The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BMAMDOUH HUSSEIN, No, 19-cv-12704 (KM /JBC)
Plaintiff,
v. MEMORANDUM OPINION
MAZHAR ELAMIR, M.D.,
JERSEY CITY MEDICAL CENTER,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
This is a medical malpractice action. Medical malpractice is a state-law
claim which generally must be brought in state court. Now before the Court are
motions by the two defendants to dismiss the complaint for lack of federal
subject matter jurisdiction, and for failure to comply with the state requirement
of filing an affidavit of merit. (DE 15, 17, 20, 21) Because the complaint does
not plead that the plaintiff and defendant are citizens of different states, and
because it does not factually set forth a federal-law claim, it will be dismissed
for lack of federal jurisdiction.
I. The Complaint
The facts alleged in the complaint may be summarized as follows. The
allegations are assumed to be true for purposes of this motion.
The plaintiff, Mr. Mamdouh Hussein, served a “Notice of Tort Claims of
the Law” on May 23, 2018. The defendants performed an unnecessary
operation on him in order to profit from his medical insurance.
While Mr. Hussein was under anesthesia, the doctors “used [his] body for
training.” Emergency doctors were called for, and someone pointed to the
plaintiffs bleeding thigh and said “You see what you did?”
Dr. Elamir and the operating doctor conspired, and the operating doctor
never came back to his room for four or five days. Mr. Hussein left the
hospital.
Following his release from the hospital, Mr. Hussein bled in his stomach
for four days. Mr. Hussein found blood all over his underwear, and went to
Hoboken Medical Center. The ultrasound showed heavy blood flow and
hemorrhaging in the operation area. The stitches were open.
Mr. Hussein learned that he would have to undergo surgery again. He
has been subjected to suffering and infection.
Ik. Standard on jurisdictional motion
The burden of establishing federal jurisdiction rests with the
party asserting its existence. [citing DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 342 n. 3, 126 S. Ct. 1854, 164 L.Ed.2d 589 (2006).]
“Challenges to subject matter jurisdiction under Rule 12(b)(1) may
be facial or factual.” [citing Common Cause of Pa. v. Pennsylvania,
558 F.3d 249, 257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp.
Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)).] A facial attack
“concerns ‘an alleged pleading deficiency’ whereas a factual attack
concerns ‘the actual failure of [a plaintiff's] claims to comport
[factually] with the jurisdictional prerequisites.’ ” [citing CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008) (alterations in
original) (quoting United States ex rel. Atkinson v. Pa. Shipbuilding
Co., 473 F.3d 506, 514 (3d Cir.2007)).]
“In reviewing a facial attack, the court must only consider
the allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the plaintiff.”
[citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).]
Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes
omitted; case citations in footnotes inserted in text).
The motion to dismiss on jurisdictional grounds is presented as a facial
attack, ie., one based on the face of the pleadings under Rule 12(c).! In such a
case, the standard of review is similar to that governing an ordinary Rule
1 The parties cite Rule 12(c), rather than Rule 12(b)(6), because the complaint
has been answered. The standard is similar. See Turbe v. Gov't of Virgin Islands, 938
F.2d 427, 428 (3d Cir. 1991).
12(b)(6) motion to dismiss. The facts alleged in the complaint are accepted as
true and all reasonable inferences are drawn in favor of the plaintiff. New
Jersey Carpenters & the Trustees Thereof v. Tishman Constr. Corp. of New
Jersey, 760 F.3d 297, 302 (3d Cir. 2014). The allegations cannot rest on mere
“labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, they must assert facts that render a claim “plausible on its face.” Id. at
570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In considering a motion to dismiss a pro se complaint, a court must bear
in mind that pro se complaints are held to less stringent standards than formal
pleadings drafted by lawyers, and construe them liberally. Erickson v. Pardus,
551 U.S. 89, 93, 127 S. Ct. 2197 (2007); Haines v. Kerner, 404 U.S. 519, 520-
21, 92 S. Ct. 594 (1972). That rule of liberal construction does not, however,
absolve a pro se plaintiff of the need to adhere to the Federal Rules of Civil
Procedure. See, e.g., Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (“a pro
se complaint . . . must be held to ‘less stringent standards than formal
pleadings drafted by lawyers;’.. . but we nonetheless review the pleading to
ensure that it has ‘sufficient factual matter; accepted as true; to state a claim
to relief that is plausible on [its] face.”).
Ill. Jurisdiction
Subject matter jurisdiction generally exists in the federal courts on the
basis of (1) diversity of citizenship, 28 U.S.C. § 1332(a), or (2) a federal
question, 28 U.S.C. § 1331.
A. Diversity
Diversity exists when there is “complete diversity” of the parties and the
controversy’s value exceeds $75,000. 28 U.S.C. § 1332(a); Strawbridge v.
Curtiss, 7 U.S. (3 Cranch) 267 (1806). If any plaintiff and any defendant are
citizens of the same state, diversity is broken and the action must be
dismissed, unless there is another basis for jurisdiction.
Viewed as medical malpractice claims, the plaintiff's allegations clearly
arise under state law. Unless there is diversity, they must be heard in state,
not federal, court.
This complaint does not allege that the plaintiff and the two defendants
are citizens of separate states. On its first page, it lists Jersey City addresses
for both plaintiff Mr. Hussein and defendant Jersey City Medical Center. I will
therefore dismiss the complaint insofar as it seeks to assert state-law claims.
B. Federal-question jurisdiction
The alternative basis for subject matter jurisdiction is the complaint’s
assertion of a federal-law claim. Federal question jurisdiction exists for “all civil
actions arising under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. For a claim to “arise under” the Constitution, federal law, or
a treaty, “a right or immunity created by the Constitution or laws of the United
States must be an element, and an essential one, of the plaintiffs’ cause of
action.” Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127 (1974) (citing
Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112 (1936)).
The complaint states generally that there have been violations of federal
law, federal civil rights law, or the Constitution, without further specifics. As
noted above, however, mere legal conclusions do not suffice as allegations, This
complaint does not specify any federal claim. No federal statute is cited. No
right guaranteed by the Constitution is identified.
Because the complaint fails to allege a federal claim, dismissal is granted
on this ground as well.?
a Assuming jurisdictional obstacles could be overcome, there would remain an
additional threshold issue with regard to the malpractice claim in this case. State law
requires that an Affidavit of Merit (“AOM”) be filed:
In any action for damages for personal injuries, wrongful death or
property damage resulting from an alleged act of malpractice or
negligence by a licensed person in his profession or occupation, the
plaintiff shall, within 60 days following the date of filing of the answer to
the complaint by the defendant, provide each defendant with an
affidavit of an appropriate licensed person that there exists a reasonable
probability that the care, skill or knowledge exercised or exhibited in
CONCLUSION
For the foregoing reasons, the motions to dismiss are granted insofar as
they assert lack of subject matter jurisdiction. I do not reach any of the other
asserted grounds for dismissal. A separate order is filed herewith.
Dated: January 28, 2020
HON. KEVIN MCNULTY, =.
the treatment, practice or work that is subject of the [claim], fell outside
acceptable professional or occupational standards or treatment
practices. The court may grant no more than one additional period, not
to exceed 60 days, to file the affidavit pursuant to this section, upon a
finding of good cause.
In the case of an action for medical malpractice, the person executing the
affidavit shall meet the requirements of a person who provides expert
testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.
17 (C.2A:53A-41). In all other cases, the person executing the affidavit
shall be licensed in this or any other state; have particular expertise in
the general area or specialty involved in the action, as evidenced by
board certification or by devotion of the person's practice substantially to
the general area or specialty involved in the action for a period of at least
five years. The person shall have no financial interest in the outcome of
the case under review, but this prohibition shall not exclude the person
from being an expert witness in the case.
N.J. Stat. Ann. § 2A:53A-27. (Defendants filed answers in this action on September 24
and October 14, 2019. (DE 10, 12) That requirement applies to a diversity malpractice
action in federal court, just as it does in state court. Nuveen Mun. Tr. ex rel. Nuveen
High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283 (3d Cir. 2012).
As I appear to lack subject matter jurisdiction, I do not address this issue.