United States District Court, D. Hawaii
HELENA KRIZEK, Birth Mother of BIANCA HELEN KRIZEK DECEDENT Plaintiff,
QUEENS MEDICAL CENTER, HAWAII RESIDENCY PROGRAM HRP; DR. MATTHEW DUMOUCHEL; DR. NOBUHIRO ARIYOSHI; DR. ITTIKORN SPANUCHART; DR. WENDY W. HSU; DR. HAO CHIH HO; DR. CHRISTOPHER HAPPY; DR. T. SCOTT GALLACHER; ARE NAMED AND SUED IN THEIR OFFICIAL & INDIVIDUAL CAPACITY, Defendants.
(1) DENYING DEFENDANT DUMOUCHEL'S MOTION FOR SUMMARY
JUDGMENT, ECF NO. 69; (2) GRANTING DEFENDANT HAPPY'S
MOTION FOR JUDGMENT ON THE PLEADINGS, ECF NO. 72; AND (3)
DENYING PLAINTIFF'S MOTION FOR JOINDER OF CITY AND COUNTY
OF HONOLULU AS DEFENDANT, ECF NO. 127
Michael Seabright Chief United States District Judge.
18, 2018, Plaintiff Helena Krizek (“Helena
Krizek”), birth mother of decedent Bianca Helen Krizek
(“Bianca Krizek”), filed a Complaint alleging
claims arising from the death of Bianca Krizek against
Defendants Queen's Medical Center
(“Queen's”), Hawaii Residency Program
(“HRP”), Dr. Matthew DuMouchel
(“DuMouchel”), Dr. Nobuhiro Ariyoshi
(“Ariyoshi”), Dr. Ittikorn Spanuchart
(“Spanuchart”), Dr. Wendy W Hsu
(“Hsu”), Dr. Hao Chih Ho (“Ho”), Dr.
Christopher Happy (“Happy”), Dr. T. Scott
Gallacher (“Gallacher”) (collectively,
“Defendants”), in their official and individual
capacities. ECF No. 1.
before the court are DuMouchel's Motion for Partial
Summary Judgment, Happy's Motion for Judgment on the
Pleadings, and Helena Krizek's Motion for Joinder of City
and County of Honolulu as Defendant. ECF Nos. 69, 72, 127.
Based on the following, the court DENIES DuMouchel's
Motion, GRANTS Happy's Motion, and DENIES Helena
parties do not appear to dispute the following: Bianca Krizek
was treated at the Queen's Emergency Room on December 28,
2015, and was hospitalized and transferred to the Queen's
Intensive Care Unit the next day. See ECF No. 97-1
at PageID #714. It appears that Bianca Krizek remained
hospitalized until her death on February 5, 2016.
See ECF Nos. 97-13, 97-17 at PageID #755; see
also Compl. ¶¶ 68-73. On April 28, 2017,
Helena Krizek filed her Inquiry Regarding Rendering of
Professional Services (the “Inquiry”) with the
Medical Inquiry and Conciliation Panel (the
“MICP”). See ECF No. 97-14. The MICP
terminated the proceedings on September 21, 2017.
See ECF No. 97-15.
Krizek filed a pro se Complaint on July 18, 2018 alleging the
following claims for relief: (1) gross negligence; (2)
negligence; (3) fraud in concealment; (4) and
“nonfeasance/misfeasance/malfeasance.” ECF No. 1.
Helena Krizek subsequently retained counsel, and on February
5, 2019, Margaret Dunham Wille filed a Notice of Appearance,
and Helena Krizek has appeared through counsel since that
date. See ECF No. 64; see also ECF No. 66.
March 27, 2019, DuMouchel filed his Motion for Summary
Judgment. ECF No. 69. On April 4, 2019, Happy filed a
Statement of No Opposition to DuMouchel's Motion. ECF No.
74. On April 18, 2019, Gallacher, Ho, Hsu, and Queen's
filed a Statement of No Position. ECF No. 82. On May 24,
2019, Helena Krizek filed her Opposition. ECF No. 97. On May
31, 2019, DuMouchel filed his Reply. ECF No. 104.
April 3, 2019, Happy filed his Motion for Judgment on the
Pleadings. On April 18, 2019, Gallacher, Ho, Hsu, and
Queen's filed a Statement of No Position. ECF No. 83. On
May 24, 2019, Helena Krizek filed her Opposition. ECF No. 98.
On June 3, 2019, Happy filed his Reply. ECF No. 105.
15, 2019, Helena Krizek filed her Motion for Joinder of City
and County of Honolulu as Defendant. ECF No. 127. On July 17,
2019, Gallacher, Ho, Hsu, and Queen's filed a Statement
of No Position. ECF No. 129. On the same day, Ariyoshi, HRP,
and Spanuchart also filed a Statement of No Position. ECF No.
130. On July 22, 2019, the City and County of Honolulu (the
“City”) filed a Statement of No Opposition. ECF
No. 132. On the same day, Happy and DuMouchel each filed a
Statement of No Position. ECF Nos. 133, 134.
hearing was held on the Motions on July 29, 2019.
STANDARDS OF REVIEW
judgment is proper when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c). Federal Rule of Civil Procedure
56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence
of an element essential to the party's case, and on which
that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
see also Broussard v. Univ. of Cal. at Berkeley, 192
F.3d 1252, 1258 (9th Cir. 1999).
moving party “bears the initial burden of informing the
court of the basis for its motion and of identifying those
portions of the pleadings and discovery responses that
demonstrate the absence of a genuine issue of material
fact.” Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477
U.S. at 323). “When the moving party has carried its
burden under Rule 56[(a)], its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts [and] come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (citation and internal quotation
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). When considering the evidence on a motion for
summary judgment, the court must draw all reasonable
inferences in the light most favorable to the nonmoving
party. Friedman v. Live Nation Merch., Inc., 833
F.3d 1180, 1184 (9th Cir. 2016).
Judgment on the Pleadings
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) is a means to challenge the sufficiency
of the complaint after an answer has been filed.”
Rohm v. Homer, 367 F.Supp.2d 1278, 1281 (N.D. Cal.
2005) (quotation marks and citation omitted). A party may
make a motion for judgment on the pleadings at any time after
the pleadings are closed, but within such time as to not
delay the trial. Fed.R.Civ.P. 12(c). Because the issue
presented by a Rule 12(c) motion is substantially the same as
that posed in a 12(b)(6) motion-whether the factual
allegations of the complaint, together with all reasonable
inferences, state a plausible claim for relief-the same
standard applies to both. See Cafasso v. Gen. Dynamics C4
Sys., 637 F.3d 1047, 1054 & n.4 (9th Cir. 2011);
see also Dworkin v. Hustler Magazine Inc., 867 F.2d
1188, 1192 (9th Cir. 1989) (holding that Rule 12(c) and Rule
12(b)(6) motions differ in time of filing but are otherwise
“functionally identical, ” and applying the same
standard of review).
12(b)(6) dismissal is proper when there is either a
“lack of a cognizable legal theory or the absence of
sufficient facts alleged.” UMG Recordings,
Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006,
1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
“To survive a [Rule 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Weber v. Dep't of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).
This tenet-that the court must accept as true all of the
allegations contained in the complaint-“is inapplicable
to legal conclusions, ” and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Factual allegations that only permit the court to infer
“the mere possibility of misconduct” do not show
that the pleader is entitled to relief. Id. at 679.
motion for judgment on the pleadings is properly granted when
there are no disputed issues of material fact, and the moving
party is entitled to judgment as a matter of law. See
Ventress v. Japan Airlines, 603 F.3d 676, 681 (9th Cir.
2010) (citation omitted). Judgment on the pleadings is not
appropriate if the court considers matters outside of the
pleadings; in such cases, the motion must be converted to a
Rule 56 motion for summary judgment, and the non-moving party
must be granted an opportunity to respond. See Hal Roach
Studios, Inc. v. Richard Feiner & Co., 896 F.2d
1542, 1550 (9th Cir. 1989). The court may, however,
“consider certain materials-documents attached to the
complaint, documents incorporated by reference in the
complaint, or matters of judicial notice-without converting
the motion . . . into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 908 (9th