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Ramirez v. Adventist Medical Center

United States District Court, D. Oregon

October 24, 2017


          Maricela Ramirez. Plaintiff, pro se.

          Rodney K. Norton, Hart Wagner, LLP, Stephanie C Kucera, Hart Wagner, LLP, Of Attorneys for Defendant Adventist Medical Center.

          Robert M. Keating, Kelly Frances Huedopohl, and Tamara X. Arthur, Keating Jones Hughes, P.C., Of Attorneys for Defendants Tania Shaw, MD and Krista Swaninger, MD.

          Melissa J. Bushnick and Grant D. Stockton, Brisbee & Stockton LLC, Of Attorneys for Defendant Providence Health & Services - Oregon doing business as Providence St. Vincent Medical Center.

          Chelsea J. Glynn and Donald E. Templeton, Dunn Carney Allen Higgins & Tongue, LLP, Of Attorneys for Defendant Metro West Ambulance Service, Inc.


          Michael H. Simon United States District Judge.

         Plaintiff Maricela Ramirez (“Plaintiff”) brings pro se this lawsuit against Adventist Medical Center (“Adventist”), Tania Shaw, M.D. (“Shaw”), Krista Swaninger, M.D. (“Swaninger”) (collectively, “Adventist Defendants”), and several other defendants, alleging medical malpractice, discrimination, retaliation, breach of fiduciary duty, fraud, and intentional infliction of emotional distress. Plaintiff's claims against the Adventist Defendants arise from two visits to Adventist's Emergency Department on May 26 and 27, 2013. Plaintiff claims that she was discriminated against and that the Adventist Defendants concealed her true medical condition from her by telling her that her test results were normal when they were not.

         Before the Court are two motions to dismiss by the Adventist Defendants and two additional motions by Plaintiff. For the reasons stated below, the Adventist Defendants' motions to dismiss are granted. Plaintiff's motions for extension of time to complete service of process and for a court-appointed expert witness are denied.


         A. Adventist Defendants' Motions to Dismiss

         Adventist filed a motion to dismiss, and Shaw and Swaninger filed a separate motion to dismiss that joined in Adventist's motion and expressly adopted the former's summary of Plaintiff's claims, standard of review, exhibits, and argument. The Adventist Defendants all argue that Plaintiff's claims are precluded, that they are time-barred, and that Plaintiff does not state a claim. Shaw and Swaninger also move to dismiss Plaintiff's claims based on insufficient service of process.

         1. Claims Against Adventist and Swaninger

         Plaintiff's claims against Adventist and Swaninger are precluded. Plaintiff has previously sued each of the Adventist Defendants based on her two visits to Adventist in May 2013. In July 2014 Plaintiff filed a complaint in Multnomah County Circuit Court (“Ramirez I”). ECF 57-1. Adventist, Shaw, and Swaninger were all named defendants in that case. Plaintiff failed to serve Shaw in Ramirez I, and the court dismissed Plaintiff's claims against Shaw for want of prosecution, pursuant to Rule 7.020(2) of the Oregon Uniform Trial Court Rules. ECF 74-1. The court then granted summary judgment in favor of the remaining defendants. ECF 57-3 at 44. That decision was affirmed on appeal. Ramirez v. Adventist Med. Ctr., 273 Or.App. 821 (2015), rev. den., 358 Or. 611 (2016), cert. denied, 137 S.Ct. 74 (2016); ECF 57-4 at 46, ECF 57-3.

         Federal courts must “afford the same full faith and credit to state court judgments that would apply in the State's own courts.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 463 (1982). The Court is bound to “give the same . . . preclusive effect to a state court judgment as that judgment would have in the state courts of the state in which it was rendered.” Noel v. Hall, 341 F.3d 1148, 1160 (9th Cir. 2003); see also Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985) (explaining that federal courts must “refer to the preclusion law of the State in which judgment was rendered”). There are two types of preclusion: issue preclusion (formerly known as collateral estoppel); and claim preclusion (formerly known as res judicata). Adventist, Shaw, and Swaninger argue that Plaintiff's claims are barred by claim preclusion. Adventist, Shaw, and Swaninger also argue that Plaintiff's claims are barred by issue preclusion.

         Claim preclusion “prohibits a party from relitigating the same claim or splitting a claim into multiple actions against the same opponent.” Bloomfield v. Weakland, 339 Or. 504, 510 (2005). The Oregon Supreme Court has consistently defined “claim preclusion” as follows:

[A] plaintiff who has prosecuted one action against a defendant through to a final judgment binding on the parties is barred on res judicata grounds from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action.

Id. at 510-11 (quoting Rennie v. Freeway Transport, 294 Or. 319, 323 (1982)). A party is foreclosed from litigating the same claim “on any ground or theory of relief that the party could have litigated in the first instance.” Id. at 511. “[C]ourts employ a broad definition of what could have been litigated.” Drews v. EBI Companies, 310 Or. 134, 141 (1990). “Claim preclusion does not require actual litigation of an issue of fact or law . . . [n]or does it require that the determination of the issue be essential to the final or end result reached in the action, claim, or proceeding.” Id. at 140. Claim preclusion does, however, require that the plaintiff had, in the former case, “[t]he opportunity to litigate . . ., whether or not it is used.” Id. There also must be finality. Id.

         Adventist and Swaninger were properly served in Ramirez I, and the claims against them were dismissed with prejudice at summary judgment. Here, Plaintiff seeks to re-litigate the same claim. Her grievances stem out of the same transactions-her back-to-back hospital visits in May of 2013-and are alleged against the same defendants. In Ramirez I, Plaintiff similarly alleged medical malpractice and discrimination. To the extent that Plaintiff is currently attempting to bring different claims, or is raising different theories of liability, she is still precluded as these were “ground[s] or theor[ies] of relief that [she] could have litigated in the first instance.” Bloomfield, 339 Or. at 511; see also Troutman v. Erlandson, 287 Or. 187, 201 (1979) (“For res judicata purposes a ...

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