United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
medical-malpractice case is before the Court on Defendant
DaVita, Incorporated's (“DaVita”) Motion to
Dismiss and/or for Summary Judgment . Plaintiff Catherine
Levy responded in opposition ; DaVita offered no reply.
For the reasons that follow, the motion is denied.
case relates to medical treatment that Ernest James Levy, her
late husband, received on April 6, 2015. Compl.  ¶ 8.
Her Complaint  alleges that while receiving dialysis
treatment at DaVita's facility, Ernest began to
experience health complications and DaVita failed to
administer necessary treatment. Id. ¶ 9.
According to Levy, DaVita's inactions proximately caused
her husband's death. Id.
Levy sent DaVita pre-suit notice of her medical-malpractice
claim-as required by Mississippi Code Annotated §
15-1-36(15)-on April 4, 2017. Id. ¶ 10;
see Letter [17-1]. She then filed her case in the
Circuit Court of Madison County on June 2, 2017. Compl. 
¶ 10. After realizing that she filed it one day before
the statutory 60-day waiting period expired, Levy voluntarily
dismissed the case on March 16, 2018. Id.;
see Voluntary Dismissal [17-2]. Levy then brought
essentially the same medical-malpractice action in this Court
on March 20, 2018. Compl. .
response, DaVita filed its Motion to Dismiss . The
parties dispute whether Levy's original pre-suit notice
satisfies the statute's requirements to begin this action
and whether her claim is now time-barred. The Court has both
personal and subject-matter jurisdiction.
seeks dismissal or alternatively summary judgment. Because
the parties' record evidence does not alter the analysis,
the Court declines to exercise its discretion under Rule
12(d) and will not apply Rule 56. Accordingly, this Order is
based on the information within the scope of Rule 12.
the motion to dismiss, DaVita generally cites “Rule
12” in its motion and brief. But because it moved after
answering, the motion falls under Rule 12(c)-the standards
for which track Rule 12(b)(6). See Great Plains Tr. Co.
v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,
313 n.8 (5th Cir. 2002).
Rule 12(b)(6), the “court accepts ‘all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.'” Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004) (quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999) (per curiam)). To overcome a
Rule 12(b)(6) motion, a plaintiff must plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citation and footnote omitted). In sum, “Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a
dispositive issue of law.” Neitzke v.
Williams, 490 U.S. 319, 326 (1989); see Atteberry v.
Nocona Gen. Hosp., 430 F.3d 245, 251-252 (5th Cir. 2005)
(“[W]e are restricted to determinations of question[s]
of law and legal issues.”).
dismissal under Rule 12(b)(6) may be proper “where it
is evident from the plaintiff's pleadings that the action
is barred and the pleadings fail to raise some basis for
tolling or the like.” Jones v. Alcoa, Inc.,
339 F.3d 359, 366 (5th Cir. 2003) (citations omitted);
see 5B Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & P. § 1357 (3d ed. 2004) (“[T]he
inclusion of dates in the complaint indicating that the
action is untimely renders it subject to dismissal for
failure to state a claim.”).
raises two independent arguments for dismissal, both of which
appear in its Answer . First, it says Levy failed to
provide mandatory pre-suit notice. Def.'s Mem.  at 1.
Second, it says Levy's claim is time-barred under the