1 WO 2 3 4 5
9 Sylvia Lynne Thomas, No. CV-23-01471-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 HonorHealth dba HonorHealth Scottsdale Osborn Medical Center, et. al., 13 Defendants. 14 15 Pending before the Court is Defendants Affiliated Hospitalists, PLC; Pulmonary 16 Clinics Scottsdale, PLLC; Cardiovascular Institute of Scottsdale; and Arizona Oncology 17 Associates’ Motion to Dismiss (Doc. 67). Plaintiff, Sylvia Lynne Thomas, filed a response 18 (Doc. 81) to which Defendants filed a reply (Doc. 83). The Court has considered the 19 pleadings and relevant case law and will grant the Motion. 21 This Motion stems from what Plaintiff alleges was healthcare and financial 22 misconduct by several healthcare providers and institutions. (Doc. 1 at 10.) At issue here 23 is Plaintiff’s claims against Defendants Affiliated Hospitalists, PLC; Pulmonary Clinics 24 Scottsdale, PLLC; Cardiovascular Institute of Scottsdale; and Arizona Oncology 25 Associates (collectively “Defendants”). 26 There are very few facts specific to individual Defendants in the Complaint. 27 However, it appears that Plaintiff alleges that Defendants treated her in July 2020 for 28 pulmonary and oncology related services. (Doc. 1 at 40–41 ¶¶ 89–91.) She alleges that 1 these Defendants sent her “financially oppressive” medial bills, which she should not have 2 to pay. (Id. at 41 ¶¶ 91–93.) She alleges that this was intentional discrimination based on 3 her “race, color, religion, age, sex, gender, civil status, disability or national origin.” (Id. 4 at 59–62 ¶¶ 172–185.) Plaintiff contends that these actions are “inextricably linked” to her 5 intentional infliction of emotional distress (“IIED”) and conspiracy claims, and they were 6 part of an intentional discriminatory scheme between Affiliated Hospitalists, PLC; 7 Pulmonary Clinics Scottsdale, PLLC; Cardiovascular Institute of Scottsdale; Arizona 8 Oncology Associates; and the other named providers to prevent her from pursuing a writ 9 of certiorari to the United States Supreme Court for a review of the dismissal of her antitrust 10 lawsuit against the Arizona State Bar. (Id. at 23 ¶ 14, 16 ¶¶ 29–30, 32¶ 69, 39 ¶ 86, 65 11 ¶ 200.) 12 Plaintiff alleges that because of the Defendants she was unable to engage in “global 13 trade commerce opportunities.” (Id. at 62–63 ¶¶ 186–187.) Plaintiff brought a total of 14 eight claims against different combinations of Defendants. Plaintiff does not bring Count 15 1, (res ipsa), or Count 2, (negligence) against the Defendants bringing in this Motion. (Id. 16 at 45–51 ¶¶ 106–137.) However, based on their actions Plaintiff brings six claims1 against 17 the Defendants here: “negligent supervision” (Count 3); “intentional abandonment” (Count 18 4); violations of federal regulations health insurance regulations (Count 5); antitrust 19 violations (Count 7); “conspiracy to violate civil rights” (Count 8); and intentional 20 infliction of emotional distress (“IIED”) (Count 9). 22 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 23 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 24 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 25 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 26 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This 27 requirement is met if the pleader sets forth “factual content that allows the court to draw 28 1 The Complaint does not identify “Count 6.” 1 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of 3 action, supported by mere conclusory statements, do not suffice.” Id. Plausibility does not 4 equal “probability,” but requires “more than a sheer possibility that a defendant has acted 5 unlawfully.” Id. A dismissal under Rule 12(b)(6) for failure to state a claim can be based 6 on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a 7 cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 8 1988). A complaint that sets forth a cognizable legal theory will survive a motion to 9 dismiss if it contains sufficient factual matter, which, if accepted as true, states a claim to 10 relief that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 11 570). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 12 liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to 13 relief.’” Id. (quoting Twombly, 550 U.S. at 557). 14 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 15 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 16 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 17 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 18 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 19 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 20 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 21 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 22 documents attached to the complaint, documents incorporated by reference in the 23 complaint, or matters of judicial notice—without converting the motion to dismiss into a 24 motion for summary judgment.” Id. at 908. 26 Defendants moves to dismiss counts three, four, eight2, and nine because Plaintiff’s 27 claims are outside Arizona’s respective statute of limitations. (Doc. 67 at 3.) Defendants
28 2 Defendants also move to dismiss Count 8 for failure to state a claim, however, because the Court finds it time barred it will not address the underlying merits of the claim here. 1 moves to dismiss Count five for lack of standing and count seven for lack of subject matter 2 jurisdiction. (Id. at 4–6.) The Court will walk through each of these arguments in turn. 3 A. Counts Three, Four, Eight, and Nine 4 Relevant here, Plaintiff brings two claims asserting various negligence claims 5 against Defendants: “negligent supervision” (Count 3); “intentional abandonment” (Count 6 4); and “intentional infliction of emotional distress” (“IIED”) (Count 9). Defendants argue 7 these claims should each be dismissed because they are outside of Arizona’s two-year 8 statute of limitations period for medical malpractice claims. (Doc. 67 at 3.) 9 Under Arizona law “there shall be commenced and prosecuted within two years 10 after the cause of action accrues, and not afterward . . . injuries done to the person of 11 another including causes of action for medical malpractice.” Ariz. Rev. Stat. § 12-542(1). 12 A cause of action begins accruing when the plaintiff knew or reasonably should have 13 known that the malpractice and subsequent injury occurred. See Lawhon v. L.B.J.
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1 WO 2 3 4 5
9 Sylvia Lynne Thomas, No. CV-23-01471-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 HonorHealth dba HonorHealth Scottsdale Osborn Medical Center, et. al., 13 Defendants. 14 15 Pending before the Court is Defendants Affiliated Hospitalists, PLC; Pulmonary 16 Clinics Scottsdale, PLLC; Cardiovascular Institute of Scottsdale; and Arizona Oncology 17 Associates’ Motion to Dismiss (Doc. 67). Plaintiff, Sylvia Lynne Thomas, filed a response 18 (Doc. 81) to which Defendants filed a reply (Doc. 83). The Court has considered the 19 pleadings and relevant case law and will grant the Motion. 21 This Motion stems from what Plaintiff alleges was healthcare and financial 22 misconduct by several healthcare providers and institutions. (Doc. 1 at 10.) At issue here 23 is Plaintiff’s claims against Defendants Affiliated Hospitalists, PLC; Pulmonary Clinics 24 Scottsdale, PLLC; Cardiovascular Institute of Scottsdale; and Arizona Oncology 25 Associates (collectively “Defendants”). 26 There are very few facts specific to individual Defendants in the Complaint. 27 However, it appears that Plaintiff alleges that Defendants treated her in July 2020 for 28 pulmonary and oncology related services. (Doc. 1 at 40–41 ¶¶ 89–91.) She alleges that 1 these Defendants sent her “financially oppressive” medial bills, which she should not have 2 to pay. (Id. at 41 ¶¶ 91–93.) She alleges that this was intentional discrimination based on 3 her “race, color, religion, age, sex, gender, civil status, disability or national origin.” (Id. 4 at 59–62 ¶¶ 172–185.) Plaintiff contends that these actions are “inextricably linked” to her 5 intentional infliction of emotional distress (“IIED”) and conspiracy claims, and they were 6 part of an intentional discriminatory scheme between Affiliated Hospitalists, PLC; 7 Pulmonary Clinics Scottsdale, PLLC; Cardiovascular Institute of Scottsdale; Arizona 8 Oncology Associates; and the other named providers to prevent her from pursuing a writ 9 of certiorari to the United States Supreme Court for a review of the dismissal of her antitrust 10 lawsuit against the Arizona State Bar. (Id. at 23 ¶ 14, 16 ¶¶ 29–30, 32¶ 69, 39 ¶ 86, 65 11 ¶ 200.) 12 Plaintiff alleges that because of the Defendants she was unable to engage in “global 13 trade commerce opportunities.” (Id. at 62–63 ¶¶ 186–187.) Plaintiff brought a total of 14 eight claims against different combinations of Defendants. Plaintiff does not bring Count 15 1, (res ipsa), or Count 2, (negligence) against the Defendants bringing in this Motion. (Id. 16 at 45–51 ¶¶ 106–137.) However, based on their actions Plaintiff brings six claims1 against 17 the Defendants here: “negligent supervision” (Count 3); “intentional abandonment” (Count 18 4); violations of federal regulations health insurance regulations (Count 5); antitrust 19 violations (Count 7); “conspiracy to violate civil rights” (Count 8); and intentional 20 infliction of emotional distress (“IIED”) (Count 9). 22 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 23 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 24 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 25 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 26 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This 27 requirement is met if the pleader sets forth “factual content that allows the court to draw 28 1 The Complaint does not identify “Count 6.” 1 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of 3 action, supported by mere conclusory statements, do not suffice.” Id. Plausibility does not 4 equal “probability,” but requires “more than a sheer possibility that a defendant has acted 5 unlawfully.” Id. A dismissal under Rule 12(b)(6) for failure to state a claim can be based 6 on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a 7 cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 8 1988). A complaint that sets forth a cognizable legal theory will survive a motion to 9 dismiss if it contains sufficient factual matter, which, if accepted as true, states a claim to 10 relief that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 11 570). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s 12 liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to 13 relief.’” Id. (quoting Twombly, 550 U.S. at 557). 14 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 15 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 16 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 17 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 18 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 19 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 20 outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. See United States v. 21 Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider materials— 22 documents attached to the complaint, documents incorporated by reference in the 23 complaint, or matters of judicial notice—without converting the motion to dismiss into a 24 motion for summary judgment.” Id. at 908. 26 Defendants moves to dismiss counts three, four, eight2, and nine because Plaintiff’s 27 claims are outside Arizona’s respective statute of limitations. (Doc. 67 at 3.) Defendants
28 2 Defendants also move to dismiss Count 8 for failure to state a claim, however, because the Court finds it time barred it will not address the underlying merits of the claim here. 1 moves to dismiss Count five for lack of standing and count seven for lack of subject matter 2 jurisdiction. (Id. at 4–6.) The Court will walk through each of these arguments in turn. 3 A. Counts Three, Four, Eight, and Nine 4 Relevant here, Plaintiff brings two claims asserting various negligence claims 5 against Defendants: “negligent supervision” (Count 3); “intentional abandonment” (Count 6 4); and “intentional infliction of emotional distress” (“IIED”) (Count 9). Defendants argue 7 these claims should each be dismissed because they are outside of Arizona’s two-year 8 statute of limitations period for medical malpractice claims. (Doc. 67 at 3.) 9 Under Arizona law “there shall be commenced and prosecuted within two years 10 after the cause of action accrues, and not afterward . . . injuries done to the person of 11 another including causes of action for medical malpractice.” Ariz. Rev. Stat. § 12-542(1). 12 A cause of action begins accruing when the plaintiff knew or reasonably should have 13 known that the malpractice and subsequent injury occurred. See Lawhon v. L.B.J. 14 Institutional Supply, Inc., 765 P.2d 1003, 1007 (Ariz. Ct. App. 1988) (“[A] cause of action 15 ‘accrues’ when the plaintiff discovers or by the exercise of reasonable diligence should 16 have discovered that he or she has been injured by a particular defendant’s negligent 17 conduct.”). Essentially, the period begins running once a plaintiff “knows or should have 18 known of both the what and who elements of causation.” Id. Plaintiff need not know about 19 the full extent of injuries for the clock to start ticking. See Kaufman v. Jesser, 884 F. Supp. 20 2d 943, 957 (D. Ariz. 2012). 21 Here, Plaintiff appears to allege that Defendants improperly supervised an unnamed 22 individual Defendant in providing her medical care between January and July 2020. (Doc. 23 1 at 51 ¶ 139;54 ¶ 142.) As Defendant notes, the last date of treatment is when her cause 24 of action began accruing, and the statute of limitations started to run. (Doc. 67 at 4.) As 25 related to Defendants here, her accrual would have begun running in July 2020 when they 26 assigned her specialists, removed her from the hospital after she refused to leave, and 27 would not provide her with outpatient treatment. (Doc. 1 at 51 ¶ 139, 54 ¶ 142–143.) 28 Plaintiff does not rebut these treatment dates, nor does she make specific rebuttal 1 arguments related to the Defendants here. As Defendant notes, Plaintiff’s previous tolling 2 arguments related to Defendant Southwestern Eye Center failed and do not rollover to the 3 Defendants here. (Doc. 67 at 3.) Plaintiff filed her Complaint in July 2023 which is 4 approximately one year after the statute of limitations period. (Doc. 1.) Because these 5 claims were all filed outside of the limitations period, they must be dismissed. 6 Plaintiff also brings a claim for conspiracy to interfere with civil rights under 42 7 U.S.C. § 1985 (count eight). (Doc. 1 at 65.) Although it is unclear exactly what Plaintiff 8 is alleging, it appears she alleges that all the Defendants acted in concert through medical 9 negligence to injure her, thus depriving her of certain civil rights protected by statute. (Doc. 10 1 at 65 ¶¶ 200–66.) Like with the malpractice claims, Defendant argues this claim should 11 also be dismissed as it was filed outside Arizona’s applicable two-year statute of 12 limitations. (Doc. 67 at 3.) See e.g., Ariz. Rev. Stat. § 12-542. The Court agrees. 13 McDougal v. Cnty. of Imperial, 942 F.2d 668, 673–74 (9th Cir. 1991) (finding that like 14 section 1981 and 1983 claims, section 1985 claims are also subject to the applicable statute 15 of limitations for state personal injury claims). 16 Accordingly, as three, four, eight and nine are outside the statute of limitations, the 17 Court will dismiss these claims with prejudice. 18 B. Count Five 19 Plaintiff also brings claim(s) against Defendants for violation of various health 20 insurance regulations outlined in 42 U.S.C. §§ 300gg-19a(b), 300gg-111. Plaintiff alleges 21 that “there is a clear indication of legislative intent, explicit or implicit, either to create a 22 private right of action remedy under each statute.” (Doc. 1 at 58 ¶ 166.) Defendant argues 23 this claim should be dismissed because there is no private right of action under these 24 regulations. (Doc. 67 at 4.) The Court agrees. Two circuits have already recognized that 25 there is no private right of action for enforcement of the two subsections, §§ 300gg-19a(b), 26 300gg-111, Plaintiff attempts to utilize here. See Grossman v. Directors Guild of Am., Inc., 27 No. EDCV 16-1840-GW(SPX), 2017 WL 5665024, at *8 (C.D. Cal. Mar. 6, 2017) (finding 28 no private right of action to enforce § 300gg-19); Haller v. U.S. Dept. of Health and Human 1 Services, No. 22-3054, 2024 WL 290440, at *1 n.1 (2d Cir. Jan. 23, 2024) (finding that the 2 district court correctly determined providers had no private right of action under § 300gg- 3 111). 4 Additionally, Plaintiff failed to address why this claim should not be dismissed in 5 her response, which constitutes waiver of this claim. See Green v. Ariz. Bd. of Regents, 6 No. CV-18-04665-PHX-SPL, 2020 WL 2512759, at *4 (D. Ariz. May 15, 2020) (“Failure 7 to respond to an argument set forth in a motion to dismiss constitutes waiver of the issue 8 by the party opposing the motion and is an adequate basis for granting the motion to 9 dismiss.”). Further, even if Plaintiff had addressed this claim in her response, she fails to 10 plead any facts specific to Defendants for this claim. Accordingly, the Court will dismiss 11 Count five with prejudice. 12 C. Count Seven 13 Finally, in Count seven Plaintiff alleges “antitrust constitutional violations.” (Doc. 14 1 at 64.) Specifically, Plaintiff alleges the Defendants worked in concert to violate the 15 Sherman Antitrust Act, 15 U.S.C. § 1-2, the Clayton Antitrust Act, 15 U.S.C. § 12-27, and 16 both the Commerce Clause and the Supremacy Clause of the Constitution. (Doc. 1 at 64.) 17 Although never clearly stated, she appears to argue that the Defendants intentionally 18 formed a conspiracy to prevent her from practicing law and from having her claims against 19 the Arizona Bar Association for its alleged wrongful suspension of her license to practice 20 law heard before the United States Supreme Court. (Doc. 1 at 8 ¶ 10; 34 ¶ 76; 39 ¶ 86;64.) 21 Defendant contends that this argument is so frivolous that it fails to state a federal 22 claim that this Court can even entertain. (Doc. 67 at 5.) The United States Supreme Court 23 has noted that “federal courts are without power to entertain claims otherwise within their 24 jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit,’ 25 ‘wholly insubstantial,’ [or] ‘obviously frivolous.’” Hagans v. Lavine, 415 U.S. 528, 536– 26 37 (1974) (collecting cases). The Court need not even go as far as to find there is no 27 jurisdiction to hear the claim, however, because even if taken as true, Plaintiff fails to allege 28 facts supporting any conspiracy allegations. Accordingly, the Court will dismiss Count Seven with prejudice. 2 D. Leave to Amend 3 Federal Rule of Civil Procedure 15(a) requires that leave to amend be “freely give[n] 4|| when justice so requires.” Leave to amend should not be denied unless, “the proposed 5 || amendment either lacks merit or would not serve any purpose because to grant it would be 6|| futile in saving the plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 7\| 458, 459 (9th Cir. 1986). Therefore, ‘“‘a district court should grant leave to amend even if 8 || no request to amend the pleading was made, unless it determines that the pleading could || not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (th Cir. 2000) (cleaned up). Here, the allegation of other facts will not cure the 11 || counts three, four, eight, and nine because they are outside the applicable statute of limitations. Similarly, no additional facts will cure count five. Count seven is also 13 || incurable as Plaintiff has not, and cannot, allege facts sufficient to implicate the aforementioned antitrust laws. No amount of amendment will be able to link Defendants’ 15 || actions in her medical treatment to a conspiracy to violate antitrust laws or keep her from practicing law. IV. CONCLUSION 18 For the reasons discussed above, 19 IT IS HEREBY ORDERED granting Defendants’ Joint Motion to Dismiss (Doc. 20 || 67). Counts three, four, five, seven, eight, and nine will be dismissed with prejudice. 21 IT IS FURTHER ORDERED directing the clerk of the court to enter judgment in 22 || accordance with this Order, and dismiss defendants Affiliated Hospitalists, PLC; 23 || Pulmonary Clinics Scottsdale, PLLC; Cardiovascular Institute of Scottsdale and Arizona 24 || Oncology Associates from this case. 25 Dated this 21st day of August, 2024. 26 — ose 28 Aionorable Susan M. Brnovich =~ United States District Judge
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