Stephens v. Norwalk Hosp., 3:00CV998(JBA).

Page 36

162 F.Supp.2d 36

Annamarie STEPHENS v. NORWALK HOSPITAL, et al.

No. 3:00CV998(JBA).

United States District Court, D. Connecticut.

August 27, 2001.

Michael A. Calano, Calano & Calano, New York City, Andrew F. Pisanelli, Aydelott, Aydelott & Keenan, Mount Kisco, NY, for Annamaria Stephens.

Frank W. Murphy, Kara A.T. Murphy, Tierney, Zullo, Flaherty & Murphy, Norwalk, CT, for Norwalk Hospital.

Joseph Michael Musco, Pamela Dubret Miller, Smith Ketaineck & Musco, Hamden, CT, for Cardiology Assoc. of Fairfield and Robert Moskowitz.

RULING ON MOTIONS TO DISMISS [Docs. # 26, 28]

ARTERTON, District Judge.

Ronald Stephens, a New York domiciliary, passed away on February 15, 1998, as the result of an allegedly negligently caused or undiagnosed heart condition. His widow, plaintiff Annamarie Stephens, also a New York domiciliary, filed this diversity action against defendants Norwalk Hospital, Cardiology Associates of Fairfield ("Cardiology Associates"), both of which are located in Connecticut, and Dr. Robert Moskowitz, a Connecticut domiciliary, for wrongful death and loss of consortium. Defendants have moved to dismiss the complaint as time-barred under Connecticut's statute of limitations. Plaintiff claims that it is New York's statute of limitations that is applicable, under which the action is not untimely.

BACKGROUND

Defendants treated Mr. Stephens in Connecticut for heart problems from June 15 to June 23, 1995. Mr. Stephens received no further treatment for this condition until May 4, 1997, when he presented to a non-party hospital complaining of chest and back pain, for which surgery was undertaken, following which Mr. Stephens lapsed into a coma. He remained in a vegetative state until his death on February 15, 1998. The cause of death was a dissected aorta, allegedly sustained as a result of defendants' acts or omissions in June of 1995.

On February 10, 2000, Plaintiff filed a verified complaint in the United States District Court for the Southern District of New York. Norwalk Hospital was served with a copy of the summons and complaint on March 22, 2000; Dr. Moskowitz and Cardiology Associates were served on March 28, 2000. The defendants then moved to dismiss for lack of personal jurisdiction. The parties stipulated on May 24, 2000 to withdraw the motions and transfer the action to the District of Connecticut pursuant to 28 U.S.C. § 1406(a) [Doc. # 11].

Defendant Norwalk Hospital then moved for a more definite statement pursuant to Fed.R.Civ.P. 10(b) and 12(e), requiring plaintiff to specify whether she claimed a common law wrongful death action, or, if statutory, under which state's laws [Doc. # 19]. This motion was granted on October 12, 2000 absent objection. Plaintiff subsequently filed an amended complaint asserting a cause of action under Conn. Gen.Stat. § 52-555, Connecticut's wrongful death statute.

STANDARD

For purposes of these motions to dismiss, the Court accepts as true the material facts alleged by the plaintiff, and draws all reasonable inferences in plaintiff's favor. See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.2001).

DISCUSSION

Defendants' current motions to dismiss [Doc. ##26, 28] argue that plaintiff's claims are barred by Connecticut's statute of limitations. According to defendants, notwithstanding the fact that plaintiff's complaint was timely filed under New York's tolling statute,¹ which provides that an action is commenced upon the filing of the complaint, it is untimely under Connecticut's tolling rules, which require service on the defendants before an action is deemed to have "commenced," and Connecticut's law must be applied by this Court sitting in diversity.

Following oral argument on these motions, the Court invited supplemental briefing on the choice of law issue. In her supplemental briefing, plaintiff now concedes that state law rather than federal law governs when the action was commenced² and acknowledges that she is time-barred under the Connecticut tolling rules. However, plaintiff argues, this is immaterial because New York's substantive and procedural rules should apply to this action, as the death occurred in New York. Plaintiff also argues that defendants had sufficient contacts with New York to permit exercise of personal jurisdiction over defendants in New York. Defendants respond that this case is controlled by Connecticut substantive and procedural law because "the operative events of which the Plaintiffs [sic] complain occurred in the State of Connecticut." Def. Norwalk Hosp.'s Supp. Reply Br. at 5. Defendants further protest plaintiff's attempt to resurrect the personal jurisdiction issue, arguing that plaintiff is barred by the stipulation pursuant to § 1406(a).

As the Court reads plaintiff's supplemental papers, she now seeks to amend her amended complaint and pursue a cause of action in Connecticut under New York's wrongful death statute. Notwithstanding this late change of course, in the interests of justice, as defendants have been permitted to file supplemental reply briefs addressing this argument, and because the Court concludes that the conflict of laws issue would have been presented even had plaintiff not moved to further amend her complaint, as plaintiff has consistently argued that New York's statute of limitations should apply to this case, the Court considers plaintiff's argument. For the reasons discussed below, after a journey into the "arcane and somewhat opaque world of conflicts of laws," Fiori v. Oliver, 1994 WL 669548, * 1 (Conn.Super.Nov. 15, 1994), the Court concludes that Connecticut's statute of limitations should govern.

As noted, plaintiff initially argued that the federal tolling rules applied to this diversity case. However, where a federal court adjudicates state law claims, "`state statutes of limitations govern the timeliness of state law claims', and state law `determines the related questions of what events serve to commence an action and to toll the statute of limitations.'" Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir.1990) (citing Personis v. Oiler, 889 F.2d 424, 426 (2d Cir.1989)); accord Converse v. General Motors Corp., 893 F.2d 513 (2d Cir.1990) ("It is well established that the doctrine enunciated in Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), applies to the manner in which a diversity action is considered commenced for purposes of state statutes of limitations."); Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). Thus, state law determines not only the applicable statute of limitations, but also whether filing or service of the complaint "commences" an action for tolling purposes. See id.

The Court's analysis begins with the undisputed principle that a federal court sitting in diversity applies the substantive law of the forum state, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including its choice-of-law rules, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Unlike the usual diversity case in which this Court applies Connecticut law, this case has an additional wrinkle which first requires the Court to determine whether Connecticut or New York is the "forum state" whose law, including choice of law rules, this Court must apply. Because this case was originally filed in the Southern District of New York and was transferred to this Court, plaintiff argues, New York substantive and procedural law operate as the governing forum law. As will be seen below, the viability of plaintiff's case rises or falls depending on which state's rule on commencement of actions applies, and the Court therefore must resolve the conflict of laws question presented by the choice between New York and Connecticut law.

Applying either New York's or Connecticut's wrongful death statutes, the applicable statute of limitations in this case expired on February 15, 2000, two years from the date of decedent's death. See Conn. Gen.Stat. § 52-555(a) (2000)³; N.Y. Est. Powers & Trust Law § 5-4.1 (McKinney 2001).⁴ However, the definition of when an action is "commenced" for purposes of tolling the statute of limitations differs critically under Connecticut and New York law. Under Connecticut law, statutes of limitation are tolled by actual service on the defendant. See Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 238, 763 A.2d 54 (2000); Consolidated Motor Lines, Inc. v. M & M Transp. Co., 128 Conn. 107, 109, 20 A.2d 621 (1941); Converse, 893 F.2d at 515 ("the Connecticut Supreme Court has long adhered to the rule that only actual service upon the defendant will satisfy the state statutes of limitations"). In contrast, New York law, like federal law, provides that statutes of limitation are tolled by filing, as opposed to actual service. See N.Y. C.P.L.R. § 304. Because plaintiff's action was filed on February 10, 2001 but Norwalk Hospital was not served until March 22, 2001, and Cardiology Associates and Dr. Moskowitz were not served until March 28, 2001, the action is timely filed under New York's rule but time-barred under Connecticut's rule.

Deciding whether New York's or Connecticut's tolling rule should be applied by this Court requires the following two-step analysis: First, the Court must determine whether the transferor court, the Southern District of New York, transferred the case pursuant to § 1404(a) or § 1406(a), or, in other words, whether the case was transferred for convenience⁵ or because the case was filed in the transferor court "laying venue in the wrong district."⁶ If the transfer was pursuant to § 1404(a), the Court must apply New York's choice of law rules to determine whether New York or Connecticut's statute of limitations applies. If, however, the transfer was under § 1406(a), the Court will apply Connecticut's choice of law rules as the forum rule to predict whether the Connecticut Supreme Court would conclude that New...