Summary
finding that a motion for judgment that was a legal nullity could not toll the statute of limitations period
Summary of this case from Meth v. Natus Med. Inc.Opinion
No. 1:08cv227 (LMB/TCB).
April 2, 2008
MEMORANDUM OPINION
On February 9, 2007, plaintiff Cahit Ozbay pro se filed this wrongful death action against defendants Eli Lilly and Company ("Eli Lilly"), Neurology Services, Inc., ("NSI"), and Dr. Aysegul Soyer ("Soyer") in the Circuit Court of Prince William County. On March 7, 2008, Eli Lilly removed the action. Eli Lilly and Soyer have each filed a motion to dismiss, and Ozbay has filed a motion for nonsuit. For the reasons discussed below, defendants' motions to dismiss will be granted, plaintiff's motion for nonsuit will be denied, and the complaint will be dismissed with prejudice.
Oral argument is not needed because the facts and legal contentions are adequately presented in the pleadings and argument would not aid the decisional process.
Background
Cahit Ozbay, a Virginia resident, is the son and statutory beneficiary of Husniye Ozbay. Eli Lilly is a corporation registered under the laws of Indiana with its principal place of business in Indianapolis. Dr. Soyer is a physician who practices at NSI's medical offices in Woodbridge, Virginia. Both Soyer and NSI are allegedly citizens of Virginia.On December 16, 2002, Soyer diagnosed Husniye with memory loss, mild depression, and anxiety. For treatment, he prescribed Zyprexa — a drug manufactured by Eli Lilly. After subsequent diagnoses of advanced depression and psychosis, Dr. Soyer increased Husniye's dosage on January 13, 2003 and March 11, 2003. Husniye died on August 17, 2003.
On July 15, 2005, Ozbay qualified as administrator of Husniye's estate. On August 12, 2005, in his capacity as administrator, Ozbay filed a pro se motion for judgment under Virginia's wrongful death statute in the Circuit Court of Prince William County. He alleged multiple counts of negligence and breach of warranty by Soyer, NSI, and Eli Lilly in their design, manufacturer, and prescription of Zyprexa. Because none of the defendants were served with a copy of the motion for judgment, the circuit court granted Ozbay's motion for nonsuit on August 11, 2006, and dismissed the case without prejudice.
On February 9, 2007, Ozbay filed a second pro se motion for judgment in the Circuit Court of Prince William County raising identical claims against the same defendants. Eli Lilly was served with a copy of the complaint on February 8, 2008. Asserting fraudulent joinder of the non-diverse defendants, see generally Marshall v. Manville Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993), Eli Lilly removed the action to this Court under 28 U.S.C. § 1446(a). On March 18, 2008, counsel entered an appearance on behalf of Ozbay.
Ozbay did not file a motion to remand. Accordingly, the Court will not review the merits of Eli Lilly's invocation of fraudulent joinder.
Only Eli Lilly and Soyer have been served with a copy of the motion for judgment, and each has filed a motion to dismiss it as barred by the statute of limitations. In opposition, Ozbay asserts that the motion for judgment should be deemed timely filed. He has filed a motion for nonsuit, which would further toll the limitations period and allow him to file a third complaint.
Standard of Review
Under Fed.R.Civ.P. 12(b)(6), a motion to dismiss should only be granted if, "after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Discussion
Virginia has a two-year statute of limitations period for wrongful death actions. See Va. Code § 8.01-50(B). Because Husniye died on August 17, 2003, the limitations period expired on August 17, 2005.
Ozbay contends that the limitations period was tolled during the pendency of his first motion for judgment, which was filed on August 12, 2005, and that the circuit court's order on August 11, 2006 granting a nonsuit further extended the limitations period by sixth months. See Va. Code § 8.01-229(E)(3). Ozbay argues that the instant motion for judgment, filed on February 9, 2007, is therefore timely. By contrast, Eli Lilly and Soyer argue that Ozbay's first motion for judgment was a legal nullity because he could not bring the suit pro se. As a result, the statute of limitations period was never tolled and the present action is barred by the statute of limitations.
The resolution of this issue turns on the validity of Ozbay's first motion for judgment, which he filed pro se in his capacity as administrator of Husniye's estate. Under the clear holding ofKone v. Wilson, 630 S.E.2d 744 (Va. 2006), an administrator of an estate cannot proceed pro se.
Kone likewise addressed an administrator of a decedent's estate filing a pro se wrongful death action against two healthcare providers. Id. at 745. The Virginia Supreme Court held that the pleading was a nullity:
[B]ecause [the administrator's] right of action existed only to permit him to prosecute the cause of action belonging to [the decedent's] statutory beneficiaries, and not to maintain any cause of action personal to [the administrator] himself, he was not entitled to file the wrongful death action pro se. His surrogate status precluded a pro se filing because he was acting in a representative capacity for the true parties in interest, [the decedent's] beneficiaries.Id. at 746. Accordingly, the administrator's motion for judgment "was invalid and without legal effect because he signed the pleading in a representative capacity and was not authorized to practice law in this Commonwealth." Id.; see also Hall v. Bon Secours, No. 3:06cv678, 2007 WL 295619, at *2 (E.D. Va. Jan. 29, 2007) (same).
Ozbay's situation is identical to Kone. He filed his original motion for judgment pro se in a representative capacity. Accordingly, that motion is a legal nullity and could not toll the two-year statute of limitations period.
To distinguish Kone, Ozbay offers a lone citation to McDaniel v. North Carolina Pulp Co., 95 S.E.2d 201 (Va. 1956). InMcDaniel, the father of the decedent filed a timely wrongful death action. At the time of suit, however, the father had not been qualified to act as the decedent's personal representative in Virginia. Id. at 202. The Virginia courts held that the father lacked standing to sue on behalf of the decedent's estate.Id. Four months later, after the limitations period expired, the father filed a second wrongful death suit and was joined by the decedent's qualified Virginia personal representative. Id. The Virginia Supreme Court held that this suit was timely because the father's original filing tolled the limitations period: "Whatever the name of the plaintiff, the real party in interest remained the same [between the two actions]; the suit was initiated in the same right; and the cause of action was the same." Id. at 206.
The father had been qualified to act as the decedent's personal representative in Nevada. See McDaniel, 95 S.E.2d at 613.
Citing to this holding, Ozbay contends that, as a statutory beneficiary of and the personal administrator for Husniye's estate, he is the true party in interest for the instant case and in the previous non-suited action. Tolling is therefore appropriate.
Ozbay's position is without merit because McDaniel is no longer good law. In Harmon v. Sadjadi, 639 S.E.2d 294 (Va. 2007), the plaintiff, on behalf of her deceased husband, filed a personal injury action against a doctor and a hospital after the doctor left a laparotomy sponge in her husband's abdominal cavity during surgery. Id. at 295. Plaintiff, as a surviving spouse, had been qualified as the personal representative in West Virginia, but not in Virginia, at the time she filed the lawsuit. Id. After the limitations period expired, plaintiff qualified as her husband's personal representative in Virginia, filed a second motion for judgment, and requested tolling under McDaniel. Id. at 295-96.
The Virginia Supreme Court rejected that position and overruled McDaniel as "a mistake and a flagrant error." Id. at 301. It then held that
[plaintiff], as a foreign personal representative not qualified in Virginia, had no legal standing to file the [first] motion for judgment. That motion for judgment had no legal effect and, as a nullity, could not act to toll the running of the statutory period. . . .Id. at 301-02 (emphasis added).
Under Kone, Ozbay's first pro se motion for judgment was a legal nullity. Under Harmon, that motion could not toll the limitations period. Accordingly, the instant action is untimely.
Conclusion
For these reasons, Soyer's Motion to Dismiss [3] will be GRANTED, Eli Lilly's Motion to Dismiss [5] will be GRANTED, Ozbay's Motion for Nonsuit [16] will be DENIED, and the complaint will be DISMISSED with prejudice.
A separate order consistent with this opinion will be entered.