United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN, UNITED STATES DISTRICT JUDGE.
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
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.
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.
turned 18 on August 5, 2013. On April 4, 2014, defendant
retired and approximately one week later permanently
relocated to Florida.
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.
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.
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.
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).
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
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