DUGAN-HAND v. GRIFFITH

[Dkt No. 24]

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. OPINION

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.

BUMB, UNITED STATES DISTRICT JUDGE:

This matter comes before the Court upon Defendants’ Motion,

styled “Motion for Summary Judgment Supplemental Submission.”

[Dkt. No. 24] Defendants in this case are Heidi Griffith, M.D.;

Atlanticare Physician Group, P.A.; Siddharth Bhimani, D.O.; and

Atlanticare Regional Medical Center, Inc. (“Defendants”).

Plaintiff Rebecca Dugan-Hand (“Plaintiff”) has not filed

opposition to Defendant’s Motion. Moreover, the ten-day period

to provide the Court with additional materials relevant to the

consideration of a Motion for Summary Judgment expired as of

December 19, 2020. [Dkt. No. 23] Plaintiff has not provided the

Court with any such materials. For the reasons set forth herein,

Defendants’ Motion for Summary Judgement will be granted, and

Plaintiff’s claims will be dismissed with prejudice.

Facts

Plaintiff Dugan-Hand, as administratrix of the estate of

Elizabeth Baker, brings this suit against multiple Defendants.

Plaintiff’s Complaint brings forth claims of professional

medical negligence against Defendants Griffith and Bhimani, and

claims of vicarious liability against Defendants Atlanticare

Physician Group, P.A. and Atlanticare Regional Medical Center,

Inc.

Defendants filed a Motion to Dismiss for failure to provide

affidavits of merit on September 16, 2020. [Dkt. No. 19] The

Court issued a Memorandum Order on December 9, 2020, instructing

the parties to file any additional materials relevant to the

consideration of a Motion for Summary Judgment within ten days

of that date. [Dkt. No. 23] As instructed by the Court,

Defendant’s Motion to Dismiss would then be converted to a

Motion for Summary Judgment after the ten-day period. [Dkt. No.

23, pg. 3] After the Court’s Memorandum Order, Defendants

provided the Court with a Motion for Summary Judgment

Supplemental Submission on December 17, 2020. [Dkt. No. 24] The

Court has not received any additional materials from Plaintiff,

to include affidavits of merit or opposition to Defendant’s

Motion for Summary Judgment.

Affidavit of Merit

Pursuant to N.J.S.A. 2A:53A-26, et seq., plaintiffs

bringing forth professional malpractice actions against

“licensed persons” must serve an expert’s affidavit as to each

defendant, stating that the defendant probably deviated from the

applicable professional standard of care.

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.”)

Before the Court can convert a motion to dismiss into a

motion for summary judgment under Rule 56, “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.)

This Court provided the parties with a ten-day period, and

Defendants filed a Motion for Summary Judgment Supplemental

Submission [Dkt. No. 24] within this time frame per the Court’s

Memorandum Order. [Dkt. No. 23] Thus, the Court will consider

Defendant’s Motion for Summary Judgment in light of the facts

presented.

Summary Judgment Standard

Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

“genuine” if it could lead a “reasonable jury [to] return a

verdict for the nonmoving party.” Id. “[W]hen a properly

supported motion for summary judgment [has been] made, the

adverse party ‘must set forth specific facts showing that there

is a genuine issue for trial.’” Anderson, 477 U.S. at 250

(citing Fed. R. Civ. P. 56(e)). In the face of a properly

supported motion for summary judgment, the nonmovant’s burden is

rigorous: he “must point to concrete evidence in the record”;

mere allegations, conclusions, conjecture, and speculation will

not defeat summary judgment. Orsatti v. New Jersey State

Police, 71 F.3d 480, 484 (3d Cir. 1995); accord., Jackson v.

Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC v.

Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)

(“[S]peculation and conjecture may not defeat summary

judgment.”)). Failure to sustain this burden will result in

entry of judgment for the moving party.

The same basic legal analysis applies when a summary

judgment motion is unopposed, Anchorage Associates v. Virgin

Islands Board of Tax Review, 922 F.2d 168 (3d Cir. 1990),

however, the material facts put forth by the movant are deemed

undisputed pursuant to L. Civ. R. 56.1(a) (“any material fact

not disputed shall be deemed undisputed for purposes of the

summary judgment motion.”).

Analysis

Despite notice from the Court, Plaintiff has failed to

provide any Affidavits of Merit as to the Defendants, failed to

respond to the Court’s Memorandum Order with any additional

materials, and has failed to oppose Defendants’ Motion for

Summary Judgment. Plaintiff is far outside the 120-day time

limit as afforded by the applicable statute. N.J.S.A. 2A:53A-27.

Said statute directs the Court to add an additional period of up

to 60 days for good cause to the initial period of 60 days for

the Plaintiff to file an affidavit. These 120 total days have

since passed, as have the ten-day period imposed by the Court’s

Memorandum Order on December 9, 2020. [Dkt. No. 23] Plaintiff

has not provided the Court with information of any circumstances

that would necessitate or warrant an extension of time.

Plaintiff’s failure to produce an Affidavit of Merit within

this timeframe is considered a failure to state a cause of

action requiring the dismissal of the Complaint with prejudice.

N.J.S.A. 2A:53A-29; see also Cornblatt v. Barrow, 153 N.J. 218

(1998). Even though Plaintiff is pro se, the Court cannot

determine any exceptional circumstances to allow Plaintiff an

extension to file Affidavits of Merit as Plaintiff has failed to

provide the Court with any possible reasoning. Thus, Plaintiff’s

claims will be dismissed with prejudice.

Conclusion

For the foregoing reasons, Defendant’s Motion for Summary

Judgment will be granted and Plaintiff’s Complaint will be

dismissed with prejudice. An appropriate Order shall issue on

this date.

Dated: January 14, 2021 Birr iehomb—

RENRE MARIE BUMB

UNITED STATES DISTRICT JUDGE