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Baker v. Froedtert Memorial Hospital

United States District Court, E.D. Wisconsin

October 15, 2019

MICHELLE BAKER, Plaintiff,
v.
FROEDTERT MEMORIAL HOSPITAL,[1] and DR. TAYLOR SONNENBERG, Defendants.

          ORDER SCREENING COMPLAINT (DKT. NO. 1), GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. NO. 4) AND DISMISSING CASE FOR LACK OF SUBJECT-MATTER JURISDICTION

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, representing herself, filed this complaint on March 18, 2019, alleging that defendant Dr. Taylor Sonnenberg-who worked for defendant Froedtert Memorial Hospital-negligently failed to disclose that the plaintiff's mother, Edna Baker, had a dislocated shoulder. Dkt. No. 1 at 2-3. The plaintiff named two defendants: Froedtert Memorial Hospital and Dr. Sonnenberg. Id. She paid the $400 filing fee for a civil case. The clerk's office originally assigned the case to Magistrate Judge Nancy Joseph, but later reassigned the case to this court. While the docket does not indicate that the plaintiff asked for a summons or served the defendants, the defendants since have filed a motion to dismiss the case, arguing that the court has no subject- matter personal jurisdiction, that the plaintiff did not affect proper service and that the complaint does not state a claim for which a federal court can grant relief. Dkt. No. 4. Because the court agrees that it does not have subject-matter jurisdiction, the court will grant the motion and dismiss the case.

         I. Failure to Properly Serve the Defendants

         The defendants argue that the plaintiff has not complied with Federal Rule of Civil Procedure 4(m), which requires a plaintiff to serve a defendant within ninety days after the complaint is filed. Dkt. No. 5 at 2-3. They ask the court to dismiss the complaint for insufficient service of process under Fed.R.Civ.P. 12(b)(5). Id. Rule 4(m) requires the plaintiff to serve the complaint on the defendants within ninety days after the complaint is “filed.” The Seventh Circuit has held that when a plaintiff applies to proceed without prepaying the filing fee, 28 U.S.C. §1915(a) “implies a different approach.” Williams-Guice v. Bd. of Educ. of City of Chi., 45 F.3d 161, 162 (7th Cir. 1995). The court noted that the statute says that the court may authorize the filing of a suit without prepaying of the filing fee; that language “impl[ies] that depositing a copy of the complaint with the clerk does not commence the litigation . . . .” Id. (emphasis in the original). “Only the judge's order permitting the plaintiff to proceed in forma pauperis, and accepting the papers for filing, would commence the action.” Id.; see also, Stephenson v. Peterman, No. 04-C-1228, 2006 WL 8449929, at *3 (E.D. Wis. Feb. 6, 2006).

         The plaintiff here is representing herself, but she did not file a motion under §1915 asking the court to waive the filing fee. That means that the ninety-day service requirement in Rule 4(m) applied to the plaintiff, and she was required to serve the complaint on the defendants by June 16, 2019. The defendants assert that the plaintiff did not serve them by that date. That fact justifies dismissal of the complaint. But because the plaintiff represents herself and may consider re-filing in the future, the court also analyzes the defendants' claim that this federal court does not have jurisdiction to hear the plaintiff's claims.

         II. Lack of Subject-Matter Jurisdiction

         A. Standard

         Even when a self-represented plaintiff pays the filing fee, 28 U.S.C. §1915(e)(2)(B) requires the court to dismiss that plaintiff's case at any time if the court determines the case is frivolous or malicious, fails to state a claim on which a federal court may grant relief, or seeks monetary relief against a defendant who is immune from such relief. District courts “screen” complaints filed by unrepresented plaintiffs to decide whether they fall into any of these categories.

         The federal notice pleading system requires a “short and plain statement of the claim showing that [she] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff need not plead specific facts, and her statement need only “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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Even so, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “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.” Id. (citing Twombly, 550 U.S. at 556). The complaint's allegations must rise above a speculative level. Twombly, 550 U.S. at 555 (citation omitted). Because the plaintiff represents herself, the court must liberally construe the allegations of her complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         B. Allegations of Plaintiff's Complaint

         The plaintiff states that she is a Wisconsin citizen and wishes to sue Froedtert Memorial Hospital and Dr. Taylor Sonnenberg. Dkt. No. 1. Under her “statement of claim” section, the plaintiff states that she holds the power of attorney for her mother, Edna McClinton. Id. at 2. She says that on March 18, 2016, paramedics transported her mother from the Lake Country nursing home to Froedtert Memorial Hospital Emergency Department “seeking treatment for her swollen left arm.” Id. The plaintiff says that defendant Sonnenberg was the attending physician that day. Id. She charges Sonnenberg with failing to disclose to McClinton the fact that an x-ray showed McClinton's shoulder to be dislocated. Id. The plaintiff alleges that Sonnenberg discharged her mother without providing proper treatment and that the injury went undiscovered until July 18, 2018. Id. at 2-3.

         Under the “jurisdiction” heading of the plaintiff's complaint, she checked the box indicating that she is pursuing a claim for a violation of federal law. Id. at 4. She does not specify which federal law she is proceeding under. In her “Relief Wanted” section, the plaintiff asks for “award of money for damages, emotional stress, and pain and suffering due to condition is now chronic. Also, reimbursement for any and all legal fees.” Id.

         The defendants assert that this court does not have jurisdiction to hear the plaintiff's case based on the facts she has alleged. Dkt. No. 5 at 3-4. They point out that a federal court may decide a case only if it involves a violation of a federal law or a provision of the federal Constitution, or if it involves citizens of different states. Id. at 3. The defendants assert that because the case does not involve citizens of different states, the only basis for this ...


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