The opinion of the court was delivered by: Kugler, United States District Judge:
NOT FOR PUBLICATION (Doc. No. 23)
This matter arises out of a slip-and-fall case by Plaintiffs against Defendant/Third Party Plaintiff Target Corp. ("Target"). Subsequent to her fall, Mrs. Geiss was hospitalized at Third-Party Defendant Virtua Memorial Hospital ("Virtua"). Target filed a Third-Party Complaint seeking contribution and indemnification from Virtua for Plaintiff's injuries. Before the Court is Virtua's Motion to Dismiss Target's Third-Party Complaint. Virtua argues that Target's Third-Party Complaint should be dismissed because Target did not file an Affidavit of Merit ("AOM") as required by New Jersey's Affidavit of Merit Statute ("AMS"). Because Target complied with a statutory exception by filing a sworn statement in lieu of an AOM, Virtua's Motion is DENIED.
In January 2006, Mrs. Geiss had her right knee replaced and a prosthesis inserted. (Third-Party Compl. Count I ¶ 3). In July 2007, Mrs. Geiss slipped and fell in Target. (Third-Party Compl. Count I ¶ 2). According to Target, at some time in August 2007, Mrs. Geiss had her knee examined, and doctors determined that the prosthesis was in place and unharmed. (Third-Party Compl. Count I ¶ 4). Then, on August 29, 2007, Plaintiff had trouble breathing and was admitted to Virtua with sepsis and a bacterial infection. (Third-Party Compl. Count I ¶ 5). Mrs. Geiss underwent surgery to replace the prosthesis in her knee. She developed a MSSA infection, underwent several subsequent surgeries, and ultimately had her knee fused. (Third-Party Compl. Count I ¶ 9). Mrs. Geiss remained at Virtua for two months. (Third-Party Compl. Count I ¶ 5). On March 26, 2009, Plaintiffs brought suit against Target, alleging that Mrs. Geiss's fall at Target caused her injuries and hospitalization.
On July 29, 2010, Target filed a Third-Party Complaint against Virtua, alleging that Mrs. Geiss's injuries were not caused by her fall, but by Virtua's negligence. (Third-Party Compl. Count I ¶ 6-7). Target's theory of Virtua's negligence can be summarized in a single sentence: "According to Plaintiff's expert, Dr. Barry Gleimer, something occurred during the course of Plaintiff's [Mrs. Geiss] admission to Virtua Memorial Hospital-Mt. Holly which dislodged and/or damaged the prosthesis." (Third-Party Compl. Count I ¶ 8) (emphasis added). The Third-Party Complaint contains no further explanation of exactly how Plaintiff was injured, or how Virtua was negligent. However, before filing its Third-Party Complaint, Target requested copies of Mrs. Geiss's hospital records from her time at Virtua. (Third-Party Compl. Count II ¶ 2). Virtua informed Target that "a significant portion" of the records were missing. (Third-Party Compl. Count II ¶ 3). Target requested the missing records, but did not receive them. Target therefore requested that Virtua identify the medical personnel who signed portions of the records, and identify the medical personnel who would have signed the missing records. Virtua responded that it could not "identify with any specificity the names of the employees, nurses, doctors, or other individuals or entities who treated and/or participated in the treatment of Plaintiff." (Third-Party Compl. Count III ¶ 3). Thus, Target alleges that it "cannot state with any specificity the exact date upon which Plaintiff was injured at the hospital or the exact cause of Plaintiff's injuries." (Third-Party Compl. Count II ¶ 5).
The Third-Party Complaint contains four counts requesting indemnification or contribution. Count I claims that Virtua and its employees caused Mrs. Geiss's injuries. Count II alleges that Virtua spoliated evidence by "carelessly, negligently and/or intentionally destroy[ing], alter[ing] and/or fail[ing] to maintain the records pertaining" to Mrs. Geiss's visit. Count III claims that Target cannot identify the names of the individual employees who treated Mrs. Geiss, and reserves the right to amend the Third-Party Complaint when Virtua produces the required information. Count IV seeks contribution from Third-Party Defendant under the Joint Tortfeasors Contribution Act, N.J. Stat. Ann. § 2A:53A-1, and under common law.
On September 10, 2010, Virtua answered Target's Third-Party Complaint. Virtua filed its Motion to Dismiss on February 16, 2011 on the basis that Target had not timely filed an AOM as required by New Jersey's AMS. On February 25, 2011, Target submitted a Sworn Statement pursuant to N.J. Stat. Ann. § 2A:53A-28 certifying that it could not obtain an AOM because Virtua had not provided requested information.
Virtua moved to dismiss after answering the Third-Party Complaint. Where a party moves to dismiss after filing an answer, "the court will treat [the motion to dismiss] as a motion for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c)." Snyder v. Baumecker, 708 F. Supp. 1451, 1462 n.6 (D.N.J. 1989). Under Federal Rule of Civil Procedure 12(c), a court will grant judgment on the pleadings if, on the basis of the pleadings, no material issue of fact remains and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 12(c); DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008). The standard governing a Rule 12(c) motion is the same as the standard governing a motion to dismiss under Rule 12(b)(6). See Spruill v. Gillis, 372 F.3d 218, 223 n. 2 (3d Cir. 2004). The Court must accept the nonmoving party's well-pleaded factual allegations as true and construe those allegations in the light most favorable to the nonmoving party, but the Court will disregard any unsupported conclusory statements. See DiCarlo, at 262--63. A complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Determining plausibility is a "context-specific task" that requires the court to "draw on its judicial experience and common sense." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. See id.
The AMS is "a tort reform measure" that is "designed to weed out
frivolous lawsuits at
an early stage and to allow meritorious cases to go forward." Galik v.
Clara Maass Med. Ctr., 771 A.2d 1141, 1147 (N.J. 2001). The AMS
"requires a plaintiff in a malpractice case to make a threshold
showing that the claims asserted are meritorious" by filing an AOM
from an expert stating that the claim is not frivolous.*fn1
Id. "[T]he AMS applies to the filing of a third-party
complaint when the cause of action pled requires proof of malpractice
or professional negligence. And, the obligation rests upon the
third-party plaintiff to meet the requirements of the statute by
filing a timely affidavit of merit." Nagim v. New Jersey Transit, 848
A.2d 61, 68 (N.J. Super. Ct. Law Div. 2003). Where the third-party
complaint derives from a malpractice claim asserted by the plaintiff,
and "seeks only to direct the claims made by the plaintiff from the
only named defendant to the party at fault rather than . . . to raise
a new affirmative claim," the third-party plaintiff need not file an
AOM. Diocese of Metuchen v. Prisco & Edwards, AIA, 864 A.2d 1168, 1172
(N.J. Super. Ct. App. Div. 2005). In such an instance, the plaintiff
is required to file an AOM, thereby fulfilling the purpose of the AMS.
Id. However, where the plaintiff does not assert a malpractice claim,
the third-party plaintiff asserting malpractice must comply with the
AMS. Nagim, 848 A.2d at 68.
There are two exceptions to the AOM requirement. First, there is the common- fendant is apparent to an ordinary person, rendering an expert opinion unnecessary. Couri v. Gardner, 801 A.2d 1134, 1141 (N.J. 2002). Second, there is the sworn-statement exception, where pursuant to N.J. Stat. Ann. § 2A:53A-28, a plaintiff provides a sworn statement that it requested information necessary to prepare an AOM but has ...