MARIA LA RUSSO, as attorney in fact for A. Matthew De Lucia, Plaintiff-Appellant,
ST. GEORGE'S UNIVERSITY SCHOOL OF MEDICINE, JOHN DOES, 1-5, (as employees, agents, and/or servants of St. George's and/or as independent contractors), JANE DOES, 1-5, (as employees, agents, and/or servants of St. George's and/or as independent contractors), Defendants-Appellees
Heard November 5, 2013
Appeal from the March 28, 2013, judgment of the United States District Court for the Southern District of New York Edgardo Ramos, District Judge), rejecting a challenge to removal jurisdiction and dismissing as time-barred a complaint alleging medical malpractice.
Joshua S. Moskovitz, Beldock Levine & Hoffman LLP, New York, N.Y. (Myron Beldock, Beldock Levine & Hoffman LLP, New York, NY, on the brief), for Appellant.
Gerald W. Sawczyn, Proskauer Rose LLP, New York, N.Y. (Charles S. Sims, Proskauer Rose LLP, New York, NY, on the brief), for Appellees.
Before: NEWMAN, HALL, and LIVINGSTON, Circuit Judges.
JON O. NEWMAN, Circuit Judge.
This appeal primarily concerns a narrow issue of federal procedural law and an equally narrow issue of New York procedural law. The federal law issue is whether a real party defendant in interest that owns and operates a non-juridical entity that was improperly sued in state court may remove a diversity case to federal court without filing an appearance in the state court prior to attempting removal. The state law issue is whether New York's rule tolling a limitations period because of a plaintiff's insanity, N.Y. C.P.L.R. § 208 (McKinney 2013), applies to the facts of this case. These issues arise on an appeal by Plaintiff-Appellant Dr. Maria La Russo, as attorney in fact for her son, A. Matthew De Lucia, from the March 28, 2013, judgment of the United States District Court for the Southern District of New York (Edgardo Ramos, District Judge). The judgment, entered after the District Court denied La Russo's challenge to removal, granted a motion by Defendant-Appellee St. George's University, Ltd. (" SGU Ltd." ) to dismiss because La Russo's complaint was time-barred.
See La Russo v. St. George's University School of Medicine, 936 F.Supp.2d 288 (S.D.N.Y. 2013) (" Dist. Ct. Op." ). The complaint asserted medical malpractice, breach of contract, and negligence claims based on alleged failures by St. George's University School of Medicine (" SGU Med." or " the School" ) to appropriately treat De Lucia's mental illness.
We conclude that the case was properly removed and that the complaint was properly
dismissed as time-barred. We therefore affirm.
The following facts are based primarily on La Russo's complaint, which we assume to be true for purposes of this appeal.
See, e.g., Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008).
La Russo's son, De Lucia, was formerly a student at SGU Med. in Grenada. Prior to his attending the School, La Russo and her son attended an information session at which School staff assured attendees " that there would be medical facilities and treatment available for students on the Grenada Campus, including medical evacuation if needed." Complaint ¶ 57. They were also provided with a publication entitled " St. George's University School of Medicine; Think Beyond; 2005-2006," which stated:
University Health Services (UHS) maintains modern clinic facilities with scheduled and walk-in hours from 9:00AM to 4:30PM, Monday through Friday. Additionally, there is daily 24-hour coverage by well-credentialed physicians and physician assistants to provide students with emergency care when the clinic is closed. Medical emergencies in Grenada are referred to Grenada General Hospital or St. Augustine Clinic . . . . University Health Services facilitates with air evacuation, if indicated, on both campuses.
Id. ¶ 58.
In January 2007, De Lucia received a letter of admission from the School. Enclosed with the letter was a handbook from the Office of the Dean of Students that stated, " The Office of the Dean of Students advocates on behalf of students to help you make the best use of the services available both on and off campus. Any student with mental or physical disabilities is provided a wide range of support services." Id. ¶ 59.
De Lucia began attending the School in August 2007. In the spring of 2009, he visited with his faculty advisor, Dr. Jacqueline Stanley. De Lucia arrived at the meeting looking disheveled and dressed in sweat pants despite the hot climate and asked to see the dean regarding academic issues. Stanley told De Lucia he could not see the dean due to his attire and encouraged him instead to go to the beach and take a vacation. Stanley did not advise De Lucia to " visit the counseling department, speak with the dean of students, or see any medical or mental health professional who would have been able to counsel him and provide medical treatment and medication as necessary." Id. ¶ 26.
De Lucia went on a sailing trip in May of 2009. Upon his return, he was suffering from mental illness. He wandered aimlessly on and off the school's campus, and was " disoriented" and " sickly." Id. ¶ 28. Other students alerted School officials to De Lucia's condition. In response, School security officers picked up De Lucia in the middle of the night and escorted him to Mount Gay Hospital in Grenada, an institution La Russo claims " had a bad reputation, maintained deplorable and unsafe conditions, and did not administer appropriate care." Id. ¶ 49.
School staff failed to inform De Lucia's parents about his admission to the hospital and failed to provide an " informative response" to his parents' messages. Id. ¶ 34. On May 14, after being notified of De Lucia's admission to the hospital by fellow students, De Lucia's father traveled to the hospital where he found his son " in an outdoor cell lying on a concrete floor without a ...