Pauly et al v. Stanford Health Care, No. 3:2018cv05387 - Document 32 (N.D. Cal. 2019)
Court Description: ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 8 . (Illston, Susan) (Filed on 4/19/2019)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 MAKENZIE B. PAULY, et al., Plaintiffs, United States District Court Northern District of California 11 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS v. 12 13 Case No. 18-cv-05387-SI STANFORD HEALTH CARE, Re: Dkt. No. 8 Defendant. 14 15 16 Before the Court is defendant Stanford Health Care’s motion to dismiss plaintiffs’ 17 complaint. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution 18 without oral argument and VACATES the hearing set for April 26, 2019. For the reasons set out 19 below, the motion will be GRANTED and the complaint will be dismissed, with limited leave to 20 amend on or before May 3, 2019. 21 BACKGROUND 22 23 This case arises out of defendant Stanford Hospital’s alleged November 2008 failure to 24 screen and stabilize 10-year-old Makenzie Pauly, who suffered from severe pain after her 25 exploratory laparoscopic surgery and appendectomy (the “Underlying Incident”). Dkt. No. 1 at 41 26 (Complaint). On December 9, 2010, Faiza Pauly, Makenzie Pauly’s mother, filed a complaint 27 28 1 For ease of use, page references are to the ECF assigned page numbers. 1 alleging defendant’s treatment of Makenzie Pauly violated the Emergency Medical Treatment and 2 Active Labor Act, 42 U.S.C. § 1395(dd) (“EMTALA”), and thereby caused Faiza Pauly emotional 3 distress. Case No. 3:10-cv-05582-SI, Dkt. No. 1. On May 11, 2011, the suit was dismissed on the 4 grounds that EMTALA does not provide a private right of action to a third party when the allegedly 5 injured patient is still living. Case No. 3:10-cv-05582-SI, Dkt. No. 33. 6 On May 31, 2011, Pauly filed a First Amended Complaint (“FAC”), naming Makenzie Pauly 7 as the plaintiff and again alleging EMTALA violations. Case No. 3:10-cv-05582-SI, Dkt. No. 35. 8 On September 21, 2011, the FAC was dismissed, with leave to amend, because a non-attorney parent 9 cannot represent a minor in federal court. Id. at Dkt. No. 74. Fazia Pauly was given until October United States District Court Northern District of California 10 21, 2011 to find counsel for her minor daughter and to file an amended pleading. 11 On January 10, 2012, Fazia Pauley filed a document with the Court stating she had not 12 secured counsel and requesting the Court dismiss the claim without prejudice, so that Makenzie 13 Pauly could pursue it when she reached the age of majority. Id. at Dkt. No. 93. The Court ordered 14 as follows: 15 16 17 18 The Court agrees, and hereby DISMISSES this action WITHOUT PREJUDICE for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b). The claim is preserved as to [Makenzie Pauly], who may pursue the claim when she reaches the age of majority. See Johns v. County of San Diego, 114 F.3d 874, 878 (9th Cir. 1997) (reversing dismissal with prejudice, after parent failed to retain counsel, so that infant could bring claim when he reached the age of majority). Case No. 3:10-cv-05582-SI, Dkt. No. 97 (February 6, 2012). 19 On August 31, 2018 Makenzie and Fazia Pauly filed the instant action, which was originally 20 assigned to Judge Freeman. On September 27, 2018, defendant filed the instant motion to dismiss. 21 On March 29, 2019 the case was related to the action originally filed in 2010 (Case No. 3:10-cv22 05582-SI) and reassigned to this Court. 23 24 LEGAL STANDARD 25 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 26 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 27 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 28 2 United States District Court Northern District of California 1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 2 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted 3 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened 4 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the 5 speculative level.” Twombly, 550 U.S. at 555, 570. 6 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 7 Court must assume the plaintiff's allegations are true and draw all reasonable inferences in the 8 plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, 9 the Court is not required to accept as true “allegations that are merely conclusory, unwarranted 10 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 11 (9th Cir. 2008). 12 DISCUSSION 13 14 I. Fazia Pauly’s Claims 15 While the Court’s February 6, 2012 order preserved Makenzie Pauly’s claims until she 16 reached the age of majority, Fazia Pauly’s claims were not similarly tolled. The EMTALA statute 17 of limitations dictates that no action may be brought “more than two years after the date of the 18 violation ...” 42 U.S.C. §1395dd(d)(2)(C). The Underlying Incident occurred in November 2008 19 and the instant complaint was filed nearly 10 years later. Consequently, Fazia Pauly cannot bring 20 EMTALA claims on her own behalf because they are untimely. Fazia Pauly is also barred from 21 bringing EMTALA claims based on the Underly Incident because EMTALA does not provide a 22 private right of action to a third party when the allegedly injured patient is still living. Case No. 23 3:10-cv-05582-SI, Dkt. No. 33 (May 11, 2011) (Order granting motion to dismiss on the basis that 24 third parties do not have a private right of action under EMTALA when the allegedly injured patient 25 is still living); see also Zeigler v. Elmore County Health Care Authority, et al., 56 F. Supp. 2d 1324, 26 1327 (M.D. Ala. 1990) (Finding that EMTALA’s legislative history “suggests quite strongly that 27 Congress intended to allow suit only by what the House Judiciary Committee called the ‘individual 28 patient,’ that is, the individual for whose medical condition the emergency medical examination or 3 1 2 The statute of limitations on Fazia Pauly’s negligence and intentional infliction of emotional 3 distress claims (causes of action seven through nine) have likewise run regardless of whether the 4 Court imposed the one-year statute of limitation (pursuant to C.C.P. § 340.5) or the two-year 5 limitation (pursuant to C.C.P. § 335.1). 6 Finally, Fazia Pauly’s tenth cause of action (abuse of process) is also time barred. The latest 7 possible date to calculate Fazia Pauly’s abuse of process claim is February 6, 2012 – the Court’s 8 February 6, 2011 order dismissing the case. Case No. 3:10-cv-05582-SI, Dkt. No. 97. Pursuant to 9 C.C.P. § 335.1, Fazia Pauly had to bring the cause of action within 3 years after the February 6, 10 United States District Court Northern District of California treatment was sought.”) 2011 order. She did not and the claim is therefore time barred. 11 Thus, the first through fifth (EMTALA) and tenth causes of action are dismissed with 12 prejudice with respect to Fazia Pauly, the seventh through ninth causes of action are dismissed in 13 their entirety with prejudice. 14 15 II. Makenzie Pauly’s Claims 16 17 18 19 20 21 22 23 24 25 26 27 28 A. EMTALA: First - Fifth Causes of Action Defendant argues Makenzie Pauly’s EMTALA causes of action are time barred. Defendant argues Johns v. County of San Diego, 114 F.3d 874,878 (9th Cir. 1997) – the case plaintiffs and this Court relied upon to toll Makenzie Pauly’s EMTALA claims – is inapposite. The plaintiff in Johns sought relief under 42 U.S.C. § 1983. While § 1983 is a federal law, it is governed by the forum state’s statue of limitations for tort claims. Owens v Okure, 488 US 235, 240 (1989) (requiring “courts to borrow and apply to all §1983 claims the one most analogous state statute of limitations.”). As discussed above, California’s statute of limitations on tort claims for injuries is two years and the statutes are tolled for minors until they reach the age of majority. C.C.P. §§ 335.1, 352. In contrast, EMTALA specifically sets forth the statute of limitations, as opposed to being governed by the forum state; therefore, per defendant’s logic, tolling is improper and not allowed. Defendant underscores its argument by citing to non-Ninth Circuit cases in which courts declined 4 United States District Court Northern District of California 1 to toll EMTALA for minors. See Vogel v. Linde, 23 F.3d 78, 80 (4th Cir. 1994); Brewer v. Miami 2 County Hosp., 862 F. Supp. 305, 308 (D. Kan. 1994). 3 In Johns, the Ninth Circuit held that the minor “should be given the opportunity to pursue 4 his cause of action when he reaches eighteen,” and invoked Federal Rule of Civil Procedure 17(c) 5 which reads “[t]he court must appoint a guardian ad litem—or issue another appropriate order— 6 to protect a minor … who is unrepresented in an action.” 114 F.3d 874, 878 (9th Cir. 1997); Fed. R. 7 Civ. P. 17(c)(2) (emphasis added). The Ninth Circuit in Johns concluded that because “the goal [of 8 FRCP 17(c)] is to protect the rights of infants, the complaint should not have been dismissed with 9 prejudice as to” the minor in that case. 114 F.3d 874, 878 (9th Cir. 1997). 10 The Court declines to dismiss Makenzie Pauly’s EMTALA causes of action for two reasons. 11 First, there is no binding precedent that requires the Court to find otherwise; indeed, the Ninth 12 Circuit in Johns indicates that tolling the statute and preserving Makenzie Pauly’s claims is required 13 by Rule 17(c). Second, Makenzie Pauly has relied on the Court’s February 2012 order. For the 14 Court to preclude her from bringing the claim, after explicitly ordering that the claim would be 15 preserved so she could pursue it once she reached the age of majority, would be manifestly unjust. 16 The Court therefore DENIES defendant’s motion to dismiss Makenzie Pauly’s first through 17 fifth causes of action. 18 19 B. 20 The complaints filed in 2010 and 2011 regarding the Underlying Incident did not allege 21 Negligent Infliction of Emotional Distress. Thus, when the Court issued its February 6, 2012 order 22 stating that the “claim is reserved as to [Makenzie Pauly] who may pursue the claim when she 23 reaches the age of majority,” the Court was referring exclusively to the EMTALA claims. Case No. 24 3:10-cv-05582-SI, Dkt. No. 97 (February 6, 2012). The Court did not preserve claims that had not 25 been filed. 26 27 Sixth Cause of Action: Negligent Infliction of Emotional Distress The California Code of Civil Procedure sets forth the statute of limitations for a Negligent Infliction of Emotional Distress claim, which states in pertinent part: 28 5 4 In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. . . . Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. 5 C.C.P. § 340.5. Thus, plaintiff would have had to bring her negligence cause of action no later than 6 three years after the Underlying Incident – approximately December 2011. 1 2 United States District Court Northern District of California 3 7 Even assuming plaintiff’s negligence claim had been tolled until she reached age of majority, 8 the statue of limitation was one year. Plaintiff was 10 years old in November 2008 when the 9 Underlying Incident occurred and thus would have turned 18 sometime in 2016. Plaintiff would 10 have had to file her negligence claim within a year after turning 18 – so sometime in 2017. The 11 instant action was filed in August 2018 and is thus untimely under that calculation as well. 12 13 As such, Makenzie Pauly’s negligent infliction of emotional distress cause of action is time barred and dismissed with prejudice. 14 15 C. 16 To state a claim for abuse of process in California, Makenzie Pauly must show that defendant 17 used a legal process in a wrongful manner to accomplish a purpose for which it was not designed. 18 Rusheen v. Cohen, 37 Cal. 4th 1048, 1056 (2006). The essential elements of this claim are: (1) 19 defendant acted with an ulterior motive; and (2) defendant committed a willful act or threat not 20 authorized by the process and not proper in the regular conduct of some official proceedings. Id. at 21 1057. The nature of the tort is the misuse of process, i.e., the use of process for a purpose other than 22 that for which it is designed. Witkin, Summary of California Law § 517 (2005). 23 24 Tenth Cause of Action: Abuse of Process The gravamen of Makenzie Pauly’s abuse of process claim is that defendant (1) tried to coerce plaintiff into signing a Rule 68 Offer (Compl. at 24), (2) spoliation of evidence – plaintiffs 25 26 27 28 6 1 allege defendant deleted various information contained in Makenzie Pauly’s medical records2 2 (Compl. at 26), and (3) defendant misled the Court in violation of Rule 11 by making allegedly 3 misleading statements in their various filings dating back to 20113 (Compl. at 27). 4 Plaintiffs have failed to allege an abuse of process claim because they have not alleged an 5 ulterior motive, nor have they alleged a willful act or threat not proper in the regular conduct of 6 official proceedings. The Rule 68 Offer is standard and is not abuse of process. 7 Plaintiff’s abuse of process allegations regarding spoliation of evidence fail because they 8 have not used a judicial/legal process to obtain the allegedly deficient documents. Simply because 9 the medical files contain different information does not mean that defendant nefariously and United States District Court Northern District of California 10 permanently destroyed potentially relevant evidence. 11 Finally, the alleged violations of Rule 11 do not constitute abuse of process because (1) they 12 are instances of defendant merely litigating the case and (2) plaintiff does not, and likely cannot, 13 allege ulterior motive here. “To show an ulterior motive, the plaintiff must show that the defendant 14 employed the process for an end not germane to the legal proceeding, and an improper purpose may 15 be the achievement of a benefit totally extraneous to or a result not within the legal proceeding's 16 legitimate scope.” Owens v. Chasko, U.S. Dist. LEXIS 81470, *13 (E.D. Cal. July 25, 2011). 17 Accordingly, the Court GRANTS defendants’ motion to dismiss Makenzie Pauly’s abuse of 18 process claim. Although the Court is skeptical that Makenzie Pauly can allege an abuse of process 19 claim, the Court will grant her leave to amend. If Makenzie Pauly files an amended complaint 20 including a cause of action for abuse of process, she must be able to allege the elements of such a 21 claim as set forth above. Any amended complaint must be filed no later than May 3, 2019. 22 23 24 25 26 27 28 Plaintiffs allege that they have three sets of medical records: (1) Set 1 – obtained on May 29, 2009, printed prior to the filing of the first complaint; (2) Set 2 – obtained in August 2017, requested by Makenzie Pauly after she reached the age of majority while no lawsuits were pending; and Set 3 – obtained in May 2018, requested in person at Stanford Health Center and provided the same day. Plaintiffs allege Set 1 has much more detailed information than the other two sets and that defendant deleted the omitted information. 2 3 For example, plaintiffs allege defendant violated Rule 11(b)(2) by filing an answer in August 2011 to plaintiffs’ second amended complaint and asserted affirmative defenses “unwarranted by existing law.” See Compl. at 29. The affirmative defenses plaintiffs allege are unwarranted by law include contributory negligence and assumption of risk. 7 CONCLUSION 1 2 3 For the foregoing reasons, defendant’s motion to dismiss is GRANTED in part and DENIED in part. Specifically, 4 5 First - Fifth Causes of Action (EMTALA – Fazia Pauly & Makenzie Pauly) 6 --GRANTED with prejudice as to Fazia Pauly 7 --DENIED as to Makenzie Pauly 8 9 10 Sixth Cause of Action (Negligent Infliction of Emotional Distress – Makenzie Pauly) --GRANTED with prejudice United States District Court Northern District of California 11 12 13 Seventh - Ninth Causes of Action (NIED and IIED – Fazia Pauly) --GRANTED with prejudice 14 15 Tenth Cause of Action (Abuse of Process – Fazia Pauly & Makenzie Pauly) 16 --GRANTED with prejudice as to Fazia Pauly 17 --GRANTED without prejudice as to Makenzie Pauly 18 19 Any amended complaint must be filed no later than May 3, 2019. 20 21 22 23 24 25 IT IS SO ORDERED. Dated: April 19, 2019 ______________________________________ SUSAN ILLSTON United States District Judge 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
