Dr. Maria La Russo v. St. George's University School of Medicine et al

Filing 26

OPINION AND ORDER re: 7 MOTION to Amend/Correct Complaint to Join Defendants and Remand filed by Dr. Maria La Russo, 10 MOTION to Dismiss Defendant's St. George's University, LTD Notice of Motion to Dismiss Verified Complaint< /I> filed by St. George's University School of Medicine. For the reasons set forth above, SGU, Ltd.'s motion to dismiss is GRANTED. The Court does not consider Plaintiff's motion to amend the complaint to join additional defendants and to remand, which is DENIED as moot. The Clerk of the Court is respectfully directed to terminate the motions and close this case. Docs. 7, 10. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 3/28/2013) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DR. MARIA LA RUSSO, an attorney in fact for A. Matthew
De Lucia,
OPINION AND ORDER
Plaintiff,
12-cv-03093 (ER)
- against ST. GEORGE’S UNIVERSITY SCHOOL OF MEDICINE,
and John Does 1-5 and Jane Does 1-5 (as employees, agents,
and/or servants of St. George’s and/or as independent
contractors),
Defendants.
----------------------------------------------------------------------------x
Ramos, D.J.:
Plaintiff Dr. Maria La Russo (“Plaintiff” or “Dr. La Russo”), as attorney-in-fact for A.
Matthew De Lucia (“De Lucia”), brings this action against St George’s University School of
Medicine (“Defendant” or “St. George’s” or “School of Medicine”), alleging medical
malpractice, breach of contract, and negligence. The action was removed from state court by St.
George’s University, Ltd. (“SGU Ltd.”), as “the entity that owns and operates the non-juridicial
named defendant in the caption, ‘St. George’s University School of Medicine.’” Doc. 1.
Before the Court are Plaintiff’s motion to amend the complaint to join certain defendants
and remand, Doc. 7, and SGU, Ltd.’s motion to dismiss, Doc. 10. For the reasons discussed
below, SGU, Ltd.’s motion to dismiss is GRANTED. Because SGU Ltd.’s motion to dismiss is
granted, the Court does not consider Plaintiff’s motion to amend and remand, which is DENIED
as moot.

I.

Factual Background
Plaintiff is the attorney-in-fact for her son, De Lucia. Compl. ¶ 24. In August 2007, at

the age of twenty-one, De Lucia began attending St. George’s, located in the island of Grenada.
Id. ¶¶ 2, 25. Prior to attending St. George’s, De Lucia attended an “Information Session” hosted
by the school in New York City. Id. ¶ 57. At that session, admissions staff assured the attendees
that there would be medical facilities and treatment available for students at the Grenada campus.
Id. De Lucia was also provided a publication entitled “St. George’s University School of
Medicine; Think Beyond; 2005-2006.” Id. ¶ 58. Under the heading “University Health
Services,” it states:
University Health Services (UHS) maintains modern clinic
facilities with scheduled and walk-in hours from 9:00 am to 4:30
pm, Monday through Friday. Additionally, there is daily 24-hour
coverage by well-credentialed physicians and physician assistants
to provide students with emergency care when the clinic is closed.
Medical emergencies in Grenada are referred to Grenada General
Hospital or St. Augustine Clinic. . . . University Health Services
facilitates with air evacuation, if indicated, on both campuses.
Id. ¶ 58.
In January 2007, De Lucia received a letter from St. George’s, offering him admission for
the 2007/2008 school year. Id. ¶ 59. Enclosed with the letter was a “Student Support Services”
handbook from the Office of the Dean of Students, which stated: “The Office of the Dean of
Students advocates on behalf of students to help you make the best use of the services available
both on and off campus. Any student with mental or physical disabilities is provided a wide
range of support services.” Id. The handbook also stated, under the heading “University Health
Services”:
St. George’s University Health Services (UHS) provides the
University community with an outpatient clinic and easy-access
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healthcare. . . . In addition to the regular clinic hours . . . UHS
provides emergency medical services 24 hours a day, 7 days a
week. An excellent, dedicated team of physicians, clinical tutors
and physical extenders with varied backgrounds maintains this
service. Medical emergencies in Grenada are referred to Grenada
General Hospital or St. Augustine Clinic. . . . UHS facilitates air
evacuation if necessary on both campuses.
Id. ¶ 60.
De Lucia began attending St. George’s in the fall of 2007. Id. ¶ 63. In the spring of
2009, De Lucia met with his faculty advisor at St. George’s, Dr. Jacqueline Stanley, to discuss
concerns with stress and academic issues. Id. ¶ 26. De Lucia arrived at that meeting wearing
sweatpants (despite Grenada’s hot climate) and looking disheveled. Id. De Lucia indicated
during the meeting that he wanted to see the dean regarding his concerns about academic issues.
Id. Dr. Stanley told De Lucia that he could not go see the dean dressed as he was, and counseled
him to go to the beach and take a vacation. Id. Though De Lucia appeared disheveled, anxious
and stressed, Dr. Stanley did not advise him to visit the counseling department, speak with the
dean of students, or see any medical or mental health professional. Id.
De Lucia took Dr. Stanley’s advice and went on a sailing trip in May 2009. Id. ¶ 27.
When he returned to St. George’s from the trip, De Lucia was seriously ill; he had entered a state
of “psychological crisis,” and was disoriented, sickly, and had been aimlessly wandering on and
off the St. George’s campus. Id. ¶ 28. Fellow students at St. George’s alerted school officials to
De Lucia’s condition and, in response, St. George’s school security officers picked him up in the
middle of the night and escorted him off the campus to Mount Gay Hospital (“Mount Gay”), also
located in Grenada. Id. ¶¶ 29-30. Due to his condition, De Lucia was unable to consent to any
form of treatment and was therefore involuntarily admitted to Mount Gay. Id. ¶ 31.

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Although St. George’s had on file the contact information of Plaintiff and her husband,
Dr. De Lucia, no representative of the school contacted De Lucia’s parents to seek their consent
regarding his admission to Mount Gay or to inform them of De Lucia’s medical status. Id. ¶ 32.
A fellow student at the school contacted De Lucia’s parents and informed them of his transfer to
Mount Gay. Id. ¶ 33. The student stated that Mount Gay was commonly known for its
deplorable conditions and reputation among the medical student population, especially in regard
to outdated medical intervention and treatment. Id. After unsuccessfully attempting to reach
school personnel over the telephone, Dr. De Lucia made plans to travel to Grenada. Id. ¶ 34.
Dr. De Lucia arrived in Grenada and visited Mount Gay on or about May 14, 2009. Id. ¶
35. Upon his arrival at the hospital, he found his son in an outdoor cell lying on a concrete floor
without a mattress, naked except for boxer shorts. Id. ¶ 36. De Lucia was incoherent due to
overdosing on Haldol and other drugs, and was experiencing muscle weakness, muscle tremors,
dilated eyes, drowsiness, and dry mouth and lips due to his overmedication and lack of adequate
hydration. Id. ¶¶ 37-38. De Lucia’s body was covered in insect bites and a noxious odor of
urine and feces permeated his person. Id. ¶ 39. Dr. De Lucia did not observe any identifiable
medical professionals or supervisory staff on duty at the hospital. Id. ¶ 40.
Dr. De Lucia informed Plaintiff of the situation, and Plaintiff thereafter made
arrangements to travel to Grenada. Id. ¶ 41. After Plaintiff’s arrival in Grenada, she and Dr. De
Lucia returned to Mount Gay to attempt to have their son released. Id. ¶ 42. On that visit, they
observed that De Lucia appeared frightened and agitated when touched. Id. ¶ 43. They also
observed other patients wandering in and around aimlessly without supervision, posing risk to
De Lucia. Id. ¶ 44. Dr. De Lucia was able to secure De Lucia’s release from the hospital on
May 16, 2009, and returned with him to the United States the following day. Id. ¶ 46.
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After a period of time during which De Lucia sought treatment in an effort to recover, he
decided that he wanted to complete medical school, and returned to St. George’s in the fall of
2009. Id. ¶ 47. He was able to complete one semester of coursework, but became ill in January
2010. Id. At that time, De Lucia visited the counseling office at the school, and they sent him to
St. Augustine’s Hospital, where he was admitted. Id. Plaintiff and Dr. De Lucia flew to Grenada
and returned to the United States with De Lucia. Id. Still wanting to earn his medical degree, De
Lucia sought treatment in an effort to recover, and again returned to St. George’s in the fall of
2010. Id. ¶ 48. Before classes began, however, De Lucia’s mental condition deteriorated,
requiring him to return to the United Sates without earning his medical degree. Id.
II.

Procedural Background
On November 15, 2011, Plaintiff filed a Summons with Notice in the Supreme Court of

the State of New York, Westchester County, which named “St. George’s University School of
Medicine” as the sole defendant. Declaration of Myron Beldock (“Beldock Decl.”) Ex. A. That
same day, the summons was amended to add the “Doe” Defendants 1 through 5. Beldock Decl.
Ex. B. On February 24, 2012, Plaintiff served Defendant pursuant to N.Y. Bus. Corp. Law § 307
by serving a copy of the Summons with Notice on the New York Secretary of State and mailing
a copy of same by certified mail to Grenada. Beldock Decl. Ex. G (Beldock Aff.) ¶ 9. That
same day, Plaintiff also served the Summons with Notice on St. George’s University, LLC
(“SGU LLC”) by personal service on its registered agent in Delaware, and on University Support
Services, LLC (“USS LLC”) by service on the New York Secretary of State and by personal
service on its registered agent in Delaware. Id.
On March 7, 2012, Plaintiff moved by Order to Show Cause (“OTSC”) seeking
permission to file a supplemental summons adding SGU Ltd., SGU LLC, USS LLC, and Dr.
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Stanley as defendants, and seeking a ruling that the claims against the proposed additional
defendants related back to the time the initial summons was filed. Beldock Decl. Ex. G. The
OTSC was issued by the Honorable Joan B. Lefkowitz on March 12, 2012, returnable on April
20, 2012. Beldock Decl. Ex. I. Without making an appearance in the state case, SGU Ltd.
demanded a complaint setting forth the bases for Plaintiff’s claim, which was filed on April 5,
2012. Beldock Decl. Ex. H. On April 19, 2012, one day prior to the return date of Plaintiff’s
state court application, SGU Ltd. filed a Notice of Removal to this Court as “the entity that owns
and operates the non-juridical named defendant in the caption.” Doc. 1.
III.

Nature of Motions
Before the Court are two motions which present substantially overlapping issues. First,

Plaintiff has filed a motion to amend the Complaint to join as defendants SGU Ltd., SGU LLC,
USS LLC, and Dr. Stanley. Both parties appear to concede that SGU Ltd. and Dr. Stanley are a
foreign entity and individual, respectively, and would therefore not destroy diversity jurisdiction.
Defendant’s Opposition to Plaintiff’s Motion to Amend (“Opp. to Mot. to Amend”) at 1 n.1.
SGU LLC and USS LLC, on the other hand, are New York citizens, the joinder of which would
destroy full diversity of citizenship, as Plaintiff is a New York resident. Id. 1.
SGU Ltd. has separately filed a motion to dismiss the Complaint on several bases. First,
SGU Ltd. argues that the Complaint should be dismissed for insufficient process because the
School of Medicine, the entity Plaintiff purported to have served with the summons and notice,
has no independent legal existence having legal capacity to be sued. Mot. to Dismiss 8. SGU
Ltd. contends that as the entity that owns and operates St. George’s, it has never been actually
named or served with process. Accordingly, SGU Ltd. argues that no action was ever validly
commenced because the initial summons named a non-existing entity, and that the statute of
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limitations has thus run. Id. 9. Second, SGU Ltd. argues that even assuming it was properly
named and served with the initial summons, Plaintiff’s claims would still be time-barred, as the
original summons and notice was filed one day after the statute of limitations had run. Id. 9-10.
Finally, SGU Ltd. argues that the case should be dismissed under the doctrine of forum non
conveniens. Id. 15. 1
IV.

SGU Ltd.’s Removal was Proper
Plaintiff argues that the Court lacks jurisdiction to accept the removal of SGU Ltd.

because SGU Ltd. has never formally intervened in the action or been joined as a defendant.
Opposition to Motion to Dismiss (“Opp. to MTD”) 10-12. In support of its argument, Plaintiff
cites several cases holding that non-parties to an action do not have standing to remove under 28
U.S.C. § 1441. These cases are distinguishable, however, in that they involve removal by nonparties to an action in which there was no dispute as to the legal existence of the named
defendant. See, e.g., JRA Holding, Inc. v. McCleary, No. 95-7702, 100 F.3d 944 (2d Cir. 1996)
(removal by non-party prior owner of apartment in lawsuit by current owner against lessee)
(summary order); Whitney Lane Holdings, LLC v. Don Realty, LLC, 08 Civ. 775 (GLS) (RFT),
2009 WL 6315323, at *1-*7 (N.D.N.Y. Oct. 27, 2009) (Report & Recommendation), adopted in
relevant part, 2010 WL 1257879 (N.D.N.Y. Mar. 26, 2010) (remanding case removed by nonparty assignee of mortgage in lawsuit by purchaser of real property against seller and original
holder of mortgage); Am. Home Assur. Co. v. RJR Nabisco Holdings Corp., 70 F. Supp. 2d 296,
298-99 (S.D.N.Y. 1999) (remanding case removed by subsidiary of named defendant claiming to
be the real party in interest).

1

SGU Ltd. also argues that Plaintiff’s demands for student loan repayment and punitive damages should be stricken.
Id. 21. However, because the Court finds that dismissal of Plaintiff’s claims is appropriate, it does not consider
Defendant’s arguments regarding the damages requested.

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Here, on the other hand, although SGU Ltd. has not formally appeared as a defendant in
the action, it removed the case as the owner and operator of St. George’s, which it claims is a
“non-juridical” entity. Courts addressing the issue presented here have held that, where a
plaintiff has named a non-juridical entity, the intended proper defendant may remove the case
where it is on notice that the wrong defendant was named. See, e.g., Ware v. Wyndham
Worldwide Inc., No. 09-6420 (RBK) (AMD), 2010 WL 2545168, at *1-*6 (D.N.J. June 18,
2010) (where non-existent entity was named as defendant, holding that thirty-day removal
window began to run on intended defendant as of the time it accepted the initial service on the
non-existent entity and ascertained that it was the intended defendant); Hillberry v. Wal-Mart
Stores East, L.P., No. 05 Civ. 63-H, 2005 WL 1862087, at *1-*2 (W.D. Ky. Aug. 3, 2005)
(holding that case was properly removed where initial complaint named non-existent entity,
“Wal-Mart,” and notice of removal was filed by the proper corporate defendant, “Wal-Mart
Stores East, L.P.”); Pioneer Exploration, Ltd. v. Kansas Gas Serv. Co., No. 04-1335 (WEB),
2004 WL 2931403, at *3-*4 (D. Kan. Dec. 17, 2004) (where complaint named “Kansas Gas
Service Company,” an unincorporated division within ONEOK, Inc., holding that removal by
“ONEOK, Inc.” was proper where court determined that it was the party against whom judgment
was sought); see also Lee v. Food Lion, LLC, No. 12 Civ. 142 (RGD), 2013 WL 588767, at *2*4 (E.D. Va. Feb. 13, 2013) (holding that notice of removal was untimely because intended
corporate defendant, Food Lion, LLC, did not remove within 30 days of receiving copy of
complaint naming “Food Lion Stores, Inc.,” a non-existent entity, and ascertaining that it was the
intended defendant of the lawsuit). 2 Accordingly, SGU Ltd. properly removed this action as the

2

In its sur-reply in further opposition to SGU Ltd.’s motion to dismiss, Plaintiff attempts to distinguish several of
the above-cited cases by arguing that the removing entities had appeared in the state case prior to removal and/or
accepted service of process on behalf of the non-juridical entity. Plaintiff argues that SGU Ltd.’s removal is

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owner and operator of the School of Medicine, a “non-juridical” entity. 3
V.

Motion to Dismiss for Failure to Comply with Statute of Limitations 4
a. Standard of Review
A motion to dismiss for failure to comply with the statute of limitations is treated as a

motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(6). Adams v. Crystal City Marriott Hotel, No. 02 Civ. 10258 (PKL), 2004 WL 744489, at
*2 (S.D.N.Y. Apr. 6, 2004) (citing Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d
Cir. 1989)). Rule 12(b)(6) provides the most appropriate legal basis for a motion to dismiss on
statute of limitations grounds because the expiration of the statute of limitations presents an
affirmative defense. Id.

therefore improper because it did not accept service of process on behalf of the School of Medicine or appear in the
state court case. The fact that SGU Ltd. did not formally appear in the state action, however, does not preclude it
from properly removing the case to this Court. Although courts have considered whether the intended party was
actually served with the complaint naming the non-existent or non-juridical entity, they have done so in the context
of determining when the 30-day removal clock begins to run on the intended defendant. See, e.g., Ware, 2010 WL
2545168, at *4-*5. These decisions do not hold that proper service is required in order for an intended defendant to
remove a case, but rather, that an intended defendant has a duty to remove within the 30-day time frame (assuming it
desires to be in federal court) as of the time it “is on notice that the wrong company defendant has been named.”
Hillberry, 2005 WL 1862087, at *1.
3

Plaintiff appears to dispute that Defendant is a non-juridical entity, and points to SGU Ltd.’s description of St.
George’s as an “unincorporated association” in the Notice of Removal. Opp. to MTD 23. According to Plaintiff,
unincorporated associations can be sued pursuant to New York General Associations Law § 13, which states that an
action “may be maintained, against the president or treasurer of [an unincorporated] association, for or upon which
the plaintiff may maintain claim of ownership jointly or severally.” SGU Ltd. has repeatedly stated that the School
of Medicine is a “non-juridical” entity “with no independent legal existence and no capacity to be sued.” Doc. 1 ¶
10; Mot. to Dismiss 1. Even assuming that St. George’s is an “unincorporated association,” however, Section 13
makes clear that an action against any such association can only be brought “against the president or treasurer.”
Plaintiff has not named any such persons in this action. Moreover, Plaintiff does not appear to dispute that SGU
Ltd. owns and operates the School of Medicine.
4

Plaintiff has moved to join SGU Ltd., SGU LLC, USS LLC, and Dr. Stanley as defendants in this action, which
SGU Ltd. has opposed. See Docs. 7, 14. The Court need not address Plaintiff’s motion to join additional parties,
however, because even if Plaintiff were permitted to add the additional defendants, the amended complaint would
still be untimely under the applicable New York limitations periods. Moreover, because federal courts sitting in
diversity apply state statutes of limitations to state law claims, the Court need not remand the case prior to
determining the timeliness of Plaintiff’s claims. Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990) (“In
diversity cases, ‘state statutes of limitations govern the timeliness of state law claims.’”) (citations omitted).

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When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required
to accept as true all factual allegations in the complaint and to draw all reasonable inferences in
the plaintiff’s favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.
2010). However, this requirement does not apply to legal conclusions, bare assertions or
conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy the pleading standard set forth in Rule 8
of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to
state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 570). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. Accordingly, a plaintiff is required to support its
claims with sufficient factual allegations to show “more than a sheer possibility that a defendant
has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
b. Plaintiff’s Claims are Untimely
Defendant moves to dismiss Plaintiff’s claims on the ground that they are time-barred.
First, Defendant argues that Plaintiff’s medical malpractice claim is untimely because the two
and one-half year limitations period expired on November 14, 2011, one day before the
summons was filed, and that the insanity toll does not apply to Plaintiff. Mot. to Dismiss 9-10,
14. Defendant further argues that Plaintiff’s remaining claims are duplicative of the malpractice
claim, and must therefore be dismissed under the “duplicative claims doctrine.” 5

5

The statute of limitations for breach of contract and negligence claims under New York law is six and three years,
respectively. See CPLR 213(2), 214(5). Defendant does not argue that those claims are themselves untimely, as the

10

The Court notes at the outset that Plaintiff appears to concede that her malpractice claim
was filed after the two and one-half year statute of limitations had run. She argues, however, that
the Complaint adequately alleges facts supporting tolling of the statute of limitations during the
period that De Lucia “was unable to function.” Opp. to MTD 16. Accordingly, should the
Court find that the statute of limitations was not tolled under CPLR 208, Plaintiff’s medical
malpractice claim must therefore be dismissed as untimely.
i. The Insanity Toll does not Apply
CPLR 208 provides for tolling of a limitations period “[i]f a person entitled to commence
an action is under a disability because of . . . insanity at the time the cause of action accrues.”
Under New York law, the plaintiff bears the burden of proving that a limitation period should be
tolled. Vallen v. Carrol, No. 02 Civ. 5666 (PKC), 2005 WL 2296620, at *3 (S.D.N.Y. Sept. 20,
2005) (citing New York cases). In McCarthy v. Volkswagen of Am., 55 N.Y.2d 543 (1982), the
leading New York case on the definition of “insanity” as used in CPLR 208, the Court of
Appeals interpreted the insanity provision narrowly, holding that “the Legislature meant to
extend the toll for insanity to only those individuals who are unable to protect their legal rights
because of an over-all inability to function in society.” Id. at 548. A plaintiff seeking to obtain
the benefit of the statute must not only demonstrate that he suffered from such an “over-all
inability to function in society,” but also that the plaintiff was insane at the time the cause of
action accrued or that the insanity was caused by the event upon which the suit is predicated, and
that the insanity was continuous during the relevant statutory period. See De Los Santos v.
Fingerson, No. 97 Civ. 3972 (MBM), 1998 WL 740851, at *3-*4 (S.D.N.Y. Oct. 23, 1998)
(citing Graboi v. Kibel, 432 F. Supp. 572, 578-79 (S.D.N.Y. 1977) (“[E]ven if a plaintiff is found
summons was filed approximately two and one-half years after the last date on which the actions could be said to
have accrued. See Diffley, 921 F.2d at 423.

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either to have been insane at the time of or rendered insane by the occurrence, the insanity must
also be found to have been continuous. In other words, if the plaintiff had a lucid interval of
significant duration, preceded and followed by a period of insanity, the toll is lost and is not
resurrected when a plaintiff relapses into insanity.”)).
Courts have consistently held that a “very high level of incapacity must be demonstrated
before a plaintiff may successfully invoke Section 208.” Keitt v. City of NY, No. 09 Civ. 5663
(PKC) (DF), 2010 WL 3466175, at *7 (S.D.N.Y. Aug. 9, 2010) (Report & Recommendation),
adopted, 2010 WL 3466079 (S.D.N.Y. Sept. 2, 2010); see also Dumas v. Agency for Child Dev.New York City Head Start, 569 F. Supp. 831, 833 (S.D.N.Y. 1983) (stating that a mental
condition must be “severe and incapacitating” to qualify as insanity under CPLR 208);
Eisenbach v. Metro. Transp. Auth., 62 N.Y.2d 973, 975 (1984) (noting that insanity under CPLR
208 is “a concept equated with unsoundness of mind”). Following McCarthy, courts have noted
that the statute “speaks in terms of insanity, not merely mental illness,” and “apathy, depression,
posttraumatic neurosis, psychological trauma and repression therefrom or mental illness alone
have been held to be insufficient” to invoke the insanity toll. De Los Santos, 1998 WL 740851,
at *4 (citing Wenzel v. Nassau Cnty. Police Dep’t, No. 93 Civ. 4888 (ADS), 1995 WL 836056, at
*4 (E.D.N.Y. Aug. 5, 1995) (citing cases)); see also Sanders v. Rosen, 605 N.Y.S.2d 805, 814
(Sup. Ct. N.Y. Cnty. 1993) (“The Court of Appeals [has] made it quite plain that apathy,
depression and neurosis are not so disabling as to toll the Statute of Limitations.”). In
determining the applicability of the insanity toll, it is appropriate to “focus on the plaintiff’s
conduct and activities.” Dumas, 569 F. Supp. at 834 n.5 (citing cases). “Difficulty in
functioning is not sufficient to establish insanity for purposes of § 208; rather, the plaintiff must
be totally unable to function as a result of a ‘severe and incapacitating’ disability.” Swartz v.
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Berkshire Life Ins. Co., No. 99 Civ. 9462 (JGK), 2000 WL 1448627, at *5 (S.D.N.Y. Sept. 28,
2000) (citation omitted). While an “extreme loss of cognitive function” has been found to satisfy
the requirement, courts have refused to toll the statute of limitations even where a plaintiff
suffers from “dementia and [a] psychotic disorder.” Keitt, 2010 WL 3466175, at *7 (citing
Yannon v. RCA Corp., 131 A.D.2d 843 (2d Dep’t 1987) (applying insanity toll where plaintiff
suffered from “presenile dementia” that rendered him unable to tie a necktie or add two
numbers); Burgos v. City of New York, 294 A.D.2d 173 (1st Dep’t 2002) (holding that
requirements not satisfied where plaintiff alleged that he suffered from “dementia and psychotic
disorder” “due to multiple medical conditions that . . . existed for many years and [were]
permanent”).
Here, Plaintiff alleges that De Lucia met with his advisor in spring of 2009 “looking
disheveled, [] dressed in sweat pants despite Grenada’s hot climate, and want[ing] to see the
dean regarding his concerns about academic issues.” Compl. ¶ 26. Upon returning to St.
George’s from a sailing trip in May 2009, De Lucia was “disoriented, sickly, and had been
aimlessly wandering on and off the St. George’s campus.” Id. ¶ 28. After De Lucia was
transferred to Mount Gay Hospital by the school, De Lucia’s father found him at the hospital
appearing “incoherent due to overdosing of Haldol and other drugs,” and “frightened when . . .
touched by an aggressive patient.” Id. ¶¶ 35-37, 43. After returning to the United States on May
17, 2009, De Lucia “sought treatment in an effort to recover,” and ultimately decided to return to
St. George’s in the fall of 2009 to complete medical school. Id. ¶ 47. He was “able to complete
one semester of coursework,” but became ill in January 2010, at which time he was sent to St.
Augustine’s Hospital, and ultimately returned to the United States with his parents. Id. De
Lucia “again sought treatment in an effort to recover, and again returned to St. George’s in the
13

fall of 2010.” Id. ¶ 48. Before classes began, however, De Lucia’s mental condition
“deteriorated,” requiring him to return to the United States. Id.
Defendant argues, and Plaintiff appears to concede, that the malpractice cause of action
accrued, at the latest, when De Lucia was transferred to Mount Gay, which occurred no later than
May 14, 2009. Mot. to Dismiss 9-10, 14. Thus, the latest date on which the two and one-half
years limitations period could have expired was November 14, 2011, one day prior to the filing
of the summons in state court. Id. To satisfy the standard for insanity under CPLR 208, Plaintiff
would therefore have to allege that De Lucia continuously experienced an “over-all inability to
function in society” during the period between May 14, 2009 and November 14, 2011.
Accepting all of Plaintiff’s allegations as true and drawing all reasonable inferences in her favor,
the Court finds that Plaintiff has failed to satisfy the very high standard for insanity under CPLR
208.
Even assuming that De Lucia had experienced an “extreme loss of cognitive function” as
of and immediately following the time he was admitted to Mount Gay in May 2009, Plaintiff
alleges that De Lucia was well enough to return to St. George’s in the fall of 2009 after
undergoing treatment. Compl. ¶ 47. Although he ultimately had to return home again in January
2010 after becoming ill, De Lucia was “able to complete one semester of coursework” prior to
that time. Id. Moreover, De Lucia was apparently well enough to travel back to Grenada to
return to school in the fall of 2010 after undergoing more treatment. Id. ¶ 48. Plaintiff’s
allegations therefore establish that De Lucia did not continuously experience a total “inability to
function in society” during the relevant time period. To the contrary, De Lucia was obviously
able to “function” enough to return to Grenada on two separate occasions in an attempt to finish

14

medical school, and to complete a semester of coursework during one of those occasions. 6
Moreover, assuming arguendo that De Lucia’s mental condition upon his admission to
Mount Gay was continuous throughout the relevant period, the Court finds that Plaintiff’s
allegations do not establish a disability so “severe and incapacitating” that it rendered De Lucia
“totally unable to function.” Swartz, 2000 WL 1448627, at *5. The only allegations Plaintiff
makes regarding De Lucia’s mental state during the relevant period is that he was “disoriented,
sickly, and had been aimlessly wandering on and off the St. George’s campus,” and that during
his stay at Mount Gay, he appeared “incoherent due to overdosing of Haldol and other drugs”
and “frightened” when touched by an aggressive patient. Compl. ¶¶ 28, 35-37, 43. These
allegations are insufficient as a matter of law to satisfy the very high standard required to invoke
tolling for “insanity” under CPLR 208. See, e.g., Callahan v. Image Bank, 184 F. Supp. 2d 362,
363-64 (S.D.N.Y. 2002) (holding that allegations that plaintiff was “unable to work or care for
herself,” “unable to leave her home unescorted,” “experienced severe side effects from
medication and black-outs . . . experienced a period of hospitalization . . . arising from []
depression,” and “suffers from suicidal ideation” were insufficient to satisfy the standard for
tolling under CPLR 208); Dumas, 569 F. Supp. at 833 (holding that diagnosis of “schizophrenia,
paranoid, chronic with acute exacerbation” did not result in tolling under CPLR 208, as
plaintiff’s disability “was not of the severe and incapacitating nature contemplated by the tolling
statute,” and noting that “[t]he statute speaks in terms of insanity, not merely mental illness”);
Eisenbach, 62 N.Y.2d at 974 (holding that plaintiff’s hospitalization during which strong
painkillers were administered resulting in plaintiff being “generally confused, disoriented, and
6

Moreover, although not determinative of the issue, the fact that Plaintiff filed the summons on November 15, 2011,
one day after the statute of limitations had run, suggests that the one-day lapse was due to mere oversight or mistake,
rather than De Lucia’s inability to “protect [his] legal rights because of an over-all inability to function in society.”
McCarthy, 55 N.Y.2d at 548.

15

unable to effectively attend to [his] affairs” did not rise to the level of insanity under CPLR 208).
Moreover, to the extent that Plaintiff’s allegations suggest that De Lucia suffered from an
unidentified “mental illness” which required him to undergo “continuous psychiatric care since
his return from Grenada in May 2009,” Compl. ¶ 69, case law is clear that mental illness alone is
insufficient to invoke the insanity toll. See De Los Santos, 1998 WL 740851, at *4. 7
In the alternative, Plaintiff requests a hearing to determine whether De Lucia’s mental
state during the relevant period meets the high standard for insanity under CPLR 208. 8 Although

7

The cases cited by Plaintiff do not compel a different outcome, as they were decided after an evidentiary hearing
and involve illnesses and conditions far more serious and debilitating than the symptoms alleged here. Cairl v. Cnty.
of Westchester, 150 A.D.2d 749, 749 (2d Dep’t 1989) (upholding decision that plaintiff was “insane” under CPLR
208 where she suffered from “paranoid schizophrenia and borderline personality disorder with symptoms of
hallucinations and impulsive suicidal behavior necessitating frequent and multiple hospitalizations, constant
medication and psychotherapy”); Yannon, 131 A.D.2d at 846 (permitting tolling for insanity where plaintiff was
diagnosed with “a degenerative disease giving rise to a picture of a presenile dementia,” “could not tie a necktie,”
and “was unable to add two-digit numbers”). Here, Plaintiff has failed to allege that De Lucia was diagnosed with
any mental illness, or that his mental condition was so severe that it affected his cognitive functioning to such a
degree that he was unable to perform daily tasks during the relevant time period. Moreover, that De Lucia has
continuously undergone psychiatric care since 2009 does not, in itself, satisfy the extremely high standard for
“insanity” under CPLR 208.

8

In her opposition papers, and without having previously received leave from this Court, Plaintiff requests that the
Court grant her leave “to amend the complaint to expand its allegations” in order to demonstrate the “merits of the
‘insanity’ contention.” Opp. to MTD 18 n.6. As a general rule, leave to amend a complaint should be freely
granted. Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002). District courts have broad discretion in
deciding whether to grant leave to amend. Pasternack v. Laboratory Corp. of Am., No. 10 Civ. 4426 (PGG), 2012
WL 3871348, at *7 (S.D.N.Y. Sept. 6, 2012). However, where the amendment would be futile or would result in
undue prejudice to the opposing party, denying leave to amend is proper. Id. An amendment is considered futile
where the plaintiff is unable to demonstrate that he would be able to cure the defects in a manner that would survive
a motion to dismiss. Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).

Here, although Plaintiff has not attached a proposed amended complaint to her opposition papers, her attorney has
provided the Court with a summary of the testimony that she would adduce regarding De Lucia’s alleged “insanity”
if the Court were to hold an evidentiary hearing on the issue. See Beldock Decl. ¶ 23. As discussed below, see
supra n.9, the proposed testimony is duplicative of the facts alleged in the Complaint and would therefore not
change the outcome. Accordingly, the Court assumes that any amendments to the Complaint would be futile, as
they would likely also merely reiterate the facts already alleged. Moreover, as stated above, Plaintiff has not
attached an Amended Complaint to her opposition papers, nor has she indicated how she would cure its pleading
deficiencies other than stating generally that she would “expand [the] allegations.” Thus, the Court may properly
deny Plaintiff’s request for leave to amend, as Plaintiff has failed to specifically explain how she might amend the
Complaint to cure its pleading deficiencies. See Campo v. Sears Holdings Corp., 371 F. App'x 212, 218 (2d Cir.
2010) (“[I]n light of plaintiffs' failure to provide a specific explanation of the manner in which they propose to cure
the defects in their complaint, we reject the claim that the district court erred in not granting leave to amend.”);
Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 89 (2d Cir. 1999) (upholding a district court’s denial of

16

in some cases, it may be necessary for the court to conduct an evidentiary hearing on the issue,
such a hearing is not required where, as here, the plaintiff’s factual allegations, accepted as true,
are not “sufficient to demonstrate the type of ‘severe and incapacitating disability’ that could
render him eligible for statutory tolling.” Keitt, 2010 WL 3466175, at *7-*8; see also De Los
Santos, 1998 WL 740851, at *5 (noting that although a few lower courts have suggested that the
question of a plaintiff’s insanity should not be decided as a matter of law and that a hearing
should be held, “these isolated cases are impossible to square with rulings by the New York
Court of Appeals and the Second Circuit upholding the dismissal of cases where no such hearing
was held”). 9
ii. Plaintiff’s Breach of Contract and Negligence Claims are Duplicative
of the Malpractice Claim
SGU Ltd. argues that Plaintiff “has attempted to circumvent the limitations bar [on the
malpractice claim] by restating the malpractice claim as claims for breach of contract and
negligence.” Mot. to Dismiss 2. Plaintiff, on the other hand, argues that she has pleaded facts
sufficient to sustain independent bases for breach of contract and negligence. Opp. to MTD 1316.
leave to amend in part because plaintiffs failed to show how they might amend the complaint to cure the deficiencies
in the pleadings, “especially in light of the insufficiency of facts to support a claim”).
9

Moreover, Plaintiff’s description of the testimony she would adduce at an evidentiary hearing suggests that any
such testimony would be duplicative of the facts alleged in the Complaint. For example, the Beldock declaration
states that the witnesses would testify “to the facts and circumstances surrounding [De Lucia’s] psychological crisis
in Grenada,” “the improper and dangerous conditions at Mount Gay,” “[De Lucia’s] total inability to care for
himself due to his disoriented and irrational state at the time of the events and for some time thereafter,” “about [De
Lucia’s] condition [at the time of his] psychiatric crisis” and his “continued illness after his return to the United
States.” Beldock Decl. ¶ 23 (emphasis added). This testimony would therefore merely reiterate the allegations
contained in the Complaint. The proposed testimony indicates only that De Lucia suffered a “psychotic crisis”
rendering him incapable of caring for himself “at the time of the events” and for “sometime thereafter,” which are
facts that were alleged generally in the Complaint. The summary of testimony provided does not indicate that after
De Lucia’s return to the United States, his condition was so “severe and incapacitating” that it rendered him “totally
unable to function” throughout the relevant time period. Moreover, that De Lucia suffered from “continued illness
after his return to the United States” does not change the outcome, as mental illness alone is insufficient to satisfy
the extremely high standard for “insanity” under CPLR 208. See De Los Santos, 1998 WL 740851, at *4.

17

In applying the statute of limitations, courts “look to the ‘reality’ or the ‘essence’ of the
action and not its form.” Pacio v. Franklin Hosp., 63 A.D.3d 1130, 1132 (2d Dep’t 2009)
(citation omitted). Accordingly, where claims “are merely reformulations of [a] malpractice . . .
claim[],” courts may dismiss those claims as untimely where the malpractice claim is timebarred. Hazel v. Montefiore Med. Ctr., 243 A.D.2d 344, 345 (1st Dep’t 1997); see also
Frumento v. On Rite Co., Inc., 66 A.D.3d 828, 830 (2d Dep’t 2009) (holding that “[t]he plaintiff
here cannot avoid the applicable three-year limitations period by asserting a cause of action to
recover damages for fraud or fraudulent misrepresentation which, if colorable at all, was merely
incidental to the claims based on negligence and strict products liability,” which were timebarred).
1. The Contract Claim
A cause of action for breach of contract will not be sustained where “it is merely a
redundant pleading of plaintiff’s malpractice claim in another guise, an attempt to plead as a
contract action one which is essentially a malpractice action.” Abbondandolo v. Hitzig, 282
A.D.2d 224, 225 (1st Dep’t 2001) (quoting Monroe v. Long Is. Coll. Hosp., 84 A.D.2d 576, 576
(2d Dep’t 1981)). “The law is clear that a breach of contract claim arising out of the rendition of
medical services by a physician will withstand a test to its legal sufficiency only where it is
based upon an express special promise to effect a cure or to accomplish some definite result.”
Monroe, 84 A.D.2d at 576 (citing cases).
Here, Plaintiff alleges that “a contract was formed between St. George’s and Mr. De
Lucia when St. George’s offered a variety of educational and related services to Mr. De Lucia
and Mr. De Lucia agreed to, and did, pay tuition in exchange for those services.” Compl. ¶ 77.
Plaintiff claims that the statements included in several informational packets provided to De
18

Lucia prior to and upon his admission to St. George’s constituted the terms of the purported
contract. Id. ¶ 78. The informational materials included statements that the school: (i) had a
medical clinic on campus; (ii) had “daily 24-hour coverage by well-credentialed physicians and
physician assistants to provide students with emergency care when the clinic is closed”; (iii)
referred medical emergencies to Grenada General Hospital or St. Augustine Clinic; and (iv)
provided students with mental disabilities “a wide range of support services.” Id. ¶¶ 58-60.
Plaintiff claims that St. George’s breached the contract when, “instead of providing medical
treatment by well-credentialed physicians and physician assistants at St. George’s facilities,
appropriate emergency care, or emergency evacuation, St. George’s failed to provide proper
medical treatment and Mr. De Lucia was transferred to Mount Gay Hospital.” Id. ¶ 79. Plaintiff
further alleges that De Lucia “detrimentally relied” on the promises made by St. George’s “by
attending St. George’s and by taking on debt in the form of student loans.” Id. ¶ 81.
Plaintiff fails to allege a “special promise” by Defendant “to effect a cure or to
accomplish some definite result.” Monroe, 84 A.D.2d at 576. Rather, the statements made by
Defendant in its promotional and informational materials simply describe the medical and mental
health services available on campus; they do not “promise” a specific course of treatment or
result for any particular condition a student may have while on campus. See Catapano v.
Winthrop Univ. Hosp., 19 A.D.3d 355, 355 (2d Dep’t 2005) (“Contrary to the plaintiff's
contention, provisions of the ‘Patient's Bill of Rights’ do not constitute the requisite ‘express
promise’ or special agreement with the patient so as to furnish the basis for a breach of contract
claim.”) (citation omitted); Abbondandolo, 282 A.D.2d at 225-26 (holding that plaintiff failed to
plead a breach of contract claim where the claim was predicated on defendant’s “promotional
promises,” because those statements “do not purport to guarantee a particular result to a
19

particular person beyond the generic goal of obtaining ‘undetectable, permanent and natural’
hair”). Plaintiff’s allegations relate solely to the treatment that De Lucia received at the time he
was found to be disoriented and “aimlessly wandering” on campus (Compl. ¶ 79); Plaintiff does
not contend that the medical services Defendant “promised” would be available on campus were
not in fact available. 10 Accordingly, Plaintiff has failed to state a claim for breach of contract
related to the treatment De Lucia received from the school during his “psychological crisis.” 11
Id. ¶ 28.
2. The Negligence Claim
Defendant argues that the incompetence alleged in the Complaint substantially relates to
the medical diagnosis and treatment of De Lucia. Mot. to Dismiss 12. Accordingly, Defendant
argues that Plaintiff’s negligence claim cannot survive independent of one for malpractice. Id.
In determining whether an action sounds in medical malpractice or simple negligence, the
critical question is the nature of the duty to the plaintiff which the defendant is alleged to have
breached. Stanley v. Lebetkin, 123 A.D.2d 854, 854 (2d Dep’t 1986). “When the duty arises
from the physician-patient relationship or is substantially related to medical treatment, the breach
gives rise to an action sounding in medical malpractice, not simple negligence.” Id.; see also

10

Plaintiff further alleges that the purported breach of contract resulted in the identical damages asserted in the
medical malpractice claim: “physical, psychiatric, emotional, and monetary injuries.” Compl. ¶¶ 75, 80, 82.
Plaintiff therefore fails to allege that the injury flowing from the alleged breach of contract is distinct from the injury
alleged to have resulted from Defendant’s purported malpractice. See DiTondo v. Meagher, 85 A.D.3d 1385, 1385
(3d Dep’t 2011) (“Where an individual claim of breach of contract arises out of the same facts as an asserted legal
malpractice cause of action and does not allege distinct damages, the breach of contract claim is duplicative of the
malpractice claim.”) (citations omitted).
11

Plaintiff cites to Nicoleau v. Brookhaven Mem. Hosp. Ctr., 201 A.D.2d 544, 545 (2d Dep’t 1994), in support of
her argument that Defendant made “express special promises” to De Lucia, which provide the basis for her breach of
contract claim. In Nicoleau, the court held that plaintiff stated a claim for breach of contract where her physician
“specific[ally] promise[d] to deliver her baby without the administration of blood.” Here, on the other hand,
Plaintiff does not allege that Defendant made “express special promises” apart from the information in the
promotional material produced by the school, nor does she allege any specific promises regarding how the school
would treat particular types of mental conditions or illnesses.

20

Scott v. Uljanov, 74 N.Y.2d 673, 674-75 (1989) (holding that negligence claim arising out of
hospital’s failure to “supervise” intoxicated patient who fell out of hospital bed was more
properly characterized as malpractice claim for purposes of determining the applicable statute of
limitations because the conduct at issue related to “the hospital’s assessment of the supervisory
and treatment needs” of the patient and therefore “constituted an integral part of the process of
rendering medical treatment”).
Here, Plaintiff alleges that Defendant and its employees, including “doctors, nurses,
counselors, and/or medical personnel,” improperly transferred De Lucia to Mount Gay, Compl. ¶
73, failed to refer De Lucia to counseling, and failed to intervene and provide De Lucia with
proper psychiatric and medical treatment. Id. ¶¶ 85-87. Plaintiff further alleges that Defendant
“fail[ed] to properly train their employees and/or agents . . . to recognize and properly address a
student’s need for psychological services.” Id. ¶ 86. The alleged negligent conduct clearly
relates to the school’s “assessment of the supervisory and treatment needs” of De Lucia, and
therefore “constitute[] an integral part of the process of rendering medical treatment to him.”
Scott, 74 N.Y.2d at 675. Moreover, a claim that a medical institution failed to train employees to
properly diagnose and treat patients restates a claim for malpractice. See Matter of Barresi v.
State of NY, 232 A.D.2d 962, 964 (3d Dep’t 1996); see also Cullinan v. Pignataro, 266 A.D.2d
807, 808 (4th Dep’t 1999) (holding that allegation that defendant doctor inadequately supervised
or trained office personnel who undertook medical treatment “does not change the gravamen of
the complaint from malpractice to negligence”). 12

12

As with Plaintiff’ breach of contract claim, the injuries alleged to have flowed from Defendant’s purported
negligence are identical to those alleged to have been sustained by De Lucia as a result of the claimed malpractice.
Compare Compl. ¶ 88 to ¶ 75.

21

Plaintiff argues that discovery may uncover that no medical personnel were involved in
De Lucia’s care while at St. George’s and that no medical treatment was provided before the
time he was transferred to Mount Gay. Opp. to MTD 14. Accordingly, Plaintiff contends, her
claims may constitute negligence, not medical malpractice, if discovery suggests that no
physician-patient relationship existed and that “the issue of [De Lucia’s] transfer to Mount Gay
can be determined as a matter of common knowledge rather than as matters requiring
professional skill and knowledge.” Id. Contrary to Plaintiff’s argument, however, the Complaint
alleges that Defendant and its employees, “including doctors, nurses, counselors, and/or medical
personnel,” failed to treat De Lucia and improperly transferred him to Mount Gay Hospital.
Although Plaintiff argues that discovery may unveil that no licensed physician was involved in
the decision to transfer De Lucia to Mount Gay, “[t]he mere possibility that a set of facts might
be true does not support a reasonable inference of those facts. In other words, a complaint based
on speculation alone does not state a claim.” Richner v. Smithkline Beecham Clinical Labs, No.
96 Civ. 2523 (SS), 1996 WL 432473, at *2 (S.D.N.Y. Aug. 1, 1996) (rejecting plaintiff’s
argument that her claims sounded in general negligence because her misdiagnosis “might have
been due to clerical as opposed to a medical error,” where plaintiff “alleged no facts to support
her theory that clerical error produced three false negatives in three years”).
Moreover, to state a claim for negligence, a plaintiff must allege that the defendant
breached a legal duty owed to him which proximately caused his injuries. Alfaro v. Wal-Mart
Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000). The question of the existence and scope of a
defendant’s duty is a legal issue for the court to resolve. Id. Although Plaintiff alleges that
Defendant had a duty to “exercise reasonable care and diligence in safeguarding Mr. De Lucia,
and ensuring that no unnecessary harm befell him,” New York courts have consistently rejected
22

the doctrine of in loco parentis at the college level. See Wells v. Bard Coll., 184 A.D.2d 304,
304 (1st Dep’t 1992) (citation omitted). Accordingly, courts have held that colleges and
universities have “no obligation . . . to monitor the health of [students],” and that they have no
duty to “seek medical assistance on [students’] behal[ves].” Id.; see also McNeil v. Wagner
Coll., 246 A.D.2d 516, 517 (2d Dep’t 1998) (holding that college “had no obligation to supervise
the plaintiff’s health care”). To the extent that Mount Gay committed malpractice in its
treatment of De Lucia, it is Mount Gay’s negligence, and not Defendant’s, that is the proximate
cause of De Lucia’s injury. 13

13

Assuming arguendo that Plaintiff adequately stated a claim for negligence and/or breach of contract, and if the
Court granted Plaintiff’s request to join additional parties as defendants, dismissal would still be warranted under the
doctrine of forum non conveniens. “A decision to grant or deny a motion to dismiss a cause of action under the
doctrine of forum non conveniens lies wholly within the broad discretion of the district court.” Scottish Air Int’l,,
Inc. v. British Caledonian Grp., PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). First, Plaintiff’s factual allegations make
clear that all the relevant events giving rise to Plaintiff’s claims occurred in Grenada. Moreover, many of the
witnesses with first-hand knowledge of the facts giving rise to Plaintiff’s claims reside in Grenada, including Dr.
Stanley, the physicians and employees who evaluated De Lucia and referred him to Mount Gay, and the physicians
and employees who treated De Lucia at Mount Gay. This court lacks power to compel the attendance of non-party
witnesses at a deposition or the production of documents in their possession. Ilusorio v. Ilusorio-Bildner, 103 F.
Supp. 2d 672, 677 (S.D.N.Y. 2000). Although several of Plaintiff’s witnesses are located in New York, see Beldock
Decl. ¶ 23, the main issue in this case is whether St. George’s committed malpractice and was otherwise negligent in
its treatment of De Lucia. In order for St. George’s to disprove Plaintiff’s allegations, it will require testimony from
school and Mount Gay employees and physicians, as well as Dr. Stanley, all of whom are located in Grenada. Mot.
to Dismiss 19. Thus, although there are “jurisdictional contacts in New York,” the majority of the information and
resources needed for trial is in Grenada. See Feinstein v. Curtain Bluff Resort, No. 96 Civ. 8860 (RPP), 1998 WL
458060, at *5 (S.D.N.Y. Aug. 5, 1998) (dismissing action arising from plaintiff’s food poisoning while staying at
defendant hotel located in Antigua). Moreover, most of the witnesses identified by Plaintiff have visited Grenada in
the past, either as students of St. George’s or as visitors, and are therefore presumably able to travel to Grenada for
trial. Id. at *6. Second, Defendant argues, and Plaintiff does not appear to dispute, that Grenada is an adequate
alternative forum for Plaintiff’s claims. See Decl. of Dickon A. Mitchell. Although Plaintiff complains that the
“pace of litigation” in Grenada is slower than in the United States, Opp. to MTD 14 n.5, this is insufficient to
establish the inadequacy of Grenada as an alternative forum. See Aguinda v. Texaco, Inc., 303 F.3d 470, 478 (2d
Cir. 2002) (“While Ecuador's judicial procedures may be less streamlined than ours, that does not make Ecuador's
procedures ineffective or render Ecuador inadequate as an alternative forum.”).
The thrust of Plaintiff’s opposition to dismissal on forum non conveniens grounds is that, as a New York resident,
Plaintiff’s choice of venue is entitled to deference. Although Plaintiff is correct that her choice of venue is entitled
to considerable deference, her New York residence “is not automatically dispositive in determining a forum non
conveniens motion” where there is an insufficient nexus between the forum and the events giving rise to the claims.
Scottish Air Int’l, Inc., 81 F.3d at 1232. “United States citizens who engage in activities abroad ‘cannot expect
always to bring their foreign opponents into a United States forum when every reasonable consideration leads to a
conclusion that the site of the litigation should be elsewhere.’” Feinstein, 1998 WL 458060, at *5 (citations
omitted). Finally, Plaintiff argues that New York is the proper forum because “[t]he contract at issue in the breach

23