Boser v. Keramati

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ULRICH BOSER,
Plaintiff,
Civ. Action No. 22-513 (EGS)
v.
MARJAN KERAMATI, D.O., et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Ulrich Boser (“Mr. Boser”) brings this lawsuit
against Defendants Marjan Keramati, D.O. (“Dr. Keramati”), and
Visionworks, Inc. (collectively “Defendants”) alleging medical
malpractice arising out of treatment received at a September 9,
2019 appointment with Dr. Keramati. See generally Compl., ECF
No. 1-1. Pending before the Court is the Defendants’ Motion to
Dismiss, or in the Alternative for Summary Judgment. See Mot. to
Dismiss, ECF No. 3. Mr. Boser opposes the motion. See Pl.’s
Opp’n, ECF No. 12-2. Upon careful consideration of the motion,
response, reply thereto, and the applicable law, and for the
reasons explained below, the Court DENIES without prejudice the
Motion to Dismiss.
I. Factual and Procedural Background
The Court assumes the following facts alleged in the
complaint to be true for the purposes of deciding this motion
and construes them in Mr. Boser’s favor. See Baird v. Gotbaum,
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792 F.3d 166, 169 n.2 (D.C. Cir. 2015). On September 9, 2019, Mr.
Boser sought treatment from the Defendants because of blurry
vision in his left eye. See Compl., ECF No. 1-2 ¶ 8. Dr.
Keramati did not perform a detailed history or ask Mr. Boser
whether he had “floaters” in his left eye. Id. Mr. Boser states
that if he had been asked, he would have told Dr. Keramati that
he did have “floaters.” Id. Dr. Keramati performed an eye
examination but did not dilate Mr. Boser’s pupils, rather Dr.
Keramati only used a “standard eye chart test” to check his
vision. Id. ¶ 9. Mr. Boser returned to Visionworks on September
28, 2019 and was examined by Dr. Keramati. Id. ¶ 11. Dr.
Keramati determined that Mr. Boser needed to see a retinal
surgeon immediately and on September 29, 2019, his detached
retina was repaired. Id. ¶ 12. As a result, Mr. Boser has, among
other things, sustained permanent injuries in his left eye. Id.
¶ 15.
Mr. Boser filed his Complaint in the Superior Court of the
District of Columbia on January 21, 2022. See Notice of Removal,
ECF No. 1-2 at 1. On February 28, 2022, Defendants removed the
case to this Court. Id. at 1-4. On the same day, and prior to
the taking of any discovery, Defendants filed the instant Motion
to Dismiss and/or for Summary Judgment. See ECF No 3. Mr. Boser
filed his opposition brief on March 29, 2022, and on April 5,
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2022, Defendants filed their reply brief. The motion is ripe for
the Court’s adjudication.
II. Standards of Review
A. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “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 At. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). While
detailed factual allegations are not required, a complaint must
contain “sufficient factual matter ... to state a claim to
relief that is plausible on its face.” Iqbal, 556 U.S. at 678.
When ruling on a Rule 12(b)(6) motion, the Court “may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which we may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Sch., 117 F. 3d 621,624 (D.C. Cir. 1997). In so
doing, the court must give the plaintiff the “benefit of all
inferences that can be derived from the facts alleged.” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
"Threadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements" are not sufficient to
state a claim. Iqbal, 556 U.S. at 678.
B. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, the
movant’s burden is to “show[] that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). However, “summary
judgment ordinarily ‘is proper only after the plaintiff has been
given adequate time for discovery,’” Americable Int’l, Inc. v.
Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997)(quoting
First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380
(D.C. Cir. 1988)). “This is largely because, when faced with a
motion for summary judgment, the non-movant must point to
evidence in support of his opposition, and evidence is typically
the province of discovery.” Tyson v. Brennan, 306 F. Supp. 3d
365 (D.D.C. 2017) (citing Rochon v. Lynch, 139 F. Supp. 3d 394,
401 (D.D.C. 2015). “Moreover, where a defendant has moved for
summary judgment under Rule 56 as an alternative to dismissal
under Rule 12(b)(6), ‘the decision regarding whether or not to
treat a motion to dismiss as one for summary judgment is
committed to the sound discretion of the trial court[,] which
means that this Court need not necessarily accede to [the
defendant's] request regarding how its motion should be
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evaluated.’” Id. (quoting Ross v. U.S. Capitol Police, 195 F.
Supp. 3d 180, 192 (D.D.C. 2016)) (internal quotation marks and
citation omitted) (first alteration in original).
III. Analysis
A. Summary Judgment Is Premature
Defendants argue that Mr. Boser’s action is “barred”
because he executed a liability waiver at the time of treatment,
see Mot. to Dismiss, ECF No. 3 at 5; relying on the waiver that
Mr. Boser purportedly signed at the time of his treatment, which
they attach as an exhibit to their Motion, see id. at 3-1. These
materials are outside of the pleadings and are not incorporated
by reference into the pleadings. Defendants do not argue that
Mr. Boser has failed to state a claim for medical malpractice;
rather they argue for dismissal because there is no dispute of
material fact that Mr. Boser signed the liability waiver. See
generally Mot. to Dismiss, ECF No. 3. In other words, they argue
that the case should be dismissed based on the standard for
summary judgment.
“As the Supreme Court and this Circuit have repeatedly
held, summary judgment is ordinarily appropriate only after the
plaintiff has been given an adequate opportunity to conduct
discovery.” McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C. 2010);
accord Convertino v. U.S. Dep't of Justice, 684 F.3d 93, 99
(D.C. Cir. 2012) (“[S]ummary judgment is premature unless all
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parties have ‘had a full opportunity to conduct discovery.’”
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986))); Americable Int'l v.
Dep't of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (“[S]ummary
judgment ordinarily ‘is proper only after the plaintiff has been
given adequate time for discovery.’” (quoting First Chi. Int'l
v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988))).
The exercise of discretion under Rule 12(d) to
convert a motion to dismiss to a motion for
summary judgment is usually only appropriate
where (1) the evidence submitted is
sufficiently comprehensive to conclude that
further discovery would be unnecessary; and
(2) the non-moving party has not been unfairly
disadvantaged by being unable to access the
sources of proof necessary to create a genuine
issue of material fact. See, e.g., Fed. R.
Civ. P. 12(d) (“All parties must be given a
reasonable opportunity to present all material
that is pertinent to the motion.”); Tele–
Commc'ns of Key West, 757 F.2d at 1334
(requiring court to “assure itself that
summary judgment treatment would be fair to
both parties” before converting motion to
dismiss to motion for summary judgment);
WRIGHT & MILLER § 1366 (noting the importance
of having “comprehensive” extra-pleading
evidence to convert to summary judgment, as
opposed to “scanty, incomplete, or
inconclusive” evidence).
Ryan-White v. Blank, 922 F. Supp. 2d 19, 24-25 (D.D.C. 2103).
Here, Mr. Boser requests discovery on a number of issues,
see Opp’n, ECF No. 12 at 3, 7, 11, 23, 24; contending that the
following material facts are in dispute:
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(1) Whether [Mr. Boser] signed the alleged
exculpatory release on September 9, 2019 or
September 16, 2019; (2) Whether a Digital
Retinal Evaluation (“DRE”), even if agreed to
by [Mr. Boser], would have given sufficient
diagnostic information to the Defendants to be
able to make a proper diagnosis and properly
treat [Mr. Boser]; (3) If a DRE was performed,
the type of machine that would have been used;
(4) If a DRE was performed, the experience of
the technologist performing exam and how Mr.
Boser’s retina would have been visualized; (5)
Whether a DRE, even if performed, is within
the applicable standard of care; (6) If Mr.
Boser signed a valid and enforceable waiver,
whether Mr. Boser released the individual
Defendant Dr. Marjan Keramati.
Opp’n, Statement of Material Facts in Genuine Dispute, ECF No.
12-3 at 83. 1
The Court agrees that Mr. Boser has not had a “reasonable
opportunity to present all material that is pertinent” to his
medical malpractice claim, Fed. R. Civ. P. 12(d); since no
discovery has taken place. Accordingly, the Court will not
consider “any matters outside of the pleadings” and will not
convert the motion to dismiss into a motion for summary
judgment. Ryan-White v. Blank, 922 F. Supp. 2d at 25 (citing
Fed. R. Civ. P. 12(d)). Defendants argue that Mr. Boser’s action
is “barred” because he executed a liability waiver at the time
of treatment. See Mot. to Dismiss, ECF No. 3 at 5. This
1 Neither party has complied with the requirements of the Court’s
Standing Order Governing Civil Cases regarding their respective
statement of material facts. See Standing Order, ECF No. 11 ¶
12.
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argument, however, does not warrant dismissal of Mr. Boser’s
Complaint.
IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss,
ECF No. 3, is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 25, 2022
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