The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Amended Motion to Dismiss of Defendant, Andrea Taroli, M.D., Pursuant to F.R.C.P. 12(b)(5) and 12(b)(6) (Doc. 132), and Emergency Motion For a Ruling on Pending Motion to Dismiss or in the Alternative an Order Providing that Appearance at the Depositions of Bruce and Angela Bayer is Not Waiver of Any Defenses Raised in the Pending Amended Motion to Dismiss, or in the Alternative, an Order Postponing All Depositions Until the Pending Amended Motion to Dismiss is Decided (Doc. 144). For the following reasons, I will grant Defendant's Amended Motion to Dismiss (Doc. 132) and deny the other motion (Doc. 144) as moot. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).
On November 18, 2004, Plaintiffs filed, pro se, a two-hundred (200) page Complaintraising forty-one (41) claims against thirty-one (31) Defendants. Plaintiffs' Complaint mentions Defendant Andrea Taroli, M.D. in only two paragraphs; it states in relevant part: 31. Defendant Dr. Andi Taroli (Taroli) is an individual and at times relevant to this complaint. She is employed at 8 Church Street, Wilkes-Barre, PA. Defendant Taroli is being sued in her individual and official capacity.
152. Defendant Taroli misdiagnosed and prescribed inappropriate medications for Plaintiffs [GB] and [PB]. Defendant Taroli stated plaintiffs [GB] and [PB] had ringworm but this diagnosis was changed to eczema when the Plaintiffs were taken to their regular pediatrician Dr. Mohyuddin on January 30th, 2003.
On December 22, 2004, the Plaintiffs were ordered to retain representation for their minor children within 20 days. (Doc. 14.) No counsel entered an appearance for the children and they were dismissed from the suit on April 8, 2005. (Doc. 90.) On September 12, 2005, the Court reiterated that all claims addressing the rights of the minor children had been dismissed and granted the motions to dismiss of defendants President Judge Ronald Vican, Judge Margherita P. Worthington, David Williamson, Mark Pazuhanich, District Attorney's Office of Monroe County, Elizabeth Weekes, Dr. Judy Munoz, Dr. Colleen Cooper, and Foster Care Division of Monroe County. (Doc. 111.) Collectively, most of the remaining Defendants filed nine motions to dismiss. (Docs. 6, 24, 29, 38, 50, 60, 70, 71, 107.) On September 29, 2005, the Court granted the motions in part and denied them in part. (Doc. 115.) Then on January 6, 2006, Defendant Jane Doe Hyland filed a motion to dismiss (Doc. 120), which was granted by the Court on February 16, 2006. (Doc. 124.)
On March 14, 2006, Defendant Taroli filed a Motion to Dismiss (Doc. 126). Defendant Taroli then filed the present Amended Motion to Dismiss pursuant to F.R.C.P. 12(b)(5) and 12(b)(6) on March 22, 2006 (Doc. 132). Defendant Taroli's original motion to dismiss was terminated by the Court on March 23, 2006.
On April 27, 2006, Attorney Peter G. Loftus entered an Appearance on behalf of Plaintiffs. (Doc. 139.)
On June 8, 2006, Defendant Andrea Taroli, M.D. filed an Emergency Motion For a Ruling on Pending Motion to Dismiss or in the Alternative an Order Providing that Appearance at the Depositions of Bruce and Angela Bayer is Not Waiver of Any Defenses Raised in the Pending Amended Motion to Dismiss, or in the Alternative, an Order Postponing All Depositions Until the Pending Amended Motion to Dismiss is Decided (Doc. 144). These motions are now ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the ...