Opinion
CIVIL ACTION FILE NO. 1:22-CV-2646-MHC
2022-11-16
Marcia FESTEN and E.L., a minor, by and through her next friend and guardian, Marcia Festen, Plaintiffs, v. EASTSIDE MEDICAL CENTER, LLC; Robin Lowman White; Elizabeth Davlantes; and Jane Marilyn Pineda, Defendants.
Daniel Werner, Radford & Keebaugh, LLC, Decatur, GA, for Plaintiffs. Rachel E. Reed, Brian Keon Mathis, Huff Powell & Bailey, LLC, Atlanta, GA, for Defendants Eastside Medical Center, LLC, Jane Marilyn Pineda. Sheila Kazemian, Terrell W. Benton, III, Hall Booth Smith, P.C., Atlanta, GA, for Defendants Robin Lowman White, Elizabeth Davlantes.
Daniel Werner, Radford & Keebaugh, LLC, Decatur, GA, for Plaintiffs. Rachel E. Reed, Brian Keon Mathis, Huff Powell & Bailey, LLC, Atlanta, GA, for Defendants Eastside Medical Center, LLC, Jane Marilyn Pineda. Sheila Kazemian, Terrell W. Benton, III, Hall Booth Smith, P.C., Atlanta, GA, for Defendants Robin Lowman White, Elizabeth Davlantes. ORDER MARK H. COHEN, United States District Judge
This case comes before the Court on Defendants Eastside Medical Center, LLC ("Eastside") and Jane Marilyn Pineda ("Pineda")'s Motions to Dismiss [Docs. 36 and 37]. I. BACKGROUND
Both motions are identical and are filed by the same counsel. The Court will refer to them collectively as "Defs.' Mots. to Dismiss".
Because this case is before the Court on a motion to dismiss, the facts are presented as alleged in Plaintiffs' Second Amended Complaint [Doc. 30]. Silberman v. Miami Dade Transit, 927 F.3d 1123, 1128 (11th Cir. 2019).
On the evening of July 4, 2021, E.L., a sixteen-year-old Black female from Chicago, Illinois, who was visiting the Atlanta area, was admitted to the Eastside Medical Center ("EMC") because she was experiencing severe physical pain. Second Am. Compl. ¶¶ 7-8, 13, 25-28. E.L. was accompanied to EMC by E.L.'s seventeen-year-old boyfriend and his father, who are both white males. Id. ¶ 29. Pineda, an administrative or nursing assistant employed by EMC, called the 911 dispatcher and asked to be transferred to the "sexual assault department." Id. ¶¶ 23, 30, 33. Pineda told the 911 dispatcher of her suspicions that E.L. was a victim of sexual trafficking because E.L. was brought to the hospital by an adult man. Id. ¶¶ 35, 37-38.
Pineda then transferred the call to Defendant Robin Lowman White ("White"), a physician employed by EMC, who spoke with Officer Devries of the Snellville Police Department, and reported that E.L. had been brought into the hospital by an adult male and appeared "quite disheveled." Id. ¶¶ 18, 39-40. White did not report to Officer Devries that the white males accompanying E.L. to EMC were E.L.'s boyfriend and the boyfriend's father. Id. ¶ 40. During the recorded interactions with Officer Devries, White doubted E.L.'s honesty and questioned whether Marcia Festen ("Festen") was in fact her mother:
I mean, I already knew she was lying. She's very rehearsed. And in her phone, she has this person who's her mother listed as Momma Festen. Like "Momma"
and then the person's last name. And if you were adopted from birth, I don't think . . . you know . . . your mother would be in your phone like that. But . . . you know . . . under "Momma Festen."Id. ¶ 42. Because E.L. has two mothers, who are lesbians, Festen alleges that "[i]t is common for children of same-sex parents to assign nicknames to their parents rather than referring to both parents, for example, as 'Mom.' " Id. ¶¶ 44-45. At the time of the conversation with Officer Devries, White knew that E.L. had two mothers. Id. ¶ 46.
Officer Devries went to EMC to investigate the allegations, interviewed the involved parties, and concluded that there was no basis to support the allegations of sexual trafficking. Id. ¶¶ 48, 55. Notwithstanding Officer Devries' conclusions, Defendants refused to let E.L. have her cell phone which prevented her from communicating with Festen; in addition, Defendants detained and isolated E.L. until Festen flew to Atlanta, went to the hospital, and E.L. was discharged to her on July 5, 2021. Id. ¶¶ 50-52, 56-57, 65. Prior to Festen traveling to Atlanta to pick up her daughter, EMC staff refused to share E.L.'s pertinent medical information with Festen, despite her numerous telephonic inquiries. Id. ¶¶ 60-64.
On August 12, 2022, Plaintiffs filed the above-styled lawsuit, asserting seven causes of action. Second Am. Compl. Five of these causes of action seek relief under state law: Defamation: Slander and Libel Per Se (Count One); Defamation: Slander and Libel (Count Two); False Imprisonment against EMC (Count Three); Trespass to Chattels (Count Four); and Negligence (Count Five). Id. ¶¶ 77-127. Two causes of action seek relief against EMC under federal law: racial discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (Count Six); and sex discrimination in violation of the Patient Protection and Affordable Care Act, 42 U.S.C § 18116 (Count Seven). Id. ¶¶ 128-145.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Under Federal Rule of Civil Procedure 12(b)(6), a claim will be dismissed for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
The Supreme Court has explained this standard as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the pleading are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
At the motion to dismiss stage, the court accepts all well-pleaded facts in the Plaintiffs' Complaint as true, as well as all reasonable inferences drawn from those facts. McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004. Not only must the court accept the well-pleaded allegations as true, but these allegations must also be construed in the light most favorable to the pleader. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). However, the court need not accept legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires the court to assume the veracity of well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.
III. DISCUSSION
Despite the specific causes of action alleged in the Second Amended Complaint, Defendants EMC and Pineda seek to recast the complaint as an action for medical malpractice. Defs.' Mots. to Dismiss at 3. Based upon Defendants' subjective determination that this is a medical malpractice action, they contend that Plaintiffs have violated state law by failing to file an affidavit of an expert as required by O.C.G.A § 9-11-9.1(a). Defs.' Mots. to Dismiss at 15-19. Plaintiffs respond that the affidavit requirement under O.C.G.A § 9-11-9.1 does not apply in federal court proceedings, their claims do not allege professional malpractice, and that there is no expert affidavit requirement with respect to the federal civil rights claims. Pls.' Opp'n to Defs.' Mots. to Dismiss [Doc. 44] at 7-18.
Georgia defines an "action for medical malpractice" as:
any claim for damages resulting from the death of or injury to any person arising out of:O.C.G.A. § 9-3-70. Here, Plaintiffs have asserted state and federal law claims based not on the care or treatment of E.L. but on the actions of EMC and its staff in falsely accusing E.L. of engaging in commercial sexual acts and lying about her parental situation, falsely accusing Festen of sexually trafficking E.L., holding E.L. overnight until Festen came to Atlanta, depriving E.L. of her personal phone so she could not contact her mother, and discriminating against Festen and E.L. on the basis of race and gender. Second Am. Compl. ¶¶ 77-145. A plain reading of the Second Amended Complaint reveals that none of Plaintiffs' state or federal law claims allege an action for medical malpractice.
(1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or
(2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
Even if the facts underlying the Second Amended Complaint could support a medical malpractice claim, it is Plaintiffs, not Defendants, who choose their causes of action. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (stating that "the plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law," even where a federal claim is available). Similarly, even if Plaintiffs have a potential claim for medical malpractice, they are not compelled to assert one. Because Defendants EMC and Pineda have offered no basis for the dismissal of Plaintiffs' claims, these Defendants' Motions to Dismiss are DENIED.
Moreover, even if Plaintiffs had asserted a medical malpractice claim, the state court affidavit requirement would not apply to an action filed in federal court. See e.g., Stidham v. United States, 1:13-CV-1093-TWT, 2014 WL 25584, at *2-3 (N.D. Ga. Jan. 2, 2014) (reviewing Northern District of Georgia cases that have concluded O.C.G.A. § 9-11-9.1 does not apply to actions in federal court).
IV. CONCLUSION
It is hereby ORDERED that Defendants Eastside Medical Center, LLC's Motion to Dismiss [Doc. 36] and Jane Marilyn Pineda's Motion to Dismiss [Doc. 37] are DENIED.
In addition, a review of the docket in this case shows that the parties have failed to comply with a Local Rule of this Court with respect to a required filing. The parties have not complied with Local Rule 3.3 requiring that a Certificate of Interested Persons and Corporate Disclosure Statement shall be filed at the time of the party's first appearance. LR 3.3A, NDGa.
Accordingly, it is further ORDERED that the parties file their respective Certificate of Interested Persons and Corporate Disclosure Statement, if applicable, within seven (7) days of the date of this Order.
IT IS SO ORDERED this 16th day of November, 2022.