Cyrus-Barker et al v. Optimus Health Care Inc. et al
Filing
137
RULING denying 115 Motion for Leave to File and Serve Third-Party Complaint and granting 111 Motion to Remand to State Court. See attached ruling for details. Signed by Judge Sarah A. L. Merriam on 9/2/2015. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------x
:
MMC PPA,
:
VONETTA CYRUS-BARKER AND
:
JONATHAN MORA-APLIZAR; AND
:
VONETTA CYRUS-BARKER, INDIV.
:
:
v.
:
:
BRIDGEPORT HOSPITAL
:
:
-------------------------------x
Civ. No. 3:11CV01733(SALM)
September 2, 2015
RULING ON BRIDGEPORT HOSPITAL’S MOTION FOR LEAVE TO SERVE THIRDPARTY COMPLAINT [DOC. #115] AND PLAINTIFFS’ MOTION TO REMAND TO
STATE COURT [DOC. #111]
Pending before the Court is a motion by defendant
Bridgeport Hospital for leave to file and serve a third-party
complaint against the United States of America (“United
States”). [Doc. #115]. Limited intervenor United States opposes
this motion.1 [Doc. #121]. Also pending before the Court is
plaintiffs‟ motion to remand to state court [Doc. #111], to
which Bridgeport Hospital has objected [Doc. #118]. For the
reasons stated below, the Court DENIES Bridgeport Hospital‟s
motion for leave to file and serve a third-party complaint [Doc.
#115], and GRANTS plaintiff‟s motion to remand to state court
[Doc. #111].
Plaintiffs have no objection to the motion for leave. [Doc.
#116].
1
1
I.
Background
Vonetta Cyrus-Barker (hereinafter “Cyrus-Barker”) received
prenatal care at Optimus Health Care (“Optimus”) from October
29, 2008, through May 28, 2009. On May 30, 2009, after
approximately 12 hours of labor, Cyrus-Barker delivered her baby
at Bridgeport Hospital. At birth, the baby weighed 10 pounds, 7
ounces. During the delivery, the baby‟s shoulder became stuck
behind the pubic bone, a condition referred to as shoulder
dystocia. The baby suffered permanent injury to her right arm.
Cyrus-Barker and her daughter were discharged from the hospital
on June 2, 2009.
Following a preliminary investigation, on December 15,
2010, plaintiffs‟ attorneys served two SF-95 forms2 on Optimus,
the community health center. On August 19, 2011, plaintiffs‟
counsel forwarded copies of the SF-95 claim forms to the
Department of Health and Human Services. Plaintiffs‟
administrative claims were denied and plaintiffs filed a case
against the defendants in state court, which was removed to this
Court on November 9, 2011.
2
An SF-95 form is a General Services Administration form used to
make a claim against a federal agency under the Federal Tort
Claims Act for damage, injury or death.
2
Plaintiffs MMC ppa Cyrus-Barker, and Jonathan Mora-Alpizar
and Cyrus-Barker, individually,3 brought this action asserting
claims of medical malpractice against defendants Optimus, Brenda
Kulikowski and Bridgeport Hospital arising out of the prenatal
care and delivery of Cyrus-Barker‟s daughter. The United States
was substituted for defendants Optimus, a community health
center in Bridgeport, and Brenda Kulikowski, a midwife at
Optimus. [Doc. #39].
Then-defendant United States moved to dismiss the complaint
for lack of subject matter jurisdiction, arguing that the Court
lacked jurisdiction because plaintiffs failed to file their
administrative claim with the appropriate federal agency within
the two year statute of limitations as required by the Federal
Torts Claims Act. [Doc. #66]. On September 18, 2013, Judge Holly
B. Fitzsimmons granted the United States‟ motion to dismiss for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
[Doc. #78]. The remaining defendant in this matter, Bridgeport
Hospital, then sought to file a third party apportionment
complaint against the United States [Doc. #93], which Judge
Fitzsimmons denied on March 27, 2015 [Doc. #107].
3
Cyrus-Barker brings this action on behalf of her minor child,
MMC, and Cyrus-Barker and Jonathan Mora-Alpizar, the child‟s
parents, also assert individual claims.
3
On April 29, 2015, Bridgeport Hospital filed a motion for
leave to file a third-party complaint against the United States,
alleging causes of action for contribution and indemnification
arising under Connecticut law (“motion for leave”). [Doc. #115].
With the Court‟s permission, the United States intervened in
this matter for the limited purpose of opposing the motion for
leave [Doc. ##117, 119], and filed its memorandum in opposition
on June 29, 2015 [Doc. #121]. Bridgeport Hospital filed a reply
brief [Doc. #130], to which the United States filed a sur-reply
with the Court‟s permission [Doc. #135].
On April 14, 2015, plaintiffs filed a motion seeking to
remand this matter to state court, arguing that “the sole basis
for federal jurisdiction ha[d] been eliminated[,]” in light of
Judge Fitzsimmons‟ rulings granting the motion to dismiss and
denying the motion for leave to file an apportionment complaint.
[Doc. #111 at 1]. Bridgeport Hospital opposes remand, and
requested that the Court defer ruling on the motion to remand
until after disposing of the motion for leave. [Doc. #118].
The Court heard oral argument on the pending motions on
August 26, 2015.
II.
APPLICABLE LAW
A. As to Motion for Leave
Bridgeport Hospital moves pursuant to Federal Rule of Civil
Procedure 14(a)(1) for leave to file and serve a third-party
4
complaint sounding in contribution and indemnification against
the United States. Rule 14(a) provides: “A defending party may,
as third-party plaintiff, serve a summons and complaint on a
nonparty who is or may be liable to it for all or part of the
claim against it. But the third-party plaintiff must, by motion,
obtain the court‟s leave if it files the third-party complaint
more than 14 days after serving its original answer.” Fed. R.
Civ. P. 14(a)(1).
An impleader claim may be asserted when either “the third
party‟s liability ... is ... dependent upon the outcome of the
main claim[,]” or, “the third party [is] potentially secondarily
liable as a contributor to the defendant.” Kenneth Leventhal &
Co. v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir. 1984)
(citation and footnote omitted). “The decision whether to permit
a defendant to implead a third-party defendant rests in the
trial court‟s discretion[.]” Id. (citation omitted).
B. As to Motion for Remand
A judge of this District recently summarized the law
applicable to motions for remand:
It is well-established that, “out of respect for the
limited jurisdiction of the federal courts and the
rights of states,” federal courts must construe
strictly statutory procedures for removal, resolving
any doubts against removability. In re Methyl Tertiary
Butyl Ether (“MTBE”) Prod[s.] Liab. Litig., 488 F.3d
112, 124 (2d Cir. 2007). After a case is removed from
a state court, “[i]f at any time before final judgment
it appears that the district court lacks subject
5
matter jurisdiction, the case shall be remanded.” 28
U.S.C. §1447(c). Where such jurisdiction is lacking,
this Court “must remand a case to state court.” Vera
v. Saks & Co., 335 F.3d 109, 113 (2d Cir. 2003). When
a party challenges removal, “the party asserting
jurisdiction bears the burden of proving that the case
is properly in federal court” and “must support
[challenged] jurisdictional facts with „competent
proof‟
and
„justify
[its]
allegations
by
a
preponderance of evidence.‟” United Food & Commercial
Workers Union, Local 919, AFL–CIO v. CenterMark
Properties Meriden Square, Inc., 30 F.3d 298, 301, 305
(2d Cir. 1994) (quoting McNutt v. Gen. Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 189
(1936)).
553 Broad St. LLC v. City of Meriden, No. 3:14CV00896(VAB), 2015
WL 1445290, at *1 (D. Conn. Mar. 30, 2015).
III. DISCUSSION
A. Motion for Leave to File Third-Party Complaint
Bridgeport Hospital generally argues that the Court should
grant its motion for leave because it meets the requirements of
Rule 14(a), sovereign immunity does not apply to the claims
asserted in the proposed third-party complaint, and no prejudice
will result if the Court grants the motion. [Doc. #115-1]. The
United States opposes the motion for leave on the grounds that
Bridgeport Hospital has failed to establish that the United
States has waived its sovereign immunity, and that the proposed
third-party complaint fails to state a cause of action for
contribution and indemnification. [Doc. #121].
As an initial matter, the Court finds that the proposed
complaint meets the requirements of Rule 14(a) as it alleges
6
causes of action which have been traditionally recognized as
proper grounds for a third-party complaint. See Kyser v.
Connecticut S. R.R., No. 13CV00086(CSH), 2013 WL 3354425, at *6
(D. Conn. July 3, 2013) (“Generally, the traditional grounds for
a third party-action are indemnification, contribution, or
subrogation.” (citing Doucette v. Vibe Records, Inc., 233 F.R.D.
117, 120 (E.D.N.Y. 2005))). Accordingly, the Court next turns to
the remaining substantive arguments.
1. Sovereign Immunity
Bridgeport Hospital, relying on the plain language of the
Federal Tort Claims Act (“FTCA”), argues that the proposed
third-party claims are exempt from the notice requirements of
the FTCA. In response, the government argues that “Bridgeport
Hospital has failed to identify how the FTCA‟s limited waiver of
immunity includes a claim for contribution where the United
States has already been deemed immune from suit with respect to
the Plaintiffs‟ claims” and that “Bridgeport Hospital has again
failed to show that this Court has subject matter jurisdiction
over the proposed claims against the United States and that the
United States has waived its sovereign immunity with respect to
those indemnity claims.” [Doc. #121 at 4, 7]. Notably, the
government does not provide any legal authority in support of
this position.
7
It is well settled that, absent consent, the United States
is immune from suit, as are its agencies and its officers when
the latter act in their official capacities. See FDIC v. Meyer,
510 U.S. 471, 475 (1994); Dotson v. Griesa, 398 F.3d 156, 177
(2d Cir. 2005); see also Rein v. Socialist People‟s Libyan Arab
Jamahiriya, 162 F.3d 748, 756 n.4 (2d Cir. 1998) (“[S]overeign
immunity[] is an immunity from litigation and not just
liability.” (citing Mitchell v. Forsyth, 472 U.S. 511, 526
(1985))). Therefore, a waiver of sovereign immunity is a
jurisdictional prerequisite to a suit against the federal
government or its officers.
Providing a limited waiver of sovereign immunity, the FTCA
affords the sole remedy, in the form of a suit against the
United States, for a “personal injury ... arising or resulting
from the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment[.]” 28 U.S.C. §2679(b)(1). The FTCA requires, as a
jurisdictional prerequisite, exhaustion of administrative
remedies with the “appropriate Federal agency” before filing
suit. See 28 U.S.C. §2675(a). However, 28 U.S.C. §2675(a)
specifically states: “The provisions of this subsection
[regarding exhaustion of administrative remedies] shall not
apply to such claims as may be asserted under the Federal Rules
of Civil Procedure by third party complaint[.]”
8
Despite the United States‟ argument to the contrary, the
Court finds that Bridgeport Hospital‟s proposed third-party
complaint falls squarely within the exception provided by 28
U.S.C. §2675(a). Here, because Bridgeport Hospital seeks to
assert a third-party complaint against the United States, it
follows by the plain language of 28 U.S.C. §2675(a) that the
administrative exhaustion requirements otherwise applicable to
FTCA claims are not applicable here. Indeed, other courts facing
this question have come to a similar conclusion. See, e.g.,
Thompson v. Wheeler, 898 F.2d 406, 410 (3d Cir. 1990) (holding
that “failure to file an administrative claim as ordinarily
required by 28 U.S.C. §2675(a) is not a bar to the third party
complaint”); Mussari v. Borough, No. 3:07CV948, 2007 WL 3231800,
at *3 (M.D. Pa. Oct. 31, 2007) (“Federal courts have agreed that
the exhaustion requirement need not be met for third-party
defendants.” (citing Thompson, 898 F.2d at 410)); Gregg v.
United States, No. 3:08CV144, 2009 WL 1296376, at *1 (N.D.W. Va.
May 7, 2009)(“According to the clear statutory language [of 28
U.S.C. §2675(a)], City Hospital was not required to present an
administrative claim to the United States before asserting a
cross-claim or third party complaint.”); Boada v. Autoridad de
Carreteras y Transportacion, 680 F. Supp. 2d 382, 385 (D.P.R.
2010) (“[T]hird-party actions under [Rule] 14 seeking indemnity
9
or contribution from the United States are not subject to
administrative exhaustion.” (citations omitted)).
Moreover, under circumstances remarkably similar to those
here, the court in Zanghi v. Sisters of Charity Hospital of
Buffalo, No. 12CV765S, 2013 WL 706241 (W.D.N.Y. Feb. 26, 2013),
denied a motion to dismiss a third-party complaint against the
United States for lack of jurisdiction. There, plaintiffs
brought an action on behalf of the estate of their minor son in
state court against various defendants involved in his birth and
care. Zhanghi, 2013 WL 706241, at *1. While the matter was
pending in state court, the Sisters Hospital defendants answered
and asserted a cross-claim against the Northwest defendants. Id.
The Northwest defendants, however, were federal employees under
the FTCA and, as such, removed the action to federal court with
a request that the Court substitute the United States in their
stead as the proper party. Id. Simultaneously, the United States
moved to dismiss all claims, including the cross-claim, for lack
of subject matter jurisdiction. Id. Plaintiffs conceded that
they had failed to exhaust their administrative remedies and did
not oppose the United States‟ motion to dismiss their claims.
Id.
As a result, the Court granted the United States‟ motion to
dismiss as to the original plaintiffs. Id.
With respect to the cross-claim, the Sisters Hospital
defendants sought to convert their cross-claim into a third10
party claim in anticipation that the court would dismiss the
plaintiffs‟ claims against the United States. Zhanghi, 2013 WL
706241, at *1. The United States argued that the Court lacked
subject matter jurisdiction over the cross-claim and further
argued that the doctrine of derivative jurisdiction required
dismissal. Id. The court rejected both arguments.
As to subject matter jurisdiction, the court found that the
administrative exhaustion requirement of 28 U.S.C. §2675(a) does
not apply to cross-claims. Id. at *2. After rejecting several of
the government‟s arguments in favor of dismissal, including that
asserted under the doctrine of derivative jurisdiction, the
court turned its attention to the viability of the converted
third-party claim against the United States. Id. at *2-3. The
court focused on the statute under which the United States
removed the action, 42 U.S.C. §233(c), and noted that this
statute
is similar to 28 U.S.C. § 1442(a)(1), which authorizes
removal from state court by “[t]he United States or
any agency thereof or any officer ... sued in an
official or individual capacity[.]” Like Section
1442(a)(1), Section 233(c) authorizes removal when a
federal officer, employee, or entity has been sued in
state court. And both sections are “intended to
protect
federal
interests
by
providing
federal
officials a federal tribunal in which to litigate
matters concerning acts committed in their federal
capacity.” See In re Methyl Tertiary Butyl Ether
(“MTBE”) Prod[s.] Liab[.] Litig[.], 341 F. Supp. 2d
351 (S.D.N.Y. 2004) (quoting Reese v. S. Florida Water
Mgmt. Dist., 853 F. Supp. 413, 414 (S.D. Fla. 1994)).
Significantly, federal officers are entitled to remove
11
an entire case under Section 1442 even if sued only as
third-party defendants.
Zanghi, 2013 WL 706241, at *3. Accordingly, the court found that
“if federal courts have jurisdiction over claims removed by
federal officers as third parties, they also have jurisdiction
over cases, like this one, where a third-party claim against the
United States remains after the United States has been dismissed
from the original complaint.” Id.
The present action was removed under 28 U.S.C. §§1442(a)(1)
and 2679(d)(2), as well as 42 U.S.C. §233(c). [Doc. #1]. If the
administrative exhaustion requirement of 28 U.S.C. §2675(a) does
not apply to cross-claims, as found by the Zhangi court, it
further confirms this Court‟s conclusion that it also does not
apply to third-party claims. Therefore, where this matter was
also removed under Section 233(c), and where the United States
was not made a party until after removal [Doc. #39], the Court
finds subject matter jurisdiction proper in light of the holding
and rationale in Zhanghi. See also id. at *3 (finding doctrine
of derivative jurisdiction inapplicable to the matter where “the
United States was not yet a party when this action was in state
court[,]” and where “the United States did not move for
substitution until it removed the case to this Court.”).
Accordingly, the Court finds that it has subject matter
jurisdiction over Bridgeport Hospital‟s proposed third-party
12
complaint. The Court‟s inquiry, however, does not end there in
light of the United States‟ remaining arguments that the
proposed third-party complaint fails to state a claim upon which
relief may be granted.4
2. Contribution
Bridgeport Hospital‟s proposed third-party complaint
alleges a cause of action for contribution. The United States
argues that there is no cause of action for contribution under
Connecticut law, to which the FTCA requires this Court to look.
See Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012)
(citing FDIC, 510 U.S. at 478). At the August 26, 2015, hearing,
Bridgeport Hospital abandoned its contribution claim.
Accordingly, the Court DENIES as moot, and without prejudice,
Essentially, the United States argues that because the proposed
third-party complaint fails to state a claim upon which relief
may be granted, it is futile. “In order to conclude that a
proposed amendment is futile, the Court is required to find that
a claim could not withstand a motion to dismiss.” Gouveia v. Sig
Simonazzi N. America, Inc., No. 3:03CV00597(MRK), 2005 WL
544707, at *2 (D. Conn. Mar. 1, 2005) (compiling cases). When
considering a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), “a court must accept the allegations
contained in the complaint as true, and draw all reasonable
inferences in favor of the non-movant; it should not dismiss the
complaint „unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.‟” Sheppard v. Beerman, 18 F.3d 147, 150
(2d Cir. 1994) (quoting Ad-Hoc Comm. of Baruch Black and
Hispanic Alumni Ass‟n v. Bernard M. Baruch College, 835 F.2d
980, 982 (2d Cir. 1987)).
4
13
Bridgeport Hospital‟s motion for leave as to its contribution
claim.5
3. Indemnification
Bridgeport Hospital‟s proposed third-party complaint also
asserts a cause of action for indemnification against the United
States. The United States argues that the statutory
preconditions under Connecticut law have not been met. In reply,
Bridgeport Hospital submits that an indemnification claim may be
brought during the pendency of plaintiffs‟ claims.
The plain language of the statute upon which Bridgeport
Hospital relies in bringing the proposed contribution claim,
Connecticut General Statutes section 52-572h, suggests that at
the present time, Bridgeport Hospital cannot maintain a claim
for contribution against the United States. See Conn. Gen. Stat.
§52-572h(1) (West 2015)(“A right of contribution exists in
parties who, pursuant to subsection (g) of this section are
required to pay more than their proportionate share of such
judgment. The total recovery by a party seeking contribution
shall be limited to the amount paid by such party in excess of
such party‟s proportionate share of such judgment.”). The
Connecticut Supreme Court has also stated: “The right of action
for contribution, which is equitable in origin, arises when, as
between multiple parties jointly bound to pay a sum of money,
one party is compelled to pay the entire sum. That party may
then assert a right of contribution against the others for their
proportionate share of the common obligation.” Crotta v. Home
Depot Inc., 732 A.2d 767, 771 (Conn. 1999) (emphasis
modified)(compiling cases). Other federal courts have also
concluded that “a claim for contribution [under the FTCA] does
not accrue until the claimant has paid, or been held liable for,
more than his or her share of a common liability.” Sea-Land
Serv., Inc. v. United States, 574 F.2d 169, 173 (3d Cir.
1989)(compiling cases). Here, Bridgeport Hospital has not yet
been found liable to plaintiffs, and in that regard, has not
been compelled to pay more than its proportionate share of a
judgment. Accordingly, the Court finds that any alleged claim
for contribution is premature and would not be properly brought
by way of the proposed third-party complaint.
5
14
The Connecticut Supreme Court has described the difference
between an action for contribution and an action for
indemnification:
In an action for indemnity, as distinguished from an
action for contribution, one tortfeasor seeks to
impose total liability upon another [tortfeasor]. The
doctrines of indemnification and contribution are
based
on
fundamentally
different
principles.
“[I]ndemnity involves a claim for reimbursement in
full from one on whom a primary liability is claimed
to rest, while contribution involves a claim for
reimbursement of a share of payment necessarily made
by the claimant which equitably should have been paid
in part by others.”
Crotta v. Home Depot Inc., 732 A.2d 767, 772 (Conn. 1999)
(emphasis altered) (citation omitted). Connecticut General
Statutes section 52-572h(j) provides that it “shall not impair
any right to indemnity under existing law.” Section 52-598a
further provides that “[n]otwithstanding any provision of this
chapter, an action for indemnification may be brought within
three years from the date of the determination of the action
against the party which is seeking indemnification by either
judgment or settlement.” Conn. Gen. Stat. §52-598a (West 2015).
Turning first to whether the indemnification claim is
premature, the Court finds that under Connecticut law,
Bridgeport Hospital need not wait until plaintiffs fully
litigate their claims before it may bring an indemnification
action. Neither the plain language of the indemnification
statute implicated, section 52-598a, supra, nor the cases
15
interpreting it, require such a result. Accord Williams v. Hous.
Auth., No. CV106014962S, 2013 WL 4046634, at *6 (Conn. Super.
Ct. July 19, 2013) (“Simply put, the language of § 52-[5]98a
merely delineates the time limit before which a party must bring
a claim for indemnification. The purpose of the language
relating to judgment and settlement is to set forth when the
three-year statute of limitations begins to run, not to mandate
prerequisites to the filing of indemnity suits.”). The
Connecticut legislature‟s intent in enacting section 52-598a
further supports this finding:
The intent of General Statutes §52-598a was not to bar
a party from impleading a potentially liable defendant
into the original action when it inserted the
„judgment or settlement‟ language. In fact, the
legislature specifically recognized that in most
instances
an
indemnification
action
would
run
simultaneously with the underlying claim. Encouraging
simultaneous
trials,
it
also
recognized
that
bifurcated trials under §52-598a would waste judicial
time and resources. Thus, the enactment of §52-598a
was intended to preserve the judiciary‟s limited time
and resources consistent with the purposes of General
Statutes §52-102a.
Thyberg v. Bonneville, No. CV980580561, 1999 WL 639863, at *6
(Conn. Super. Ct. July 30, 1999) (internal citations omitted);
see also 36 H.R. Proc., Pt. 31, 1993 Sess., pp. 11013, 11016-17,
11022-23 (Conn. 1993) (transcript of Connecticut House of
Representatives proceedings discussing the enactment of section
52-598a). Accordingly, the Court does not find that the
indemnification claim is premature.
16
The United States, however, raises a second argument in
opposition to the indemnification claim; namely that because
Bridgeport Hospital is not a “passive” tortfeasor, it cannot
maintain an indemnification claim against Bridgeport Hospital.
Bridgeport Hospital does not offer a reply to these arguments,
but instead focuses its efforts on addressing the timing of the
claim. At the hearing, Bridgeport Hospital argued that the
merits of the indemnification claim are better left for the
summary judgment stage of proceedings.
“Ordinarily, there is no right of indemnity or contribution
between joint tort-feasors[.]” Skuzinski v. Bouchard Fuels,
Inc., 694 A.2d 788, 790 (Conn. 1997) (compiling cases). However,
“to balance the problems created by this rule, [Connecticut
courts have] carved out an exception that allows a passive
tortfeasor to receive indemnification from an active, primary
tortfeasor.” Thyberg, 1999 WL 639863, at *2 (citing Johnson v.
Mortenson, 147 A. 705, 708-09 (Conn. 1929)).
[T]he impact of liability may be shifted from mere
passive tortfeasors to active wrongdoers where a
defendant can show that: “(1) the party against whom
indemnification is sought was negligent; (2) that
party‟s active negligence, rather than the defendant‟s
own passive negligence, was the direct, immediate
cause of the accident and injuries; (3) the other
party was in control of the situation to the exclusion
of the defendant seeking reimbursement; and (4) the
defendant
did
not
know
of
the
other
party‟s
negligence, had no reason to anticipate it, and
reasonably could rely on the other party not to be
17
negligent.” Smith v. City of New Haven, 258 Conn. 56,
66, 779 A.2d 104, 110 (2001).
Pennsylvania Mfrs. Indem. Co. v. Cintas Fire Prot. & Fire Sys.
of Springfield, CT, No. 3:11CV00650(VLB), 2012 WL 3779140, at *4
(D. Conn. Aug. 30, 2012). “To determine the legal sufficiency of
the third-party claim, the court must evaluate it against the
background of the complaint.” Conn. Gen. Life Ins. Co. v. SVA,
Inc., 743 F. Supp. 107, 111 (D. Conn. 1990) (citing Cimino v.
Yale Univ., 638 F. Supp. 952, 958 (D. Conn. 1986)). Therefore,
“it is the grounds alleged in the original complaint that will
be the basis for holding [Bridgeport Hospital] liable to the
[p]laintiff[s] in the first instance.” Cintas Fire, 2012 WL
3779140, at *5 (citing Cimino, 638 F. Supp. at 958 (“The crossclaim must be construed against the background of the complaint,
for it is only if the plaintiffs prevail ... that [the
defendant] would have any basis for seeking indemnity.”)).
The United States claims that “[p]laintiffs‟ allegations
make it clear that Bridgeport Hospital‟s negligence (assuming it
can be proven), is in no way passive.” [Doc. #121 at 8]. The
United States further argues that a fair reading of plaintiffs‟
complaint does not establish that the United States “was in
control of the situation to the exclusion of Bridgeport
Hospital.” Id. at 9. With respect to their causes of action
18
against Bridgeport Hospital, plaintiffs‟ complaint alleges, in
pertinent part:
6. The said injuries were caused by the failure of the
defendant, BRIDGEPORT HOSPITAL and its servants,
agents, apparent agents and/or employees to exercise
reasonable
care
under
all
of
the
facts
and
circumstances then and there present in that they:
a. failed to adequately and properly care for, treat,
diagnose, monitor and supervise, [MMC] then in
utero, and VONETTA CYRUS-BARKER, for pregnancy,
labor, delivery and post delivery care;
b. failed to recognize and identify that VONETTA CYRUSBARKER was at increased risk for delivering a baby
with cephalopelvic disproportion;
c. failed to recognize that [MMC] was at increased risk
for cephalopelvic disproportion;
d. failed to anticipate or prepare for a difficult
delivery due to macrosomia;
e. failed
to
complete
the
general
admission
information;
f. failed to obtain the prenatal record prior to
delivery;
g. failed to review prenatal record prior to delivery;
h. failed
to
address
the
significant
errors
in
documentation
(inaccurate
weight
gain
during
pregnancy, previous macrosomia not recorded on
history and inaccurate weight of first baby);
i. failed to perform an ultrasound;
j. failed to recognize that VONETTA CYRUS-BARKER was at
risk for a delivery complicated by macrosomia;
k. failed to recognize that [MMC] was at risk for
shoulder dystocia;
l. failed to properly consider VONETTA CYRUS-BARKER‟S
medical history;
m. failed to identify the inaccuracy of the delivery
summary, as to the description of the delivery;
n. failed to discuss options for delivery and risks and
benefits of a cesarean section versus a vaginal
birth;
o. failed to adequately and properly assess VONETTA
CYRUS-BARKER‟S ability to deliver vaginally;
p. failed to make safe treatment choices for the
delivery of [MMC];
q. failed to safely deliver [MMC];
19
r. failed to timely diagnose and treat the shoulder
dystocia;
s. failed
to
properly
use
acceptable
delivery
maneuvers;
t. employed
dangerous
and
improperly
delivery
maneuvers;
u. applied excessive traction, pressure and/or torsion
to [MMC] during delivery;
v. failed to perform a cesarean section;
w. failed
to
properly
supervise
delivery
room
personnel;
x. failed to utilize the shoulder dystocia drill;
y. failed to have personnel experienced with shoulder
dystocia in the delivery room;
z. failed to document the management of labor and
delivery;
aa. failed to provide physicians and surgeons who
possessed
the
requisite
knowledge,
skill
and
experience to adequately and properly care for,
treat, diagnose, monitor and supervise [MMC] in
utero, and VONETTA CYRUS-BARKER during pregnancy,
labor and post delivery care;
bb. failed
to
promulgate
and/or
enforce
rules,
regulations,
standards
and
protocols
for
the
treatment of patients such as [MMC] then in utero,
and, VONETTA CYRUS-BARKER[.]
[Doc. #1-2 at 13-14 (alterations added)].
Here, the allegations in plaintiffs‟ complaint assert that
Bridgeport Hospital was an active tortfeasor. The allegations
which particularly support this conclusion include those that
Bridgeport Hospital: “failed to complete the general admission
information;” “failed to safely deliver [MMC];” “failed to
properly use acceptable delivery maneuvers;” “employed dangerous
and improper delivery maneuvers;” and “applied excessive
traction, pressure and/or torsion to [MMC] during delivery[.]”
Id. Plaintiffs‟ allegations implicate Bridgeport Hospital as an
20
active tortfeasor separate and apart from any alleged negligence
which occurred at the hands of the United States during CyrusBarker‟s pre-natal care. Accordingly, Bridgeport Hospital cannot
maintain a cause of action against the United States for
indemnification because “the rationale for allowing
indemnification, i.e., that the passive tortfeasor „is
chargeable merely with constructive fault‟ does not apply, or
„is negatived [sic], wherever it appears that the party seeking
indemnity was himself guilty of affirmative misconduct which was
a proximate cause of the injury in question.‟” Gregoire v.
Michaud Enter. LLC, No. HHCVB075011658, 2010 WL 4885123, at *4
(Conn. Super. Ct. Nov. 3, 2010) (emphasis added) (quoting
Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co.,
52 A.2d 862, 865 (Conn. 1947)). Here, the allegations of
plaintiffs‟ complaint assert that Bridgeport Hospital was
“guilty of affirmative misconduct which was a proximate cause of
the injury in question.” Id.
Further, although “the question of exclusive control is
ordinarily a question of fact to be determined by a jury, some
circumstances may nonetheless „give rise to the question of
whether, in light of the facts alleged in the third party
complaint, any reasonable juror could find that the third party
defendants had exclusive control of the situation,‟ transforming
the matter into a question of law.” Cintas Fire, 2012 WL
21
3779140, at *5 (citations omitted). Plaintiffs‟ allegations
against Bridgeport Hospital arise from the labor and delivery of
MMC. Bridgeport Hospital, however, appears to seek
indemnification for the United States‟ allegedly negligent
prenatal care. The United States correctly notes that Bridgeport
Hospital is not alleged to have participated in or negligently
handled the prenatal care. Further, there does not appear to be
any dispute that the United States (i.e., any Optimus employees)
was not involved in any aspect of the labor and delivery.
Therefore, even if “the situation” arose from the negligent
prenatal care provided by the United States, the United States
indisputably did not have exclusive control over the labor and
delivery as MMC was delivered at Bridgeport Hospital without the
presence or involvement of any Optimus employees. See Cintas
Fire, 2012 WL 3779140, at *6 (“[E]ven if the dangerous condition
arose from a negligent installation of the pipes performed by
[the third-party defendant], [the third-party defendant]
indisputably did not have exclusive control over the sprinkler
system as [third-party plaintiff] had been servicing the
sprinkler system under its maintenance contract with PMI for
nearly a decade before performing the „trip‟ test in question.”
(citation omitted)).6 Accordingly, Bridgeport Hospital “has not
At the hearing, Bridgeport Hospital argued that the United
States negligently failed to transmit Cyrus-Barker‟s prenatal
6
22
and cannot plausibly allege exclusive control in this case in
light of the factual allegations set forth in the [plaintiffs‟]
complaint.” Id.
Finally, Bridgeport Hospital presents an argument that if
the Court does not grant the motion for leave then the United
States will have “essentially transmitted its liability to
Bridgeport Hospital,” because “even though the USA was the
primary and proximate cause of the injuries to plaintiffs,
Bridgeport Hospital may be liable to plaintiffs even if it is
only a minor cause of plaintiffs‟ injuries.” [Doc. #130 at 2-3].
To the extent that Bridgeport Hospital is concerned that a jury
will impute any negligence committed by the United States to it,
as the United States suggests, the remedy for this is jury
records to Bridgeport Hospital, which it contended was the
“primary cause” of the injuries for which plaintiffs now seek
relief. Bridgeport Hospital further argued that it “did nothing
wrong” with respect to the labor and delivery, and that had the
United States transmitted Cyrus-Barker‟s prenatal records,
Bridgeport Hospital would have performed a cesarean section. The
basis of the United States‟ alleged obligation to transmit the
prenatal records to Bridgeport Hospital is unclear. Plaintiffs‟
complaint does not explicitly allege that the United States was
negligent in that regard, but instead alleges that the United
States “failed to provide assistance to the physician who
possessed the requisite knowledge, skill and experience to
adequately and properly care for, treat, diagnose, monitor and
supervise, [MMC], then in utero, and VONETTA CYRUS-BARKER,
during her pregnancy[.]” [Doc. #1-2 at 3]. In any event, this
argument does not change the Court‟s conclusion that Bridgeport
Hospital cannot claim that the United States had exclusive
control over the labor and delivery of MMC.
23
instructions, special interrogatories, persuasive opening and
closing arguments, and appropriate motions in limine.7
Therefore, Bridgeport Hospital‟s motion for leave is futile
as to the Indemnification claim, and is DENIED.
B. Motion to Remand
In light of the Court‟s ruling on Bridgeport Hospital‟s
motion for leave, at this time “it appears that the district
court lacks subject matter jurisdiction,” and therefore, “the
case shall be remanded[]” back to state court. 555 Broad Street,
2015 WL 1445290, at *1 (quoting 28 U.S.C. §1447(c)).
Accordingly, based on the case law above and the Court‟s other
rulings stated herein, the Court GRANTS plaintiff‟s motion to
remand.
IV.
CONCLUSION
For the reasons stated, Bridgeport Hospital‟s motion for
leave to file and serve a third-party complaint [Doc. #115] is
DENIED, and plaintiffs‟ motion to remand to state court [Doc.
#115] is GRANTED.
This matter is remanded to Connecticut State Superior
Court.
Additionally, even if the United States remained a party to
this action, any claim against it would be tried to the Court
and not to a jury. See 28 U.S.C. §2402 (“[A]ny action against
the United States under section 1346 shall be tried by the court
without a jury[.]”).
7
24
This is not a recommended ruling.
The parties consented to
proceed before a United States Magistrate Judge [Doc. #49] on
October 4, 2012, with appeal to the Court of Appeals.
SO ORDERED at New Haven, Connecticut this 2nd day of
September, 2015.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
25
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