MICHAEL N. DAVID, Counsel for Plaintiff New York, N.Y.
ANDREW BAYER, Counsel for County Defendants Gluck Walrath, LLP Trenton, N.J.
CHARLES C. KOERNIG, Counsel for Defendant Correct Care Solutions, LLC Stahl & DeLaurentis Runnemede, NJ.
PETER G. SHERIDAN, District Judge.
Plaintiff Israel Bornstein, as the administrator of the estate of Amit Bornstein, brings this 42 U.S.C. § 1983 action against Defendants Donald Bennett, Thomas Bollaro, County of Monmouth, Bernard Fisher, Leo Hafner, Daniel Hansson, Timothy Huddy, Rick Lombardo, David Millard, Monmouth County Correctional Institution, Monmouth County Sheriff's Office, Kenneth Noland, Raymond Paul, Christopher Piney, Thomas Ricchiuti, Jamielyn Roosback, Sara M. Sturt, George Theis, Tracey Till, Steven Young, John Does 1-10 ("County Defendants") and Correct Care Solutions LLC ("CCS") for violation of the constitutional rights of the nowdeceased Amit Bornstein. This matter comes before the Court on Defendant CCS' motion to dismiss the complaint. There was no oral argument. FED.R.Civ.P. 78(b). For the reasons set forth below, Defendant CCS' motion is DENIED.
The complaint alleges that Defendants are responsible for the death of Amit Bornstein, who died while incarcerated in the Monmouth County jail. Specifically, on July 29, 2010, Mr. Bornstein was arrested by Marlboro Township police officers and brought to the Monmouth County Correctional Institution. (Am. Compl. ¶ 8.) According to the allegations of the complaint, while at the jail, Mr. Bornstein was "assaulted and battered [by the County Defendants]...resulting in his zleath." ( Id. at ¶ 9.) The amended complaint further alleges that CCS "did not use reasonable or proper skill in their efforts to cure plaintiffs decedent of such ailment in that they negligently and carelessly failed to treat, attend and delayed in performing the necessary treatment causing plaintiff's decedent to sustain severe personal injury and his death on July 29, 2010." (Am. Compl. ¶ 37.)
On September 9, 2011, Plaintiff filed the original complaint in this case. (ECF No. 1.) Only the County Defendants were named in that complaint. (Id.) On April 20, 2012, Plaintiff filed an amended complaint, which names both the County and CCS Defendants. (ECF No. 12.) On January 7, 2013, Defendant CCS filed the instant motion. (ECF No. 20.) CCS argues that Plaintiff's claims against it should be dismissed with prejudice for failure to comply with the "affidavit of merit" requirement. Specifically, CCS argues that the affidavit of merit provided by Plaintiff is defective for two reasons: (1) the affidavits by Dr. Baden were not entered into under oath; and (2) the affidavits of merit by Dr. Baden do not comply with the requirements of N.J.S.A. 2A:53A-41 as the treatment-at-issue is unrelated to pathology. (Id.) Both the County Defendants and Plaintiff have opposed the motion. (ECF Nos. 23 & 28.)
A. Legal Standard
On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Oshiver v. Levin, Fishbein, Seidran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. lqbal, 129 S.Ct. at 1950. The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).
CCS' first ground for dismissal of the complaint is that the "affidavits" provided by Dr. Baden are not actually affidavits, but are certifications and therefore Plaintiff has not complied with the New Jersey Affidavit of Merit statute. The County Defendants and Plaintiff argue that pursuant to New Jersey case law and court rules, the ...