KAYMANI D. WEST, Magistrate Judge.
Plaintiff, proceeding pro se, filed this medical-malpractice action pursuant to the Federal Tort Claims Act ("FTCA").
Plaintiff, a resident of Bennettsville, South Carolina, filed this matter on April 18, 2017, alleging a malpractice claim against Defendants arising from cancer treatment that she received at veterans' medical facilities. ECF No. 1. After initial review of her Complaint, the undersigned authorized service upon Defendants Arle, Gordon, and the United States. ECF No. 19. Though Plaintiff initially named other parties as Defendants, the undersigned recommended that Defendants VA (Veterans Administration) and individuals Sengstaken, Acselrod, Sharma, and Lowe be dismissed without prejudice because Plaintiff acknowledges this action is properly before this court under the FTCA, and the only proper party in an FTCA action is the United States. ECF Nos. 23, 26. The district judge adopted the undersigned's recommendation that these parties be dismissed. ECF No. 50.
In her Complaint, Plaintiff maintains that early detection of cancer and follow-up "would have save[d] less medical treatment and life complications." ECF No. 1 at 7. Plaintiff represents that medical personnel, including Defendants Arle and Gordon, decided what course of treatment she should pursue after her first abnormal mammogram screening occurred in 2004 at Carolina Image in Fayetteville, North Carolina. Id. Further, Plaintiff alleges that other doctors prescribed her tamoxifen, and "in 2009, [she] received a letter that these medications together in some women show a recurr[e]nce of cancer." Id.
Plaintiff alleges that early detection and treatment of cancer would have saved a breast mastectomy; "lymphnode dissection secondary malig metastatic of neck, lungs, low back, upper back, bones and all body life fun[c]tions." Id. at 8. Plaintiff reports she is experiencing mental disorders; must have ongoing cancer treatment; and that the cancer has "le[d] to terminal cancer." Id. Plaintiff maintains she has endured pain and suffering and lost family time. Further, she represents that "the hardship i[m]pacted the family, where [she] lost [her] mother in 2009 from the life sentence given to Plaintiff and los[s] of time with [her] love[d] ones." Id.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Plaintiff must only plead "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In order for Plaintiff's Complaint to survive Defendants' Motions to Dismiss, Plaintiff does not need to plead detailed factual allegations in her Complaint. See id. However, the United States Supreme Court has held that a plaintiff's grounds for relief requires more than just stating legal conclusions and elements of a cause of action. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that, on a motion to dismiss, a court is "not bound to accept as true a legal conclusion couched as a factual allegation."). Plaintiff's complaint must contain sufficient factual allegations that make a claim for relief plausible, not just possible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp., 550 U.S. at 570. This court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in her favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011).
Two Motions to Dismiss are before the court. First, Defendant Gordon argues this court lacks personal jurisdiction over him and that "the only information in Plaintiff's Complaint . . . supports a finding that North Carolina is the proper forum for this lawsuit as against Dr. Gordon." ECF No. 37 at 3. Additionally, Defendant Gordon maintains that "Plaintiff's Summons is to a North Carolina address, and her allegation [] Section III [of her Complaint] indicates that any alleged tortious act on the part of [Defendant] Gordon occurred in North Carolina." Id. Additionally, Defendant Gordon argues that Plaintiff's Complaint fails to meet minimum pleading requirements and is untimely. Id. at 5-8. Finally, Defendant Gordon argues that in her Complaint Plaintiff is alleging medical malpractice and South Carolina state law requires Plaintiff to file a Notice of Intent to File Suit and an affidavit of an expert witness. Id. at 8. Defendant United States argues that the Complaint should be dismissed because Plaintiff failed to comply with South Carolina pre-suit requirements of including an expert affidavit to support her claims of medical malpractice (Defendant Gordon's final argument). ECF No. 44-1 at 5.
The undersigned finds that the allegations in Plaintiff's Complaint fail to reveal any basis for this Court to obtain personal jurisdiction over any individual Defendant. Plaintiff is suing North Carolina residents and a VA medical facility located in North Carolina pursuant to the FTCA. Accordingly, it is the recommendation of the undersigned that this case be transferred in the interests of justice to the United States District Court for Eastern District of North Carolina for further handling. See 28 U.S.C. § 1406(a); see also Goldlawr v. Heiman, 369 U.S. 463 (1962); Porter v. Groat, 840 F.2d 255 (4th Cir. 1988); Glaxo Inc. v. Genpharm Pharmaceuticals, Inc., 796 F.Supp. 872, 877 (E.D. N.C. 1992).
A bedrock requirement in any civil action is that the district court in which a Complaint is brought shall have personal jurisdiction over the persons of the defendants. Rule 4(e) Federal Rules of Civil Procedure ("Service Upon Individuals Within a Judicial District of the United States") by its own title suggests that persons outside a given judicial district cannot be brought into that district court. The Rule, however, allows application of so-called state "long arm" statutes:
Fed. R. Civ. P. 4(e) (emphasis added).
Under the applicable South Carolina long arm statute, section 36-2-803 of the South Carolina Code ("Personal jurisdiction based upon conduct"),
Both Defendant Gordon and Defendant United States argue that Plaintiff was required to attach an expert affidavit to her Complaint. See ECF Nos. 37 at 8, 44 at 5-7. Specifically, Defendant United States maintains that section 15-36-100(B) of the South Carolina Code requires a plaintiff to "file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit." Id. at 6. Further, Defendant United States contends that district courts strictly enforce this "contemporaneous filing requirement," and "[t]here are no reported cases allowing a waiver of this requirement." Id.
The undersigned finds that South Carolina statutory mandates are inapplicable to this action. However, Plaintiff is advised that her lawsuit may be dismissed upon transfer of venue should she fail to comply with certain pre-filing mandates. "While state law governs the disposition of an FTCA case, federal law defines the procedure." Seastrunk v. United States, 25 F.Supp.3d 812, 814 (D.S.C. 2014). "A plaintiff has a cause of action against the government under the FTCA if [s]he also would have a cause of action under state law against a private person under like circumstances." Id. at 815 (referencing 28 U.S.C. § 1346(b); Corrigan v. United States, 815 F.2d 954, 955 (4th Cir. 1987)).
Had South Carolina been the proper venue for this action, the undersigned agrees that Plaintiff would be required to comply with certain South Carolina statutory mandates. Section 15-36-100(B) of the South Carolina Code provides:
Additionally, section 15-79-125(A) of the South Carolina provides:
Sections 15-79-110(6) and 15-79-110(3) make clear that the requirement exists for claims against individual medical providers and "health care institutions" or "licensed health care provider(s)."
Venue is improper in the District of South Carolina. Moreover, Plaintiff is not suing a "health care facility" that is licensed "by the State of South Carolina." Therefore, this section is wholly inapplicable to the case at hand. However, the undersigned is aware that North Carolina has a similar pre-filing requirement with which Plaintiff must comply. See Rule 9 (j)(1), N.C. Gen. Stat. Ann. 1A-1, Rule 9 ("The pleading [in a medical malpractice action] specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care. . . ."); Frazier v. Angel Med. Ctr., 308 F.Supp.2d 671, 676 (W.D.N.C. 2004) ("In North Carolina, a plaintiff's malpractice complaint must assert that `the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness' as required by the North Carolina Rules of Civil Procedure for medical malpractice actions."). In noting this pre-filing requirement, the undersigned makes no ruling on the merits of this case as such ruling is more appropriately within the authority of the United States District Court for the Eastern District of North Carolina to make. See generally 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3827 at 268-74 (1986).
Based on the foregoing, it is recommended that the District Court transfer this case to the United States District Court for the Eastern District of North Carolina. Based on this recommendation, Defendant Gordon and Defendant United States' Motions to Dismiss, ECF Nos. 37 and 44, are denied as moot.
IT IS SO RECOMMENDED.
(A): A court may exercise personal jurisdiction over a person who acts directly or by an agent as to a cause of action arising from the person's
(B) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.
