ZELIG v. CITY MEDICAL OF NEW JERSEY PC et al, No. 1:2021cv00961 - Document 11 (D.D.C. 2021)

Court Description: MEMORANDUM AND OPINION re Defendants' Motion to Dismiss 4 . Signed by Judge Tanya S. Chutkan on 7/9/21. (DJS)

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ZELIG v. CITY MEDICAL OF NEW JERSEY PC et al Doc. 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) ) CITY MEDICAL OF NEW JERSEY PC, ) ) ) Defendant. ) ) JOSEPH ZELIG, Civil Action No. 21-cv-961 (TSC) MEMORANDUM OPINION Plaintiff Joseph Zelig brings this action against various medical entities, pursuant to 42 U.S.C. § 247d-6d(d) of the Public Readiness and Emergency Preparedness Act, alleging that Defendants negligently perforated his ethmoidal artery during a COVID nasal swab test and failed to properly inform him of the risks of the procedure. ECF No. 1, Compl. ¶¶ 18, 31, 40-41. Defendants filed a Motion to Dismiss on May 5, 2021. ECF No. 4. Pursuant to this court’s Local Civil Rules, Plaintiff’s response was due May 19, 2021. See LCvR 7(b). Plaintiff filed a timely motion, ECF No. 9, requesting an extension, but did not indicate whether he had conferred with opposing counsel to determine whether they would oppose the motion, as required by this court’s Local Rules. See LCvR 7(m) (requiring that a movant confer with opposing counsel prior to filing a non-dispositive motion and indicate whether the motion is opposed or unopposed). Consequently, the court denied the motion without prejudice, 5/19/21 Min. Order, and Plaintiff filed an unopposed motion for an extension until June 18, 2021. ECF No. 10. The court granted the motion, 6/9/21 Min. Order, but Plaintiff did not file a timely Page 1 of 2 Dockets.Justia.com opposition or file a motion to extend the deadline. Defendants seek dismissal on multiple grounds, including: 1) that Plaintiff failed to file a verified complaint with the requisite attached materials, and 2) that it is unclear whether Plaintiff exhausted his administrative remedies before filing suit. See 42 U.S.C. § 247d-6d(e)(4)(A); 247d-6e(d)(1). By separate order, the court will grant Defendants’ motion. Plaintiff did not file a verified complaint with the required attached medical documents. See 42 U.S.C. § 247d6d(e)(4)(A). Nor did Plaintiff allege in his Complaint that he exhausted available administrative remedies and, because he did not respond to Defendants’ argument on this issue, the court may treat this issue as conceded. See LCvR 7(m) (“If [an opposition] is not filed within the prescribed time, the Court may treat the motion as conceded.”). Date: July 9, 2021 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge Page 2 of 2

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