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Garber v. Menendez

United States District Court, N.D. Ohio, Eastern Division

August 28, 2017

Marshall Garber, Plaintiff,
v.
Heriberto Menendez, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         This matter is before the Court upon Defendant Heriberto Menendez, M.D.'s Motion to Dismiss (Doc. 4). This is a medical malpractice case. For the reasons that follow, the motion is GRANTED.

         FACTS

         Plaintiff, Marshall Garber, brings this lawsuit against, defendant Heriberto Menedez, M.D., alleging medical malpractice. For purposes of ruling on the motion, the facts in the complaint are presumed true.

         According to the complaint, on November 29, 2010, plaintiff suffered from fever, constipation, and acute radiating back pain. Plaintiff was a minor at the time and defendant was plaintiff's pediatrician. Defendant saw plaintiff that day and ordered a urine test, after which defendant sent plaintiff home. Three days later, plaintiff presented to the emergency room with similar complaints, and now also suffered from difficulty moving his legs and feet. At the hospital, it was discovered that plaintiff had a spinal epidural abscess. Although plaintiff underwent surgical resection of the abscess, he lost the use of his lower extremities due to the delay in treatment.

         Plaintiff turned 18 on August 5, 2013. On April 4, 2014, defendant retired and approximately one week later permanently relocated to Florida.

         On August 5, 2014, plaintiff filed a negligence action in state court. Ultimately, it appears that this case was dismissed as a result of plaintiff's failure to file an affidavit of merit. Thereafter, on February 17, 2016, plaintiff refiled the action in state court. On March 22, 2107, defendant moved to dismiss the action based on failure of service of process. On April 5, 2017, plaintiff voluntarily dismissed the action.

         Plaintiff filed a third action, i.e., the instant action, in state court on May 5, 2017. Defendant removed this action to this Court. It is undisputed that, absent tolling, the statute of limitations bars plaintiff's complaint. Plaintiff, however, expressly alleges that the statute of limitations is tolled pursuant to O.R.C. § 2305.15.

         Defendant moves to dismiss the complaint as untimely on the basis that O.R.C. § 2305.15 is unconstitutional as applied to defendant. Plaintiff opposes the motion.

         STANDARD OF REVIEW

         When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the allegations of the complaint must be taken as true and construed liberally in favor of the plaintiff. Lawrence v. Chancery Court of Tenn., 188 F.3d 687, 691 (6th Cir. 1999). Notice pleading requires only that the defendant be given “fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley, 355 U.S. at 47. However, the complaint must set forth “more than the bare assertion of legal conclusions.” Allard v. Weitzman (In Re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). Legal conclusions and unwarranted factual inferences are not accepted as true, nor are mere conclusions afforded liberal Rule 12(b)(6) review. Fingers v. Jackson-Madison County General Hospital District, 101 F.3d 702 (6th Cir. Nov. 21, 1996), unpublished. Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief. Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-490 (6th Cir. 1990).

         In addition, a claimant must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 (2007). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955 (2009). Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent ...

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