Opinion
1:20-CV-00251-SPB
04-20-2023
DAWN BROWN, AS ADMINISTRATOR OF THE ESTATE OF MATHEW ORSINI, DECEASED, Plaintiff v. ERIE COUNTY, WEXFORD HEALTH SOURCES, INC., MEDICAL ASSOCIATES OF ERIE, INC., DIAGNOSTIC X-RAY SERVICE, INC., GARY L. PETERSON, D.O.; AND DAVID PAUL, MD, Defendants
IN RE: ECF NO. 112
SUSAN PARADISE BAXTER, United States District Judge.
REPORT AND RECOMMENDATION ON DEFENDANT ERIE COUNTY'S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Presently pending before the Court is Defendant Erie County's motion for an order approving Plaintiff's voluntary dismissal of all claims against it pursuant to Federal Rule of Civil Procedure 41(a)(2). ECF No. 112. This motion arises from a settlement agreement between Plaintiff and Erie County and is before the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). For the reasons discussed herein, it is respectfully recommended that the motion be GRANTED.
II. Report
A. Background
Plaintiff Dawn Brown, Administrator of the Estate of her deceased son, Mathew Orsini, commenced this action on August 27, 2020. See ECF No. 1. The operative pleading before the Court is Brown's Third Amended Complaint, which was docketed on July 26, 2022. See ECF No. 93. Orsini, then nineteen years old, was a pre-trial detainee in the custody of the Erie County Prison from February 25, 2019, until his death on March 18, 2019. Id., ¶¶ 21, 46. Brown's Third Amended Complaint asserts a single claim pursuant to 42 U.S.C. § 1983 against Erie County. Id., ¶¶ 67-89 (Count I). This civil rights claim is based on allegations that the County maintained a “policy, custom, or practice of failing to have sufficient medical care available for its inmates” at the Erie County Prison which directly resulted in Orsini's death. Id., ¶ 86. The Third Amended Complaint also asserts claims against Defendants Gary Peterson, DO, Wexford Health Sources, Inc., Medical Associates of Erie, Inc., Diagnostic X-ray Services, and David Paul, MD (collectively, “Medical Provider Defendants”), each of whom is alleged to have had some involvement in providing medical services at the Erie County Prison. In contrast to Brown's claim against the County, however, the claims against the Medical Provider Defendants are based exclusively on Pennsylvania state law. Specifically, Brown alleges that each Medical Provider Defendant provided care to Orsini that fell below the standard of care required under state law, thereby subjecting each to liability for medical malpractice under state law. See id., ¶¶ 90-115. Each Defendant has filed an Answer to the Third Amended Complaint. See ECF Nos. 94 (Erie County); 95 (Diagnostic X-Ray); 96 (Medical Associates of Erie and Dr. Peterson); 97 (Dr. Paul); and 98 (Wexford Health). No Defendant has asserted a cross-claim against another.
On January 27, 2023, Erie County filed the instant motion to dismiss Brown's § 1983 claim pursuant to Fed.R.Civ.P. 41. The motion represents that the County has “reached an amicable settlement of the claims raised against the County in Count I of the Plaintiff's Third Amended Complaint.” ECF No., 112, ¶ 8. Brown joined in the motion. Id., ¶ 27. Defendants Medical Associates and Peterson (collectively, “Medical Associates”) oppose the motion.ECF No. 114. The County and Medical Associates have filed principal and supplemental briefs. See ECF Nos. 115, 118, 119. The motion is ripe for decision.
For the sake of brevity, this Report and Recommendation will refer to both Medical Associates and Peterson collectively as “Medical Associates.” The other remaining Defendants have not taken a position on Erie County's motion. See, e.g., ECF No. 116 (Minute Entry).
B. Discussion and Analysis
1. Federal Rule of Civil Procedure 41(a)
Based upon its settlement with Brown, Erie County seeks an order dismissing Brown's sole claim against it with prejudice pursuant to Federal Rule of Civil Procedure 41(a). Although Rule 41 refers to a plaintiff's voluntary dismissal of “an action,” the Court of Appeals for the Third Circuit has interpreted the rule to permit a plaintiff to voluntarily dismiss all claims against fewer than all defendants. See Noga v. Fulton Fin. Corp. Emp. Benefit Plan, 19 F.4th 264, 271 (3d Cir. 2021) (citing Young v. Wilky Carrier Corp., 150 F.2d 764, 764 (3d Cir. 1945); and 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2362 (4th ed. 2020) (explaining that “the sounder view and the weight of judicial authority” are that Rule 41(a) permits dismissal of all claims against one party and does not require dismissal of all claims against all parties)). With certain exceptions, “the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.” Fed R. Civ. P. 41(a)(1). Where voluntary dismissal pursuant to Rule 41(a)(1) is unavailable, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed R. Civ. P. 41(a)(2). Because all Defendants have answered the Third Amended Complaint and certain Defendants refuse to stipulate to the dismissal of the claim against the County, the County seeks an order of dismissal pursuant to Rule 41(a)(2). See Protocomm Corp. v. Novell, Inc., 171 F.Supp.2d 459, 470 (E.D. Pa. 2001). While Rule 41(a)(2) speaks only in terms of a “plaintiff's request” for an order of dismissal, Brown's joinder in the County's motion reasonably complies with this requirement. See Derrick v. Glen Mills Schools, 2023 WL 2058683, at *1 (E.D. Pa. Feb. 17, 2023) (plaintiff and settling defendant filed “joint motion” under Rule 41(a)(2)).
Whether to grant or deny a motion under Rule 41(a)(2) is within the sound discretion of this Court. See Sinclair v. Soniform Inc., 935 F.2d 599, 603 (3d Cir.1991) (citing Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir.1974)). The Rule's requirement that any order of dismissal be on “terms that the court considers proper” is primarily to prevent dismissals that would result in some clear legal prejudice to a defendant. See Spring City Corp. v. American Bldgs. Co., 1999 WL 1212201, at *1 (E.D. Pa. Dec. 17, 1999); Environ Prod., Inc. v. Total Containment, Inc., 1995 WL 459003, at *4 (E.D. Pa. July 31, 1995). Put another way, “in considering whether to grant the [Rule 41(a)(2)] motion, the court must make certain that no other party is prejudiced by the dismissal.” Perez v. Borough of Berwick, 2011 WL 5320747, at *2 (M.D. Pa. June 14, 2011) (citing Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir. 1974)).
2. The Parties' Positions
Medical Associates argues that an order granting the voluntary dismissal of the County would prejudice it by precluding it from arguing at trial that the County is responsible for some or all of Brown's damages and seeking a pro rata reduction of any verdict against it based on Erie County's degree of responsibility. Positing that it and the County are potentially joint tortfeasors, Medical Associates presumably contends that an allocation of responsibility is authorized pursuant to the Pennsylvania Uniform Contribution Among Joint Tortfeasors Act (“UCATA”), 42 Pa. Cons. Stat. §§ 8321-27, and/or the Pennsylvania Fair Share Act, 42 Pa. C.S. § 7102. Because no state law claim has been asserted against Erie County, Medical Associates must find authority under federal law either authorizing such an allocation or allowing it to invoke state law providing for it.
The basis for the County's argument in favor of an order authorizing its voluntary dismissal from the case is straightforward: it reached a settlement with Brown; the County has discharged its obligations under the settlement agreement; and Brown has signed a release of all claims she may have against the County, including Brown's sole claim against it in this case. ECF No. 112, ¶¶ 8-10, 28. The County argues that Medical Associates' opposition to its dismissal based on an asserted right of allocation at trial fails because § 1983 does not provide a right of contribution, and alternatively, under Pennsylvania law, the County is not a joint tortfeasor. ECF No. 118, p. 2. These arguments and other relevant considerations are addressed below.
3. Medical Associates has no basis to seek contribution under § 1983.
To the extent Medical Associates opposes the County's motion based on an asserted right of contribution under federal law, it faces two legal hurdles. First, Brown has not asserted a claim under § 1983 or other federal law against Medical Associates, and no Medical Provider Defendant has asserted a federal law cross-claim against any other Medical Provider Defendant. The Court has found no case law authorizing a defendant to invoke § 1983 as a basis for a right of contribution or allocation of fault where no § 1983 claim has been asserted against or by that defendant.
Second, while not entirely consistent, the weight of authority holds that no right of contribution exists under § 1983. At common law, a right to contribution between joint tortfeasors did not exist. Northwest Airlines, Inc., v. Transport Workers Union, 451 U.S. 77, 86 (1981). Today, however, most states permit such recovery either by statute or judicial decision. Id. See also Hoa v. Riley, 78 F.Supp.3d 1138, 1145 (N.D. Cal. 2015). But the threshold issue presented here is whether a right of contribution or allocation exists under §1983 or other federal law and, if not, whether Medical Associates has a basis to look to state law for such a right.
The express words of § 1983 include no reference to a right of contribution. Therefore, if such a right exists, it would have to arise or be implied from federal common law. In support of its position that a right of contribution exists under federal common law, Medical Associates relies on the Court of Appeals for the Third Circuit's decision in Miller v. Apartments & Homes, 646 F.2d 101, 109 (3d Cir. 1981). See ECF No. 114, ¶ 12; ECF No. 119, p. 3. There, the Court of Appeals concluded that “in federal civil rights cases, where one or more defendants have settled with a plaintiff, damages recoverable by that plaintiff shall be reduced by the amount of the settlement received.” Id., at 110. In so holding, the Court of Appeals relied upon its decision in Glus v. G.C. Murphy Co., 629 F.2d 248, (3d Cir. 1980), cert. granted, judgment vacated sub nom. Retail, Wholesale & Dep't Store Union, AFL-CIO v. G.C Murphy Co., 451 U.S. 935 (1981) as recognizing an implied right of contribution based on “federal common law.” Miller, 629 F.2d at 107.
The Court of Appeals' decision in Miller was rendered a mere two days after the United States Supreme Court announced its decision in Northwest Airlines, Inc., v. Transport Workers Union, 451 U.S. 77 (1981). There, the Supreme Court held that federal common law did not provide a right of contribution in cases brought under Title VII or the Equal Pay Act, reasoning that federal courts are courts of limited jurisdiction that have “not been vested with open-ended lawmaking powers.” Id., at 94-95; see also Smart v. Allegheny County, 2018 WL 10230904, at *2 (W.D. Pa. May 31, 2018). In Texas Indus. Inc., v. Radcliff Materials, Inc., decided that same year, the Supreme Court further emphasized that broadly speaking, “there is, of course, no federal common law,” and that “absent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States and our relations with foreign nations, and admiralty cases.” 451 U.S. 630, 641 (1981) (internal citations omitted). Later that same year, the Supreme Court vacated Glus, the case upon which the Court of Appeals had principally relied on in Miller. See Retail, Wholesale & Dep't Store Union, AFL-CIO v. G.C Murphy Co., 451 U.S. 935 (1981).
Although neither Northwest Airlines nor Texas Industries involved a claim under § 1983, most federal courts have interpreted those cases as precluding an implied right of contribution under § 1983 and as a rejection of the reasoning underlying the decision in Miller. See e.g., Hay v. Somerset Area Sch. Dist., 2017 WL 5029057 (W.D. Pa, Oct. 31, 2017); Kohn v. Sch. Dist. of City of Harrisburg, 2012 WL 3560822, at *2 (M.D. Pa. Aug. 16, 2012); Rocuba v. Mackrell, 2011 WL 5869787, at *3 (M.D. Pa. Nov. 22, 2011) (collecting cases); Woodson v. City of Richmond, 2 F.Supp.3d 804, 811 (E.D. Va. 2014) (collecting cases); Hoa v. Riley, 78 F.Supp.3d 1138. 1146 (N.D. Cal. 2015) (collecting cases). In Hay, Judge Gibson of this Court explained:
Miller is no longer good law Miller relied on Glus, which the Supreme Court vacated in light of Northwest Airlines ... Given the fact that the Supreme Court explicitly rejected the reasoning behind Miller and vacated the decision that Miller relied on . . . Miller is no longer good law. Accordingly, this Court declines to recognize a federal common law right to contribution in an § 1983 action.2017 WL 5029057 at *4.
A small minority of courts in this Circuit have recognized an implied right of contribution under § 1983 despite Northwest Airlines and Texas Industries. See e.g., Klaitz v. New Jersey, 2006 WL 1843115, at *6 (D.N.J. June 30, 2006). The weight of persuasive authority in this Circuit and elsewhere holds, however, that Miller was wrongly decided. See Kohn, 2012 WL 3560822, at *2 (collecting cases). As has been noted, Miller was based on an “expansive notion of the federal court's power to create federal common law, which the Supreme Court explicitly rejected in Northwest Airlines and Texas Industries.” Id., at *5. Miller also relied on Glus, which the Supreme Court vacated in light of Northwest Airlines. Retail, Wholesale & Dep't Store Union, 451 U.S. 935. See also Hay, 2017 WL 5029057, at *4. Therefore, this Court should join those others that have declined to recognize a federal common law right to contribution in a § 1983 action.
The Court is mindful that Miller was decided two days after Northwest Airlines and, therefore, the Court of Appeals can be presumed to have been aware of the decision and found it distinguishable when it issued its decision in Miller. Thus, Miller could be viewed as binding precedent in this Circuit but for the Supreme Court's subsequent decision in Texas Industries, which also restrained the authority of courts to recognize rights of contribution based on federal common law.
This conclusion, however, does not end the Court's inquiry.
4. Section 1988 provides a potential bridge to contribution rights under state law.
Section 1988(a) states in relevant part:
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of
the United States, shall be extended to and govern the said courts in the trial and disposition of the cause...42 U.S.C. § 1988(a). The Supreme Court has instructed that the purpose of this statute is “to complement the various acts which do not create federal causes of action for the violation of federal civil rights.” Moor v. Alameda Cnty., 411 U.S. 693, 702 (1973). Thus, “[w]hen federal law is deficient [in this area], section 1988(a) authorizes us to look to state law, as long as it is ‘not inconsistent with the Constitution and laws of the United States.'” Kohn, 2012 WL 3560822, at *5 (citing 42 U.S.C. § 1988(a)). In other words, § 1988 “recognizes that in certain areas, ‘federal law is unsuited or insufficient to furnish suitable remedies;'” that is, “federal law simply does not cover every issue that may arise in the context of a federal civil rights action.” Robertson v. Wegmann, 436 U.S. 584, 588 (1978) (quoting Moor, 411 U.S. at 703)). And so, “the ultimate rule adopted under § 1988 is a federal rule responsive to the need whenever a federal right is impaired.” Id. (internal citation omitted). Therefore, whether § 1988 can be used to import a state law in the civil rights context requires an examination of the policies underlying § 1983. Id., at 590-92. Such policies include “compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.” Id., at 590-91.
Most courts have concluded that § 1988 does not authorize the borrowing of state law to find a right of contribution because doing so “would conflict with the policies underlying § 1983.” Hoa, 78 F.Supp.3d, at 1147 (quoting Hurley v. Horizon Project, Inc., 2009 WL 5511205, at *5 (D. Or. Dec. 3, 2009)). See also Bulfin v. Rainwater, 2021 WL 291505, at *4 (D. Ida. July 12, 2021) (collecting cases). Specifically, these courts have held that doing so would conflict with § 1983's policies of compensation for violations and deterrence. Id. Indeed, § 1988 explains that § 1983 exists “for the protection of all persons in the United States in their civil rights, and for their vindication.” Dudley v. City of Kinston, 2020 WL 6889200, at *4 (E.D. N.C. Nov. 23, 2020) (citing 42 U.S.C. § 1988(a)). See also Crews v. Cnty. of Nassau, 612 F.Supp.2d 199, 212 (S.D.N.Y. 2009); Mason v. City of New York, 949 F.Supp. 1068, 1079 (S.D.N.Y. 1996) (“Permitting a right to contribution [by borrowing New York law under Section 1988], however, would weaken Section 1983's deterrent value.”); Koch v. Mirza, 869 F.Supp. 1031, 1041 (W.D.N.Y. 1994) (“[C]ommon law or statutory indemnity and contribution principles serve different interests than the constitutional values sought to be vindicated in a § 1983 action.”). That is to say, permitting third-party contribution in § 1983 cases would permit a defendant to “reduce[] deterrence by allowing defendants to potentially offset some of their liability and also may diminish a plaintiff's compensation if the third-party defendant is insolvent.” Nga Truong v. Pageau, 2013 WL 6122097, at *6 (D. Mass. Nov. 19, 2013).
In Kohn, supra., the District Court for the Middle District of Pennsylvania reached a contrary result. It rejected the proposition that permitting civil rights violators to seek contribution under state law went against the policies underlying § 1983 and concluded that “deterrence is served as long as the violators are aware that they may be liable in damages, even if they may lessen the impact by obtaining contribution from another party.” Kohn, 2012 WL 3560822 at *6. The court's conclusion in Kohn, however, was based on the Court of Appeal's decision in Glus, supra., which held that “without a right of contribution a wrongdoer may escape liability for his actions because of the happenstance of the plaintiff's choice of defendants.” Id. (quoting Glus, 629 F.2d at 252). As noted, Glus was based on an understanding that a federal common law right of contribution existed for Title VII claims, a holding that the Supreme Court vacated due to its incompatibility with Northwest Airlines. Thus, this portion of the Court's analysis in Kohn is of questionable vitality and contrary to the weight of authority that holds that § 1988 does not permit importing a state law right of contribution to supplement remedies in a § 1983 action.
But, ultimately, even if the Court were to accept this aspect of the analysis and holding of Kohn, the absence of any § 1983 claim asserted by Brown against the Medical Defendants removes § 1988 as a potential path to state law contribution or allocation of fault against the County. In Kohn, at least one claim or third-party claim pursuant to § 1983 was pending against each defendant such that the court could invoke § 1988 as authority to consider Pennsylvania state law as a potential source of a right of contribution. In the present case, Brown did not assert a § 1983 claim against Medical Associates or any of the other Medical Provider Defendants. While omitting such a constitutional violation claim against at least one individual defendant in a case that includes a Monell municipal liability claim is somewhat unusual, Brown is the master of her own pleading, and the Court will not imply a common federal theory of liability against Medical Associates that Brown chose not to assert. Brown's claims against Medical Associates and the other Medical Provider Defendants rest exclusively on Pennsylvania state law while her sole claim against the County was a constitutional claim asserted pursuant to § 1983. Section 1988 allows a court to look to state or common law only “where [a federal civil rights statute is] deficient in the provisions necessary to furnish suitable remedies and punish offenses against law...” That is, “Section 1988 .. simply defines procedures under which remedies may be sought in civil rights actions.” O'Donnell v. Scranton School Dist., 2022 WL 2792199, at *17 (M.D. Pa. July 15, 2022) (emphasis added) (citing Schroder v. Volcker, 864 F.2d 97, 99 (10th Cir. 1988)). See also Tunstall v. Office of Judicial Support, 820 F.2d 631, 633 (3d Cir. 1987) (citing Moor, 411 U.S. at 702) (“§ 1988 does not create an independent federal cause of action; it is merely intended to complement the various acts which do create federal causes of action for the violation of federal civil rights”)).
Given that Brown has asserted only state law claims against Medical Associates and the other Medical Provider Defendants, the rights and remedies among them are purely matters of state law concerning which § 1988 has nothing to say. In addition, unlike the parties in Kohn, no civil rights claim or third-party claim links the County to any other defendant. Absent such a claim, Medical Associates has no basis upon which it may invoke § 1988's authority to look to state or common law. Thus, § 1988 provides no path for Medical Associates to pursue contribution or allocation of fault under state law and the Court need not reach the issue of whether the County and Medical Associates can be considered joint tortfeasors under state law.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the County's motion to dismiss with prejudice (ECF No. 112) should be granted.
IV. Notice Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).