memorandum of Law in Opposition, plaintiffs counsel
ites that the Federal and State law claims "arise out of the same allegationsthat plaintiff was
forcibly removed from his home, falsely arrested, brought to JHMC against his will, received
and retained by JHMC as an EDP and involuntarily confined there for six (6) [days] as a result of
the coercion, intentional misrepresentations of the NYPD defendants in connection with
conspiracy and/or due process violations committed by JHMC and the individually named doctor
Infact; however, nonee -of the interaction - between the - plaintiff and
NYPD-
defendants before the plaintiff presented to JHMC has anything to do with whether the Hospital
negligently treated the plaintiff after he arrived to the Hospital. The entire history
between the plaintiff and the NYPD recited in plaintiffs Amended Complaint is completely
to his medical malpractice claims against JHMC. As stated by the Court in
MTBE
Liability Litigation, "the federal and state claims [rest] on essentially unrelated facts."
510 F.Supp.2d at 325 (citation omitted).
Section 1367(c) also allows a district court to decline to exercise supplemental
isdiction if "in exceptional circumstances, there are other compelling reasons for declining
iction." 28 U.S.C. 1367(c)(4); Id. at 327. In this case, particularly given plaintiffs failure
identify anyone at JHMC who allegedly committed malpractice other than the two
physicians, it would be fundamentally unfair to keep JHMC involved in this case to
"dragged through the mud" (See http://www.schoolcraftjustice.com/media.shtml).
1 1572681 _ 1
10
CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court grant defendant’s
ion and dismiss the Complaint as to JAMAICA HOSPITAL MEDICAL CENTER in its
,together with such other and further relief as this Court deems just and proper.
New York, New York
January 20, 2011
Respectfully submitted,.
MARTIN CLEARWATER & BELL
LLP
By:______________
Gregory J. kadomisli (GJR 2670)
Attorneys for Defendant
JAMAICA THOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, NY 10017
(212) 697-3122
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