Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

EDUARDO YATCO, M.D., Plaintiff, v. NANTICOKE HEALTH SERVICES, INC., Defendant.

: : : : : : : : : :

C.A. No. 08-342 SLR

OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS

David R. Hackett, Esquire (#424) GRIFFIN & HACKETT, P.A. Attorneys for Defendant, Nanticoke Health Services, Inc. 116 W. Market Street P.O. Box 612 Georgetown, DE 19947 302-856-9066

FILED: August 1, 2008
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TABLE OF CONTENTS

TABLE OF AUTHORITIES

............................................. ...................

ii 1 2 3 8 8

STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDING SUMMARY OF ARGUMENT STATEMENT OF FACTS

............................................

..............................................

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. II. STANDARD OF REVIEW ....................................

PLAINTIFF FAILS TO SATISFY THE BURDEN UNDER RULE 12(b)(1) OF PROVING THE EXISTENCE OF SUBJECT MATTER JURISDICTION. . . . . . . . . THE COMPLAINT FAILS TO CONTAIN A STATEMENT OF CLAIM SHOWING THAT THE PLAINTIFF IS ENTITLED TO RELIEF. ....................... BECAUSE THE COMPLAINT FAILS TO STATE A FEDERAL CLAIM, THE COURT SHOULD DECLINE TO EXERCISE JURISDICTION OVER THE SUPPLEMENTAL STATE LAW CLAIM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

III.

14

IV.

20

V.

DEFENDANT IS ENTITLED TO AN AWARD OF ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 1988(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 ................................................... 24

CONCLUSION

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TABLE OF AUTHORITIES Cases

Acosta v. Tyrone Hosp., 410 F. Supp. 1275 (W. D. Pa. 1976) . . . . . . . . . . . . . . . . . . . . 18 Adelman v. Mercy Catholic Med. Ctr., C.A. No. 95-7256, 1996 U.S. Dist. LEXIS 16238 (E.D. Pa. Oct. 30, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 15 Antinoro v. Wilmington Med. Ctr., Inc., C.A. No. 74-162, 1975 U.S. Dist. LEXIS 14702 (D. Del. Dec. 19, 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Avallone v. Wilmington Med. Ctr., Inc., 553 F. Supp. 931 (D. Del. 1982) . . . . . . . . . . . . 17 Beam v. Downey, 2005 U.S. App. LEXIS 22008 (3rd Cir. Oct. 12, 2005) . . . . . . . . . . 22, 23 Blumb v. Yaretsky, 457 U.S. 991 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Brown v. Borough of Chambersburg, 903 F.2d 274 (3rd Cir. 1990) . . . . . . . . . . . . . 22, 23 Canady v. Providence Hosp., 903 F. Supp. 125 (D.D.C. 1995) . . . . . . . . . . . . . . . . . . . 18 Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . . . . . . 22
D'Alessandro v. ACLU, Civ. No. 06-212-GMS, 2006 U.S. Dist. LEXIS 82237 (D. Del. Nov. 8, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

Davis v. Prudential Securities, Inc., 59 F.3d 1186 (11th Cir. 1995) . . . . . . . . . . . . . . . . 15 Deshaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989) . . . . . . . . . . . 15 Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 12 Ehart v. Odessa Fire Co., Civ. No. 02-1618-SLR, 2005 U.S. Dist. LEXIS 2244 (D. Del. Feb. 2, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Field v. Hall, C.A. No. 93-415 MMS,1995 U.S. Dist. LEXIS 8418 (D. Del. May 19, 1995) . . . 16 Floyd v. Saturn of Newark, C.A. No. 04-944-JF, 2006 U.S. Dist. LEXIS 2466 (D. Del. Jan. 24, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for Southern California, 463 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679 (D. Md. 2001), affirmed, 313 F.3d 205 (4th Cir. 2002) . . . . . . . . . . . . . . . . . . 18

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Hodge v. Paoli Mem'l Hosp., 576 F.2d 363 (3d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . 18 Holton v. Crozer-Chester Med. Cntr., 419 F. Supp. 334 (E.D. Pa. 1976), vacated on other grounds, 560 F.2d 573 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . 18 Hughes v. Rowe, 49 U.S. 5 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Human Genome Scis., Inc. v. Amgen, Inc., 552 F. Supp.2d 466 (D. Del. 2008) . . . . . . . 8, 9 Humes v. State of Del. Court of Common Pleas, Civ. No. 06-59-SCR, 2006 U.S. Dist. LEXIS 68729 (D. Del. Sept. 25, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Jeung v. McKrow, 264 F. Supp. 557 (E.D. Mich. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 19 Kokkomen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) . . . . . . . . . . . . . . . . . . 8 Langdon v. Google, Inc., 474 F. Supp.2d 622 (D. Del. 2007) . . . . . . . . . . . . . . . . . . . . 17 Luban v. Crittenden Hosp. Assoc., 713 F.2d 414 (8th Cir. 1983) . . . . . . . . . . . . . . . . . 13 Lugar v. Edmundson Oil Co., 457 U.S. 922 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14 Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) . . . . . . . . . . . . . . . . . . . . . . . 11 Miller v. Indiana Hosp., 562 F. Supp. 1259 (W. D. Pa. 1983) . . . . . . . . . . . . . . . . . . . . 18 Modaber v. Culpepper Mem'l Hosp., Inc., 674 F.2d 1023 (4th Cir. 1982) . . . . . . . . . . . . 18 N. Mich. Hosps., Inc. v. Health Net Fed. Servs., LLC, C.A. No. 07-039 and 07-069, 2008 U.S. Dist. LEXIS 42587 (D. Del. May 30, 2008) . . . . . . . . . . . . . . . . . . . 8 Neitzke v. Williams, 490 U.S. 319 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 Pamintuan v. Nanticoke Mem'l Hosp., Inc., C.A. No. 96-233-SLR, 1997 U.S. Dist. LEXIS 3300 (D. Del. Feb. 24, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Phillips v. Pitt County Mem'l Hosp., Inc., 503 F. Supp.2d 776 (E.D. N.C. 2007) . . . . . . . . 19 Pinhas v. Summit Health Ltd., 894 F.2d 1024 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 18 Quinn v. Kent General Hospital, Inc., 617 F. Supp. 1226 (D. Del. 1985) . . . . . . . . . . . . . 17
Royal Oak Entm't., LLC v. City of Royal Oak, 46 F. Supp.2d 675 (E.D. Mich. 2007) . . . . . . 23

Sament v. Hanemann Med. Coll. and Hosp., 413 F. Supp. 434 (E.D. Pa. 1976) . . . . . . . . 18

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Sarin v. Samaritan Health Ctr., 813 F.2d 755 (5th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 18 Slavcoff v. Harrisburg Polyclinic Hosp., 375 F. Supp. 999 (Mid. D. Pa. 1974) . . . . . . . . . 18 Smith v. Delaware First Fed. Credit Union, 395 F. Supp.2d 127 (D. Del. 2005) . . . . . . . . 13 Thompson v. Cmty. Action of Greater Wilmington, Inc., 567 F. Supp. 1159 (D. Del. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Wong v. Stripling, 881 F.2d 200 (5th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Statutes

15 U.S.C. § 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 11-13, 20 28 U.S.C. § 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 11 28 U.S.C. § 1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 20, 21, 24 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13, 14, 16, 22, 23 42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22-24
Other Authorities

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14 Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Internal Revenue Code § 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.S. Const. amend V U.S. Const. amend. XIV ............................................. ....................................... 16 15

14, 15, 16

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STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDING On June 9, 2008, the Plaintiff, Eduardo Yatco, M.D. ("Dr. Yatco"), filed his Complaint1 naming Nanticoke Health Services, Inc. ("NHS") as Defendant, seeking compensatory and punitive damages as a result of the failure on the part of NHS to afford him a hearing in connection with discontinuance of the availability of privileges to perform carotid endarterectomies at Nanticoke Memorial Hospital (the "Hospital") and breach of contract. Herewith, NHS has filed its Motion to Dismiss Dr. Yatco's Complaint under Federal Rules of Civil Procedure ("Fed. R. Civ. P." or "Rule") 12(b)(1) because the Court lacks jurisdiction of the subject matter, and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. This is NHS's Opening Brief in Support of its Motion to Dismiss.

References to the Complaint will be cited as "D.I.1. ¶ ___ ." References to Exhibits attached to the Complaint will be cited as "D.I.1. Ex. ___."

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SUMMARY OF ARGUMENT

1.

Dr. Yatco attempts to show that the Court has subject matter jurisdiction under 28 U.S.C. § 1331, claiming denial of due process guaranteed by the due process clause of the Constitution of the United States, but he fails to allege jurisdictional facts demonstrating state action in this case.

2.

Should this Court determine that Dr. Yatco properly has pleaded a federal question sufficient to invoke subject matter jurisdiction, Count I of the Complaint, nevertheless, should be dismissed pursuant to Fed. R. Civ. R. 12(b)(6) for the reason that Dr. Yatco fails to establish that NHS was acting "under color of state law" at the time the acts complained of occurred.

3.

If the Court should dismiss Count I of the Complaint, then it should decline to exercise supplemental jurisdiction over the state law claims in Count II.

4.

Dr. Yatco's alleged federal claim is frivolous, unreasonable or without foundation, and the Court may, in its discretion, award NHS attorney's fees pursuant to 42 U.S.C. § 1988.

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STATEMENT OF FACTS Dr. Yatco's Complaint claims liability on the part of NHS for compensatory and punitive damages, costs and disbursements in this action, including attorney's fees and expert's fees, and pre-judgment and post-judgment interest arising from a due process violation on the part of NHS (Count I), and violation of contractual duties on the part of NHS (Count II). The following statement of facts is based upon allegations in the Complaint; facts set forth in exhibits attached to the Complaint; and facts with reference to which the Court can take judicial notice. 1. THE PARTIES. A. Eduardo Yatco, M.D. Dr. Yatco is a citizen of the State of Delaware. During the

period alleged in the Complaint, Dr. Yatco operated a medical office at 8866 Riverside Drive, Seaford, Delaware, and practiced medicine as a general surgeon with specialties in thoracic and vascular surgery. D.I.1. ¶2. Dr. Yatco established his practice in the area served by the Hospital in July of 1979 and practiced medicine and performed surgery as a member of the Medical Staff of the Hospital from 1979 through December 31, 2007. Id. at ¶9. B. Nanticoke Health Services, Inc. NHS is a Delaware non-profit corporation

exempt from taxation under Internal Revenue Code ("IRC") § 501(c)(3). NHS is the parent corporation of the Hospital. NHS, acting by and through its Board of Directors, serves as the governing body of the Hospital. D.I.1. at ¶3 and Ex. F and G. C. Nanticoke Memorial Hospital, Inc. Although the acts complained of in the Com-

plaint are attributable solely to the Hospital, the Hospital has not been joined as a party. See D.I.1. ¶¶ 3, 6, 13.f)iv and Ex. A, C, and D for specific references to the Hospital. The Hospital is a Delaware non-profit corporation exempt from taxation under IRC § 501(c)(3). The Hospital

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owns and operates a 119-bed primary acute care hospital facility located at 801 Middleford Road, Seaford, Delaware (the "Hospital Facility"), and has a service area of western Sussex County, Delaware and eastern Dorchester County, Maryland. The Hospital has organized and established within the Hospital Facility a medical staff ("Medical Staff") consisting of all physicians, dentists and podiatrists who have been granted the right to exercise clinical privileges within the Hospital Facility and which has been delegated the responsibility of providing appropriate and necessary professional care to the Hospital's patients and the responsibility for the quality of care provided to the patients in the Hospital Facility. The Medical Staff has adopted By-laws, including a Credentials Policy governing the organization, operation and self-discipline of the Medical Staff and such Rules and Regulations as are necessary to implement the general principles found within such By-laws; to promote, assure and improve the delivery of quality health care within the Hospital Facility, and to provide for efficient operation of the Hospital (collectively, the "Medical Staff By-laws"). D.I.1. ¶¶ 22, 23, 24, 34, and 35. 2. JURISDICTIONAL FACTS. Dr. Yatco alleges that the jurisdiction of this Court is founded upon "15 U.S.C. § 78(a)(a)." D.I.1. ¶1. 15 U.S.C. § 78aa grants the District Court exclusive jurisdiction of violations of the Securities Exchange Act of 1934 or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by the Act or the rules and regulations thereunder. See 15 U.S.C. § 78aa and 15 U.S.C. § 78a. Dr. Yatco did not allege any facts showing a violation of the Securities Exchange Act, and the Complaint clearly shows that the action claimed therein is not brought to enforce any liability or duty created by the Act.

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Dr. Yatco also claims that the jurisdiction of this Court is founded upon 28 U.S.C. § 1332. D.I.1. ¶1. He alleges that the matter in controversy exceeds the value of $75,000, exclusive of interest and costs, but does not allege diversity of citizenship. See Id. at ¶¶ 1-4. Dr. Yatco alleges that he is "a citizen of the State of Delaware." Id. at ¶2. He further alleges that NHS "is a corporation of the State of Delaware and is the operator of Nanticoke Memorial Hospital, Inc. at 801 Middleford Road, Seaford, Delaware 19973." Id. at ¶3. Finally, Dr. Yatco alleges supplemental jurisdiction over certain state law breach of contract claims set forth in Count II of the Complaint pursuant to 28 U.S.C. § 1367. D.I.1. ¶1; see also, Count II of the Complaint. Id. at ¶¶ 37-39. In the Complaint, Dr. Yatco does not specifically allege that the Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question), but alleges in paragraph 5 thereof as follows: "The claims herein arise, inter alia, under the due process clause of the Constitution of the United States." D.I.1. ¶ 5. Dr. Yatco attempts to state a federal question in Count I of his Complaint that would give rise to subject matter jurisdiction under 28 U.S.C. § 1331. See Id. ¶¶ 32-36. Count I of the Complaint is entitled "DUE PROCESS VIOLATION." Jurisdictional facts alleged in Count I and elsewhere in the Complaint, ostensibly to demonstrate subject matter jurisdiction under 28 U.S.C. § 1331, are as follows:

C

By letter dated February 12, 2007 to Dr. Yatco from Christopher Roberts, M.D., Credentials Chairperson, Dr. Yatco was informed that the governing body of the Hospital "has determined that the staff does not have the current training and volume to support doing carotid endarterectomies." The letter further stated: "The privileges therefore are not available at this time." See D.I.1. ¶27 and Ex. G.

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C

In connection with the discontinuance of the availability of the privilege to perform carotid endarterectomies, Dr. Yatco was not afforded "any hearing or other chance for [Dr. Yatco] to present information . . . ." D.I.1 ¶27; see also, Id. at ¶28 ("All this was performed without ever affording Plaintiff the fundamental privilege, as guaranteed by Plaintiff's By-laws and the law, of a hearing . . . .").

C

"As a federal and state funded and regulated hospital, Nanticoke has adopted Medical Staff bylaws as well as rules and regulations governing the practice of medicine within its confines. Among other things, the staff bylaws and rules and regulations of Nanticoke provide that Nanticoke will accord fundamental due process in administering its credentialing processes." D.I.1. ¶33.

C

"Further, Article 7.A.1(a)(5) [of the Medical Staff By-laws] specifically provides that whenever a recommendation has been made by the Executive Committee to terminate a Medical Staff member's privileges, the member shall be afforded the right to a hearing." D.I.1. ¶34; see also, Id. at ¶35.f. and g.

C

"Plaintiff relied upon Nanticoke to follow its own rules and to accord him basic due process rights before taking action which would deprive him of the ability to pursue his chosen profession. By taking action as aforesaid, Nanticoke deprived Plaintiff of the right to practice without following its own rules and without first according him his basic due process rights." D.I.1. ¶36.

C

Simply stated, Dr. Yatco accuses NHS of not abiding by the Hospital's Medical Staff By-laws due process rights when the Hospital discontinued the availability of carotid endarterectomies privileges. See D.I.1. ¶¶ 34 and 35 "e" and "g" and Ex. G.

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3.

FACTS RELATED TO THE MERITS. If Dr. Yatco is attempting to allege that his federal due process rights were violated and

that NHS is liable to him under 42 U.S.C. § 1983, then he must allege that violation of his federal due process rights is "fairly attributable to the state." See, e.g., Lugar v. Edmundson Oil Co., 457 U.S. 922, 937 (1982). The only facts alleged by Dr. Yatco, ostensibly to demonstrate state action in this case, are as follows:

C

NHS is a "federal and state funded and regulated hospital . . . ." D.I.1. ¶33.

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ARGUMENT I. STANDARD OF REVIEW. NHS brings its Motion to Dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). A. Rule 12(b)(1).

In Human Genome Scis., Inc. v. Amgen, Inc., 552 F. Supp.2d 466 (D. Del. 2008), the Court stated: When subject matter jurisdiction is challenged under Rule 12(b)(1), the party asserting subject matter jurisdiction bears the burden of proving its existence; the District Court is to regard the pleadings as mere evidence and may consider evidence outside the pleading without converting the proceeding to one for summary judgment. Challenges to subject matter jurisdiction may be facial or factual: "Facial attacks contest the sufficiency of the pleadings, while factual attacks contest the existence of subject matter jurisdiction in fact." N. Mich. Hosps., Inc. v. Health Net Fed. Servs., LLC, C.A. No. 07-039 and 07-069, 2008 U.S. Dist. LEXIS 42587, at *9 (D. Del. May 30, 2008) (Exhibit A). "For a facial attack, the court must consider the complaint's allegations as true and draw all reasonable inferences in the Plaintiff's favor. Conversely, for a factual attack, the trial court does not presume these allegations to be true, and it is free to weigh evidence relating to jurisdiction to satisfy itself as to the existence of the power to hear the case." Id. at *9. The United States Supreme Court has stated: "It is to be presumed that a cause lies outside [the District Court's] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkomen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). A court must dismiss pleadings that do not satisfy this burden under Rule 12(b)(1). See Fed. R. Civ. P. 12(h)(3) (requiring the Court to dismiss an action "whenever it appears by suggestion of the parties or otherwise that the Court lacks

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jurisdiction of the subject matter"). NHS will show that Dr. Yatco does not and cannot satisfy his burden of proving that subject matter jurisdiction exists. B. Rule 12(b)(6).

In Human Genome Scis., Inc. v. Amgen, Inc., the court states: In considering a motion to dismiss under Rule 12(b)(6), the defendant/movant bears the burden of showing that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court must accept all factual allegations in the complaint as true and take them in the light most favorable to plaintiff. Nevertheless, 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. A complaint does not need detailed factual allegations; however, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. The factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact). 552 F. Supp.2d 466. NHS will show that Dr. Yatco can prove no set of facts in support of his claim of due process violation on the part of NHS, a private entity and the parent corporation of a nongovernmental hospital, which would entitle him to relief.

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II.

PLAINTIFF FAILS TO SATISFY THE BURDEN UNDER RULE 12(b)(1) OF PROVING THE EXISTENCE OF SUBJECT MATTER JURISDICTION. The Federal Rules of Civil Procedure require each pleading that sets forth a claim for

relief to also set forth "a short and plain statement of the grounds upon which the court's jurisdiction depends." Fed. R. Civ. P. 8(a)(1). Dr. Yatco attempts to state the grounds upon which the Court's jurisdiction depends in the Complaint, as follows:

C

15 U.S.C. § 78aa

In paragraph 1 of the Complaint, Dr. Yatco alleges as follows: "The jurisdiction of this Court is founded upon 15 U.S.C. § 78(a)(a) [SIC] . . . ." D.I.1. ¶1. 15 U.S.C. § 78aa grants the District Courts exclusive jurisdiction of violations of the Securities Exchange Act of 1934 or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by the Act or the rules and regulations thereunder. See 15 U.S.C. § 78aa and 15 U.S.C. § 78a. Dr. Yatco did not allege any facts showing a violation of the Securities Exchange Act, and the Complaint clearly shows that the action claimed therein is not brought to enforce any liability or duty created by the Act. The Court does not have subject matter jurisdiction under 15 U.S.C. § 78aa.

C

28 U.S.C. § 1332

In paragraph 1 of the Complaint, Dr. Yatco alleges: "The jurisdiction of this Court is founded upon . . . 28 U.S.C. § 1332 . . . ." D.I.1. ¶1. This statute grants original jurisdiction to the District Courts where there is diversity of citizenship of the parties and the matter in controversy exceeds $75,000. See 28 U.S.C. § 1332. Dr. Yatco alleges: "The matter in controversy exceeds the value of $75,000.00, exclusive of interest and costs." See D.I.1. ¶4.

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However, Dr. Yatco does not allege diversity of citizenship. To the contrary, he states that he is a citizen of Delaware and that NHS is a corporation of the State of Delaware. See D.I.1. ¶¶ 2-3. The Court does not have subject matter jurisdiction under 28 U.S.C. § 1332.

C

28 U.S.C. § 1331

In paragraph 5 of the Complaint, Dr. Yatco asserts that the Court has federal question jurisdiction, alleging as follows: "The claims herein arise, inter alia, under the Due Process Clause of the Constitution of the United States." However, as will be shown below, Dr. Yatco fails to satisfy the burden of proving subject matter jurisdiction under 28 U.S.C. § 1331, which grants the District Courts' original jurisdiction "of all civil actions arising under the Constitution, laws or treaties of the United States." See 28 U.S.C. § 1331.

C

28 U.S.C. § 1367

Dr. Yatco alleges, in paragraph 1 of the Complaint, that the Court has supplemental jurisdiction over the state law breach of contract claim set forth in Count II of the Complaint under 28 U.S.C. § 1367. See D.I.1. ¶¶1 and 37-39. There is nothing federal about this claim and, therefore, it cannot support federal question jurisdiction. If the Court grants NHS's Motion to Dismiss on other claims for the reason that it lacks subject matter jurisdiction, it may decline to exercise supplemental jurisdiction over the state claims under 28 U.S.C. § 1367a. See 28 U.S.C. § 1367(c)(3). Dr. Yatco attempts to invoke the Court's federal question jurisdiction under 28 U.S.C. § 1331 in Count I of his Complaint, entitled "DUE PROCESS VIOLATION". To determine whether a claim "arises under" federal law, the Court must apply the "well-pleaded complaint rule." See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Under this rule, a civil action "arises under" federal law only if a federal question is presented

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on the face of the plaintiff's properly pleaded complaint. Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 353 (3d Cir. 1995). In Count I of the Complaint, Dr. Yatco alleges that NHS violated due process rights afforded him under the Medical Staff By-laws by not granting a hearing in connection with the Hospital's notice to him on February 12, 2007 that the Medical Staff privilege to perform carotid endarterectomies was no longer available at that time.2 See D.I.1. Count I and Ex. G. Dr. Yatco's accusation is not a federal claim that would support this Court's jurisdiction under 28 U.S.C. § 1331. See Adelman v. Mercy Catholic Med. Ctr., C.A. No. 95-7256, 1996 U.S. Dist. LEXIS 16238, at *10 (E.D. Pa. Oct. 30, 1996) (A physician's accusation that a hospital did not abide by its procedures manual in suspending his privileges is not a federal claim that would support the Court's jurisdiction under 28 U.S.C. § 1331.) (Exhibit C). Pursuant to 28 U.S.C. § 1331, federal courts have federal question jurisdiction over "cases in which a well pleaded complaint establishes either that the federal law creates the cause of action or the plaintiff's rights to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for Southern California, 463 U.S. 1, 27-28 (1983). Dr. Yatco has alleged no facts which establish that federal law creates the cause of action asserted in the Complaint whereby relief could be granted pursuant to federal law or that his right to relief necessarily depends upon resolution of a substantial question of federal law. Dr. Yatco has not pled a federal question,

It is doubtful that Dr. Yatco can prevail on the merits of this claim. It has been held in Delaware that where, as here, medical staff by-laws provide for a hearing where the privileges of a physician are diminished because of ethical and clinical competence issues, a physician is not entitled to a hearing when his privileges are not renewed because of administrative issues or a management decision. Kramer v. Kent General Hosp., C.A. No. 85C-AU-20 (Kent), 1992 Del. Super. LEXIS 160, at *20 (Del. Super. Feb. 28, 1992) (Exhibit B).

2

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and this matter should be dismissed. See, e.g., Floyd v. Saturn of Newark, C.A. No. 04-944-JF, 2006 U.S. Dist. LEXIS 2466 (D. Del. Jan. 24, 2006) (Rule 12(b)(1) Motion to Dismiss granted for failure to plead a federal question) (Exhibit D); see also, Smith v. Delaware First Fed. Credit Union, 395 F. Supp.2d 127, 131-132 (D. Del. 2005) (Plaintiff fails to identify any applicable federal law, and the court concluded that Plaintiff's allegations failed to support federal question jurisdiction.) Finally, in the case of Luban v. Crittenden Hosp. Assoc., 713 F.2d 414 (8th Cir. 1983), a physician brought a civil rights action pursuant to 42 U.S.C. § 1983 against a private Hospital, alleging that disciplinary action by the hospital deprived him of due process. The court found that the hospital was a private, non-profit tax-exempt organization located on county land and in a building owned by the county; received local funds; received federal funds, including Hill-Burton funds and Medicare and Medicaid reimbursement; and was subject to extensive governmental regulations as a health care facility. The court held: "It is well established that if the action of the hospital was purely private action, then Section 1983 affords no basis for federal jurisdiction and [the physician's] claim was property dismissed for lack of subject matter jurisdiction." Id. at 415. The Court does not have subject matter jurisdiction under 28 U.S.C. § 1331.

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III.

THE COMPLAINT FAILS TO CONTAIN A STATEMENT OF CLAIM SHOWING THAT THE PLAINTIFF IS ENTITLED TO RELIEF. Federal Rule of Civil Procedure 8 requires each complaint to contain "a short and plain

statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). If the Complaint does not satisfy the standard, it must be dismissed under Fed. R. Civil P. 12(b)(6). If Dr. Yatco is attempting to allege that his federal due process rights afforded under the Fourteenth Amendment were violated and that NHS is liable to him under 42 U.S.C. § 1983,3 the claim must be dismissed under Rule 12(b)(6) for the reason that Dr. Yatco fails to allege that the asserted violation of his federal due process rights is "fairly attributable to the state." See Lugar, 547 U.S. at 937; see also, Ehart v. Odessa Fire Co., Civ. No. 02-1618-SLR, 2005 U.S. Dist. LEXIS 2244, at *8 (D. Del. Feb. 2, 2005) ("A prima facia case under Section 1983 requires a plaintiff to demonstrate: (1) a person acting under color of state law; (2) deprived plaintiff of a federal right.") (Exhibit E). As stated above, Dr. Yatco accuses NHS of violating the due process rights available to him under the Medical Staff By-laws when it failed to afford him a hearing in connection with the NHS February 12, 2007 notice that the Medical Staff privilege to perform carotid endarterectomies was no longer available at this time. See D.I.1. Count I and Ex. G. Dr. Yatco does not allege that NHS violated his Constitutional due process rights under 42 U.S.C. § 1983 by

42 U.S.C. § 1983 provides, in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other property proceeding for redress . . . "

3

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failing to afford him a peer review hearing in connection with the discontinuance of the availability of carotid endarterectomy privileges. The only facts alleged by Dr. Yatco in the Complaint, apparently intended to support a claim of state action or action under color of state law, appear in paragraph 33 of the Complaint, which reads, in part, as follows: "As a federal and state funded and regulated hospital, Nanticoke has adopted medical staff bylaws as well as rules and regulations governing the practice of medicine within its confines." D.I.1. ¶33. Clearly, Dr. Yatco's allegations of due process violations fail to state a claim upon which relief can be granted. Both NHS and the Hospital are private entities. The Supreme Court has recognized that: [N]othing in the language of the Due Process Clause itself requires the state to protect the life, liberty and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the state's power to act, not as a guarantee of certain minimal levels of safety and security. Deshaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 196 (1989). The state action requirement for Fourteenth Amendment violations and the under-color-of state-law requirement of Section 1983 "converge." See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n.8 (1999). Both requirements "exclude [ ] from [their] reach merely private conduct, no matter how discriminatory or wrongful." Id. at 50 (internal quotation omitted). Indeed, "it is axiomatic that Constitutional due process protections do not extend to 'private conduct abridging individual rights.' " Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1190 (11th Cir. 1995), citing Nat'l Collegiate Athletic Ass'n. v. Tarkanian, 488 U.S. 179, 191 (1988). Therefore, to assert an actionable claim under Section 1983 against a non-governmental defendant, the plaintiff must demonstrate a sufficiently close nexus between the state and the challenged

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action of the defendant private entity to justify treating the conduct as "that of the state itself." Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974). Accordingly, every successful Section 1983 claim against a private entity must allege state involvement so pervasive that the challenged action can be said to be fairly attributable to the state, whether that involvement is effectuated through state coercion, state influence, state reliance or delegation of state power. See, e.g., Blumb v. Yaretsky, 457 U.S. 991, 1004 (1982). In the case of Pamintuan v. Nanticoke Mem'l Hosp., Inc., C.A. No. 96-233-SLR, 1997 U.S. Dist. LEXIS 3300 (D. Del. Feb. 24, 1997) ( Exhibit F), the physician plaintiff claimed that the Hospital's actions in terminating her Medical Staff privileges violated her due process rights. The Hospital filed a Motion to Dismiss, arguing that "plaintiff cannot sustain a due process claim in the absence of any alleged state action . . . ." Id. at *2. The Court states: "Plaintiff [ ] acknowledges that she has not alleged any state action on the part of [the Hospital], and

that in the absence of state action she cannot state a due process claim. Accordingly, [the due process claim of] the Complaint will be dismissed without further discussion." Id. at *23. In Field v. Hall, C.A. No. 93-415 MMS,1995 U.S. Dist. LEXIS 8418 (D. Del. May 19, 1995) (Exhibit G), the plaintiff filed a civil rights suit under 42 U.S.C. § 1983, naming Beebe Medical Center, Beebe personnel and others as defendants, claiming violations of his Fourth, Fifth and Fourteenth Amendment rights under the Constitution of the United States. The Court held: Plaintiff has the burden of demonstrating that the [hospital] defendants deprived him of a federal right and, in doing so, they deprived him of that right while acting under color of state law. If plaintiff cannot show that [the hospital] and its staff were state actors in his alleged deprivation of constitutional rights, privileges or immunities, there is no liability under § 1983 for these defendants not acting under color of law. Id. at 23.

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The Supreme Court has developed a variety of approaches to assist in determining if state action exists, and this Court has utilized a number of these approaches. See, e.g., the recent case of Langdon v. Google, Inc., 474 F. Supp.2d 622, 631 (D. Del. 2007), a case applicable here, where, citing Blumb v. Yaretsky, 457 U.S. 991 (1982), the court found "there are insufficient allegations in the amended complaint that 'there is a sufficiently close nexus between the State and the challenged action of the [defendants] so that the action[s] of the latter may be fairly treated as that of the state itself'." Dr. Yatco implicitly argues that NHS is a state actor for the reason that it is "a federal and state funded and regulated hospital." See D.I.1. ¶33. This theory was soundly rejected in the case of Avallone v. Wilmington Med. Ctr., Inc., 553 F. Supp. 931, 933-34 (D. Del. 1982), where, citing Blumb v. Yaretsky, 457 U.S. 991, the court held: (1) "[t]he receipt of Medicare and Medicaid funds is insufficient to convert WMC's [Wilmington Medical Center] private actions into conduct actionable under the Fourteenth Amendment[,]" and (2) "[f]urthermore, the fact that WMC is licensed by the state and is subject to state health regulations is likewise insufficient as a matter of law to render WMC's conduct towards plaintiff state action." See also, Antinoro v. Wilmington Med. Ctr., Inc., C.A. No. 74-162, 1975 U.S. Dist. LEXIS 14702, at *11 (D. Del. Dec. 19, 1975) (None of the plaintiff's examples of state involvement with the hospital, e.g., the hospital is subject to regulation by the state and the hospital has received substantial money from the state, indicate that the state is responsible for the hospital's actions.) (Exhibit H); and Quinn v. Kent General Hosp., Inc., 617 F. Supp. 1226, 1234-35 (D. Del. 1985) (Neither state administered subsidies nor state regulations confers upon the activities of a private hospital the status of state action for purposes of Section 1983.). After Jackson v. Metro. Edison Co., 419 U.S. 345 (1974), courts in the Third Circuit have

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declined to find state action by private hospitals in circumstances similar to those alleged by Dr. Yatco (state funding and state regulation). See, e.g., Hodge v. Paoli Mem'l Hosp., 576 F.2d 363, 564 (3d Cir. 1978) (The receipt of Hill-Burton construction funding, Medicare and Medicaid funds, and state licensing requirements for non-profit hospitals do not constitute state action under Section 1983); Slavcoff v. Harrisburg Polyclinic Hosp., 375 F. Supp. 999 (Mid. D. Pa. 1974); Holton v. Crozer-Chester Med. Cntr., 419 F. Supp. 334 (E.D. Pa. 1976), vacated on other grounds, 560 F.2d 573 (3d Cir. 1997); Sament v. Hanemann Med. Coll. and Hosp., 413 F. Supp. 434 (E.D. Pa. 1976); Acosta v. Tyrone Hosp., 410 F. Supp. 1275 (W. D. Pa. 1976); Miller v. Indiana Hosp., 562 F. Supp. 1259 (W. D. Pa. 1983). Indeed, the clear weight of authority holds that non-governmental hospitals are not state actors as a matter of law. See, e.g., Sarin v. Samaritan Health Ctr., 813 F.2d 755, 759 (5th Cir. 1987) (In matters relating to revocation of a physician's privileges, no state action exists even though the hospital is licensed by the state and received federal funds); Pinhas v. Summit Health Ltd., 894 F.2d 1024 (9th Cir. 1989) (holding that hospital's peer review process did not constitute state action); Wong v. Stripling, 881 F.2d 200 (5th Cir. 1989) (State procedural regulations applicable to hospital's suspension of physician's privileges do not suffice to establish the degree of joint participation required to convert private action into state action); Modaber v. Culpepper Mem'l Hosp., Inc., 674 F.2d 1023 (4th Cir. 1982) (The withdrawal of medical staff privileges by a private hospital was not attributable to the state because it received federal funds, accepted Medicare and Medicaid patients, and was subject to extensive state and federal regulations); Canady v. Providence Hosp., 903 F. Supp. 125, 127 (D.D.C. 1995) ("A decision to restrict staff privileges does not constitute state action."); Freilich v. Bd. of Dirs. of Upper Chesapeake Health, Inc., 142 F. Supp. 2d 679 (D. Md. 2001), affirmed, 313 F.3d 205 (4th Cir. 2002) (state regulation of hospi-

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tal's credentialing process did not make a hospital a state actor when it terminated physician's privileges); Phillips v. Pitt County Mem'l Hosp., Inc., 503 F. Supp.2d 776 (E.D. N.C. 2007) (The receipt of state and federal funding and regulations does not transform a private hospital's suspension of physician's privileges into state action); and Jeung v. McKrow, 264 F. Supp. 557, 571 (E.D. Mich. 2003) (Private hospitals operating as tax-exempt organizations and receiving public funds through federal welfare programs are not thereby converted to state actors within the meaning of Section 1983 in connection with a withdrawal of medical staff privileges). Dr. Yatco has clearly failed to demonstrate state action on the part of NHS. Given the weight of authority holding that non-governmental hospitals are not state actors as a matter of law, Dr. Yatco can prove no set of facts in support of his claim of due process violations which would entitled him to relief. Count I of his Complaint should be dismissed.

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IV.

BECAUSE THE COMPLAINT FAILS TO STATE A FEDERAL CLAIM, THE COURT SHOULD DECLINE TO EXERCISE JURISDICTION OVER THE SUPPLEMENTAL STATE LAW CLAIM. In Count II of the Complaint, entitled "VIOLATION OF CONTRACTUAL DUTIES," Dr. Yatco

alleges: "When Nanticoke violated its own rules as well as commonly accepted practices of good faith and fair dealing, it breached its contractual obligations to Plaintiff and, as a result, Plaintiff was harmed and suffered damages." When dismissing a case under Rule 12(b)(1) for failure to present a federal question under 28 U.S.C. § 1331, the court held: "Nor may plaintiff avail himself of alternate bases of federal subject matter jurisdiction. Breach of contract claims are governed by state law and do not present a federal question under 28 U.S.C. § 1331 or § 1334." Humes v. State of Del. Court of Common Pleas, Civ. No. 06-59-SCR, 2006 U.S. Dist. LEXIS 68729, at *24 (D. Del. Sept. 25, 2006) (Exhibit I). In the case of Thompson v. Cmty. Action of Greater Wilmington, Inc., 567 F. Supp. 1159 (D. Del. 1983), this court held that a private entity was a state actor but there was no state action because the deprivation was not of a state-created right. Id. at 1167. When considering the plaintiff's pendent state law claims, the court held: "Having found both an absence of state and federal action, all of the federally cognizable aspects of this litigation are eliminated." Under such circumstances, the court may decline pendent jurisdiction over the plaintiff's supplemental law claim and dismiss the pendent claim. Id. at 1167; see also, D'Alessandro v. ACLU, Civ. No. 06-212-GMS, 2006 U.S. Dist. LEXIS 82237, at *8-9 (D. Del. Nov. 8, 2006) (Exhibit J), (holding that because the Complaint fails to state a federal claim pursuant to 42 U.S.C. § 1983, the court declines to exercise jurisdiction over the plaintiff's supplemental law claim (citing 28 U.S.C. § 1367, and DeAsencio v. Tyson Foods, Inc., 342 F.3d
301, 309 (3d Cir. 2003)).

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As shown above, Dr. Yatco fails to show federal question jurisdiction and fails to state a claim upon which relief can be granted and, therefore, his alleged federal claims should be dismissed. If the Court grants NHS's Motion to Dismiss on all claims which, if properly stated, the Court would have original jurisdiction, it may decline to exercise supplemental jurisdiction over Dr. Yatco's state law breach of contract claim under 28 U.S.C. § 1367(a) and dismiss Count II of the Complaint. See 28 U.S.C. § 1367(c)(3), which reads, in relevant part: (c) the District Courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if - (3) the District Court has dismissed all claims over which it has original jurisdiction . . . .

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V.

DEFENDANT IS ENTITLED TO AN AWARD OF ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 1988(b). NHS is entitled to an award of attorney's fees under 42 U.S.C. § 1988(b). A. Legal Standard.

Title 42 U.S.C. § 1988(b) provides, in relevant part, as follows: "Attorney's Fees. In any proceeding to enforce a provision of [42 U.S.C. § 1983] . . . , the Court, in its discretion, may allow the prevailing party, . . . reasonable attorney's fee as part of the cost . . . ." Under 42 U.S.C. § 1988, "a District Court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation even though not brought in subjective bad faith." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). The Supreme Court went on to state: "[A] plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422; see also, Hughes v. Rowe, 49 U.S. 5, 14 (1980). (The Supreme Court extended the "Christianburg standard" for awarding attorney's fees under Section 1988 to a prevailing defendant in two civil rights actions under 42 U.S.C. § 1983.) In Hughes v. Rowe, the Supreme Court went on to state that "[T]he plaintiff's action must be meritless in the sense that it is groundless or without foundation." Id. at 14; see also, Neitzke v. Williams, 490 U.S. 319, 325 (1989) (An action is frivolous if "it lacks an arguable basis, either in law or in fact.") In Brown v. Borough of Chambersburg, 903 F.2d 274 (3rd Cir. 1990), the Court considered the appropriateness of the District Court's order assessing fees against a plaintiff. The Court applied the standards established in Christianburg Garment Co. v. EEOC and Hughes v. Rowe. The Court held that "[I]mplicit in this approach is the premise that plaintiff knew or should have known the legal or evidentiary deficiencies of his claim." Id. at 277. In Beam v. Downey, 2005 U.S. App. LEXIS 22008 (3 rd Cir. Oct. 12, 2005) (Exhibit L), the

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Court reviewed an award of attorney's fees to the defendant by the District Court. The plaintiff asserted that the District Court erred in awarding attorney's fees in her Section 1983 claim under Section 1988 because her suit was not frivolous or groundless. The Circuit Court held: "The Court correctly found each of [the plaintiffs] claims meritless, without any grounds for support." Id. at *4. The Court noted: "In her Section 1983 claim, [plaintiff] failed to alleged state action. [Plaintiff] also did not state a property right to support a due process violation . . . ." Id. at *4 n.2. The Court further held that the defendants "were the prevailing parties because they succeeded in having each claim dismissed." Id. at *5. The Court affirmed the District Court's award of attorney's fees to the defendants. B. Analysis.

Given the overwhelming weight of authority holding that a private hospital is not a state actor for purposes of a Section 1983 claim. Dr. Yatco knew or should have known the legal or evidentiary deficiencies of his claim. See Brown, 903 F.2d at 277; see also, Royal Oak Entmt., LLC v. City of Royal Oak, 46 F. Supp.2d 675, 678-79 (E.D. Mich. 2007) (Awarding attorney's fees to defendants, the Court held: "Plaintiffs should have been aware of the law governing their federal claim . . . ." And rudimentary legal research would have shown the plaintiffs that they did not have a legal basis for their claim.) Dr. Yatco's alleged federal action is frivolous for the reason that it lacks an arguable basis either in law or in fact, as shown above. See Neitske v. Williams, 490 U.S. at 325. As a result of this "frivolous" action, NHS was required to incur unnecessary and substantial attorney's fees. NHS is entitled to an award of attorney's fees under 42 U.S.C. § 1988.

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CONCLUSION For the reasons set forth in the Motion to Dismiss and the foregoing Brief, NHS respectfully requests that this Court dismiss Count I (due process violation) of this action for lack of subject matter jurisdiction under Rule 12(b)(1) or under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) and dismiss all state law claims, Count II. NHS is also entitled to an award of attorney's fees under 42 U.S.C. § 1988.

GRIFFIN & HACKETT, P.A. Attorneys for Defendant, Nanticoke Health Services, Inc.

/s/ David R. Hackett David R. Hackett, Esquire (ID #424) 116 W. Market Street, P.O. Box 612 Georgetown, Delaware 19947 (302) 856-9066

DATE:

July 31, 2008

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CERTIFICATE OF SERVICE The undersigned hereby certifies that two copies of Defendant's OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS were served by U.S. First Class Mail, postage prepaid, upon the individual named below, on the 31 st day of August, A.D. 2008: Robert D. Goldberg, Esquire 921 N. Orange Street P.O. Box 1489 Wilmington, DE 19899-1490

By: s/s David R. Hackett David R. Hackett

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