Opinion
Case No. CV-01-023-E-BLW.
July 29, 2002
MEMORANDUM DECISION AND ORDER
INTRODUCTION
The Court has before it Defendant Johnson's Motion to Dismiss for Insufficiency of Service of Process (Docket No. 19) and Defendant Johnson's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (Docket No. 23). The Court has reviewed the record and considered the parties' briefings. The Court will now issue its decision on these matters.
FACTUAL AND PROCEDURAL BACKGROUND
This is a civil action for damages allegedly caused by Dr. Johnson based on his negligent treatment of Ms. Williams immediately before, during, and after the birth of her child on February 28, 1999. During the delivery process, Dr. Johnson applied, or ordered the application of, hot towels to Ms. Williams' groin area to facilitate the birth of her baby. The towels that were applied to Ms. Williams were excessively and unnecessarily hot. They caused severe burning to Ms. Williams' perineum and buttocks. That burning resulted in permanent scarring and disfigurement to Ms. Williams along with persistent pain and suffering.
On March 20, 2001, the Court issued a stay in this case (Docket No. 11) that was to be effective until thirty (30) days after the prelitigation process was complete. The prelitigation process was conducted before the Idaho State Board of Medicine. On June 13, 2001, the Court issued an order in this case (Docket No. 17) granting Ms. Williams thirty (30) days after the termination of the Court-ordered stay to serve process on Dr. Johnson.
ANALYSIS
I. Plaintiff Served Process on Dr. Johnson by the Applicable Deadline.
In accordance with the Court-ordered stay of March 20, 2001 and the Court's Order of June 13, 2001, Ms. Williams had sixty (60) days from the time the Idaho State Board of Medicine issued its findings to serve process on Dr. Johnson. The Board issued its findings in a document entitled Report and Recommendation of Prelitigation Panel; the document was dated September 27, 2001. This means Ms. Williams had until November 26, 2001 to serve process on Dr. Johnson. At the latest, Dr. Johnson was served with process on November 21, 2001. On that date, Dr. Johnson was personally served with process at the driveway to his clinic in Malad City, Idaho. The Court finds that Dr. Johnson has been properly served; therefore, the Court will deny Dr. Johnson's motion to dismiss for insufficient service.
II. The Court Will Deny Dr. Johnson's Motion to Dismiss.
Dr. Johnson has moved the Court to dismiss Ms. Williams' Complaint because it includes a demand for punitive damages. In response, Ms. Williams moved the Court to allow her to file an amended complaint that did not include a demand for punitive damages. On January 3, 2002, Dr. Johnson filed his Reply Memorandum in Support of Motion to Dismiss and Notice of Non-Opposition to Motion to Amend (Docket No. 28). In that document, Dr. Johnson notified the Court that he did not oppose Ms. Williams' motion to amend. Based on that representation, United States Magistrate Judge Williams granted Plaintiff's Motion to amend (Docket No. 40). Because the amended complaint will not contain a punitive damages claim, the Court will deem moot Dr. Johnson's motion to dismiss for failure to state a claim.
CONCLUSION
The Court will deny Dr. Johnson's motion to dismiss for insufficient service and his motion to dismiss for failure to state a claim.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendant Johnson's Motion to Dismiss for Insufficiency of Service of Process (Docket No. 19) shall be, and the same is hereby, DENIED.
IT IS FURTHER ORDERED that Defendant Johnson's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (Docket No. 23) shall be, and the same is hereby, DEEMED MOOT.