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holding that, under similar circumstances, once the United States has been substituted and dismissed, jurisdiction can only be exercised over the remaining defendant through supplemental jurisdiction, but such jurisdiction is impossible without a proper basis for original jurisdiction
Summary of this case from Yarrell v. West Side Radiology Associates, P.C.Opinion
01 CV 4975 (ILG)
November 5, 2001
MEMORANDUM ORDER
On December 12, 2000, plaintiff Adelaida Rodriguez ("Rodriguez") commenced this negligence action against Bhupendra P. Wagley, M.D. ("Dr. Wagley"), Sunset Park Family Health Center ("Sunset Park"), and Lutheran Medical Center ("Lutheran") in the Supreme Court of New York, Kings County. On July 25, 2001, the government removed the action to this Court, on the grounds that the claims asserted against Sunset Park and Dr. Wagley fell within the scope of the Federal Tort Claims Act, and thus the United States was a proper party to this action, in place of Dr. Wagley and Sunset Park. Rodriguez did not move to remand the action to state court, nor did she oppose the substitution of the United States as a party in place of Dr. Wagley and Sunset Park.
The government now moves to dismiss the claims asserted against it because Rodriguez failed to file an administrative claim with the Department of Health and Human Services prior to commencing this lawsuit. Rodriguez has not opposed the government's motion. For the reasons set forth below, the government's motion is granted, and the claims against it dismissed, without prejudice. Furthermore, because the dismissal of the claims against the government divests the Court of subject matter jurisdiction, the remaining claim against Lutheran must be remanded to state court.
BACKGROUND
Rodriguez's complaint alleges that she received negligent medical care by Dr. Wagley, an employee of Lutheran, while he was working at Sunset Park, a medical clinic run by Lutheran. (See Verified Complaint ¶¶ 3-12.) Rodriguez sought treatment from the defendants beginning on July 22, 1997, and continuing through March 31, 1999. (See id., ¶¶ 11-12.) Rodriguez alleges that the defendants "were negligent and committed malpractice in the care, treatment and/or rendition of their services to . . . Rodriguez, in the failure to properly diagnose and treat colorectal cancer." (Id. ¶ 12.) As a result of the purported negligence, Rodriguez claims that she has sustained substantial injuries. (See id. ¶¶ 14-15.)
"Verified Complaint" refers to the complaint filed in state court, a copy of which is annexed to the Notice of Removal as Exhibit 1.
Rodriguez commenced this action in New York Supreme Court, Kings County, on December 12, 2000. On July 25, 2001, the government filed a Notice of Removal, removing the action to this Court. According to the Notice of Removal, Sunset Park was deemed eligible for coverage under the Federal Tort Claims Act by way of the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n). (See Notice of Removal ¶ 3 Ex. 2.) Furthermore, the Notice of Removal asserted that Dr. Wagley was an employee of Sunset Park, and that he was acting in the course and scope of his employment, at all times he rendered medical care to Rodriguez. (See id. ¶ 4 Ex. 2.) Accordingly, the government claimed that it was substituting itself as a defendant for Sunset Park and Dr. Wagley, in accordance with 28 U.S.C. § 2679. Because this substitution transformed the lawsuit into an action against the United States, the government removed the action pursuant to 28 U.S.C. § 1346 and 1442. (See id. ¶¶ 5, 7.)
It is unclear whether the United States could substitute itself as a defendant without a Court order. Regardless, it is clear that the substitution of the United States as a defendant for Sunset Park and Dr. Wagley is appropriate, because (1) Dr. Wagley was properly certified as acting in the scope of his employment when rendering medical care to Rodriguez (see 28 U.S.C. § 2679(d)(2); Notice of Removal Ex. 2), and (2) Sunset Park was properly certified as eligible for coverage under the Federal Tort Claims Act (see 42 U.S.C. § 233(c), (g)(1)(A); Notice of Removal Ex. 2). Rodriguez never disputed these certifications. Therefore, even if the government's procedure was improper, the United States should be substituted as a party for Dr. Wagley and Sunset Park, nunc pro tunc to July 25, 2001, and, accordingly, the claims against Dr. Wagley and Sunset Park must be dismissed. See 28 U.S.C. § 2679(b);Gonzalez v. Fallon, No. 98 Civ. 3505, 1998 WL 879692, at 2 (S.D.N.Y. Dec. 16, 1998).
The Court notes that the paragraphs in the Notice of Removal are misnumbered, omitting paragraph 6.
The government has now moved to dismiss the claims against it, pursuant to Fed.R.Civ.P. 12(b)(1) and (6). According to the government, the Court lacks subject matter jurisdiction over these claims because Rodriguez failed to exhaust her administrative remedies by first filing a claim with the appropriate agency, in contravention of 28 U.S.C. § 2675(a). (See Def. Mem. at 3.) Rodriguez has failed to respond to the government's motion.
DISCUSSION
"The United States, as sovereign, is immune from suit save as it consents to be sued." Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (internal quotation marks and citations omitted). The United States therefore cannot be sued without the consent of Congress. Block v. N.D. ex rel. Bd. of Univ. Sch. Lands, 461 U.S. 273, 287 (1983). A necessary corollary of this rule is that when Congress "attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed." Id.
The Federal Tort Claims Act is one way in which Congress has waived the United States's sovereign immunity. The FTCA permits suits against the United States in federal court based on, inter alia, certain torts committed by federal employees. See 28 U.S.C. § 1346(b), 2671-80. Subject to exceptions not relevant here, the FTCA provides the exclusive remedy for torts committed by federal employees in the course of their duties. See id. § 2679(b).
A prerequisite to maintaining a lawsuit against the United States under the FTCA, however, is the filing of an administrative claim with the appropriate federal agency. See 28 U.S.C. § 2675(a) ("An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . caused by the negligent . . . act or omission of any employee of the Government . . ., unless the claimant shall have first presented the claim to the appropriate Federal agency. . . ."); McNeil v. United States, 508 U.S. 106, 113 (1993) ("The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies."); In re Agent Orange Prod. Liab. Litig., 818 F.2d 194, 196 (2d Cir. 1987). A federal court lacks subject matter jurisdiction under the FTCA over any claim in which the claimant failed to file an administrative claim with the appropriate federal agency. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citations omitted).
Here, it is undisputed that Rodriguez has not filed an administrative claim regarding the injuries she allegedly sustained as a result of the defendants' negligence. (See Bergeron Decl. ¶ 4.) Accordingly, the Court lacks subject matter jurisdiction over the claims asserted against the United States under the FTCA, and therefore those claims must be dismissed.
Rodriguez cannot be heard to complain that she was unaware of the federal presence in this case when she commenced her action in state court. As Judge Koeltl recognized in Bueno v. Sheldon, a case with facts nearly indistinguishable from the instant action, "the § 2675(a) exhaustion requirement is . . . applicable to an action removed from state court upon substitution of the United States notwithstanding the fact that such an action was originally brought against an individual federal employee rather than against the United States." No. 99 CIV 10348, 2000 WL 565192, at 3 (S.D.N.Y. May 9, 2000); accord Gonzalez, 1998 WL 879692, at 3-4; Filaski v. United States, 776 F. Supp. 115, 117-18 (E.D.N.Y. 1991). Furthermore, the FTCA provides Rodriguez with some recourse; as long as her state court action was commenced within two years of the date on which her claim accrued, Rodriguez has sixty days from the date of this Order to present her claim to the appropriate federal agency. See 28 U.S.C. § 2679(5).
With the claims against the United States dismissed, the sole basis for this Court's exercise of subject matter jurisdiction over the claim against Lutheran evaporates. In order to hear the claim against Lutheran, the Court would have to exercise supplemental jurisdiction under 28 U.S.C. § 1367, because there is no proper basis for original jurisdiction over the claim against Lutheran. However, the Court "cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). Because there is no subject matter jurisdiction under the FTCA for the claims against the government, there was no proper basis for original jurisdiction in this case. The Court therefore cannot exercise supplemental jurisdiction over the claim asserted against Lutheran. Thus, that claim must be remanded to the New York Supreme Court, Kings County. See Bueno, 2000 WL 565192, at 5 (remanding claims to state court against remaining defendants after United States substituted as party in FTCA action, but claims dismissed against United States for failure to exhaust administrative remedies).
CONCLUSION
For the reasons set forth above, the government's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) is granted, and the claims against the United States are dismissed, without prejudice, for failure to exhaust. The remaining claim against Lutheran is remanded to the New York Supreme Court, Kings County.
SO ORDERED.