The opinion
[Dkt. No. 19]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
REBECCA LEIGH DUGAN-HAND, as
Administratrix of ESTATE OF
ELIZABETH BAKER,
Plaintiff, Civil No. 20-3075(RMB/JS)
v. MEMORANDUM ORDER
HEIDI GRIFFITH, M.D.;
ATLANTICARE PHYSICIAN GROUP,
P.A., t/d/b/a APG HOSPITALISTS
– ATLANTIC CITY; SIDDHARTH
BHIMANI, D.O.; ATLANTICARE
REGIONAL MEDICAL CENTER, INC.,
t/d/b/a ATLANTICARE REGIONAL
MEDICAL CENTER,
Defendants.
This matter comes before the Court upon Defendants’ Motion,
styled “Motion to Dismiss for failure to provide affidavits of
merit pursuant to N.J.S.A. 2A:53A-26 et seq.” [Dkt. No. 19]
The Third Circuit has held that “the affidavit of merit is
not a pleading requirement.” Nuveen Mun. Trust ex rel. Nuveen
High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d
283, 303 (3d Cir. 2012); see also Chamberlain v. Giampapa, 210
F.3d 154 (3d Cir. 2000). “The requirement exists . . . so that
‘malpractice claims for which there is no expert support will be
terminated at an early stage in the proceedings.’” Nuveen, 692
F.3d at 303 (quoting Chamberlain, 210 F.3d at 160). The Third
Circuit further instructed that “because the affidavit is not
part of the pleadings, dismissing an action based on the lack of
an affidavit necessarily seems to involve matters outside the
pleadings, which would require a court to consider a motion to
dismiss for failure to state a claim as a motion for summary
judgment, as provided by Rule 12(d).” Nuveen, 692 F.3d at 303
n.13; see also Fed. R. Civ. P. 12(d)(“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.”) Inexplicably, Defendants
did not seek summary judgment. The Court, nonetheless, as
required, will convert this motion to a motion for summary
judgment under Rule 56.
Before the Court can convert the motion, however, “it must
provide the parties ‘reasonable opportunity’ to present all
material relevant to a summary judgment motion.” In re
Rockefeller Center Properties, Inc. Securities Litigation, 184
F.3d 280, 287-88 (3d Cir. 1999) (quoting Fed. R. Civ. P. 12).
The Third Circuit requires that the parties have “notice of the
conversion,” and that such notice “must be ‘unambiguous’ and must
‘fairly apprise[]’ the parties that the court intends to convert
the motion.” Id. at 288 (quoting Rose v. Bartle, 871 F.2d 331,
340, 341-42 (3d Cir. 1989)). The notice period need not be
extensive. See id. (citing Jones v. Automobile Ins. Co., 917 F.2d
1528, 1532-33 (11th Cir. 1990) for a ten day period as an
example).
For these reasons,
IT IS on this 9th day of December, 2020, hereby
ORDERED that the parties shall have TEN (10) DAYS to file
any additional materials relevant to consideration of a Motion
for Summary Judgment, after which time the Court intends to
convert Defendants’ Motion to Dismiss [Dkt. No. 19] to a Motion
for Summary Judgment.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE