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Louis Kerlinsky v. Main Line Hospitals

August 9, 2011


The opinion of the court was delivered by: Louis H. Pollak Pollak, J.


On August 30, 2010, Louis Kerlinsky filed a pro se diversity complaint against Main Line Hospitals, Inc. (d/b/a "Lankenau Hospital") alleging that Lankenau "failed to treat plaintiff properly and in accordance with good medical practice as it impliedly agreed to do" while he was treated there in 2006. Compl. ¶ 60. Presently before the court are (1) Kerlinsky's "Motion to Default the Defendant," and (2) Lankenau's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court will deny Kerlinsky's default motion, and grant Lankenau's motion to dismiss.


Sometime in 2006, Kerlinsky received a prescription from the U.S. Veteran's Administration for the drug Terazosin because of "high blood pressure and an enlarged prostate gland." Compl. ¶ 8. On September 1, 2006, Kerlinsky took his first dose of Terazosin at about 5:00 p.m. Compl. ¶ 7. Shortly thereafter, at around 7:00 p.m., Kerlinsky's "heart stopped beating, he stopped breathing and he was taken by ambulance to Lankenau Hospital." Compl. ¶ 4. Kerlinsky was treated at Lankenau from September 1, 2006, to September 5, 2006; while there, he was diagnosed with "syncope and collapse." Compl. ¶¶ 4, 5. When Kerlinsky was discharged on September 5, 2006, he was given "instructions to have a pacemaker imbedded in his chest . . . for his heart condition." Compl. ¶ 5. On September 5, 2006, Kerlinsky entered Baystate Medical Center, where he was "found to have a good heart which needed no pacemaker or treatment." Compl. ¶¶ 10, 11.

Kerlinsky claims that Lankenau (1) treated him negligently,*fn2 and (2) breached an implied contract by giving him an incorrect diagnosis.


Motion for Default

Kerlinsky contends in his Motion to Default the Defendant-and Lankenau does not dispute-that Lankenau was served with the summons and complaint on September 8, 2010. Docket No. 7 at 1. Thus, under Rule 12(a)(1)(A)(i), Lankenau had until September 29, 2010, to file its response. But Lankenau did not file its motion to dismiss until October 6, 2010. On October 12, 2010, Kerlinsky filed a Motion to Default the Defendant.

Rule 55(a) provides that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default."*fn3 An entry of default is an administrative formality because "a defendant who fails to answer within the time specified by the rules is in default even if that fact is not officially noted." 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2692 (3d ed. 1998). The court will construe Lankenau's answer in response to Kerlinsky's motion as a motion under 55(c) to have the default excused.

Default may be set aside "for good cause." Fed. R. Civ. P. 55(c). A district court may use its discretion when determining whether to set aside an entry of default, and in doing so it must consider: "(1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; [and] (3) whether the default was the result of the defendant's culpable conduct." United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194--95 (3d Cir. 1984) (holding that defaults and default judgments are not favored and that cases should be decided on their merits whenever practicable).

First, Kerlinsky has not been prejudiced by Lankenau's delay because he has not been impeded in pursuing his claim. Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984); see also Century 21 Real Estate LLC v. Kenneth M. Yanni, Inc., No. 07-6078, 2009 WL 904122, at *2--3 (D.N.J. Mar. 31, 2009) (holding that the mere passage of time does not itself establish prejudice). Second, Lankenau presents a potentially meritorious defense because it argues that Kerlinsky's negligence claim is barred by the statute of limitations. Mot. to Dismiss ¶¶ 18--19. That defense, if "proven at trial, would constitute a complete defense" to Kerlinsky's allegations. $55,518.05 in U.S. Currency, 728 F.2d at 197 (internal quotation marks and citation omitted). Third, Kerlinsky has made no allegation that Lankenau's late response was a result of "willful or bad faith conduct or deliberate trial strategy." Dambach v. United States, 211 F. App'x 105, 110 (3d Cir. 2006). Accordingly, since "good cause" would exist to set aside a default, the court will deny Kerlinsky's Motion to Default the Defendant.

Motion to Dismiss

In order to survive a motion to dismiss for failure to state a claim, a complaint need only include "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus plaintiffs must include "sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing a 12(b)(6) motion, "the facts alleged [in the complaint] must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Reasonable inferences must be drawn in favor of the plaintiff. Id.

Kerlinsky first alleges that Lankenau acted negligently while he was under its care. Compl. ΒΆΒΆ 55--57. Under Pennsylvania law, a hospital may be liable for negligence under a theory of corporate negligence "if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital." Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991). Thus, to successfully maintain a negligence suit against a hospital, "it is necessary ...

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