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,

1

, 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.

Mr. Boser states

that if he had been asked, he would have told Dr. Keramati that

he did have “floaters.”

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,

2 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,

(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,

,

,

(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.,

(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.,

(D.C. Cir. 1994).

"Threadbare recitals of the elements of a cause of action,

3 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.,

(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,

(D.C. Cir. 1997)(quoting

First Chicago Int’l v. United Exch. Co.,

(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,

(D.D.C. 2017) (citing Rochon v. Lynch,

(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

4 evaluated.’”

(quoting Ross v. U.S. Capitol Police,

(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,

(D.D.C. 2010);

accord Convertino v. U.S. Dep't of Justice,

(D.C. Cir. 2012) (“[S]ummary judgment is premature unless all

5 parties have ‘had a full opportunity to conduct discovery.’”

(quoting Anderson v. Liberty Lobby, Inc.,

,

,

(1986))); Americable Int'l v.

Dep't of Navy,

(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.,

(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,

(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:

6 (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,

(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.

7 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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