KEVIN McNULTY, District Judge.
Pro se Plaintiff Rima Laibow brings this case on behalf of the estate of her husband, Major General Albert N. Stubblebine, III. Ms. Laibow alleges negligence and statutory violations by several institutions and medical professionals who treated General Stubblebine in the weeks leading up to this death in 2017. Before the Court is Defendant Richard Menashe's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (DE 18).
This motion was filed after the Court had already decided similar prior motions. As a result, much of the following Opinion duplicates a prior Opinion of the Court. (DE 39) For the following reasons, Dr. Menashe's motion is
Ms. Laibow and Gen. Stubblebine were married for twenty-three years before he died on February 6, 2017. (DE 1 ¶¶ 1 & 3). Ms. Laibow is the executor and administrator of his estate and a citizen of Arizona. (DE 1 ¶¶ 1 & 2). At the time of his death, Gen. Stubblebine was without known children, and he had a life expectancy (actuarially speaking, presumably) of 4.6 years. (DE 1 ¶ 3). He was a citizen of Arizona. (DE 1 ¶ 3). The amount in controversy in this dispute exceeds $75,000.00, exclusive of interest and costs. (DE 1 ¶ 4).
Defendant Richard Menashe is an osteopathic doctor with thirty-four years of experience. (DE 1 ¶ 5). He specializes in family medicine. (DE 1 ¶ 5). Dr. Menashe is affiliated with Defendant JFK Medical Center. (DE 1 ¶ 5).
Defendant William Oser is a medical doctor with thirty-four years of experience. (DE 1 ¶ 7). He practices internal medicine. (DE 1 ¶ 7). Dr. Oser is affiliated with Defendant JFK Medical Center.
Defendant Lisa Casale is a medical doctor who specializes in pulmonology. (DE 1 ¶ 9).
Defendant Community Hospital Group, Inc. ("Community") is a New Jersey non-profit corporation that owns, operates, and does business as JFK Medical Center ("JFK"). (DE 1 ¶ 11; DE 1 ¶ 12)
Defendant Kindred Hospital is a thirty-four-bed "transitional hospital" in Rahway, New Jersey. (DE 1 ¶ 13). Kindred advertises that as a "transitional care hospital" it offers "the same in depth care [a patient] would receive in a traditional hospital but for an extended recovery period." (DE 1 ¶ 13). It partners with physicians to offer twenty-four-hour clinical care, seven days a week. (DE 1 ¶ 13).
From September 1, 2016, to January 4, 2017, Gen. Stubblebine was a patient at JFK. (DE 1 ¶ 16). On January 4, 2017, he was transferred from JFK to Kindred at the behest of JFK personnel. (DE 1 ¶ 17). At the time, Ms. Laibow was Gen. Stubblebine's attorney-in-fact and health-care representative, but she was not given sufficient notice and did not consent to the transfer. (DE 1 ¶ 17).
Between January 4, 2017 and February 5, 2017, Gen. Stubblebine was a patient at Kindred. (DE 1 ¶ 18). On February 5, 2017, he was moved to Robert Wood Johnson University Hospital, where he died the next day, February 6, 2017. (DE 1 ¶ 18).
During this time, Defendants provided negligent services and deviated from the standard of care with respect to Gen. Stubblebine, which led to his death. (DE 1 ¶ 19-22).
Ms. Laibow's complaint alleges eight counts of tort- and statute-based wrongdoing. Each count is at least formally aimed at Kindred and JFK, but Laibow identifies Menashe—and the other individual defendants—in each count. She alleges the following:
Defendants had a nondelegable duty to exercise reasonable care towards Gen. Stubblebine. (DE 1 ¶¶ 26 & 35). Defendants failed to allocate sufficient resources to adequately care for Gen. Stubblebine and otherwise failed to exercise reasonable care, including by abandoning Gen. Stubblebine at JFK while he needed a ventilator to breathe. (DE 1 ¶¶ 27 & 36). Defendants violated the New Jersey Patient Bill of Rights, N.J.S.A 30:4-24.2, by
(DE 1 ¶¶ 28 & 37).
Gen. Stubblebine was admitted to JFK with aspirational pneumonia and sepsis, which improved, but the sepsis returned more virulently as a result of a nosocomial infection caused by poor sanitary conditions. (DE 1 ¶¶ 28 & 37). These infections included MRSA, C. diff., and pseudomonas. (DE 1 ¶¶ 28 & 37). They required the administration of stronger medications, which in turn were more toxic and caused more kidney and other organ damage. (DE 1 ¶¶ 28 & 37). Defendants' documentation of Gen. Stubblebine's care and treatment was lax, inaccurate, and inadequate. (DE 1 ¶¶ 28 & 37).
Defendants failed to ensure, preserve and otherwise provide for Gen. Stubblebine's rights under N.J. Stat. Ann. § 30:4-24.2 and New Jersey common law. (DE 1 ¶ 48-49 & 56-57). Gen. Stubblebine suffered severe injuries and damages, including dehydration, malnutrition, weight loss, improper treatments, pressure ulcers, infections, extreme pain and discomfort, increased expenses associated with further surgical pain and expensive surgical procedures, mental and emotional anguish, a significantly decreased quality of life, deprivation of dignity, general and specific neglect and lack of care, and substantial costs and expenses for medical care and treatment and ultimately suffered a prolonged, agonizing, untimely, and likely preventable death. (DE 1 ¶ 48-49 & 56-57).
Defendants knew or should have known that their patients, including Gen. Stubblebine, were elderly and greatly limited in their ability to move and to communicate their needs clearly and effectively and needed particular care and supervision. (DE 1 ¶ 59-61 & 63-65). Defendants failed to exercise adequate care in the supervision of the treatment of their elderly patients, including Gen. Stubblebine, particularly with respect to his inability to communicate his health needs clearly and effectively. (DE 1 ¶ 59-61 & 63-65). Gen. Stubblebine sustained severe personal injuries, endured great pain and suffering, incurred medical expenses for the care and treatment of those injuries, and ultimately suffered a prolonged, agonizing, untimely, and likely preventable death. (DE 1 ¶ 59-61 & 63-65).
Defendants caused Gen. Stubblebine to sustain and suffer severe personal injuries and damages of both a permanent and temporary nature. (DE 1 ¶ 68 & 71). Gen. Stubblebine was forced to endure great pain and suffering, incur medical expenses for the care and treatment of said injuries, and ultimately suffered a prolonged, agonizing, untimely and likely preventable death. (DE 1 ¶ 68 & 71).
On February 1, 2019, Ms. Laibow sued Drs. Richard Menashe, William Oser & Lisa Casale, the Community Hospital Group d/b/a JFK Medical Center, Kindred Hospital, ABC Companies (1-10), Defendant Partnerships (1-10), John Doe Physicians (1-10), Jane Doe Nurses (1-10), Jane Moe Technicians, and Paramedical Employees (1-20). (DE 1). Drs. Menashe, Oser, and Casale each answered and crossclaimed against the other defendants. (DE 4, 5 & 8).
All defendants moved to dismiss. Dr. Menashe's motion to dismiss, the subject of this opinion, was filed on June 7, 2019. (DE 18). Ms. Laibow opposed the motions of JFK and Drs. Casale and Oser in a filing also dated June 7. (DE 20). The letter filed alongside her brief reads as follows:
(DE 20-1). I interpret this to mean that Ms. Laibow intends to rely on her earlier brief as her opposition to Dr. Menashe's motion.
On November 21, 2019, I dismissed Ms. Laibow's complaint as against Dr. Casale and Kindred. (DE 40). On November 26, I dismissed the complaint as against Community, JFK, and Dr. Oser. (DE 42).
Because this matter involves a controversy between citizens of different states and the amount in controversy is alleged to exceed the sum of $75,000, this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Federal procedural law and New Jersey substantive law will apply. See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The defendant, as the moving party, bears the burden of showing that no claim has been stated. Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. N.J. Carpenters & the Trs. Thereof v. Tishman Const. Corp. of N.J., 760 F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the complaint's factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570; see also W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a `probability requirement' ... it asks for more than a sheer possibility." Iqbal, 556 U.S. at 678.
Where, as here, the plaintiff is proceeding pro se, the complaint is "to be liberally construed," and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). "While a litigant's pro se status requires a court to construe the allegations in the complaint liberally, a litigant is not absolved from complying with Twombly and the federal pleading requirements merely because s/he proceeds pro se." Thakar v. Tan, 372 F. App'x 325, 328 (3d Cir. 2010) (citation omitted).
The Third Circuit has liberally permitted pleading amendments to ensure that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990). Indeed, where a complaint is dismissed on Rule 12(b)(6) grounds, "a District Court must permit a curative amendment, unless an amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (emphasis added); accord Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)).
Dr. Menashe asks this Court to dismiss Ms. Laibow's complaint for failure to state a claim under Rule 12(b)(6).
Title 28, United States Code, Section 1654 guarantees that "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Although a non-lawyer is entitled to represent herself pro se, she may not appear pro se on behalf of another person or entity. Schneller v. Crozer Chester Med. Ctr., 276 F. App'x 169, 170 n.1 (3d Cir. 2008). That rule has particular application to an appearance on behalf of an entity that is not a natural person. See also Marrakush Soc'y v. N.J. State Police, No. 09-2518, 2009 U.S. Dist. LEXIS 68057 at *92 (D.N.J. July 30, 2009) ("Any juridical entity (meaning, any fictitious/artificial/legal person) cannot appear in legal proceedings pro se.").
In Estate of Twardy v. Lakes of Larchmont Condo Ass'n, No. 15-6501, 2016 U.S. Dist. LEXIS 65322 at *1, 2016 WL 2901664 (D.N.J. May 18, 2016) (Hillman, J.), the estate's executor filed a pro se complaint on behalf of the estate. Id. The case came before the court on plaintiff's in forma pauperis motion, but the court expanded its inquiry to consider whether the executor was entitled to prosecute the action in the first place. Id. at *2 ("[I]t is highly questionable whether an executor of an estate who is not an attorney may file suit on behalf of an estate.").
Estate of Twardy collects some of the most pertinent case law. It cites, but does not explicitly adopt, the most liberal standard of pro se representation, which is that an executor may represent the estate pro se, but only if she is the sole beneficiary and the estate has no creditors:
Id. at *2-3.
Even under the most liberal view, then, a pro se plaintiff purporting to represent a decedent's estate must demonstrate that the estate has no other beneficiaries or creditors. The purpose of this rule is to ensure that the rights of the estate's beneficiaries or creditors are adequately protected. See Murray v. City of Phila., 901 F.3d 169, 171 (3d Cir. 2018) ("Attorneys' training, experience, and their `ethical responsibilities and obligations' help ensure that a represented party's interests are not squandered.... Only attorneys may be sued for legal malpractice; a represented party could not seek recourse against a non-attorney for even the most egregious conduct." (citations omitted)).
Ms. Laibow's opposition fails to establish that she should be permitted to proceed as the pro se representative of Gen. Stubblebine's estate. The complaint is consistent with a conclusion that Ms. Laibow is the sole beneficiary of the estate—it states that at the time of his death, Gen. Stubblebine was without known children—but it does not precisely allege that. (DE 1 ¶ 3).
Ms. Laibow's brief in opposition also relies on authority that is not quite on point:
(DE 20 ¶ 4).
N.J.R. 1:21-1(4) is a state court rule. It provides that "[a] person not qualifying to practice pursuant to the first paragraph of this rule shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person ... is a real party in interest to this action." I cannot apply state law standards as to who is a "real party in interest," however. A federal court sitting in diversity is bound to apply federal—not state—rules of court procedure. See Erie, 304 U.S. at 78.
The cited Murray decision does address federal standards. It does not directly support Ms. Laibow's position here, however, because it was deciding a different issue.
Murray cites at length the general rule that a non-lawyer may not represent another person or entity in federal court:
Murray, 901 F.3d at 170-71.
Murray then disallows representation by a plaintiff who, unlike Ms. Laibow, was a non-beneficiary administrator of the estate. Thus Murray's holding neither favors nor disfavors Ms. Laibow's position here. In so holding, however, Murray emphasized the policy considerations underlying the general rule requiring attorney representation:
Murray, 901 F.3d at 171-72.
All of that said, the Murray decision might be read to suggest in dictum that, if faced by the issue, it would adopt what I have termed the "liberal view" that the sole beneficiary of an estate with no creditors may represent it in federal court. Murray cited with approval several cases that, if only by negative implication, acknowledge or adopt that view:
Murray, 901 F.3d at 172 n.3.
Ms. Laibow has not pled or otherwise established both that she is the sole beneficiary of the estate and that there are no other creditors. Dr. Menashe's motion to dismiss is therefore
For the reasons set forth above, the motion to dismiss is
An appropriate order follows.
