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Levy v. Davita, Inc.

United States District Court, S.D. Mississippi, Northern Division

October 30, 2018

CATHERINE LEVY PLAINTIFF
v.
DAVITA, INC., ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.

         This medical-malpractice case is before the Court on Defendant DaVita, Incorporated's (“DaVita”) Motion to Dismiss and/or for Summary Judgment [16]. Plaintiff Catherine Levy responded in opposition [21]; DaVita offered no reply. For the reasons that follow, the motion is denied.

         I. Background

         Levy's case relates to medical treatment that Ernest James Levy, her late husband, received on April 6, 2015. Compl. [1] ¶ 8. Her Complaint [1] 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.

         Initially, 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. [1] ¶ 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. [1].

         In response, DaVita filed its Motion to Dismiss [16]. 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.

         II. Standard

         DaVita 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.

         As for 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).

         Under 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.”).

         Further, 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.”).

         III. Analysis

         DaVita raises two independent arguments for dismissal, both of which appear in its Answer [9]. First, it says Levy failed to provide mandatory pre-suit notice. Def.'s Mem. [17] at 1. Second, it says Levy's claim is time-barred under the applicable ...


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