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Johnson v. Life Insurance Co. of North America

United States District Court, Western District of Pennsylvania

September 23, 2014

JUDITH JOHNSON, Plaintiff,
v.
LIFE INSURANCE COMPANY OF NORTH AMERICA, NOVACARE REHABILITATION Division of Select Medical Corporation, MILTON KLEIN D.O., CIGNA CORPORATION, Defendants.

OPINION

Joy Flowers Conti Chief United States District Court

I. Introduction

Pending before the court is a motion for relief from judgment, pursuant to Federal Rule of Civil Procedure 60, filed by plaintiff Judith Johnson (“plaintiff” or “Johnson”) against defendants NovaCare Rehabilitation (“NovaCare”) and Milton Klein (“Klein, ” and together with NovaCare, “defendants”). (ECF No. 51.)

II. Procedural History

On January 17, 2012, Johnson initiated this action by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Allegheny County against Life Insurance Company of North America (“Lina”), NovaCare, Klein, and Cigna Corporation (“Cigna”). (ECF No. 51 at 1.) On March 12, 2012, Johnson filed her complaint with the Court of Common Pleas of Allegheny County, asserting causes of action for breach of an insurance contract, bad faith on the part of an insurer under 42 Pa. Cons. Stat. § 8371, professional negligence, and civil conspiracy. (ECF No. 51 at 1.) On April 16, 2012, Cigna filed a notice of removal from the Court of Common Pleas of Allegheny County to this court. (ECF No. 1.)

In Johnson’s professional negligence claim, she alleges NovaCare and Klein “acted improperly and wrongfully, and violated” the applicable medical professional standards of care. (ECF No. 1-2 ¶¶ 77-78.) Pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a), when a plaintiff alleges “that a licensed professional deviated from an acceptable professional standard, ” the plaintiff’s attorney within sixty days of filing the complaint shall file “a certificate of merit signed by the attorney or party that either”

(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

Pa. R. Civ. P. 1042.3(a). Accordingly, plaintiff’s attorney pursuant to Rule 1042.3(a) was required to file certificates of merit with the court with respect to Klein and NovaCare within sixty days of the filing of the complaint.

On May 14, 2012, plaintiff filed a motion to extend the time to file certificates of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3(d). (ECF No. 14.) Plaintiff requested the deadline to file the certificates of merit be extended to July 13, 2012. (Id. at 6.) Rule 1042.3(d) provides:

The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.

Pa. R. Civ. P. 1042.3(d). On May 31, 2012, the court granted the motion for extension of time to file certificates of merit and ordered plaintiff to file the certificates of merit on or before July 13, 2012. (ECF No. 21.)

On July 14, 2012, Klein, upon plaintiff’s failure to file certificates of merit on July 13, 2012, filed a motion to dismiss for a failure to state a claim, and a motion for judgment of non pros. (ECF Nos. 28, 30.) On the same day, NovaCare filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 32.) On July 16, 2012, plaintiff filed a motion to extend the time to file certificates of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3(d). (ECF No. 34.) On July 17, 2012, the court granted plaintiff’s motion to extend the time for filing the certificates of merit, extended the deadline for plaintiff to file the certificates of merit to September 16, 2012, and denied without prejudice Klein’s motion for judgment of non pros and Klein’s and NovaCare’s motions to dismiss. (ECF Nos. 28, 30, 32, 34.) On July 18, 2012, the court granted Cigna’s and Lina’s motions to dismiss, and Cigna and Lina were dismissed as defendants in this case. (ECF Nos. 4, 5.)

On July 19, 2012, Klein and NovaCare filed motions for reconsideration, requesting the court reconsider its order dated July 17, 2012, granting plaintiff’s motion for extension of time to file certificates of merit and denying their motions to dismiss and the motion for judgment of non pros. (ECF Nos. 35, 37.) On September 13, 2012, plaintiff filed a certificate of merit with respect to Klein, (ECF No. 42), and a certificate of merit with respect to NovaCare. (ECF No. 43.) On September 19, 2012, Klein filed a motion to strike the certificate of merit. (ECF No. 44.) On September 24, 2012, the court held a hearing to address Klein’s motion to strike the certificate of merit. The court at the hearing agreed with Klein and NovaCare that the case should have been dismissed when plaintiff failed to timely file her certificates of merit, but postponed ruling on defendants’ motions for reconsideration of the July 17, 2012, order until the parties had the opportunity to submit supplemental briefing to address whether the reasons plaintiff’s counsel failed to timely file certificates of merit constituted excusable neglect under Federal Rule of Civil Procedure 60(b). (H.T. 9/24/12 (ECF No. 50) at 4-5.)

On October 26, 2012, plaintiff filed a supplemental brief addressing the application of Rule 60(b) to this case. (ECF No. 45.) On November 26, 2012, NovaCare and Klein each filed a response to plaintiff’s supplemental brief. (ECF Nos. 46, 47.) On December 10, 2012, plaintiff filed a reply brief in support of her supplemental brief. (ECF No. 48.) Plaintiff’s counsel attached to the reply brief a declaration by James Cooney (“Cooney”), who is one of the attorneys representing plaintiff in this case. (ECF No. 48-1.)

On December 11, 2012, the court heard oral argument from the parties with respect to Klein’s and NovaCare’s motions for reconsideration and the supplemental briefs submitted by the parties. (H.T. 12/11/12 (ECF No. 66).) On February 28, 2013, the court issued an order granting defendants’ motions for reconsideration, vacating the July 17, 2012 order granting the motion for an extension of time to file certificates of merit, granting defendants’ motions to dismiss, and dismissing the complaint for the reasons set forth on the record at the hearings held on December 11, 2012, and September 24, 2012. (ECF No. 49.) The court at the September 24, 2012 hearing explained:

Here, the Court upon reconsideration would find that the initial motion for extension was not timely and that under the applicable standards, what the Court has to do is to dismiss without prejudice the claim. And under the Pennsylvania Civil Rules of Procedure, what has happened is when there's been a failure to file the certificate of merit, which would entitle the defendant to a judgment of non pros against the plaintiff, then the plaintiff's relief is to come back and request to open the judgment under Rule 3051. And there's no equivalent of that -- this Court, I should say, is not bound to follow that procedure rule in Pennsylvania, which is Rule 3051, but we have an analogous rule in the federal system, which is Rule 60(b), which allows you to come in and seek relief from a judgment. I think that is really where the issue has to lie.

(H.T. 9/24/12 (ECF No. 50) at 4.) The court in the order dated February 28, 2013, noted that plaintiff was not barred from seeking relief from the judgment dismissing the complaint, pursuant to Federal Rule of Civil Procedure 60(b). (ECF No. 49.)

On January 24, 2014, plaintiff filed a motion for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6). (ECF No. 51.) On February 28, 2014, Klein and NovaCare filed responses to plaintiff’s motion for relief from judgment. (ECF Nos. 57, 58.) On April 15, 2014, plaintiff filed a reply to each defendant’s response in opposition. (ECF Nos. 64, 65.)

On July 28, 2014, the court after review of the parties’ submissions with respect to plaintiff’s Rule 60(b) motion issued an order providing the following:

Defendant Klein requested that discovery be permitted if this court were inclined to grant plaintiff's motion for relief from judgment under Rule 60(b). The court determines that a supplemental affidavit may be sufficient to resolve issues of timing and hereby orders that on or before 8/7/14 counsel for plaintiff shall file a second supplemental affidavit in support of plaintiff's Rule 60(b) motion addressing the timeframe of paragraphs 7, 9, and 12 of the first supplemental affidavit submitted with respect to plaintiff's rule 60(b) motion. Specifically, plaintiff should address: (1) the date and frequency that Attorney Cooney attempted to contact Mr. Monsour to obtain an affidavit in support of the rule 60(b) motion (paragraph 7); (2) the date Attorney Cooney was advised that Mr. Monsour was in the hospital for an extended period of time for cancer treatments (paragraph 9); and (3) the date Attorney Cooney was advised that Mr. Monsour was receiving chemotherapy for his cancer (paragraph 12).

On August 7, 2014, plaintiff filed a second supplemental declaration by Cooney and three attachments. (ECF No. 67.) On August 8, 2014, Klein and Novacare filed a joint motion for leave to file a responsive affidavit. (ECF No. 68.) On August 13, 2014, the court granted the joint motion for leave and instructed Klein and Novacare to file a responsive affidavit on or before September 7, 2014. On September 5, 2014, Klein and Novacare filed a joint motion for extension of time to file a responsive affidavit. (ECF No. 69.) The court granted Novacare’s and Klein’s motion for extension of time to file a responsive affidavit. On September 8, 2014, Novacare and Klein filed individual supplemental responses in opposition to plaintiff’s motion for relief from judgment pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6). (ECF No. 70 and 71 respectively.) Defendants’ filings contained an affidavit signed by Robert D. Monsour (“Monsour”) in response to the sworn declarations submitted by Cooney on December 10, 2012, and August 7, 2014. (Id.) On September 17, 2014, Johnson filed a reply to defendants’ supplemental responses. (ECF No. 73.)

Plaintiff’s motion for relief from judgment having been fully briefed is now ripe to be decided by the court.

III. Factual Background

Plaintiff argues she is entitled to relief from judgment because Cooney’s reason for not timely filing the certificates of merit constitutes excusable neglect or an extraordinary circumstance, which are both grounds entitling her to relief under Rule 60(b). (ECF Nos. 51, 52.) Cooney’s declaration attached to plaintiff’s supplemental reply brief filed on December 10, 2012 provides, in pertinent part:

3. I am employed by the Lampl Law Office which represents the Plaintiff, Judith Johnson in the within case.
4. Although Robert O Lampl is listed as lead counsel for the Plaintiff, up until early July of 2012, our former paralegal, Robert D. Monsour handled the majority of the pleadings and other paperwork in this case, subject to review by Mr. Lampl.
5. Mr. Monsour comes from a family of doctors, including his father, uncles and brothers. Mr. Monsour is also familiar with several other physicians within the local medical community. Accordingly, Mr. Monsour agreed to procure the necessary Certificates of Merits needed to support the Plaintiff’s claims against Defendants, Novacare Rehabilitation and Milton Klein, D.O.
6. In early July of 2012, Mr. Monsour abruptly left the Lampl Law Office to accept alternate employment. At that point, it was determined that current counsel for the Plaintiff, James R. Cooney, would take over responsibility for the case. Prior to that time, Mr. Cooney had no involvement in the case.
7. Before he left, Mr. Monsour met with Mr. Cooney to discuss the case. Among other things, Mr. Monsour advised Mr. Cooney that he had not secured the Certificates of Merit, and that a Motion to Extend the Time for Filing the Certificates of Merit would be necessary. Mr. Monsour further advised that such Motion was due to be filed with this Honorable Court on July 16, 2012, and based upon the same, Mr. Cooney marked his calendar for the due date.
8. The Plaintiff's Motion to Extend the Time for Filing the Certificates of Merit was duly filed on July 16, 2012. However, Mr. Cooney later learned that the actual deadline was July 13, 2012 (a Friday), and that the filing was one (1) business day late.
9. There was no intention to delay the filing beyond the due date, but rather, the delay was caused either by inadvertence and/or a ...

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