Williams v. U.S.

• Citation: 754 F.Supp.2d 942
• Decision Date: 16 November 2010
• Docket Number: No. 09–2618.,09–2618.
• Parties: Bennie Coy WILLIAMS and Carrie Williams, Plaintiffs,v.UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Tennessee

754 F.Supp.2d 942

Bennie Coy WILLIAMS and Carrie Williams, Plaintiffs,

v.UNITED STATES of America, Defendant.

No. 09–2618.

United States District Court, W.D. Tennessee, Western Division.

Nov. 16, 2010.

Leigh Hansom Thomas, Thomas E. Hansom, Law Offices of Thomas E. Hansom, Memphis, TN, for Plaintiffs.Linda Nettles Harris, William W. Siler, U.S. Attorney's Office, Memphis, TN, for Defendant.

ORDER DENYING PLAINTIFFS' MOTION TO STRIKE AND GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

SAMUEL H. MAYS, JR., District Judge.

Before the Court in this action for medical malpractice are Defendant's Second Motion for Judgment on the Pleadings, filed May 12, 2010 and Plaintiffs' Motion to Strike Defendant's Second Motion for Judgment on the Pleadings filed May 19, 2010. ( See Def.'s Second Mot. for J. on the Pleadings, ECF No. 20 (“Def.'s Mot.”); Pls.' Mot. to Strike Def.'s Second Mot. for J. on the Pleadings, ECF No. 21 (“Pls.' Mot.”).) In their Motion to Strike, Plaintiffs also responded to Defendant's Motion. ( See Pls.' Mot.) Defendant responded to Plaintiffs' Motion to Strike on May 20, 2010. (United States' Resp., ECF No. 22.) For the following reasons, the Court DENIES Plaintiffs' Motion to Strike and GRANTS Defendant's Motion for Judgment on the Pleadings.

I. Background

Plaintiff Bennie Coy Williams (“Williams”) is a veteran of the United States Army who sought medical treatment at the Veterans Affairs Medical Center in Memphis, Tennessee (the “VA”). (Compl. ¶¶ 3–6, ECF No. 1.) On March 13, 2007, Williams underwent an echocardiogram at the VA. ( Id. ¶ 6.) Following that procedure, doctors diagnosed him with aortic stenosis and coronary artery disease and referred him for cardiothoracic surgery. ( Id. ¶ 7.) Doctors informed Williams on June 1, 2007, that he would need an aortic valve replacement. ( Id. ¶ 8.) Williams decided to have his faulty valve replaced with a biologic, rather than a synthetic, valve. ( Id.)

Williams underwent surgery at the VA to implant a biologic valve replacement on June 5, 2007. ( Id. ¶ 9.) Before his discharge on June 1, 2007, VA doctors determined that he had “some perivalvular leaks below his left main coronary sinus and significant, aortic insufficiency with diastolic flow reversal in the descending aortic.” ( Id. ¶ 10.) Doctors advised Williams that these problems would lessen with time and discharged him. ( Id. ¶ 11.) Despite his physicians' assurances, on July 2, 2007, Williams returned to the VA for an examination after complaining of shortness of breath and frequent gagging. ( Id.) Three days later, on July 5, VA doctors performed a left thoracentesis and drained nine hundred cubic centimeters of fluid from Williams until the procedure was halted because of Williams' constant coughing. ( Id.) Six weeks after his initial surgery, Williams again complained to the VA of “feelings of fatigue and episodes of ‘flip/flopping’ in his chest.” ( Id. ¶ 12.) Despite Williams' complaints and a subsequent July 26, 2007, appointment with the VA Nurse Clinic, the VA did nothing more to address his concerns. ( Id. ¶¶ 12–13.)

Unsatisfied, Williams scheduled an August 20, 2007, appointment with Dr. Joseph Weinstein, a cardiologist in private practice. ( Id. ¶ 14.) Weinstein performed a more thorough evaluation on September 17, 2007, and diagnosed Williams with a “severe, possible wide open aortic insufficiency.” ( Id. ¶ 15.) Later tests revealed that surgery was necessary to correct leakage. ( Id.) On October 15, 2007, Weinstein admitted Williams to Methodist Hospital North in Memphis for surgery to “redo” the aortic valve replacement. ( Id. ¶ 17.) Williams was discharged from Methodist Hospital on October 22, 2007. ( Id.) Post-operative examinations revealed that the second surgery had reduced the leakage to trace levels. ( Id. ¶ 18.)

Williams initiated his claim against the United States of America (the “United States” or the “government”) by filing the required Form S95 with the Department of Veterans Affairs on April 30, 2008. See 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(a). The government denied his claim by certified letter on April 30, 2009. (Compl. ¶ 2.) Plaintiffs filed suit in this Court on September 22, 2009, alleging two counts of wrongdoing by the government. ( Id. ¶¶ 20–29.) Williams seeks damages for the negligence, specifically medical malpractice, of VA doctors, including the medical expenses from the second operation to repair the faulty replacement valve, future medical expenses, pain and suffering, and loss of quality of life. ( Id. ¶¶ 22–25.) Plaintiff Carrie Williams, Williams' wife, seeks damages for loss of consortium. ( Id. ¶¶ 28–29.) Together, Plaintiffs request compensatory damages of $1.6 million. ( Id. ¶ 29.)

On January 25, 2010, the government filed a Motion for Judgment on the Pleadings ( see ECF No. 9), which the Court denied on May 12, 2010 ( see Order, ECF No. 19). The same day, the government filed its Second Motion for Judgment on the Pleadings. ( See Def.'s Mot.) Plaintiffs responded and filed the Motion to Strike now before the Court. ( See Pls.' Mot.)

II. Jurisdiction

Because Plaintiffs' claim for medical malpractice arises under the Federal Tort Claims Act, the Court has federal question jurisdiction over that claim. See 28 U.S.C. § 1346(b)(1) (providing exclusive federal jurisdiction over claims against the United States for allegedly negligent acts); see also 28 U.S.C. § 1331. Because federal question jurisdiction exists for Plaintiffs' medical malpractice claim, the Court has supplemental jurisdiction over the state-law claim for loss of consortium. See 28 U.S.C. § 1367(a).

III. Motion to Strike

Plaintiffs urge the Court to strike the government's Second Motion for Judgment on the Pleadings as untimely. (Pls.' Mot. 1–2.) The Court's Scheduling Order required the parties to file any “initial motions to dismiss” by April 8, 2010. (Scheduling Order, ECF No. 8; Am. Scheduling Order, ECF No. 18); see Fed.R.Civ.P. 16(b). Because the government filed its Second Motion for Judgment on the Pleadings after the deadline for initial motions to dismiss set by the Scheduling Order and because the Motion asserts arguments that could have been presented in the original Motion, Plaintiffs argue that the government's Second Motion is untimely. (Pls.' Mot. 1–2.)

Although the same standard of review applies to motions to dismiss and motions for judgment on the pleadings, see Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 279 (6th Cir.2009), the two motions are not the same. Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss based on seven enumerated defenses, but any such motion “must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b). Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the pleadings only “[a]fter the pleadings are closed—but early enough not to delay trial.” Fed.R.Civ.P. 12(c). “Pleadings are closed within the meaning of Rule 12(c) if no counter or cross claims are at issue when a complaint and an answer have been filed.” Maniaci v. Georgetown Univ., 510 F.Supp.2d 50, 60 (D.D.C.2007) (citing Fed.R.Civ.P. 7(a)); see also 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1367 (“Rule 7(a) provides that the pleadings are closed upon the filing of a complaint and an answer (absent a court-ordered reply), unless a counterclaim, cross-claim, or third-party claim is interposed, in which event the filing of a reply to a counterclaim, cross-claim answer, or third-party answer normally will mark the close of the pleadings.”). Because a motion to dismiss must be made before an answer, but a motion for judgment on the pleadings cannot be made until after an answer, they are not the same motion. Compare Fed.R.Civ.P. 12(b), with Fed.R.Civ.P. 12(c). The deadline for initial motions to dismiss in the Court's Scheduling Order does not apply to the government's Second Motion.

The Court's deadline for dispositive motions applies to the government's Second Motion because a motion for judgment on the pleadings is a dispositive motion. See Fitts v. Sicker, 232 Fed.Appx. 436, 439 (6th Cir.2007) (referring to a motion for judgment on the pleadings as a dispositive motion); cf. Ogle v. Church of God, 153 Fed.Appx. 371, 375 (6th Cir.2005) (noting that a “Rule 12(c) motion is a decision on the merits”). The Court set December 31, 2010 as the deadline for dispositive motions. ( See Am. Scheduling Order.) By filing its Motion on May 19, 2010 ( see Def.'s Mot.), the government met the applicable deadline in the Scheduling Order, ( see Am. Scheduling Order); cf. Birge v. Dollar Gen. Corp., No. 04–2531, 2006 WL 133480, at *1–2, 2006 U.S. Dist. LEXIS 2983, at *3–4 (W.D.Tenn. Jan. 12, 2006) (rejecting as tardy a motion for judgment on the pleadings filed after the dispositive-motions deadline).

The government's Second Motion for Judgment on the Pleadings also comports with Rule 12(c)'s time requirements. See Fed.R.Civ.P. 12(c). The government filed its Second Motion on May 12, 2010 ( see ECF No. 20), after the pleadings had closed with the government's Answer on December 4, 2009 ( see ECF No. 6). See Fed.R.Civ.P. 12(c). Because trial in the present case is set for April 18, 2011 ( see Am. Scheduling Order), the government moved for judgment on the pleadings “early enough not to delay trial.” See Fed.R.Civ.P. 12(c); Mayfield v. Crawford, No. 5:07CV2775, 2008 U.S. Dist. LEXIS 111738, at *7 (N.D.Ohio July 3, 2008) (finding that a motion filed in May would not delay a trial scheduled for September). Having filed its Second Motion in accordance with the requirements of the Scheduling Order and Rule 12(c), the government's Second Motion is timely.

Plaintiffs also urge the Court to strike the government's Second Motion because it presents “the exact same arguments as set out in its original Motion for Judgment on the Pleadings but citing to an earlier...