Sheryl Smith v. Fresno Community Hospital and Medical Center et al, No. 1:2020cv01616 - Document 22 (E.D. Cal. 2021)
Court Description: ORDER GRANTING Defendant's 10 Motion to Dismiss signed by District Judge Dale A. Drozd on 7/20/2021. (Sant Agata, S)
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Sheryl Smith v. Fresno Community Hospital and Medical Center et al Doc. 22 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 1 of 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHERYL SMITH, 12 13 14 15 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS v. FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER, et al., (Doc. No. 10) Defendants. 16 17 No. 1:20-cv-01616-DAD-BAM This matter is before the court on defendant Fresno Community Hospital and Medical 18 Center (“FCHMC”) dba Clovis Community Medical Center’s (“CCMC”) motion to dismiss 19 plaintiff Sheryl Smith’s complaint for failure to state a claim pursuant to Federal Rule of Civil 20 Procedure 12(b)(6). (Doc. No. 10.) Pursuant to General Order No. 617 addressing the public 21 health emergency posed by the COVID-19 pandemic, defendant’s motion was taken under 22 submission on the papers. (Doc. No. 11.) For the reasons explained below, the court will grant 23 defendant’s motion to dismiss with respect to plaintiff’s third cause of action and grant plaintiff 24 leave to amend her complaint. BACKGROUND 25 26 This action arises from the alleged wrongful death of Mr. Bryson Ferguson, caused by 27 allegedly negligent medical treatment that failed to detect what proved to be a fatal underlying 28 condition. 1 Dockets.Justia.com Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 2 of 11 1 Plaintiff filed her complaint on November 13, 2020 as the successor in interest to the 2 Estate of Bryson Ferguson. (Doc. No. 1 (“Compl.”).) Plaintiff was Mr. Ferguson’s mother, and 3 is the legal representative of his estate. (Id. at ¶ 3.) The complaint asserts causes of action 4 against five separate defendants: FCHMC dba CCMC, Dr. Scott Ford, Chiropractic Health 5 Center/Accident Recovery Center, Reza Shakeri, and John Ferguson. (Id. at ¶¶ 4–8.) Plaintiff’s 6 complaint alleges the following. Defendant FCHMC owns CCMC. (Id. at ¶ 4.) On October 26, 7 2019, decedent Bryson Ferguson (“Mr. Ferguson” or “decedent”) was in a car accident which 8 resulted in injuries to his left shoulder, arm, side, ankle, and the right side of his head. (Id. at ¶ 9 11.) He lost consciousness after the collision for some time and was in an altered mental state 10 when he regained consciousness. (Id. at ¶ 11.) An ambulance transported Mr. Ferguson to 11 CCMC, where medical providers were informed that he had lost consciousness at the scene of the 12 accident. (Id. at ¶¶ 12–13.) CCMC had knowledge of Mr. Ferguson’s medical history of epilepsy 13 and seizures. (Id.) Mr. Ferguson complained to the nurses and doctors of a headache and pain on 14 the right side of his face. (Id. at ¶ 13.) 15 Defendant Dr. Ford treated Mr. Ferguson while at CCMC but failed to take proper 16 precautions to evaluate Mr. Ferguson’s neurological condition. (Id. at ¶ 16.) Medical research 17 and literature, which Dr. Ford should have been aware of, documents the heightened risks that 18 epileptics are prone to suffer following a head injury, yet no special attention was given to Mr. 19 Ferguson’s complaints. (Id. at ¶ 16.) Mr. Ferguson was discharged from the hospital later that 20 day on October 26, 2019 when Dr. Ford considered him to be stable and instructed him to consult 21 a doctor if any symptoms developed following his discharge from the hospital. (Id. at ¶ 17.) Mr. 22 Ferguson followed up twice with a medical provider after the accident. (Id. at ¶ 18.) On 23 November 17, 2019, it was discovered that Mr. Ferguson had died two days earlier due to a 24 breakthrough seizure. (Id. at ¶ 20.) Mr. Ferguson received inappropriate medical emergency 25 screening compared to what similarly situated patients in his position have received. (Id. at ¶ 22.) 26 If he had received the medically appropriate screening, Mr. Ferguson’s life would not have ended 27 when it did. (Id. at ¶ 22.) 28 ///// 2 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 3 of 11 1 Plaintiff asserts claims for medical negligence and wrongful death. (Id. at ¶¶ 25–33.) 2 Plaintiff also brings claims for violations of the Emergency Medical Treatment and Active Labor 3 Act (“EMTALA”) and California Health and Safety Code § 1317. (Id. at ¶¶ 34–46.) On December 7, 2020, FCHMC filed a motion to dismiss plaintiff’s EMTALA claim 4 5 pursuant to Rule 12(b)(6) and argued that in the absence of that claim this court should decline to 6 exercise supplemental jurisdiction over plaintiff’s state law claims brought against FCHMC. 7 (Doc. No. 10 at 1.) On January 5, 2021, plaintiff filed her opposition to defendant’s motion to 8 dismiss. (Doc. No. 12.) On January 12, 2021, defendant filed its reply thereto. (Doc. No. 15.) LEGAL STANDARD 9 10 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 11 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 12 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 13 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 14 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plaint statement of the 15 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) 16 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state 17 a claim for relief that is plausible on its face.” Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 18 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “A claim has facial plausibility when the 19 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 21 In determining whether a complaint states a claim on which relief may be granted, the 22 court accepts as true the allegations in the complaint and construes the allegations in the light 23 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S.69, 73 (1984); Love v. 24 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff 25 “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways 26 that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 27 Carpenters, 459 U.S. 519, 526 (1983). 28 ///// 3 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 4 of 11 DISCUSSION 1 2 Defendant FCHMC filed this motion to dismiss pursuant to Rule 12(b)(6) for failure to 3 state a claim upon which relief can be granted. Defendant argues that plaintiff offers only a 4 conclusory pleading that is lacking factual allegations in support of her EMTALA claim. (Doc. 5 No. 10-1 at 4.) Below, the court will address whether plaintiff has stated a cognizable claim 6 under the EMTALA. 7 A. 8 9 Whether Plaintiff States an EMTALA Claim Against Defendant Plaintiff brings her third claim for relief solely against FCHMC pursuant to the EMTALA, 42 U.S.C. § 1395dd et seq. (Id. at ¶ 35.) The EMTALA requires hospitals to provide an 10 “appropriate medical screening examination within the capability of the hospital’s emergency 11 department.” Jackson v. East Bay Hosp., 246 F.3d 1248, 1254 (9th Cir. 2001); see also 42 U.S.C. 12 § 1395dd(a) (1986). The screening is meant to determine “whether or not an emergency medical 13 condition . . . exists.” Id. An emergency medical condition within the meaning of the statute is 14 defined as: 15 16 17 18 19 20 a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in – (i) placing the health of the individual . . . in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part . . . . 42 U.S.C. § 1395dd(e)(1)(A). Plaintiff alleges that FCHMC did not provide the decedent with screening as required by 21 the EMTALA for two reasons. (Id. at ¶ 36.) First, plaintiff alleges that the screening 22 examination the decedent received was not sufficient compared to that received by other patients 23 in his position. Second, plaintiff alleges that the screening examination in this case was cursory, 24 and therefore did not appropriately identify Mr. Ferguson’s emergency condition based on his 25 symptoms and relevant medical history of epilepsy. (Id.) With regard to this second allegation, 26 plaintiff contends that Mr. Ferguson had an emergency medical condition as defined by the 27 EMTALA because of his symptoms, which suggested a life-threatening neurological condition. 28 (Id. at ¶ 38.) Plaintiff further asserts that Mr. Ferguson was improperly discharged from the 4 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 5 of 11 1 hospital in an unstable condition after receiving a deficient screening examination. (Id.) For 2 these reasons, plaintiff claims that FCHMC violated the EMTALA’s screening requirement, 3 resulting in Mr. Ferguson’s death. (Id. at ¶ 39.) “As the text of [the EMTALA] clearly states, the hospital’s duty to stabilize the patient 4 5 does not arise until the hospital first detects an emergency medical condition.” Jackson, 246 F.3d 6 at 1254–55 (quoting Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1259 (9th Cir. 1995)). In 7 Jackson, the court considered whether a hospital violated the EMTALA’s screening requirements 8 by providing what plaintiff asserted to be insufficient medical screening. Jackson, 246 F.3d at 9 1255. That insufficient screening allegedly led the hospital to fail to order the correct diagnostic 10 testing which, if administered, would have led to an appropriate diagnosis and prevented the 11 patient’s death. Id. The Ninth Circuit in Jackson recognized that the EMTALA does not require 12 a hospital to ensure medically adequate examinations and that, instead, the act’s purpose was to 13 limit hospitals from refusing to treat patients who were not covered by insurance or who could 14 not otherwise pay for medical services. Id. at 1256; see also Lopez v. Contra Costa Regional 15 Medical Center, 903 F. Supp. 2d 835, 838 (N.D. Cal. 2012) (“Congress passed EMTALA, also 16 known as the ‘Patient Anti Dumping Act,’ to prohibit hospital emergency rooms from refusing to 17 treat indigent and uninsured patients or transferring patients to other hospitals without first 18 stabilizing their condition.”) Interpreting the statute, the Ninth Circuit adopted the comparative 19 test previously adopted by several other circuits under which “a hospital satisfies EMTALA’s 20 ‘appropriate medical screening’ requirement if it provides a patient with an examination 21 comparable to the one offered to other patients presenting similar symptoms, unless the 22 examination is so cursory that it is not ‘designed to identify acute and severe symptoms that alert 23 the physician of the need for immediate medical attention to prevent serious bodily injury.’” 24 Jackson, 246 F.3d at 1256 (quoting Eberhardt, 62 F.3d at 1257). The Ninth Circuit in Jackson 25 also recognized that a hospital’s duty to stabilize a patient does not arise until an emergency 26 medical condition is detected and that if no such condition is recognized, the hospital does not 27 violate the EMTALA. Jackson, 246 F.3d at 1257 (quoting Eberhardt, 62 F.3d at 1259). 28 ///// 5 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 6 of 11 In Jackson, the court concluded that despite the patient’s death, the hospital had not 1 2 violated the EMTALA because it had complied with the screening requirements of the statute. 3 Jackson, 246 F.3d at 1256. The court observed that the plaintiffs had failed to present evidence 4 that the decedent had been treated differently than other similarly situated patients and that 5 because it had not actually detected the underlying condition upon which the plaintiff’s claim was 6 based, the hospital had not violated the Act. Id. at 1257. Under the “actual detection” rule 7 adopted by the Ninth Circuit, unless actual knowledge of the emergency medical condition by the 8 hospital is shown, the EMTALA is not violated and a mere failure to diagnose the actual cause of 9 a patient’s symptoms cannot serve as the basis for a violation of EMTALA’s stabilization 10 requirements. Id. Below, the court will analyze the allegations of plaintiff’s complaint in support of the two 11 12 prongs upon which a violation of the EMTALA can be found: (1) failure to stabilize a patient’s 13 known emergent condition; and (2) providing disparate screening to a patient. 14 1. 15 A hospital’s duty to stabilize a patient pursuant to EMTALA arises only once the hospital Whether Plaintiff Alleges a Claim for Failure to Stabilize an Emergent Condition 16 detects an emergency medical condition. Jackson, 246 F.3d at 1254–55 (quoting Eberhardt, 62 17 F.3d at 1259). A hospital or a doctor’s failure to diagnose the true cause of a patient’s symptoms 18 cannot serve as the basis for a violation of EMTALA’s stabilization requirements. Id. at 1257. If 19 a doctor does not detect a medical emergency, the hospital has no duty under the EMTALA to 20 stabilize the patient before discharge. Baker v. Adventist Health, Inc., 260 F.3d 987, 994 (9th Cir. 21 2001). To state a valid EMTALA claim, a plaintiff must allege that the decedent had an 22 emergency condition which the hospital detected, yet failed to stabilize. 23 In her complaint, plaintiff alleges that FCHMC failed to provide the decedent with 24 appropriate emergency screening because the screening provided was so cursory that it could not 25 identify the decedent’s emergency condition. (Compl. at ¶ 36.) Plaintiff alleges that when Mr. 26 Ferguson entered the hospital on October 25, 2019, he was clearly presenting an emergent 27 condition under the EMTALA. (Id. at ¶ 37.) Plaintiff argues that, when he was discharged from 28 ///// 6 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 7 of 11 1 FCHMC, Mr. Ferguson was in an unstable condition and unscreened by the emergency 2 department. (Id.) 3 Defendant argues that the hospital’s failure to conduct additional diagnostic testing on 4 decedent despite his medical history does not constitute a violation of the EMTALA, although 5 defendant concedes that its failure to do so may constitute medical malpractice. (Doc. No. 15 at 6 3); see Hoffman v. Tonnemacher, 425 F. Supp. 2d 1120, 1135 (E.D. Cal. 2006). Defendant 7 further contends that plaintiff has not alleged what the symptoms of decedent’s emergency 8 condition were nor why she believes Mr. Ferguson was unstable when he was discharged from 9 the hospital, considering he lived for 25 days after his discharge. (Id. at 4–5.) 10 In her opposition, plaintiff cites to a handful of cases that she asserts show her allegations 11 are sufficient to support both her EMTALA claim and her medical malpractice claims against 12 defendant. (Doc. No. 12 at 7–8.) Plaintiff first cites Gatewood v. Washington Healthcare 13 Corporation, 933 F.2d 1037, 1041 (9th Cir. 1991) in support of her assertion that “inappropriate 14 medical care of an emergency patient may constitute both medical malpractice and an EMTALA 15 claim.” (Id. at 7.) However, the Ninth Circuit in Gatewood concluded that the plaintiff’s claim in 16 that case was properly dismissed for failing to state a cause of action under EMTALA because 17 “[the court] cannot agree that [EMTALA] creates a sweeping federal cause of action with respect 18 to what are traditional state-based claims of negligence or malpractice.” Gatewood, 933 F.2d at 19 1041. Plaintiff also cites Power v. Arlington Hospital Association, 42 F.3d 851, 859 (4th Cir. 20 1994), arguing that the decision in that case shows how medical malpractice claims may overlap 21 with the EMTALA. (Doc. No. 12 at 7.) However, the court’s decision in Power in fact 22 recognized that both a medical malpractice claim and a claim of disparate treatment under the 23 EMTALA would be established only if the hospital failed to perform all of or part of the standard 24 battery of tests required under the appropriate medical protocol. Power, 42 F.3d at 859. In 25 contrast to plaintiff’s framing of that decision, the court in Power held that if the hospital 26 performs standard required tests but in “evaluating the results [from those tests] draws an 27 incorrect conclusion, a violation of EMTALA may not be established, but medical negligence 28 may be.” Id. In this vein, “the plain language of EMTALA informs [the court] that a medical 7 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 8 of 11 1 screening examination is ‘appropriate’ if it is designed to identify acute and severe symptoms that 2 alert the physician of the need for immediate medical attention to prevent serious bodily injury.” 3 Eberhardt, 62 F.3d at 1257. In other words, a hospital that performs all standard required tests, 4 tests which identify acute and severe symptoms, cannot be found liable under EMTALA for a 5 misreading of the test results or a misdiagnosis stemming therefrom. 6 Similar to the plaintiffs in Jackson, plaintiff here has not alleged sufficient facts which, if 7 proven, would show the defendant hospital failed to stabilize an emergency condition presented 8 by the decedent. Plaintiff acknowledges that defendant screened Mr. Ferguson and released him 9 once FCHMC believed he was stable. (Compl. at ¶ 17.) However, plaintiff alleges that defendant 10 did not give Mr. Ferguson “a screening examination that addressed his probable post-collision 11 neurological symptoms as compared to pertinent emergency policies and protocols in effect at the 12 time.” (Compl. at ¶ 36.) Plaintiff alleges the screening examination of Mr. Ferguson was cursory 13 and not in line with pertinent emergency policies, but provides no factual allegations explaining 14 why or how that was the case. (Id.) “The EMTALA does not require physicians to detect 15 medical conditions that are not manifested by acute and severe symptoms, nor those that do not 16 require immediate medical attention to prevent serious bodily injury.” Eberhardt, 62 F.3d at 17 1257. 18 Here, plaintiff has failed to adequately allege that Mr. Ferguson’s neurological condition 19 was manifested by any “acute” or “severe” symptoms, that the condition required urgent medical 20 attention (as would appear belied by decedent having lived another 25 days following his hospital 21 discharge), or that the standard tests performed by defendant would likely fail to detect such acute 22 and severe symptoms. (See Doc. No. 15 at 4–5.) Defendant’s duty under EMTALA is to screen 23 the patient and stabilize whatever emergency condition is detected at the time. See Baker, 260 24 F.3d at 994. Even if defendant failed to properly diagnose Mr. Ferguson, it would not alone 25 provide grounds for finding a violation of the EMTALA. The court concludes that although 26 plaintiff has alleged that defendant failed to detect the correct underlying medical condition, her 27 allegations even if proven to be true fail to establish that defendant violated the EMTALA in 28 screening Mr. Ferguson and releasing him when defendant believed he had been stabilized. 8 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 9 of 11 1 2. 2 To properly state a claim that defendant screened Mr. Ferguson in a disparate manner Whether Plaintiff Alleges a Claim for Disparate Treatment 3 compared with other patients in similar situations, plaintiff must allege facts “sufficient to support 4 a finding that [he] received a materially different screening than that provided to others in [his] 5 condition. It is not enough to proffer expert testimony as to what treatment should have been 6 provided to a patient in the plaintiff’s position.” Romar ex rel. Romar v. Fresno Cmty. Hosp. and 7 Med. Ctr., 583 F. Supp. 2d 1179, 1185 (E.D. Cal. 2008) (quoting Reynolds v. Maine Gen. Health, 8 218 F.3d 78, 84 (1st Cir. 2000)). Moreover, the EMTALA does not require hospitals to provide 9 identical screening to patients presenting different symptoms, nor does it require hospitals to 10 perform screenings beyond their capabilities. Baker, 260 F.3d at 994. However, “evidence that a 11 hospital did not follow its own screening procedures can support a finding of EMTALA liability 12 for disparate treatment.” Id. at 995 (quoting Battle v. Mem. Hosp., 228 F.3d 544, 558 (5th Cir. 13 2000)); see also Power, 42 F.3d at 859 (where a hospital denies that it has any standard 14 emergency room protocols or procedures “an EMTALA claim may be established through proof 15 of a failure to meet the standard of care to which the Hospital adheres” even if “allowance of such 16 proof potentially blurs the line somewhat between a malpractice claim and an EMTALA claim[.]) 17 (quotation omitted). Thus, for plaintiff here to sufficiently allege that Mr. Ferguson received 18 disparate treatment, she must allege that he was treated differently from other patients, or that the 19 hospital violated its own screening procedures. 20 In her complaint, plaintiff alleges that FCHMC failed to provide Mr. Ferguson with 21 appropriate emergency screening because the screening he received was not comparable to what 22 other patients in his situation, with his symptoms would have received. (Compl. at ¶ 36.) 23 Plaintiff alleges that Mr. Ferguson “did not receive a screening examination that addressed his 24 probable post-collision neurological symptoms as compared to pertinent emergency policies and 25 protocols in effect at the time.” (Id.) In opposing defendant’s motion to dismiss, plaintiff 26 contends that “[a]n emergency medical screening examination is inappropriate if it is not 27 designed to identify acute and severe symptoms indicating the need for immediate medical 28 ///// 9 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 10 of 11 1 attention to prevent death or serious bodily injury.” (Doc. No. 12 at 7) (quoting Eberhardt, 62 2 F.3d at 1257.) 3 As defendant points out, the allegations of plaintiff’s complaint are conclusory and do not 4 provide any facts supporting or explaining in what way Mr. Ferguson received different treatment 5 from other similarly situated patients. (Doc. Nos. 15 at 4; 12 at 8.) In this regard, plaintiff alleges 6 that the hospital “should have consulted a neurology specialist regarding Mr. Ferguson’s 7 symptoms, and that they also should have ordered and had performed imaging studies that would 8 have enabled them to ascertain the post-traumatic condition of his brain.” (Compl. at ¶ 16.) 9 While these allegations theoretically may support a basis for a medical malpractice claim, they do 10 not support a claim for a violation of adequate screening under EMTALA. See Jackson, 246 F.3d 11 at 1255 (quoting Marshall v. E. Carroll Parish Hosp. Serv., 134 F.3d 319, 323–24 (5th 12 Cir.1998) (“[A] treating physician's failure to appreciate the extent of the patient's injury or illness 13 . . . may constitute negligence or malpractice, but cannot support an EMTALA claim for 14 inappropriate screening . . . . It is the plaintiff’s burden to show that the Hospital treated her 15 differently from other patients”)). Here, plaintiff has simply alleged no facts which if proven 16 would demonstrate that another patient in the decedent’s situation or presenting his symptoms 17 would have received different treatment or that the hospital violated its own screening procedures 18 in connection with his treatment. 19 Accordingly, plaintiff has not sufficiently alleged that defendant violated the EMTALA 20 under either prong of that provision. 21 B. 22 Leave to Amend Generally, “[c]ourts are free to grant a party leave to amend whenever ‘justice so 23 requires,’ and requests for leave should be granted with ‘extreme liberality.’” Moss v. U.S. Secret 24 Serv., 572 F.3d 962, 972 (9th Cir. 2009). There are several factors a district court considers in 25 whether to grant leave to amend, including undue delay, the movant’s bad faith or dilatory 26 motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 27 to the opposing party, and futility. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th 28 Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Of the factors from Foman, the 10 Case 1:20-cv-01616-DAD-BAM Document 22 Filed 07/20/21 Page 11 of 11 1 court should particularly consider prejudice to the opposing party. Id.; Eminence Cap., LLC v. 2 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 3 Here, there is no indication that allowing amendment to provide plaintiff an opportunity to 4 cure the noted deficiencies in the allegations of the complaint would be prejudicial to defendant, 5 and defendant does not so claim. There is also no indication that plaintiff has acted in bad faith, 6 and there have been no other attempts to cure deficiencies by previously allowed amendments. 7 Plaintiff will therefore be granted leave to amend.1 CONCLUSION 8 9 Accordingly, 10 1. 11 Community Hospital and Medical Center is granted; 12 2. 13 Plaintiff’s third cause of action for alleged violation of the EMTALA is dismissed without prejudice; and 14 3. 15 16 The motion to dismiss (Doc. No. 10) brought on behalf of defendant Fresno Within thirty (30) days of service of this order plaintiff shall file any amended complaint or notify the court of her intention to not proceed with this action. IT IS SO ORDERED. 17 Dated: July 20, 2021 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 Defendant also requests that the court dismiss plaintiff’s complaint in its entirety for lack of supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c). (Doc. No. 10 at 2.) In the event no amended complaint is filed or the noted deficiencies are not cured by an amended complaint, absent additional argument on the issues addressed by this order, the court would intend to decline to exercise supplemental jurisdiction and would dismiss the complaint without prejudice to the filing of an action in state court. 11 1
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