Moore v. Shahine

Filing 94

MEMORANDUM AND ORDER denying 81 Motion to Stay. For the foregoing reasons, the defendant's motion to stay this action, Docket Entry No. 81, is denied. The Clerk of Court is directed to mail a copy of this Order to the plaintiff. SO ORDERED. (Signed by Magistrate Judge Kevin Nathaniel Fox on 6/10/2020) (va) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SERINA MOORE,
:
Plaintiff,
-againstAYMAN A. SHAHINE M.D.,

:
:

MEMORANDUM AND ORDER

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18-CV-463 (AT) (KNF)

Defendant.
:
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KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
BACKGROUND
Serina Moore, proceeding pro se, commenced this action against Ayman A. Shahine,
M.D., asserting that on June 10, 2016,
I was intentionally abused and harmed my face was scarred an[d] the doctor
disobeyed specific orders to not use tools on my face my hips were altered I suffer
from pain an[d] my body is uneven fat was distributed in specific places in my body
that I did not ask for. I was stabbed in my hips and it was intentional.
The defendant’s motion to dismiss was denied as untimely, and the defendant’s motion for
judgment on the pleadings was granted with respect to any cause of action based on intentional
tort and denied with respect to the cause of action for negligence sounding in “medical
malpractice or lack of informed consent.” Docket Entry No. 41. Before the Court is the
defendant’s motion “for an order to stay this lawsuit pending disposition of the action
commenced in [sic] by plaintiff in Supreme Court of the State of New York, County of New
York styled, Serina Moore v. Ayman Shahine, M.D., index No. 100188/2018.” The plaintiff
opposes the motion.

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DEFENDANT’S CONTENTIONS
The defendant asserts that this action should be stayed pursuant to the abstention doctrine
discussed in Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 96 S. Ct. 1236
(1976) (“Colorado River”) because: (a) the state action and the federal action are parallel and
concurrent; (b) the parties in both actions are the same; and (c) “the underlying issue concerning
both the State Action and Federal Action stem [sic] from plaintiff’s allegations concerning her
claims of medical malpractice” that “must be determined by the State Action under New York
State Law,” which will affect the outcome of the claims asserted in this action. The defendant
asserts that neither the state court nor this court is asserting jurisdiction over a res, and neither
action “is more or less convenient” since they are both “located in Manhattan, New York.”
According to the defendant, the claims in both actions “arise from the same factual nexus” and
the facts “are nearly identical.” Since “material issues of fact are duplicative, a stay is necessary
to avoid piecemeal litigation.” The defendant maintains that “the State Action was filed first on
February 8, 2019 as the original federal Summons and Complaint filed on January 17, 2018
based only on Federal Question jurisdiction and not upon diversity of citizenship was defective
and therefore a nullity.” Moreover, “substantial progress has been made in the State Action,”
and the plaintiff cannot establish any prejudice from the stay because her claims in the federal
action will be preserved.
The defendant contends that the action should be stayed also pursuant to the Court’s
discretionary authority because: (i) the existence of federal and state actions involving “state
claims sounding in medical malpractice may result in inconsistent, duplicative results”; (ii)
“proceeding with the Federal Action while the State Action continues will waste judicial
resources and ultimately duplicative findings of fact and law, that will necessarily be determined

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in the State Action”; (iii) “the State Action will provide adequate and complete relief” and “a
decision rendered from the State Action will effect, resolve, or collaterally estop plaintiff from
claims asserted in the federal Action”; (iv) the parties and “issues of fact” are identical; (v) the
state action is rapidly progressing and “no unfair delay will be occasioned to plaintiff” if this
action is stayed; (vi) no inconvenience from the stay exists to the parties, counsel and witnesses;
and (vii) no prejudice will attend any party as a result of the stay. In support of the motion, the
defendants’ attorney submitted a declaration with Exhibit A, “the Summons and Complaint filed
on January 17, 2018,” Exhibit B, “first Amended Complaint filed on February 8, 2018,” Exhibit
C, “the Summons and Complaint for the state court action filed on February 8, 2018,” Exhibit D,
the “defendant’s Answer to the original Summons and Complaint filed on March 15, 2018,”
Exhibit E, “the defendant’s Answer to the first Amended Summons and Complaint filed on
March 29, 2018,” Exhibit F, the “Defendant’s Answer to the second Amended Complaint filed
on May 21, 2018,” Exhibit H, “correspondence to the Court dated May 23, 2018, whereby
defendant consented to plaintiff’s filing of an Amended Complaint,” Exhibit I, the “defendant’s
Answer to the State Summons and Complaint filed on May 30, 2018,” and Exhibit J, “the
Court’s order denying defendant’s Motion to Dismiss pursuant to Rule 12(b)(6) as untimely and
granted [sic] defendants [sic] motion pursuant to Rule 12(c) with respect to any cause of action
based on intentional tort and denied with respect to the cause of action for negligence based on
lack of informed consent.”
In the state-court action, the plaintiff asserted “breach of contract” and “violation of
privacy & safety.” The plaintiff alleges in the state-court action that she scheduled “a scar
treatment revision” to be performed by the defendant. On June 7, 2015, the day of the surgery,
“she was rushed to fill out paper work [sic] and urged to make a haste to begin the procedure &

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pay remaining balance which was more than agreed.” According to the plaintiff, the defendant
“stabbed her in the hip & disobey[ed] orders not to put harsh tools on her face but to use laser.”
The plaintiff asserts that she was uncomfortable and “felt the doctor took pictures of me while I
was in & out of consciousness.” According to the plaintiff, in 2016, she had a follow-up visit
during which she “expressed the scar on my face was worst, my breast were [sic] huge an[d] my
body wasn’t even my hips hurt from where he stabbed me an[d] they were unbalanced.” During
the follow-up visit, the defendant “took a needle an[d] tried to take out some of the fat which
hurt more an[d] sent me on my way.” Thereafter, the plaintiff had an unbearable pain in her leg,
could no longer sleep, became depressed and was harassed online. The plaintiff asserts that the
defendant “shared my personal information,” “scared my face as some type of retaliation a[nd]
exposed my personal picture” and “conspired with some of the men in my city.” According to
the plaintiff, the defendant offered to perform a free surgical procedure “because he didn’t do
what we agreed on,” but she declined.
PLAINTIFF’S CONTENTIONS
The plaintiff opposes the motion, asserting that she filed state and federal actions because
she is not represented by an attorney or knowledgeable about the law, and she attempted to find
the most convenient forum based on information she had concerning where she could obtain the
highest amount of damages. The plaintiff asserts that, in January 2020, during the status
conference in the state action, the defendant’s “attorney expressed his feeling to stay the state
suit because of this pending federal suit,” and she “was presented with the option of amending or
creating a new suit.” The plaintiff contends that she only seeks an opportunity to present her
claims.

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DEFENDANT’S REPLY
In reply, the defendant’s attorney submitted an “affirmation,” asserting that “[a]n
Affirmation is an opportunity for the opposing party to a motion to explain why the movant is
not entitled to the relief that they seek,” and the plaintiff “fails to address any of the merits or
arguments made in our motion to stay”; thus, her opposition to the motion “should be
disregarded entirely by the Court.”
LEGAL STANDARD
Abstention from the exercise of federal jurisdiction is the exception, not the rule.
“The doctrine of abstention, under which a District Court may decline to exercise
or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception
to the duty of a District Court to adjudicate a controversy properly before it.
Abdication of the obligation to decide cases can be justified under this doctrine only
in the exceptional circumstances where the order to the parties to repair to the state
court would clearly serve an important countervailing interest.” County of
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S. Ct. 1060, 1063, 3
L.Ed.2d1163,1166 (1959).
Colorado River, 424 U.S. at 813, 96 S. Ct. at 1244.
The principles of Colorado River are to be applied only in situations “involving the
contemporaneous exercise of concurrent jurisdictions.” Therefore, a finding that
the concurrent proceedings are “parallel” is a necessary prerequisite to abstention
under Colorado River. See Alliance of American Insurers v. Cuomo, 854 F.2d 591,
603 (2d Cir.1988); Day v. Union Mines Inc., 862 F.2d 652, 655 (7th Cir.1988)
(“Suits are parallel when substantially the same parties are contemporaneously
litigating substantially the same issue in another forum.” (internal quotation marks
omitted)).
Dittmer v. County of Suffolk, 146 F.3d 113, 117-18 (2d Cir. 1998) (citation
omitted).
In determining whether this exception is applicable, the court should consider (1)
whether the controversy involves a res over which one of the courts has assumed
jurisdiction; (2) whether the federal forum is less inconvenient than the other for
the parties; (3) whether staying or dismissing the federal action will avoid
piecemeal litigation; (4) the order in which the actions were filed, and whether
proceedings have advanced more in one forum than in the other; (5) whether federal
law provides the rule of decision; and (6) whether the state procedures are adequate
to protect the plaintiff's federal rights.
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Woodford v. Cmty. Action Agency of Greene County, Inc., 239 F.3d 517, 522 (2d
Cir. 2001) (internal citations omitted).

“[T]he power to stay proceedings is incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct. 163, 166 (1936). “The person
seeking a stay ‘bears the burden of establishing its need.’ ‘[A]bsent a showing of undue
prejudice upon defendant or interference with his constitutional rights, there is no reason why
plaintiff should be delayed in its efforts to diligently proceed to sustain its claim.’” Louis
Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 97 (2d Cir. 2012) (citations omitted).
APPLICATION OF LEGAL STANDARD
Colorado River Abstention
Whether Concurrent Proceedings Are Parallel
The parties in the state-court action and this action are the same. The plaintiff’s cause of
action for negligence sounding in medical practice or lack of informed consent survived the
defendant’s motion to dismiss in this action. In the state-court action, the plaintiff appears to
have asserted negligence sounding in medical malpractice or lack of informed consent as well as
breach of contract and a violation of her privacy rights. Although the state court-action appears
to encompass a longer time period and additional factual assertions, the state-court action and the
federal action involve the same underlying factual circumstances in connection with the
plaintiff’s interaction with the defendant concerning certain medical procedures. The Court finds
that the same parties are litigating contemporaneously substantially the same issues in the statecourt proceeding and this proceeding; thus, the state and federal concurrent proceedings are
parallel.
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Whether the State or Federal Court Has Assumed Jurisdiction over a Res
This is not an in rem action, and neither the federal district court nor the New York state
court has assumed jurisdiction over any res or property. This factor weighs against abstention.
See Woodford, 239 F.3d at 522 (“[W]ith respect to the first Colorado River factor, ‘the absence
of a res point[s] toward exercise of federal jurisdiction.’”) (quoting Vill. of Westfield v. Welch’s,
170 F.3d 116, 122 (2d Cir.1999)).
Inconvenience of the Federal Forum
No inconvenience of the federal forum exists because the state court and the federal court
are both located in New York County, New York. This factor weighs against abstention. See
Woodford, 239 F.3d at 523 (“[W]ith respect to the second Colorado River factor, ‘where the
federal court is just as convenient as the state court, that factor favors retention of the case in
federal court.’”) (quoting Vill. of Westfield, 170 F.3d at 122). In light of the posture of the
instant case in which the defendant already made a motion for summary judgment, as explained
below, the ultimate disposition of this action will operate as res judicata with respect to the
plaintiff’s claims asserted in this action. As a result, the parties would avoid piecemeal litigation
and duplication of efforts if this action is not stayed and the defendant’s motion for summary
judgment is determined. Thus, this factor weighs against abstention.
Desirability of Avoiding Piecemeal Litigation
Although “the danger of piecemeal litigation” was the “paramount” consideration in
determining whether abstention is warranted in Colorado River, see Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19, 103 S. Ct. 927, 939 (1983), “the mere potential
for conflict in the results of adjudications, does not, without more, warrant staying exercise of
federal jurisdiction.” Colorado River, 424 U.S. at 816, 96 S. Ct. at 1245. As explained below, in

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this action, the defendant has made a motion for summary judgment, which: (i) if granted, will
have a res judicata effect in connection with the plaintiff’s claims asserted in this action; or (ii) if
denied, will lead to trial. Given that this action has advanced further than the state-court action,
staying it at this time will not eliminate duplication of efforts. Thus, this factor weighs against
abstention.
Order in which the Concurrent Forums Obtained Jurisdiction
This action was filed first. However, “priority should not be measured exclusively by which
complaint was filed first, but rather in terms of how much progress has been made in the two
actions.” Moses H. Cone Mem’l Hosp., 460 U.S. at 21, 103 S. Ct. at 940. On June 8, 2020, the
defendant’s counsel informed the Court that discovery in the state-court action is almost
complete and the most recent court conference was held on February 27, 2020, when: (a) various
discovery issues were addressed; (b) the next conference was scheduled for April 16, 2020; and
(c) “the note of issue deadline for certification of trial readiness was May 8, 2020.” However,
the April 16, 2020 conference was adjourned without date due to the COVID-19 pandemic.
Discovery in this action was completed on February 4, 2020, and, subsequent to the instant
motion, the defendant filed a motion for summary judgment on April 6, 2020. The plaintiff
neither sought an enlargement of time to oppose nor opposed the motion. Although the statecourt action was filed first, the instant action progressed to the final dispositive motion that may
resolve the action or lead to the scheduling of a trial. Thus, this factor weighs against abstention.
Whether State or Federal Law Controls
“[A]lthough the presence of federal issues strongly advises exercising federal jurisdiction, the
absence of federal issues does not strongly advise dismissal, unless the state law issues are novel
or particularly complex.” Vill. of Westfield, 170 F.3d at 124. No federal question exists in this

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action, which is based on diversity of citizenship and involves New York law. However, the
state-law issues concerning negligence asserted in this action are neither novel nor complex.
Thus, this factor weighs against abstention.
Adequacy of the State Forum to Protect the Plaintiff’s Federal Rights
No federal rights are involved in this action and no evidence exists that the state court cannot
protect adequately the plaintiff’s rights under state law. Thus, this factor is neutral. See Estee
Lauder Comp. Inc. v. Batra, 430 F.Supp.2d 158, 169 (S.D.N.Y. 2006) (“[T]he ability of the
[state] court to adequately protect [plaintiff’s] interests renders the sixth factor largely neutral.”).
The Court finds that abstention pursuant to Colorado River is not warranted.
Inherent Power
The defendant failed to show undue prejudice or interference with its constitutional rights
if this action is not stayed. See Louis Vuitton Malletier S.A., 676 F.3d at 97. Accordingly, the
Court declines to stay this action pursuant to its inherent power.
CONCLUSION
For the foregoing reasons, the defendant’s motion to stay this action, Docket Entry No.
81, is denied. The Clerk of Court is directed to mail a copy of this Order to the plaintiff.
Dated: New York, New York
June 10, 2020

SO ORDERED:

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