Petition for Writ of Certiorari — Rebekah Cooper, as Administrator of the Estate of Jason Cooper, Deceased, Petitioner v. Ehtsham Haq, et al.

Docket Number:__________________

In the Supreme Court of the United States

Rebekah Cooper,

as Administratrix of the Estate of Jason Cooper,

Petitioner,

v.

Ehtsham Haq, M.D., Amjed Javaid, M.D., and Amjed Javaid, L.L.C.

Respondents.

_________________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Alabama

_________________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

_________________________________

William T. Johnson III

Counsel of Record

Jeffrey C. Kirby, Esquire

1 Independence Plaza Drive,

Suite 520

Birmingham, AL 35209

(205) 458-3553

bjohnson@kirbyjohnsonlaw.com

Richard Frankowski, Esquire

The Frankowski Firm, L.L.C.

231 22nd Street South, Suite 203

Birmingham, AL 35233

(205) 390-0399

richard@frankowskifirm.com

Stanley J. Murphy, Esquire

Murphy & Murphy, L.L.C.

Attorneys at Law

P.O. Box 3160

Tuscaloosa, AL 35403-3163

(205) 349-1444

murphyandmurphy@bellsouth.net

Appendix Table of Contents

App. 1a: 8.10.2018 Certificate of Judgment and Notice of Overruling of Application

for Rehearing, Cooper v. Haq, Ala. Sup. Ct. (1160569)

App. 1b: 8.10.2018 Certificate of Judgment and Notice of Overruling of Application

for Rehearing, Cooper v. Javaid, Ala. Sup. Ct. (1161066)

App. 2: 2.28.2017 Order (and Amended Order of 3.23.2017) granting Respondent Dr.

Haq’s summary-judgment motion, Cooper v. Haq, Circuit Court of Morgan County,

52-CV-2016-900415

App. 3: 8.11.2017 Order granting Respondent Dr. Javaid’s summary-judgment

motion, Cooper v. Haq, Circuit Court of Morgan County, 52-CV-2016-900415

App. 4: 12.27.2017 Order of Ala. Sup. Ct. consolidating appellate matters Cooper v.

Haq (1160569) and Cooper v. Javaid (1161066)

App. 5: 5.11.2018 Decision of Ala. Sup. Ct. of affirmed (no opinion) in appellate

matters Cooper v. Haq (1160569) and Cooper v. Javaid (1161066)

App. 6: 9.12.2016 Order Dismissing Plaintiff’s Case Without Prejudice, Cooper v.

Decatur Morgan Hospital et al., U.S. District Court, Northern District of Alabama,

5:16-CV-956-AKK

App. 7: Title 28 U.S.C. § 1367, subparagraphs (a) and (d) is the United States

statute involved.

App. 8: January 31, 2018 letter to Ms. Julia Jordan Weller, Clerk, Supreme Court

of Alabama

Respectfully submitted,

/s/ William T. Johnson, III

William T. Johnson III

Counsel of Record

Jeffrey C. Kirby, Esquire

Kirby Johnson, P.C.

1 Independence Plaza Drive, Suite 520

Birmingham, AL 35209

(205) 458-3553

bjohnson@kirbyjohnsonlaw.com

Stanley J. Murphy, Esquire

Murphy & Murphy, L.L.C.

Attorneys at Law

P.O. Box 316

Tuscaloosa, AL 35403-3163

(205) 394-1444

murphyandmurphy@bellsouth.net

Richard Frankowski, Esquire

The Frankowski Firm, L.L.C.

231 22nd Street South, Suite 203

Birmingham, AL 35233

(205) 390-0399

App. 1a

8.10.2018 Certificate of Judgment and Notice of Overruling of Application for

Rehearing, Cooper v. Haq, Ala. Sup. Ct. (1160569)

IN THE SUPREME COURT OF ALABAMA

August 10, 2018

1160569

Rebekah Cooper, as administrator of the Estate of Jason Cooper,

deceased v. Ehtsham Haq, M.D. (Appeal from Morgan Circuit Court: CV-16900415)

CERTIFICATE OF JUDGMENT

WHEREAS, the ruling on the application for rehearing filed in this case and

indicated below was entered in this cause on August 10, 2018:

Application Overruled. No Opinion. Bolin, J. – Stuart, C.J., and Shaw, Wise, and

Sellers, JJ., concur.

WHEREAS, the appeal in the above referenced cause has been duly

submitted and considered by the Supreme Court of Alabama and the judgment

indicated below was entered in this cause on May 11, 2018:

Affirmed. No Opinion. Bolin, J. – Stuart, C.J., and Shaw, Wise, and Sellers, JJ.,

concur.

NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY

ORDERED that this Court’s judgment in this cause is certified on this date. IT IS

FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon

by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala.

R. App. P.

I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby

certify that the foregoing is a full, true, and correct copy of the instrument(s)

herewith set out as same appear(s) of record in said Court.

Witness my hand this 10th day of August, 2018.

Clerk, Supreme Court of Alabama

App. 1b

8.10.2018 Certificate of Judgment and Notice of Overruling of Application for

Rehearing, Cooper v. Javaid, Ala. Sup. Ct. (1161066)

IN THE SUPREME COURT OF ALABAMA

August 10, 2018

1161066

Rebekah Cooper, as administrator of the Estate of Jason Cooper,

deceased v. Amjed Javaid, M.D. (Appeal from Morgan Circuit Court: CV-16900415)

CERTIFICATE OF JUDGMENT

WHEREAS, the ruling on the application for rehearing filed in this case and

indicated below was entered in this cause on August 10, 2018:

Application Overruled. No Opinion. Bolin, J. – Stuart, C.J., and Shaw, Wise, and

Sellers, JJ., concur.

WHEREAS, the appeal in the above referenced cause has been duly

submitted and considered by the Supreme Court of Alabama and the judgment

indicated below was entered in this cause on May 11, 2018:

Affirmed. No Opinion. Bolin, J. – Stuart, C.J., and Shaw, Wise, and Sellers, JJ.,

concur.

NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS HEREBY

ORDERED that this Court’s judgment in this cause is certified on this date. IT IS

FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon

by the parties, the costs of this cause are hereby taxed as provided by Rule 35, Ala.

R. App. P.

I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby

certify that the foregoing is a full, true, and correct copy of the instrument(s)

herewith set out as same appear(s) of record in said Court.

Witness my hand this 10th day of August, 2018.

Clerk, Supreme Court of Alabama

App. 2

2.28.2017 Order (and Amended Order of 3.23.2017) granting Respondent Dr. Haq’s

summary-judgment motion, Cooper v. Haq, Circuit Court of Morgan County, 52-CV2016-900415

DOCUMENT 382

IN THE CIRCUIT COURT OF MORGAN COUNTY, ALABAMA

REBEKA COOPER, as )

Personal Representative )

of the Estate of Jason

)

Cooper, deceased,

)

)

PLAINTIFF

)

)

VS.

)

CASE NO. CV 2016)

900415

DECATUR MORGAN

)

HOSPITAL, et al.,

)

)

DEFENDANTS

)

ORDER

One of the Defendants, Ehtsham Haq, M.D. (“Dr. Haq”), filed a Motion to

Dismiss that came before the Court for a hearing on January 26, 2017. Appended to

his Motion were two exhibits. The Plaintiff, Rebekah Cooper (“Cooper”), filed a

response captioned “Plaintiff’s Brief and Evidentiary Materials in Opposition to Dr.

Ehtsham Haq’s Motion for Summary Judgment.” Pursuant to Rule 12(b), Alabama

Rules of Civil Procedure, the Court will treat Dr. Haq’s Motion to Dismiss as a

Motion for Summary Judgment since neither party has objected to the other’s

presentation of matters outside the pleadings, and both parties have argued facts

that go beyond the allegations set forth in Cooper’s Complaint, as amended.

The material facts are not disputed and are substantially reflected by the

following chronology:

September 10, 2014:

June 8, 2016:

September 10, 2016:

Jason Cooper died while admitted as a psychiatric

patient at Decatur Morgan Hospital.

Cooper filed a lawsuit in the United States

District Court against Decatur Morgan

Hospital, other named corporate defendants, a Dr.

Mahaffey and a Mr. Whitaker (an employee of the

Hospital).

The two year period for filing a wrongful death

action in Alabama expired.

September 12, 2016:

September 16, 2016:

October 11, 2016:

Having dismissed Cooper’s federal statutory claim,

the United States District Court dismissed her

remaining state law claims without prejudice.

Cooper refilled in this Court her state law claims

against the original defendants named in the

dismissed federal court lawsuit.

Cooper filed her First Amended Complaint in this

court to add Dr. Haq as a defendant to her

wrongful death claim based on medical negligence

or wantonness.

Dr. Haq’s argument is that the two year deadline for wrongful death claims

expired before Cooper filed her Complaint in this Court on September 16, 2016 and

before she added Dr. Haq for the first time as a party defendant in her First

Amended Complaint that was filed on October 11, 2016. Cooper contends, on the

other hand, that her claim against Dr. Haq was timely filed and is not barred

because (1) she filed her original state court Complaint within the 30-day tolling

period provided by 28 U.S.C. §1367(d); (2) she filed her First Amended Complaint

within the six-month discovery period provided by the Alabama Medical Liability

Act in § 6-5-482 (a), Ala. Code. 1975; and (c) the claims filed in her First Amended

Complaint relate back to the filing of her original state court Complaint pursuant to

Rules 9(h) and 15(c)(4), Alabama Rules of Civil Procedure. For the reasons

discussed below, the Court concludes that Dr. Haq’s Motion for Summary Judgment

is due to granted and that Cooper’s wrongful death claim against Dr. Haq is due to

be dismissed as a matter of law.

I.

When Cooper filed her Complaint in the United States District Court in June

2016, she did not name Dr. Haq as a party defendant. She also did not specify any

fictitious defendants, as that practice is not provided for in the Federal Rules of

Civil Procedure. Cooper asserted state law wrongful death claims based on medical

negligence and wantonness against all of the federal court defendants except

Whitaker.

United States District Courts acquire pendant or supplemental jurisdiction

over state law claims pursuant to 28 U.S.C. § 1367. IF a federal District Court

dismisses federal claims over which it has original jurisdiction, then it may decline

to exercise supplemental jurisdiction and may dismiss the pendant state court

claims. Subsection 1367(d) provides that the “period of limitations for any claim

asserted under subsection (a) …shall be tolled while the claim is pending and for a

period of 30 days after it is dismissed unless State law provides for a longer tolling

period.”

In Rester v. McWane, Inc., 962 So.2d 183 (Ala. 2007), our Supreme Court

construed § 1367(d) as providing the 30-day tolling period only when the state

claims refilled in the state court are the same state claims that the plaintiff

asserted in the federal court. Because the plaintiff’s state claims asserted in his

federal complaint were “wholly distinct” from the state claims he later brought in

the state court, the Supreme Court held in Rester that the statute of limitations for

his later filed state claims was not tolled by § 1367(d) and these claims were barred.

In her original complaint and First Amended Complaint filed in this Court,

Cooper asserted wrongful death claims based on medical negligence or wantonness

that are virtually identical, except for the addition of Dr. Haq, the same claims she

filed in the federal District Court. For this reason the Court does not find Rester v.

McWane to be controlling precedent. The question here is whether the § 1367(d)

tolling provision applies to a refilled state claim asserted against a newly added

defendant in the state court who was not named as a defendant in the federal

District Court case.

This issue received recent attention from the New Mexico Court of Appeals in

Williams v. Mann, 2016 WL 6081847 (New Mexico Ct. App. 2016). In that case

Williams brought federal and state law claims in federal District Court against one

defendant other than Mann. Williams then voluntarily dismissed those claims.

Williams either amended a pending state court action or filed a new state court case

in which she reasserted her original state law claim, but with Mann added as a new

defendant. The state trial court dismissed the claim against Mann because the

applicable statute of limitations had expired before the claim was filed. Williams

argued on appeal that the statute of limitations had been tolled by § 1367(d). The

New Mexico Court of Appeals affirmed the trial court’s ruling, however, stating:

“Because Defendant Mann was not named as a defendant in Plaintiff’s federal

action, the federal district court did not exert supplemental jurisdiction over that

claim under 28 U.S.C. § 1367(a). It follows that the statute of limitations on that

claim as to Defendant Mann was not tolled under 28 U.S.C. § 1367(d).”

The arguments presented by Cooper on this issue are valid and supportive of

her refilled state claims against the defendants named in the federal District Court

action. There is no question that those claims receive the benefit of the § 1367(d)

tolling period because they were timely refilled in this Court with the applicable 30

days after the District Court entered it order of dismissal. Cooper’s arguments

disregard, however, the more fundamental problem that Dr. Haq was not one of the

named defendants in the federal District Court case. No authority is provided for

Cooper’s proposition that her medical negligence and wantonness claims against Dr.

Haq should receive the same § 1367(d) tolling benefit as her similar claims against

the other defendants even though Dr. Haq was an “unknown” during the brief

pendency of the federal court action.

While the Williams v. Mann ruling may be short on discussion and rationale,

it makes sense and is persuasive. Because Dr. Haq was not named as one of the

defendants in the federal court action, the District Court did not acquire

supplemental jurisdiction over Cooper’s eventual wrongful death claim against him.

The tolling provision of § 1367(d) applies only to claims over which the federal court

exerts supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). The Court

concludes, therefore, that the two-year period for Cooper to file a wrongful death

claim was not tolled by § 1367(d) as to Dr. Haq.

II.

Cooper argues that her claim against Dr. Haq is not barred because it was

timely filed within the six month discovery period provided by § 6-5-482(a), Ala.

Code, 1975. Section 6-5-482 is the statute of limitations that applies to a medical

malpractice claim. Cooper’s claim against Dr. Haq is for the wrongful death of the

decedent, Jason Cooper, based on alleged medical negligence or wantonness. In a

wrongful death case alleging medical malpractice, § 6-5-482 does not apply. Rather,

the two year period for commencing a wrongful death action, as provided in § 6-5410(d), Ala. Code, 1975, applies to Cooper’s claim against Dr. Haq. McMickens v.

Waldrop, 406 So.2d 867 (Ala. 1981); Johnson ex rel. Estate of Darnell v. Brookwood

Medical Center, 946 So.2d 849 (Ala. 2006). This time limitation is part of the

substantive cause of action for wrongful death and is not subject to state law tolling

provisions that are intended to temporarily suspend the running of a statute of

limitations. Cofer v. Ensor, 473 So.2d 984 (Ala. 1985); Ex Parte FMC Corp., 599

So.2d 592 (Ala. 1992).

Cooper had two years from Jason Cooper’s death on September 10, 2014

within which to file her wrongful death claim against Dr. Haq. She did not file her

original Complaint in this Court until September 16, 2016. By that time her

wrongful death claim against Dr. Haq had expired. As a matter of law, Cooper’s

wrongful death claim against Dr. Haq is barred by § 6-5-410(d).

III.

Cooper’s final argument in opposition to Dr. Haq’s Motion for Summary

Judgment is that her wrongful death claim was timely filed because it relates back

to the date of the filing of her original Complaint in this Court pursuant to Rules

9(h) and 15(c)(4) of the Alabama Rules of Civil Procedure. This argument works for

Cooper only if she filed her original Complaint in this Court before the two years for

commencing a wrongful death action expired.

As noted above, it is undisputed that she filed the original Complaint in this

Court six days after the two year deadline for commencing a wrongful death action

pursuant to § 6-6-410. That deadline was not extended by 28 U.S.C. § 1367(d) or

any other statutory or rule-created tolling provision. The Court recognizes that

Cooper and her attorneys used diligent efforts to identify all necessary defendants

and did not learn of the medical services provided by Dr. Haq until after the two

years for commencing a wrongful death action had expired. However, the

amendment that added Dr. Haq could relate back only to the date when the original

Complaint was filed in this Court. By that time the wrongful death claim was

barred by § 6-5-410(d) as a matter of law.

It is, therefore, ORDERED AND ADJUDGED by the Court that Dr. Haq’s

Motion for Summary Judgment is granted. Cooper’s wrongful death claim in this

case against Dr. Haq is dismissed with prejudice. This summary judgment does not

affect Cooper’s claims against the remaining defendants.

Copies of this Order shall be sent to the attorneys of record.

DONE this 28th day of February, 2017.

/s/ STEVEN E. HADDOCK

CIRCUIT JUDGE

DOCUMENT 403

IN THE CIRCUIT COURT OF MORGAN OCUNTY, ALABAMA

REBEKAH COOPER,

)

)

PLAINTIFF,

)

)

V.

)

CASE NO. CV

)

2016-900415

)

DECATUR MORGAN

)

HOPITAL, et al.,

)

)

DEFENDANTS.

)

AMENDMENT TO ORDER

Having considered the Plaintiff’s Motion for Entry of Rule 54(b) Final

Judgment and Order, the Court finds that on February 28, 2017 it entered an Order

granting the Motion for Summary Judgment filed by one of the Defendants,

Ehtsham Haq, M.D. (“Dr. Haq”), and dismissing the Plaintiff’s wrongful death

claims against Dr. Haq with prejudice. That Order did not affect the Plaintiff’s

claims against remaining Defendants.

The Court is satisfied that its February 28, 2017 Order in favor of Dr. Haq

was intended to be a final adjudication and disposition of the Plaintiff’s claims

against him in this case and hereby expressly finds that there is no just reason for

delay in making that Order a final judgment.

It is, therefore, ORDERED AND ADJUDGED by the Court pursuant to Rule

54(b), Alabama Rules of Civil Procedure, that its February 28, 2017 Order is

amended by this rendition of a final judgment in favor of the Defendant, Ehtsham

Haq, M.D., and against the Plaintiff, Rebekah Cooper, whereby her claims against

said Defendant in this case are dismissed with prejudice. The Plaintiff may proceed

with her claims against the remaining Defendants.

Copies of this Amendment to Order shall be sent to the attorneys of record.

DONE this 23rd day of March, 2017.

/s/ STEVEN E. HADDOCK

CIRCUIT JUDGE

App. 3

8.11.2017 Order granting Respondent Dr. Javaid’s summary-judgment motion,

Cooper v. Haq, Circuit Court of Morgan County, 52-CV-2016-900415

DOCUMENT 455

IN THE CIRCUIT COURT OF MORGAN COUNTY, ALABAMA

REBEKA COOPER,

)

)

PLAINTIFF,

)

)

VS.

)

CASE NO. CV 2016)

900415

DECATUR MORGAN

)

HOSPITAL, et al.,

)

)

DEFENDANTS. )

ORDER

On August 10, 2017 the Court held a hearing on the Motion for Summary

Judgment filed by the Defendant, Amjed Javaid, M.D. (“Dr. Javaid”). Before the

hearing the Court reviewed Dr. Javaid’s Motion for Summary Judgment, the

pertinent pleadings and prior Orders filed in this case, Dr. Javaid’s evidentiary

submissions and Memorandum Brief and the brief and evidentiary materials filed

in opposition by the Plaintiff, Rebekah Cooper (“Cooper”). The essence of Dr.

Javaid’s argument in support of his Motion is that Cooper’s wrongful death claim

against him is time barred by the two-year limitation period set forth in § 6-5410(d), Ala.Code, 1975.

The Court addressed this same issue in its February 28, 2017 Order in this

case (Document 382) that granted the Motion for Summary Judgment filed by

another Defendant, Ehtsham Haq, M.D. (“Dr. Haq”). In that Order the Court

concluded that Cooper’s wrongful death claim against Dr. Haq was barred as a

matter of law by § 6-5-410(d), Code. The February 28, 2017 Order is currently on

appeal before the Supreme Court of Alabama.

Although a different defendant, Dr. Javaid, brings the Motion for Summary

Judgment currently before the Court, it appears that the underlying material facts,

legal grounds and arguments submitted in support of and in opposition to Dr.

Javaid’s Motion are substantially the same as the material facts, legal grounds and

arguments that were submitted earlier regarding Dr. Haq’s Motion for Summary

Judgment. After due consideration the Court finds that there are no genuine issues

of material disputed fact, that the two-year limitation for filing a wrongful death

claim under § 6-5-410, Code was not tolled or extended or any of the grounds

asserted by Cooper and that Cooper’s wrongful death claim against Dr. Javaid is

time barred as a matter of law.

Accordingly, it is ORDERED AND ADJUDGED by the Court as follows:

1.

Dr. Javaid’s Motion for Summary Judgment is granted.

2.

A judgment is hereby rendered against Cooper and in favor of Dr.

Javaid whereby Cooper’s wrongful death claim against him is dismissed with

prejudice.

3.

The entry of this Order does not affect Cooper’s claims against the

remaining Defendants.

4.

This Order is intended to be a final adjudication and disposition of

Cooper’s claims against Dr. Javaid in this case pursuant to Rule 54(b), Alabama

Rules of Civil Procedure. The Court expressly finds that there is no just reason for

delay and hereby directs that this Order shall be entered as a final judgment. The

entry of this Order as a final judgment is particularly appropriate since the Court’s

findings, legal conclusions and rulings in this Order are virtually identical to those

set forth in its February 28, 2017 Order, which is presently on appeal before the

Supreme Court of Alabama, that granted Dr. Haq’s Motion for Summary Judgment

in this case.

Copies of this Judgment shall be sent to the attorneys of record and any pro

se parties.

DONE this 11th day of August, 2017

/s/ STEVEN E. HADDOCK

CIRCUIT JUDGE

App. 4

12.27.2017 Order of Ala. Sup. Ct. consolidating appellate matters Cooper v. Haq

(1160569) and Cooper v. Javaid (1161066)

IN THE SUPREME COURT OF ALABAMA

December 27, 2017

1160569

Rebekah Cooper, as administrator of the Estate of Jason Cooper, deceased v.

Ehtsham Haq, M.D. (Appeal from Morgan Circuit Court: CV-16-900415).

1161066

Rebekah Cooper, as administrator of the Estate of Jason Cooper, deceased v. Amjed

Javaid, M.D. (Appeal from Morgan Circuit Court: CV-16-900415).

ORDER

IT IS ORDERED that the above-styled cases are hereby CONSOLIDATED

for the purposes of submission, briefing, and oral argument, if oral argument is

requested and granted.

I, Julia Jordan Weller, as Clerk of the Supreme Court of Alabama, do hereby

certify that the foregoing is a full, true, and correct copy of the instrument(s)

herewith set out as same appear(s) of record in said Court.

Witness my hand this 27th Day of December, 2017.

Clerk, Supreme Court of Alabama

cc:

Steven Ellis Haddock

Morgan County Circuit Clerk’s Office

William T. Johnson, III

Jeffrey C. Kirby

Mark W. Lee

Reid Carpenter

Laura H. Peck

App. 5

5.11.2018 Decision of Ala. Sup. Ct. of affirmed (no opinion) in appellate matters

Cooper v. Haq (1160569) and Cooper v. Javaid (1161066)

Rel: May 11, 2018

STATE OF ALABAMA – JUDICIAL DEPARTMENT

THE SUPREME COURT

OCTOBER TERM, 2017-2018

1160569

Rebekah Cooper, as administrator of the Estate of Jason Cooper, deceased v.

Ehtsham Haq, M.D.

and

1161066

Rebekah Cooper, as administrator of the Estate of Jason Cooper, deceased v. Amjed

Javaid, M.D.

(Appeals from MORGAN CIRCUIT COURT: CV-16-900415)

BOLIN, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a) (1) and (a) (2) ®, Ala. R. App. P.

Stuart, C.J., and Shaw, Wise, and Sellers, JJ., concur.

App. 6

9.12.2016 Order Dismissing Plaintiff’s Case Without Prejudice, Cooper v. Decatur

Morgan Hospital et al., U.S. District Court, Northern District of Alabama, 5:16-CV956-AKK

DOCUMENT 232

Case 5:16-cv-00956-AKK

Filed 09/12/16

Document 28

Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

REBEKAH COOPER, as)

Administrator of the

)

ESTATE OF JASON

)

COOPER, deceased,

)

)

Plaintiff,

) Civil Action Number

) 5:16-cv-956-AKK

vs.

)

)

DECATUR MORGAN

)

HOSPITAL, et al., )

Defendants.

ORDER

The court has for consideration Defendants’ motion to dismiss the plaintiff’s

Section 504 claim under the Rehabilitation Act. Doc. 9. Based on a review of the

complaint, the case law, and the parties’ briefs, the court agrees with Defendants

that Jason Cooper is not an “otherwise qualified” individual because he would not

have needed the medical services but for his medical condition, and was not denied

medical services because of his medical condition. See, e.g., Liebe v. Norton, 157

f.3D 574, 577 (8TH Cir. 1998) (“[O]nce one is classified as a suicide risk, the right to

be protected from that risk would seem to fall under the ambit of the right to have

medical needs addressed.”); docs. 25 at 8-9; 27 at 3. Moreover, the Rehabilitation

Act is not a “remedy for medical malpractice,” see Jones v. Rutherford, 546 F. App’x

808, 811 (11th Cir. 2013), and “like the ADA, was never

Intended to apply to decisions involving . . . medical treatment,” Schiavo ex rel.

Schindler v. Schiavo, 403 F.3d 1289 (11th Cir. 2005); see also Bryant v. Madigan, 84

F.3d 246, 249 (7th Cir. 1996). Accordingly, the motion to dismiss Count I is

GRANTED.

In light of the dismissal of the Section 504 claim, because federal courts are

courts of limited jurisdiction and no claims arising under federal law remain and

there is no basis for diversity jurisdiction, the court declines to exercise jurisdiction

over the remaining state law claims. These claims are DISMISSED WITHOUT

PREJUDICE.

DONE the 12th day of September, 2016.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

App. 7:

Title 28 U.S.C. § 1367, subparagraphs (a) and (d) is the United States statute

involved.

28 U.S.C.A. § 1367

§ 1367. Supplemental jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise

by Federal statute, in any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental jurisdiction over all other

claims that are so related to claims in the action within such original jurisdiction

that they form part of the same case or controversy under Article III of the United

States Constitution. Such supplemental jurisdiction shall include claims that

involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded

solely on section 1332 of this title, the district courts shall not have supplemental

jurisdiction under subsection (a) over claims by plaintiffs against persons made

parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over

claims by persons proposed to be joined as plaintiffs under

Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such

rules, when exercising supplemental jurisdiction over such claims would be

inconsistent with the jurisdictional requirements of section 1332.

(c) The district courts may decline to exercise supplemental jurisdiction over a claim

under subsection (a) if-(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the

district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining

jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any

other claim in the same action that is voluntarily dismissed at the same time as or

after the dismissal of the claim under subsection (a), shall be tolled while the claim

is pending and for a period of 30 days after it is dismissed unless State law provides

for a longer tolling period.

(e) As used in this section, the term “State” includes the District of Columbia, the

Commonwealth of Puerto Rico, and any territory or possession of the United States.

App. 8:

January 31, 2018 letter to Ms. Julia Jordan Weller, Clerk of the Supreme Court of

Alabama

January 31, 2018

Ms. Julia Jordan Weller, Clerk

Supreme Court of Alabama

300 Dexter Avenue

Montgomery, AL 36104

Estate of Cooper v. Ehtsam Haq, M.D.

Case Number 1160569

Appeal From the Circuit Court of Morgan County

CV-2016-900415

and

Estate of Cooper v. Amjad Javaid, M.D.

Case Number 1161066

Appeal From the Circuit Court of Morgan County

CV-2016-900415

Dear Ms. Weller:

Pursuant to the orders from the Alabama Supreme Court dated January 25

and signed by you, and pursuant to Rule 28B of the Alabama Rules of Appellate

Procedure, Ms. Cooper, the plaintiff-appellant in the above-styled appeals, submits

to the Court that the case of Artis v. District of Columbia, 2018 WL 491524, decided

by the U.S. Supreme Court on January 22, controls the outcome of both appeals,

warrants a reversal of the trial court’s judgments in both cases, and requires a

remand of both cases to the trial court.

The discussion contained in this letter applies to the sections called

“Argument 1” in Ms. Cooper’s initial briefs in both appeals. In Artis, the U.S.

Supreme Court held that 28 U.S.C. § 1367 “stops the clock” on the limitations

periods for state-law claims when they are included in a federal discrimination

lawsuit. The Court explained, “Congress ordered tolling of the state limitations

period ‘while the claim is pending’ in federal court.” Id. at *9. Artis applies to the

facts of both Cooper v. Haq and Cooper v. Javaid. Artis means that Ms. Cooper’s

original state court complaint and her First Amended Complaint were timely

because the limitations period for her wrongful-death claims against both Dr. Haq

and Dr. Javid were tolled by § 1367. Under Artis, the two-year limitations period

was tolled while it was pending in federal court as part of Ms. Cooper’s ADA and §

504 claims and for 30 more days after Judge Kallon dismissed the federal and statecourt claims.

This means that, under Artis, Ms. Cooper’s deadline for re-filing her

wrongful-death claims against both Dr. Haq and Dr. Javaid did not expire until 122

days after the dismissal of the federal court lawsuit.

Here is how Ms. Cooper arrives at this conclusion. Mr. Cooper died on

September 10, 2014. Ms. Cooper had until September 10, 2016, to file her wrongfuldeath claims. She filed her case in federal court on June 8, 2016. When she filed her

federal discrimination claims and her state law wrongful-death claims together, Ms.

Cooper “stopped the clock” for the limitations periods for her wrongful-death

eventual claims against Dr. Javaid and Dr. Haq. As of June 8, 2016, Ms. Cooper had

92 days left in the original two-year wrongful-death limitations period that started

on September 10, 2014 and expired on September 10, 2016. When the district court

dismissed the case on September 12, 2016, Ms. Cooper gained another 30 days in

which to re-file her lawsuit in state court.1

When the district court dismissed Ms. Cooper’s entire case, the clock on her

wrongful-death limitations period began ticking again and her remaining 122 days

began to diminish. As of September 12, 2016, which was the date the district court

dismissed Ms. Cooper’s entire lawsuit, and, with the 92-day balance of the wrongful

death limitations period remaining, Ms. Cooper would have had until January 14,

2017, to file her lawsuit against Dr. Haq and Dr. Javaid. With the additional 30

days conferred by § 1367, Ms. Cooper would have had until February 14, 2017, to

sue Dr. Haq and Dr. Javaid.

Because it is undisputed that Ms. Cooper filed her First Amended Complaint

against Dr. Haq and Dr. Javaid in October 2016, which was well before January or

February 2017, this Court, based on Artis, ought to reverse the trial court, hold that

Ms. Cooper’s claims against Dr. Haq and Dr. Javaid were timely, and remand the

case so that Ms. Cooper may proceed with her claims against Dr. Haq and Dr.

Javaid. Even without the remaining 92 days, Ms. Cooper’s limitations period for her

wrongful-death claims was tolled by 30 days under Artis. The federal district court

dismissed Ms. Cooper’s claim on September 12, 2016. Ms. Cooper filed her First

Amended Complaint against both Dr. Haq and Dr. Javaid on October 11, 2016,

which was within 30 days conferred by § 1367. For this additional reason, this

Court ought to reverse the trial court, hold that Ms. Cooper’s claims against Dr.

Haq and Dr. Javaid were timely, and remand the case so that Ms. Cooper may

proceed with her claims against Dr. Haq and Dr. Javaid.

Thank you for your attention.

Sincerely,

Kirby Johnson, P.C.

1 6.8.2016 to 9.10.2016 is 92 days, and 30 days plus 92 days equals 122 days.

William T. Johnson III, Esquire

CC:

All Counsel of Record