Lynch v. The Citadel Elizabeth City, LLC et al, No. 2:2021cv00048 - Document 22 (E.D.N.C. 2022)
Court Description: ORDER denying without prejudice 6 Motion to Dismiss; denying without prejudice 11 Motion to Dismiss. Signed by District Judge James C. Dever III on 7/12/2022. (Sellers, N.)
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Lynch v. The Citadel Elizabeth City, LLC et al Doc. 22 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DMSION No. 2:21-CV-48-D . MALIA W.LYNCH, Administrator of the Estate of BETIY JEAN WELLS, Deceased, • I Plaintiff, v. THE CITADEL ELIZABETH CITY, LLC, and ACCORDIUS HEALTH, _LLC, Defendants. )· ) ) ) ) ) ) ) ) ) ) ) ) ORDER· \ On September 9, 2021, Malia W. Lynch ("Lynch" or ''plaintiff"), as administrator of the estate of her mother, B~tty Jean Wells ("Wells"), filed a complaint in the Pasquotank County. Superior Court against 'f!le Citadel Elizabeth City, LLC and Accordius Health, LLC (collectively, ''the Citadel" or "~efendants") [D.E., 1-1]. On November 23, 2021, Lynch filed an amended, complaint in state court alleging the Citadel was grossly negligent in its care for W~lls [D.E. 13]. On December 1, 2021, defendants removed the_ action, to this court but filed only the original ' ' complaint [D.E. 1]. On D~cember 3, 2021, defendants moved to dismiss Lynch's complaint for r failure ,to_ state a c~aim ?ased on a statutory, immunity in the Emergency or Disaster Treatment Protection Act, N.C. Gen. Stat. §§ 90-21.130-134 ("EDTPA") [D.E. 6]. On December 20, 2021, defendants filed a _renewed motion to dismiss responding to the amended complaint and, in the alternative, moving for a stay in light of ongoing North Carolina litigation concerning the EDTPA [D.E. 11]. Defendants also filed a brief in support of the motions [D.E. 12]. On January 5, 2022, Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 1 of 7 Dockets.Justia.com the Citadel filed a copy of Lynch's amended co~plaint along with the rest of the state court record [D.E. 13]. On January 20, 2022, Lynch responded in opposition to the motion to dismis~ and the motion for a stay [D.E. 18]. On January 31, 2022, defendants replied [D.E. 20]. On April 18, 2022, defendants withdrew their motion for a stay [D.E. 21 ]. As explained below, the court denies without > \ prejudice defendants' motions to dismiss. I. Lynch is citizen ofElizabeth City, North Carolina, and is Wells's daughter. See Am. C~mpl. [D.E. 13] ~ 1.1 Lynch is the duly appointed administrator of Wells's estate, which.is a resident of North Carolina. See id.; Notice ofRemoval [D.E. 1] ~ 3. The Citadel Elizabeth City, LLC and Accordius Health, LLC are North Carolina limited liability companies whose sole members are Naftali Zanziper and Simcha Hyman, residents of New York. See Notice of Removal ft S-6. A i limited liability coiµpany is a citizen of all states in which one of its members is a citizen: See Gen. Tech. Ap_plications, Inc. v. Exro L~ 388 F.3d 114, 120 (4th Cir. 2004). Therefore, defendants are New York citizens; According~ the amended complaint, on June 21, 2020, Wells was admitted to the hospital after a fall at home and was diagnosed with injuries related")to her fall and other medical conditions related to advancing age, including balance impairment. See Am. Compl. ft 14-15. The hospital recommended that Wells move ''to a skilled nursing facility for rehabilitation services for ' strengthening in or~er to return home." Id. ~ 1S. Medical care providers at the hospjtal contacted the admissions coordinator at the Citadel, discussed the care needed and Wells's conditions, and the Citadel agreed it was a proper facility and would accept Wells. See id. ~ 16. On June 29, 2020, 1 . Docket enµy 13 includes a copy ofboth the original arid amended complaints. In this order, all citations to "Am. Compl." refer to the paragraph numbers in the amended complaint. 2 Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 2 of 7 Wells w~ transported to the Citadel. On that same date, skilled.mirses and administrators assessed . ' and admitted Wells to the Citadel. See id. ,r 17. Wells remained at the Citadel until August 10, 2020, when "she was transferred to Sentara Albemarle Hospital with an admission diagnosis of a ' Systemic Inflammation Response Syndrome (SIRS) resulting from unstageable right buttock and sacral pressure injury and infe_ction." Id. rrn. On August 15, 2020, Wells died from sepsis that - • I developed from pr~ssure ulcers and injuries she sustained during her stay at the Citadel. See id. ,r 20. . Lynch alleges North Carolina claims for gross negligence and respondeat superior liability for gross negligence concerning the care Wells received at the Citadel and seeks compensatory damages. See Am. Compl. ,r,r 21-34. The amended complaint also contains a North Carolina Rule of Civil Procedure 9G) certification, which is required when filing a medical malpractice claim in North Carolina courts. See N.C. R. Civ. P. 9G). II. This court has subject-matter jurisdiction based on diversity. See 28 U.S.C. § 1332. Tb,_-gs, the court applies state substantive law and federal procedural rules. See Erie R.R. v. Tompkins, 304 U.S. 64, 78-80 (1Q38); Dixon v. Edwards, 290-F.3d 699, 710 (4th Cir. 2002). Accordingly, this . ' " court must predict ~ow the Supreme Court of North Carolina would rule on any disputed state law issues. See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In doin so, the c?urt must look first to opinions of the Supreme Court ofNorth 9 Carolina. See id.; .Parkway 1046, LLC v. U.S. Home·Corp .• 961 F.3d 301, 306 (4th Cir. 2020); I . . Stahle v. CTS Coq,., 817 F.3d 96, 100 (4th Cir. 2016). If there are no governing opinions from the - - \, Supreme Court ofNorth Carolina, this court may consider the opinions ofthe North Carolina Court of Appeals, treatises, and ''the practices of other ·states." Twin City Fire Ins. Co., 433 F.3d at 369 3 Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 3 of 7 . . (quotation omitted).2 In predicting how the highest court ofa state would address an issue, this court \ ''must follow the decision of an intermediate state appellate court unless there is persuasive data that /"' the highest court would decide differently." Toloczko, 728 F.3d at 398 (quotation omitted); see : I - . - IIlcks v. Feiock, 48_5 U.S. 624, 63.0 & n.3 (1988). Moreover, in predicting how the highest court of a state would.address~ issue, this court "should not create or expand a [s]tate's public policy." Time Warner Ent-Advance/Newhouse P'ship v. Carteret-Craven Blee. Membership Cotp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted);. see Day & Zimmennann Inc. v. - Challoner, 423 U.S. 3, 4 (197S) (percuriam); Wade v. Danek Med., Inc., 182 F.3d281, 286 (4th Cir. 1999). The Citadel moves to dismiss based on statutory immunity. See [D~E. 12] 2-4. In support, the Citadel cites th~ EDTPA.3 Lynch responds that it is not evident from the face of the amended I :. complaint that the Citadel meets the requirements for immunity under the EDTPA. See Resp. [D.E. 18] 8-9. A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. I ' SeeAshcrofty. Iqbal; 556U.S. 662, 677-80 (2009); BellAtl. Cotp. v. Twombly, SS0 U.S. S44, S54 63 (2007); Coleman v. Md. Court ofAppeals, 6~6 F.3d 187, 190 (4th Cir. 2010), aff'd, S66 U.S. 30 / (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) · motion, a pleading ~'must contain sufficient factual matter, accepted as true, to state a claim to relief 2 North Carolina has no mechanism for certifying questions of sblte law to the Supreme Court ofNorth Carolina. See Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013). · 3 Defendants also argue that N.C. Gen. Stat. § 99E-71- provides immunity. That provision provides immunity for "any act or omission alleged to have resulted in the contraction of COVID-19." N.C.'Gen. Stat.§ 99E-7l(a). Lyne~ however, does not allege that Wells contracted COVID-19. Therefore, N.C. Gen. Stat.§ 99E-71 does not apply. 4 Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 4 of 7 I, that is plausible onjts face." Iqbal, 556 U.S. at678 (quotation omitted); see Twombly. SS0 U.S. at ' S70; Giarratano, S21 F.3d at 302. "Although a motion pursuant to Rule 12(b)(6) invites an.inquiry into the legal suffic\ency ofthe complaint, not an analysis ofpotential defenses to the claims set forth therein, dismissal nevertheless is appropriate when the face of the complaint clearly reveals the existence ofa meritorious affirmative defense." Occupy Columbia v. Haley. 738 F.3d 107, 116 (4th Cir. 2013) (quotation omitted); see Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011); Brooksv. CityofWinston-Salem, 8SF.3d 178,181 (4thCir.1996); accordForbisv.Honeycutt, 301 N.C. 699, 701, 273: S.E.2d 240, 241 (1981). ,, In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to [the nonmoving party]." Massey v. Ojaniit 759 F.3d 343, 352-S3 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, S57 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, S76 U.S. 155 (201S). When , evaluating a motion to dismiss, a court considers· the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435,448 (4th Cir. 2011); see Fed. R. Civ. P. lO(c); Goinesv. ValleyCmty. Servs. Bd., 822F.3d 1S9, 166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263,268 (4th Cir. 2005). The EDTPA provides "immunity from any civil liability for any harm or damages alleged to have been sustained as a result of an act or omissioi;i in the course of arranging for or providing health care services" for "any health care facility, health care provider, or entity that has legal responsibility for the acts or omissions of a health care provider." N.C. Gen. Stat. § 90-21.133(a). I The immunity applies only if: (1) The health care facility, health care provider, or entity is arranging for or providing health care services during the period of the COVID-19 emergency s Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 5 of 7 declaration,: including, but not limited to, the arrangement or provision of those services pursuant to a. COVID-19 emergency rule. (2) The arrangement or provision of health care serviJes is impacted, directly or indirectly: ; a By a healthcare facility, health care provider, or entity's decisions br ~vities in response to or as a result ofthe COVID-19 pandemic; or : b. By the decisions or activities~ in response to or as a result ofthe COVID-19 pandemic, ofa health care facility or entity where a health ' care provider provides health care services. (3) The health care facility, health care provider, or entity is arranging for or, proyiding health care services in good fait;h. / The parties. agree that the Citadel provided health care services during ''the period of the COVID-19 emerg~cy declaration." Id. § 90-21.133(a)(l); see Am. Compl. ff 17-19; Resp. at 2; i Reply at 2. As foi whether the Citadel's "arrangement or provision of health care services" was "impacted, directly or indirectly... [b]y a health care facility, health care provider, or entity's decisions or activities in response to or as a ~esult of the COVID-19 pandemic," N.C. Gen. Stat. § 90-21.133(a)(2), tbls element does not appear difficult to meet in light ofthe COVID-19 pandemic. Nonetheless, at th.emotion to dismiss stage, the elements ?fthe asserted immunity must be evident on the face of the amended complaint or from other miterials of which the court may take judicial ! ,, . notice. See Occupy Columbia, 738 F.3d at 116. Plaintiff does not mention COVID-19 or any 1 changes to Citadelis operations or policies in the ~ended complaint. And defendants do not cite to any portion ofthe amended complaint or any other information that would satisfy this element of its immunity defem;e. Therefore, taking the allegations in the light most favorable to the nonmoving party, the Citadel has not shown th.a~ EDTPA immunity applies. Whether the Citadel can establish 6 I Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 6 of 7 L EDTPA immunity on a more :fully developed record is an issue for another day. Finally, because it is not apparentfroni th~ amended complaint that the Citadel' s·arrangement orprovisi_on ofhealthcare services was impacted by its decisions or activities in response to or as a result of the COVID-19 pandemic; the court need not decide whether plaintiff plausibly alleged bad faith. Cf. Shannon v. Testen, 243 N.C. App. 386,390, 777 S.E.2d 1S3, 1156 (2015) (allegations of"mere negligence" do not allege bad faith sufficiently to overcome statutory immunity for "[p]eer review activities ; -, conducted in good faith." (quotation omitted)). m. In sum, the court DENIES WITHOUT PREJUDICE defendants' motion to dismiss [D.E. 6] and renewed motion to dismiss [D.E. 11]. On a more :fully developed record, defendants may seek 0immunity under the EDTPA. SO ORDERED. This ll:_ day of July, 2022. United States District Judge 7 Case 2:21-cv-00048-D Document 22 Filed 07/12/22 Page 7 of 7
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