United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. KOELTL, District Judge
action arises from injuries that the plaintiff, Jennifer
Crowhurst, suffered as a result of an alleged assault. The
plaintiff has brought claims for (1) medical malpractice
against the defendant Dr. Denise Szczucki; (2) negligence
against the defendants Hampton Inns LLC d/b/a Hampton Inn,
Hampton Inn Management LLC d/b/a Hampton Inn, and the Hilton
Hotel Group (collectively, the “Hilton
defendants”); (3) negligence against the defendants
Sheryl Dicker Stein (“Sheryl Stein”), and Sheryl
Dicker Stein as Administrator of the Estate of Norman Stein
(the “Estate of Norman Stein”); and (4) wage
theft against the defendants the Estate of Norman Stein,
Sheryl Stein, and Fannie Rebecca Stein (“Fannie
gist of the plaintiff's allegations is that Dr. Szczucki
prescribed a series of psychiatric medications to Fannie
Stein, presumably at Dr. Szczucki's office in New York.
Thereafter, the plaintiff, who is a home health aide,
accompanied Fannie Stein to a Hampton Inn in Pennsylvania,
where Fannie Stein allegedly attacked the plaintiff as a
result of the psychiatric medications prescribed by Dr.
Szczucki. The plaintiff claims that negligence by the Hilton
defendants in maintaining that Hampton Inn exacerbated the
plaintiff's resulting injuries. It is also alleged that
Norman Stein, Sheryl Stein, and Fannie Stein failed to pay
the plaintiff the wages that the plaintiff was owed pursuant
to the Fair Labor Standards Act (the “FLSA”) and
the New York Wage Theft Prevention Act.
pleading that states a claim for relief must contain a . . .
short and plain statement of the grounds for the court's
jurisdiction. . . .” Fed.R.Civ.P. 8(a)(1). The
plaintiff's Complaint asserts that the “basis for
venue” in this Court is “diversity
jurisdiction.” See Compl. at 1. There is no
other statement of jurisdiction.
Szczucki has moved to dismiss the Complaint for failure to
state a claim pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, and the Hilton defendants have moved for
judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure.
defendants have not moved to dismiss the Complaint for want
of subject matter jurisdiction. “Because of the limited
jurisdiction of the federal courts, however, it is incumbent
upon this court to raise the question of subject matter
jurisdiction sua sponte whenever it appears from the
pleadings or otherwise that jurisdiction is lacking.”
John Birch Soc'y v. Nat'l Broad. Co., 377
F.2d 194, 199 (2d Cir. 1967). “If the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
Complaint does not elaborate the statutory basis for
jurisdiction in this Court, but the grounds for jurisdiction
are clearly predicated on 28 U.S.C. § 1332(a). Pursuant
to 28 U.S.C. § 1332(a)(1), “The district courts
shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,
000, exclusive of interest and costs, and is between . . .
citizens of different States.”
party seeking to invoke jurisdiction under 28 U.S.C. §
1332 bears the burden of demonstrating that the grounds for
diversity exist and that diversity is complete.”
Advani Enters., Inc. v. Underwriters at Lloyds, 140
F.3d 157, 160 (2d Cir. 1998). “In other words, federal
subject-matter jurisdiction based on diversity is unavailable
unless [the plaintiff's] pleadings demonstrate that it
does not share citizenship with any of the
[defendants].” Id. “[A] statement of
residence, unlike domicile, tells the court only where the
parties are living and not of which state they are
citizens.” John Birch Soc., 377 F.2d at 199. A
limited liability corporation has the citizenship of each of
its members for the purposes of diversity jurisdiction.
Handelsman v. Bedford Vill. Assocs. Ltd. P'ship,
213 F.3d 48, 51-52 (2d Cir. 2000) (Sotomayor, J.); see
also CRT Capital Grp. v. SLS Capital, S.A., 63 F.Supp.3d
367, 371 n.1 (S.D.N.Y. 2014). “A corporation has the
citizenship of both its place of incorporation and its
principal place of business for the purposes of diversity
jurisdiction.” Berkshire II Real Estate Holdings,
LLC v. Centro Hispano Daniel Torres, Inc., No.
12-cv-3936 (JGK), 2012 WL 2152827, at *1 (S.D.N.Y. June 13,
Complaint does not attempt to allege the citizenship of the
parties. The Complaint alleges the residence of the plaintiff
in Connecticut, see Compl. ¶ 2; the address of
an office where Dr. Szczucki conducts her medical practice in
New York, see Compl. ¶ 5; and the residence of
Norman Stein (before he was substituted in this action by the
Estate of Norman Stein) and Sheryl Stein in New York,
see Compl. ¶ 29. The Complaint does not allege
the citizenship of the members of the defendants that are
limited liability corporations. See Compl.
¶¶ 15-20. The Complaint alleges that the
“global headquarters” of the Hilton Hotel Group
is in Virginia, but does not allege the Hilton Hotel
Group's place of incorporation or its principal place of
business (assuming that the Hilton Hotel Group is a
corporation --- the Complaint does not allege the legal
status of the Hilton Hotel Group). See Compl. ¶
17. The Complaint does not include any allegations with
respect to the citizenship of Fannie Stein. The failure to
allege the citizenship of the parties warrants dismissal of
the Complaint. See Seedman v. Hilton Hotel Corp.,
No. 99-cv-3561 (SAS), 1999 WL 1243874, at *2 (S.D.N.Y. Dec.
22, 1999) (citing Chateau Hip, Inc. v. Gilhuly, No.
95-cv-10320 (JGK), 1996 WL 437929, at *1 (S.D.N.Y. Aug. 2,
the claim for medical malpractice against Dr. Szczucki
suffers from an additional defect that independently warrants
dismissal of that claim at the threshold. “[T]o
establish a claim of medical malpractice under New York law,
a plaintiff must prove (1) that the defendant breached the
standard of care in the community, and (2) that the breach
proximately caused the plaintiff's injuries.”
Milano by Milano v. Freed, 64 F.3d 91, 95 (2d Cir.
1995) (citations and internal quotation marks omitted). New
York law typically requires expert medical opinion evidence
to make out both of these elements except as to matters
within the ordinary experience and knowledge of laymen.
Id. Where expert medical opinion evidence will be
necessary for the plaintiff to meet the plaintiff's
burden, N.Y. C.P.L.R 3012-a(a)(1) requires the plaintiff to
submit a certificate of merit with the complaint
“declaring that her attorney ha[s] reviewed the facts
of the case and consulted with at least one physician
knowledgeable regarding the relevant issues in this action,
and that the attorney ha[s] concluded that there [is] a
reasonable basis for the commencement of the action.”
Monzon v. Chiaramonte, 35 N.Y.S.3d 371, 373 (App.
Div. 2016). “[A] state statute requiring a certificate
of merit” ---such as N.Y. C.P.L.R 3012-a(a) --- is
substantive law that applies in a federal diversity
action.” Finnegan v. Univ. of Rochester Med.
Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998); see also
In re Zyprexa Prod. Liab. Litig., No. 04-MD-1596 (JBW),
2008 WL 4850122, at *2 (E.D.N.Y. Nov. 6, 2008).
plaintiff did not submit a certificate of merit with the
Complaint pursuant to N.Y. C.P.L.R 3012-a(a)(1), or attempt
to excuse the failure to do so. The claim against Dr.
Szczucki relates to Dr. Szczucki's psychiatric treatment
of the defendant Fannie Stein with various drugs, presumably
at Dr. Szczucki's office in New York, a matter certainly
outside the ordinary experience and knowledge of laymen.
See, e.g., Perez v. Lenox Hill Hosp., 552
N.Y.S.2d 244, 245 (App. Div. 1990). Accordingly, the failure
to submit the certificate of merit, or present reasons that
would excuse the submission, also warrants dismissal of the
medical malpractice claim.
Complaint is dismissed without prejudice. Rule 15(a) provides
that leave to file an amended complaint should be granted
“freely . . . when justice so requires.”
Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371
U.S. 178, 182 (1962) (“Rule 15(a) declares that leave
to amend ‘shall be freely given when justice so
requires'; this mandate is to be heeded.” (citation
omitted)). Under the circumstances, the plaintiff should be
given the opportunity to cure the defects in the pleadings
consistent with this opinion. See Moreno-Godoy v. Gallet
Dreyer & Berkey, LLP, No. 14-cv-7082 (PAE), 2015 WL
5737565, at *7 (S.D.N.Y. Sept. 30, 2015) (quoting Ijemba
v. Litchman, 127 F. App'x 5, 7 (2d Cir. 2005)
(summary order)); Chateau Hip, 1996 WL 437929, at
pending motions to dismiss the Complaint are denied as moot
without prejudice to renewal should the plaintiff ...