Sholes v. Anesthesia Dep't

TIPTON D. SHOLES, M.D., Plaintiff, v. ANESTHESIA DEPARTMENT; AUGUSTA UNIVERSITY / MEDICAL COLLEGE GA; MEDICAL COLLEGE GA - GRADUATE MEDICAL EDUCATION;UNIVERSITY SYSTEM OF GA - BOARD OF REGENTS; and AUGUSTA UNIVERSITY HEALTH, Defendants.

CV 119-022

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

March 23, 2020

ORDER

Before the Court are Defendants Anesthesia Department, Augusta University / Medical College GA, Medical College GA - Graduate Medical Education, and University System of GA - Board of Regents's (collectively, "BOR Defendants") motion to dismiss or, in the alternative, for a more definite statement (Doc. 6); Defendants AU Health System, Inc. and AU Medical Center, Inc.'s ("AU Defendants") motion to dismiss or, in the alternative, for a more definite statement (Doc. 24); and Plaintiff's motion for entry of default judgment against Augusta University Health (Doc. 23).¹

I. BACKGROUND

Plaintiff, proceeding pro se, filed the present action asserting a plethora of claims against numerous defendants with no real organization. (Compl., Doc. 1; Compl. Suppl. 1, Doc. 1-1; Compl. Suppl. 2, Doc. 1-2.) The Court discusses below the claims it comprehends Plaintiff attempts to assert. From what the Court can discern, Plaintiff participated in a residency program with some or all Defendants. (Compl. Suppl. 1, at 1.) Plaintiff apparently began in the program in July 2016 and was terminated in July 2018. (Id.) Rather than spending the majority of his complaint alleging facts supporting his claims, Plaintiff used approximately half of the supplement to the form complaint to discuss his damages. (Id. at 3-6.)

Plaintiff included with his complaint a charge of discrimination submitted to the Equal Employment Opportunity Commission ("EEOC") and a notice of right to sue received from the EEOC. (Doc. 1-4.) Plaintiff's claimed disability is narcolepsy without cataplexy. (Compl., at 4.) Shortly after Plaintiff filed his complaint, BOR Defendants filed their motion to dismiss or, in the alternative, for a more definite statement. (BOR Defs.' Mot. to Dismiss, Doc. 6.) Plaintiff eventually filed a response. (Doc.18.) Plaintiff's response is largely an attempt to bolster his complaint rather than a response to BOR Defendants' motion. (See generally, id.) BOR Defendants replied, arguing that Plaintiff may not use a response in opposition to a motion to dismiss to amend the complaint and Plaintiff's attempted amended complaint is an impermissible shotgun pleading. (BOR Defs.' Reply Supp. Mot. to Dismiss, Doc. 20, at 2-6.)

On January 15, 2020, Plaintiff filed a motion for entry of default judgment against Defendant Augusta University Health. (Doc. 23.) On January 24, 2020, AU Defendants appeared on behalf of misnamed Augusta University Health; opposed Plaintiff's motion for default judgment; and moved to dismiss Plaintiff's complaint or, in the alternative, for a more definite statement. (Docs. 24, 24-1.) Notwithstanding the Court granting Plaintiff an extension of time to respond (Doc. 26), Plaintiff filed no response to AU Defendants' motion.

II. PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

Plaintiff moves for entry of default judgment against Defendant Augusta University Health. (Doc. 23.) AU Defendants appeared — concerned Plaintiff's motion for entry of a default judgment against Defendant Augusta University Health may apply to them — and oppose Plaintiff's motion putting forth evidence that Plaintiff failed to serve AU Defendants with the complaint andsummons or mail AU Defendants a waiver of service form. (AU Defs.' Br. Supp. Mot. to Dismiss, Doc. 24-1, at 6-8.)

"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." FED. R. CIV. P. 55(a). The Eleventh Circuit, however, disfavors default judgments, preferring resolution on the merits. Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. & Can., 674 F.2d 1365, 1369 (11th Cir. 1982). When a default judgment is at issue, "there must be strict compliance with the legal prerequisites establishing the court's power to render the judgment." Id. "A defendant's obligation to respond does not arise . . . until he has been served with the summons and complaint or has waived service." Carswell v. Whittle, No. CV 112-066, 2012 WL 6084649, at *1 (S.D. Ga. Oct. 24, 2012) (citing FED. R. CIV. P. 12(a)). Therefore, "default is not available against a party who has not been properly served with process." Id. (citing Scott v. District of Columbia, 598 F. Supp. 2d 30, 36 (D.D.C. 2009)). An affidavit establishing failure of service can rebut an assertion of proper service. U.S. Bank, N.A. as Tr. for LSF8 Master Participation Tr. v. Tobin, 754 F. App'x 843, 846 (11th Cir. 2018). Once the defendant suitably challenges the sufficiency of service, "the burden shifts to the plaintiff to prove a prima facie case of proper service of process." See Fru Veg Mktg., Inc. v.Vegfruitworld Corp., 896 F. Supp. 2d 1175, 1182 (S.D. Fla. 2012); accord Stafford v. Grifols Int'l S.A., No. 1:18-CV-321-SCJ, 2019 WL 3521957, at *2 (N.D. Ga. Feb. 25, 2019); see also Smith v. Roundtree, No. CV 215-04, 2015 WL 5971587, at *3 (S.D. Ga. Oct. 14, 2015) ("The burden is on the plaintiff to establish the validity of service of process on the defendant.").

Plaintiff filed no affidavit in support of his motion for entry of default; the record contains no evidence of service such as a filed, executed affidavit of service; and Plaintiff otherwise offered no evidence of service of AU Defendants. In opposition to Plaintiff's motion for default judgment, AU Defendants filed an affidavit showing nonexistent or insufficient service of process. (Speese Aff., Doc. 24-2.) The affidavit sets forth that Plaintiff named the wrong entity (see id. ¶ 6); AU Defendants first became aware of the lawsuit following counsel for Augusta University notifying affiant of the pending motion for an entry of default judgment (id. ¶ 7); none of the individuals that Plaintiff contends he served are officers, managing agents, or general agents of AU Defendants (id. ¶ 10); and AU Defendants were not served with the complaint and summons under Federal Rule of Civil Procedure 4(h) (id. ¶ 11). AU Defendants met their burden to establish absence of proper service. Plaintiff offered no response in an attempt to show he properly served AU Defendants. Because Plaintiff failedto show strict compliance with the rules for service, default judgment against AU Defendants is improper.

III. DEFENDANTS' MOTIONS TO DISMISS

Next, the Court turns to Defendants' motions to dismiss.

A. Legal Standard

In considering a motion to dismiss under Rule 12(b)(6), the Court tests the legal sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). Pursuant to Federal Rule of Civil Procedure 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" to "give the defendant fair notice of" both the claim and the supporting grounds. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Although "detailed factual allegations" are not required, Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,² to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550U.S. at 570). The plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct." Id. "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." Id. A plaintiff's pleading obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Furthermore, "the court may dismiss a complaint pursuant to [Rule] 12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

B. Discussion

For the reasons set forth in Section IV, infra, the Court grants Plaintiff an opportunity to amend his pleading. Therefore, the Court does not evaluate Defendants' motions to dismiss to the extent Defendants argue Plaintiff failed to allege sufficient facts to plausibly state a claim. The Court, however, considers the claims Defendants move to dismiss because Defendants cannot be liable as a matter of law. In making these determinations, theCourt examines Plaintiff's filings to decide whether Defendants can be liable under any construction of the facts asserted or whether allowing the construed motion to amend the complaint is futile. See Atlanta Indep. Sch. Sys. v. S.F. ex rel. M.F., 740 F. Supp. 2d 1335, 1356 (N.D. Ga. 2010) (denying in part motion to amend complaint where amendment as to specific claim would be futile).

1. BOR Defendants Incapable of Being Sued

The Court first addresses BOR Defendants' argument that Defendants Anesthesia Department, Augusta University / Medical College GA, and Medical College GA - Graduate Medical Education are not entities capable of being sued. (BOR Defs.' Br. Supp. Mot. to Dismiss, Doc. 6-1, at 5-6.) The Court agrees. Augusta University exists and operates solely as a unit of the Board of Regents of the University System of Georgia ("BOR"). See GA. CONST....