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Rinehart v. County of Franklin

United States District Court, D. Nebraska

March 31, 2015

JOSEPH LEE RINEHART SR., as Special Administrator of the Estate of Joseph Rinehart, Jr., Deceased, Plaintiff,
v.
COUNTY OF FRANKLIN, a body politic and corporate d/b/a FRANKLIN COUNTY MEMORIAL HOSPITAL, and d/b/a FRANKLIN COUNTY MEMORIAL HOSPITAL POOL MEDICAL CLINIC, DANIEL E. MAZOUR, M.D., and TONDA MATTISON, R.N., Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

This is a diversity action brought under the Nebraska Political Subdivisions Tort Claims Act ("PSTCA"), Neb. Rev. Stat. §§ 13-901 to 13-928. The plaintiff, a citizen of Wisconsin, was appointed as a special administrator for the estate of his deceased infant son by the County Court of Franklin County, Nebraska, "for the sole purpose of pursuing a claim for wrongful death and for distributing the proceeds as a result of the claim" (Complaint (Filing No. 1), ¶ 7).

It is alleged that the plaintiff's decedent was brought to the Franklin County Memorial Hospital on April 30, 2012, with life-threatening internal injuries that were not identified and treated by Daniel E. Mazour, M.D., and Tonda Mattison, R.N., who were hospital employees "acting within the scope of [their] authority" ( id., ¶¶ 12-27).[1] Named as defendants are Dr. Mazour, Nurse Mattison, and "County of Franklin, a body politic and corporate d/b/a Franklin County Memorial Hospital, and d/b/a Franklin County Memorial Hospital Pool Medical Clinic" ( id., caption & ¶¶ 9-11).

The plaintiff alleges that he complied with the notice requirements of the PSTCA[2] by mailing claims to the hospital administrator and Dr. Mazour and filing copies of the claims with the county clerk ( id., ¶¶ 28-30). It is alleged that after the county failed to act on the tort claim within 6 months, and before suit was filed, the plaintiff served withdrawal notices[3] on the county clerk, the county attorney, Dr. Mazour, and the hospital administrator ( id., ¶¶ 31, 32). The action was commenced in this court on April 29, 2014.

I. PROCEDURAL BACKGROUND

On June 24, 2014, "the Defendants, Franklin County Memorial Hospital (the Hospital'), Daniel E. Mazour, M.D., and Tonda Mattison, R.N., " filed a motion to dismiss the plaintiff's complaint pursuant to Rules 12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure (Filing No. 14, at CM/ECF p. 1).[4] For simplicity's sake, this filing will be referred to as "the hospital defendants' motion to dismiss." The motion states, among other things, that:

1. The Hospital is a political subdivision separate and distinct from the County of Franklin.
2. According to Neb. Rev. Stat. § 13-905, notice of claims against a political subdivision must be filed with the clerk, secretary, or other official whose duty it is to maintain the official records of the political subdivision....
3. Jeff Loschen, the Secretary of the Board of Trustees of the Hospital, is the official whose duty it is to maintain the official records of the Hospital. (Loschen affidavit [Filing No. 16-1], ¶ 2).
4. Plaintiff has failed to timely file notice of his claim with Mr. Loschen and has failed to allege facts in his Complaint establishing this condition precedent to filing suit....
* * *
7. Plaintiff did not serve the chief executive officer of the Hospital under Fed.R.Civ.P. 4(j)(2)(A).
8. Rather, Plaintiff served "County of Franklin, a body politic and corporate d/b/a Franklin County Memorial Hospital and d/b/a Franklin County Memorial Hospital Pool Medical Clinic." (Filing No. 7). The summons giving rise to this proof of service was directed to "Marcia Volk, Franklin County Clerk." (Filing No. 6). ***
10. Plaintiff did not comply with Neb. Rev. Stat. § 25-510.02, setting forth the procedure for service of a political subdivision. This statute allows service on the chief executive officer, clerk, secretary, or other official whose duty it is to maintain the official records, or any member of the governing board or body, or by certified mail to the principal office of the political subdivision.
11.... Marcia Volk is not the chief executive officer, clerk, secretary, or official whose duty it is to maintain the official records of the Hospital. Nor is she a member of the governing board or body of the Hospital.... Plaintiff did not serve the Complaint and Summons at the principal office of the Hospital....
12. Alternatively, Plaintiff's Complaint must be dismissed for lack of subject matter jurisdiction because diversity jurisdiction under 28 U.S.C. § 1332 is lacking.

(Filing No. 14, at CM/ECF pp. 1-3). The motion to dismiss was supported by a brief (Filing No. 15) and index of evidence (Filing No. 16).

A few days later, on June 27, 2014, "the County of Franklin, Nebraska, " filed an answer (Filing No. 17) and also a motion for summary judgment (Filing No. 18). The motion states that:

1. The County of Franklin, Nebraska, does not "do business as" Franklin County Memorial Hospital or Franklin County Memorial Hospital Pool Medical Clinic, and as such is improperly named and identified in the Complaint herein. The Defendant identified by Plaintiff herein as, "County of Franklin, d/b/a Franklin County Memorial Hospital and d/b/a Franklin County Memorial Hospital Poll Medical Clinic" does not exist. Rather, Franklin County and Franklin County Memorial Hospital (which may do business under other tradenames such as Franklin County Memorial Hospital Pool Clinic) are separate legal entities and separate political subdivisions for purposes of the Nebraska Political Subdivisions Tort Claims Act, at Neb. Rev. Stat. § 13-901, et. seq., and further, pursuant to Neb. Rev. Stat.§ 23-3501, et. seq., and other applicable law. The County was not sued herein in its proper legal name pursuant to Neb. Rev. Stat. § 23-101. The County is not the proper legal entity to respond to Plaintiff's allegations. Franklin County Memorial Hospital is operated and managed not by the County, but by a Board of Trustees, and a hospital administrator appointed by such Board of Trustees, pursuant to applicable law.
2. The County of Franklin, Nebraska, does not have any employment relationship, agency relationship, control, or authority whatsoever over Daniel E. Mazour, M.D., Tonda Mattison, R.N., or any other person who worked at Franklin County Memorial Hospital or who had contact with the Plaintiff's decedent as referenced in the Complaint herein. The County of Franklin, Nebraska, does not have any power or authority over who is hired by Franklin County Memorial Hospital, nor does it have any supervisory authority over such persons. The County of Franklin, Nebraska, did not owe any legal duty to Plaintiff's decedent with respect to the allegations advanced in the Complaint.
3. There exists no legal basis for liability against the County of Franklin, Nebraska, for the allegations and claims set forth in Plaintiff's Complaint.
4. The summons served upon the County of Franklin, Nebraska was directed to an entity that does not exist, and there is a resulting lack of sufficient process, insufficient service of process, and a lack of personal jurisdiction over the County.
5. The County of Franklin, Nebraska is entitled to sovereign immunity or Plaintiff's claims are otherwise barred under the Nebraska Political Subdivisions Tort Claims Act, due to noncompliance by Plaintiff with Neb. Rev. Stat. § 13-905 and § 13-919(1), because his "Notices of Claim" were not "tort claims" alleging any negligent acts of any County "employees" as defined in Neb. Rev. Stat. § 13-903(3) and (4), and were not directed to the County of Franklin, Nebraska.

(Filing No. 18, at CM/ECF pp. 1-2). The motion for summary judgment was supported by a brief (Filing No. 20)[5] and index of evidence (Filing No. 19).

The plaintiff responded to the motion to dismiss on July 15, 2014 (Filing Nos. 22, 23), [6] and to the motion for summary judgment on July 18, 2014 (Filing Nos. 25, 26, 27). However, on August 5, 2014, after the defendants had already replied (Filing Nos. 32, 33, 34, 35), the plaintiff moved "to defer ruling on the hospital's motion to dismiss and the county's motion for summary judgment; and for an Order granting him additional time to complete discovery and present essential facts needed to justify his opposition to the motions filed by the defendants..." (Filing No. 36). The plaintiff's motion was supported by a brief (Filing No. 39) and index of evidence (Filing No. 38).

The following week, on August 14, 2014, the plaintiff filed a motion for leave to amend his complaint to allege "in the alternative that, that [ sic ] if Franklin County Memorial Hospital is a political subdivision of the State of Nebraska, then the hospital will not be prejudiced in defending on the merits, because the hospital knew, that the action would have been brought against it, but for the mistake concerning the proper party's identity, and that the facts alleged in the amended complaint arose out of the same occurrence as the ...


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