Zelig v. City Medical of New Jersey Pc

• Court: District Court, District of Columbia
• Decided: July 9, 2021
• Docket: Civil Action No. 2021-0961
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JOSEPH ZELIG, ) ) Plaintiff, ) ) v. ) Civil Action No. 21-cv-961 (TSC) ) ) CITY MEDICAL OF NEW JERSEY PC, ) ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Joseph Zelig brings this action against various medical entities, pursuant to 42

U.S.C. § 247d-6d(d) of the Public Readiness and Emergency Preparedness Act, alleging that

Defendants negligently perforated his ethmoidal artery during a COVID nasal swab test and

failed to properly inform him of the risks of the procedure. ECF No. 1, Compl. ¶¶ 18, 31, 40-41.

Defendants filed a Motion to Dismiss on May 5, 2021. ECF No. 4. Pursuant to this court’s

Local Civil Rules, Plaintiff’s response was due May 19, 2021. See LCvR 7(b). Plaintiff filed a

timely motion, ECF No. 9, requesting an extension, but did not indicate whether he had

conferred with opposing counsel to determine whether they would oppose the motion, as

required by this court’s Local Rules. See LCvR 7(m) (requiring that a movant confer with

opposing counsel prior to filing a non-dispositive motion and indicate whether the motion is

opposed or unopposed). Consequently, the court denied the motion without prejudice, 5/19/21

Min. Order, and Plaintiff filed an unopposed motion for an extension until June 18, 2021. ECF

No. 10. The court granted the motion, 6/9/21 Min. Order, but Plaintiff did not file a timely

Page 1 of 2 opposition or file a motion to extend the deadline. Defendants seek dismissal on multiple

grounds, including: 1) that Plaintiff failed to file a verified complaint with the requisite attached

materials, and 2) that it is unclear whether Plaintiff exhausted his administrative remedies before

filing suit. See 42 U.S.C. § 247d-6d(e)(4)(A); 247d-6e(d)(1).

By separate order, the court will grant Defendants’ motion. Plaintiff did not file a

verified complaint with the required attached medical documents. See 42 U.S.C. § 247d-

6d(e)(4)(A). Nor did Plaintiff allege in his Complaint that he exhausted available administrative

remedies and, because he did not respond to Defendants’ argument on this issue, the court may

treat this issue as conceded. See LCvR 7(m) (“If [an opposition] is not filed within the prescribed

time, the Court may treat the motion as conceded.”).

Date: July 9, 2021

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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