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)

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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 -’ 11

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