United States District Court, D. New Jersey, Camden Vicinage
FISHERBROYLES, LLP By: Joseph Schramm, Esq. Counsel for
Plaintiff Evanston Insurance Company
JUDGE & WARD, LLP By: Sean M. Hanifin, Esq.; Jason C.
Reichlyn, Esq. Hamilton Square Counsel for Plaintiff Evanston
HIRTZEL MCNULTY & SPAULDING LLP By: Dennis Chow, Esq.
Counsel for Defendant Neuromonitoring Technologies, Inc.
OPINION [DKT. NO. 17]
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE
action, Plaintiff Evanston Insurance Company
(“Evanston”) seeks a judicial declaration that
Evanston has no duty to defend or indemnify Defendant
Neuromonitoring Technologies, Inc. (“NMT”) in the
underlying medical malpractice lawsuit filed in the Superior
Court of New Jersey, Atlantic County, on October 20, 2015,
captioned Niedzwiadek v. Droney, et al., No.
L-000094-16 (the “Underlying Lawsuit”). Now, this
matter comes before the Court upon a Motion to Dismiss [Dkt.
No. 17], filed by NMT pursuant to Fed.R.Civ.P. 12(b)(1),
asking the Court to decline to exercise its discretionary
jurisdiction over this case under the Declaratory Judgment
Act (the “DJA”), 28 U.S.C. § 2201, et
seq. For the reasons set forth herein, the Court shall
exercise its discretionary jurisdiction over this matter.
Accordingly, NMT's Motion to Dismiss will be
DENIED, without prejudice.
matter arises out of a dispute over malpractice indemnity and
defense coverage in relation to the Underlying Lawsuit. As
alleged in the Underlying Lawsuit, Margaret Mary Niedzwiadek
(the “Patient”) underwent a surgical procedure on
October 22, 2013. During that procedure, Robert Perro, an
employee of NMT, monitored the Patient's Somatosensory
Evoked Potentials (“SEPs”), but allegedly failed
to communicate the suboptimal quality of SEP signals to the
spinal surgeon or to the orthopedic surgeon. In the
Underlying Lawsuit, it is alleged that as a result of Mr.
Perro's actions, the Patient never awoke from surgery
and, ultimately, died on December 5, 2013. On October 20,
2015, Defendant David J. Niedzwiadek, as Administrator of the
Patient's Estate, commenced the Underlying Lawsuit
against Mr. Perro, NMT, and others. Although Evanston was not
named as a defendant in the Underlying Lawsuit, Evanston has
been providing a defense to Mr. Perro and NMT in that case,
pursuant to a Medical Professional Liability Insurance Policy
reasons unclear to the Court, Evanston did not file this
action until July 20, 2018, almost three years after the
Underlying Lawsuit was commenced. Evanston's Complaint
asks the Court to grant a declaratory judgment pursuant to
the DJA, relieving Evanston of its duty to defend or
indemnify NMT under the Policy, based on NMT's alleged
misrepresentations to Evanston at the time NMT applied for
the Policy. Specifically, Evanston notes that, in both 2014
and 2015, NMT's President, Richard Mathabel, answered
“no” to the question, “[a]re you aware of
any circumstances which may result in a malpractice claim or
suit being made or brought against you or any of your
employees?” However, Evanston alleges that, during the
pendency of the Underlying Lawsuit, it received documentation
establishing that NMT terminated Mr. Perro's employment,
less than 24 hours after the Patient's surgery, for
“gross negligence” and “willful
misconduct” in relation to his actions during the
Patient's procedure. Evanston argues that NMT's
answers on the Policy applications were misrepresentations
because, given the circumstances of the Patient's
procedure and Mr. Perro's swift termination, “any
reasonable person in NMT's ... position would have
concluded that an ensuing claim was highly likely.”
Compl., at ¶ 55.
defendant may move to dismiss a claim for lack of subject
matter jurisdiction under Rule 12(b)(1) at any time during
the course of litigation. Fed.R.Civ.P. 12(b)(1); Iwanowa
v. Ford Motor Co., 67 F.Supp.2d 424, 437-38 (D.N.J.
1999). “Challenges to subject matter jurisdiction under
Rule 12(b)(1) may be facial or factual.” Common
Cause of Pa. v. Pa., 558 F.3d 249, 257 (3d Cir. 2009)
(internal citation and quotation omitted). “A facial
attack, as the adjective indicates, is an argument that
considers a claim on its face and asserts that it is
insufficient to invoke the subject matter jurisdiction of the
court because ... it does not present a question of federal
law, or because ... some other jurisdictional defect is
present.” Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 358 (3d Cir. 2014).
reviewing a facial attack, as it appears that NMT asserts in
this Motion to Dismiss, a “court must only consider the
allegations of the complaint and documents referenced therein
and attached thereto, in the light most favorable to the
plaintiff.” Gould Elecs. Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000). A court, upon
reviewing a facial attack, may dismiss the complaint
“only if it appears to a certainty that the plaintiff
will not be able to assert a colorable claim of subject
matter jurisdiction.” Iwanowa, 67 F.Supp.2d at
attacks, in contrast, argue that subject matter jurisdiction
is improper “because the facts of the case ... do not
support the asserted jurisdiction.” Aichele,
757 F.3d at 358. The presumption of truth does not extend to
factual attacks, “and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Courts are
permitted, however, to weigh and consider evidence
“outside the pleadings” to decide whether subject
matter jurisdiction is proper. Aichele, 757 F.3d at
358 (internal citation and quotation omitted). A court, upon
reviewing the merits of the jurisdiction claims, may
consider, for example, affidavits, depositions, and testimony
to evaluate “factual issues bearing on
jurisdiction.” Iwanowa, 67 F.Supp.2d at 438.
Based upon its review of that evidence, a court may make
factual findings, beyond the pleadings, to determine whether
jurisdiction is proper. See, e.g., CNA v. United
States, 535 F.3d 132, 145 (3d Cir. 2008).
Motion to Dismiss, NMT argues that this Court should decline
to exercise its discretionary jurisdiction under the DJA and
dismiss this action for lack of ...