Brown v. Hospital "A" et al

Filing 25

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the 8 motion to dismiss is GRANTED. Count IV is DISMISSED WITHOUT PREJUDICE for lack of derivative jurisdiction. The motion for summary ruling 24 is DENIED AS MOOT. The Clerk is directed to REMAND the remaining claims to Lake Superior Court for further proceedings. Signed by Judge Rudy Lozano on 12/4/2017. (cc: Lake County Superior Court cert copy of order and docket sheet) (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NICKOLAS BROWN,
individually, and as the
personal representative of
the SUPERVISED ESTATE OF
AMBERLEE CORINA BERKMANPOWERS, deceased,

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vs.
HOSPITAL “A”, et al.,
Defendants.

NO. 2:17–CV-125

OPINION AND ORDER
This matter is before the Court on the “Defendant’s Motion to
Dismiss or Alternatively Summary Judgment,” filed by the United
States of America on March 24, 2017 (DE #8) and the “Defendant
United States of America’s Motion for Summary Ruling,” filed by
the United States of America on November 9, 2017 (DE #24).

For

the reasons set forth below, the motion to dismiss (DE #8) is
GRANTED.

Count IV is DISMISSED WITHOUT PREJUDICE for lack of

derivative jurisdiction.
is DENIED AS MOOT.

The motion for summary ruling (DE #24)

The Clerk is directed to REMAND the remaining

claims to Lake Superior Court for further proceedings.

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BACKGROUND
The

plaintiff,

Nickolas

Brown

(“Plaintiff”),1

filed

a

complaint in Lake Superior Court, Lake County, Indiana, on December
13, 2016, against a hospital and several physicians.

(DE #5.)

The complaint alleges that on or about November 28, 2014, the
defendants provided negligent healthcare services to Amberlee
Corina Berkman-Powers (“Berkman-Powers”) that resulted in her
death.

(Id.)

Count I brings claims against Hospital “A,” while

Counts II through VI bring identical claims against Physicians “A”
through “E.”

(Id.)

On March 15, 2017, the acting United States

Attorney for the Northern District of Indiana, Clifford D. Johnson,
certified that the defendant referenced in Count IV, Physician “C”
(“Dr. Queen Marsh”), was acting within the scope of her office or
employment as a Public Health Service employee pursuant to the
Federally Supported Health Centers Assistance Act, 42 U.S.C. §
233(g)-(n) at the time of the incident described in the complaint.
(DE #1-1.) On March 21, 2017, the United States of America removed
the case to federal court.

(DE #1.)

That same day, the United

States of America filed a motion for substitution of party because
the Federal Tort Claims Act (“FTCA”) provides that a suit against
the United States shall be the exclusive remedy for persons with
claims for damages resulting from the actions of federal employees

1

Nickolas Brown is suing individually and as the personal representative of
the Supervised Estate of Amberlee Corina Berkman-Powers. (DE #5.)

2

taken within the scope of their office or employment and the United
States shall be substituted as the party defendant.
28 U.S.C. § 2679.

(DE #4.)

See generally

Magistrate Judge Paul R. Cherry

granted the motion for substitution on March 22, 2017.

(DE #6.)

On March 24, 2017, the United States of America filed the instant
motion

to

dismiss

Count

IV,

arguing

that

the

Court

lacks

jurisdiction over it. (DE #8.) On April 21, 2017, Plaintiff filed
an unopposed motion for an extension of time to respond to the
motion to dismiss, and the deadline was extended to May 7, 2017.
(DE #15 & DE #16.)

To date, Plaintiff has not filed a response.

On November 9, 2017, the United States of America filed a motion
for summary ruling requesting that the Court grant the motion to
dismiss summarily.

(DE #24.)

Plaintiff has failed to file a

response to that motion as well.

Both motions are ripe for

adjudication.

DICUSSION
Northern District of Indiana Local Rule 7-1(d)(4) provides
that “[t]he court may rule on a motion summarily if an opposing
party does not file a response before the deadline.”

Because the

instant motion to dismiss is unopposed, it is within the Court’s
discretion to grant the motion and dismiss Count IV without further
comment.

N.D. Ind. L.R. 7-1(d)(4); see also Sanders v. Town of

Porter Police Dept., 2:05-CV-377, 2006 WL 2457251, at *2 (N.D.

3

Ind. Aug. 22, 2006) (collecting cases).

However, for the sake of

clarity in the record, the Court will proceed to analyze the issue
as it was presented. Motions to dismiss for lack of subject matter
jurisdiction fall under Rule 12(b)(1) of the Federal Rules of Civil
Procedure.

In considering a Rule 12(b)(1) motion, the Court must

“accept as true all well-pleaded factual allegations and draw all
reasonable inferences in favor of the plaintiff,” and may “look
beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists.”

St. John's

United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th
Cir. 2007) (citation omitted).

The plaintiff bears the burden of

demonstrating

jurisdiction,

subject

matter

and

must

allege facts that invoke federal court jurisdiction.”
F.3d at 1001.

“clearly

Sprint, 361

The Court “presume[s] that federal courts lack

jurisdiction unless the contrary appears affirmatively from the
record.”

Id. (citation and internal quotation marks omitted).

The United States of America argues that Count IV of the
complaint should be dismissed because the Lake Superior Court
lacked subject matter jurisdiction over any claims for money
damages arising out of the alleged negligence of Dr. Queen Marsh,
a federal employee, and, therefore, this Court did not acquire
derivative jurisdiction from the state court.

“Jurisdiction of

the federal court on removal is, in a limited sense, a derivative

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jurisdiction.

Where the state court lacks jurisdiction of the

subject matter or of the parties, the federal court acquired none,
although in a like suit originally brought in a federal court it
would have had jurisdiction.”

Abu-Humos v. First Merit Bank, No.

15-cv-6961, 2015 WL 7710374, at *1 (N.D. Ill. Nov. 30, 2015)
(quoting Minnesota v. United States, 305 U.S. 382, 389 (1939)).
Plaintiff’s complaint is straightforward.

He alleges that

negligent healthcare services on the part of a hospital and several
physicians caused the death of Berkman-Powers.

However, because

Dr. Queen Marsh has been certified under the FTCA as a federal
employee acting within the scope of her employment, Plaintiff’s
claim of negligence in Count IV is really against the United
States, and the exclusive remedy for tort claims against the United
States for money damages is the FTCA.

Feres v. United States, 340

U.S. 135, 140 (1950); 28 U.S.C. §§ 1346(b), and 2679(a)-(b)(1);
see also Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012)
(stating “the FTCA is a limited waiver of the United States’
sovereign immunity” and it “is the exclusive remedy for any tort
claim resulting from the negligence of a government employee acting
within the scope of employment”).

As noted above, a FTCA claim

such as this must be initiated in federal court.

See Alinsky v.

United States, 415 F.3d 639, 643 (7th Cir. 2005) (stating the “FTCA
grants federal courts jurisdiction over” damages claims against
the United States for negligence by a government employee); Midwest

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Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1297 (7th
Cir. 1991); Abu-Humos, 2015 WL 7710374, at *1 (holding “while
common law torts are cognizable under the FTCA, state courts lack
jurisdiction over such claims.”).

Because jurisdiction under the

FTCA existed only in federal court, the Lake Superior Court lacked
subject matter jurisdiction over any claims for money damages
arising

out

of

the

alleged

negligence

of

Dr.

Queen

Marsh.

Furthermore, the state court lacked jurisdiction to hear the claims
of negligence against her, and, upon removal, this Court acquired
no derivative jurisdiction from the state court.

See Rodas v.

Seidlin, 656 F.3d 610, 615-16 (7th Cir. 2011); Edwards v. United
States Dep’t of Justice, 43 F.3d 312, 316 (7th Cir. 1994); Fedorova
v. Wells Fargo and Co., No. 16 C 1810, 2016 WL 2937447, at *2 (N.D.
Ill. May 20, 2016); Abu-Humos, 2015 WL 7710274, at *1-2. The Court
notes that Rodas recognized a limited exception for the derivative
jurisdiction rule for removals under section 1442 where a motion
to dismiss is made after removal, but only where the case has
already been decided on the merits.

Rodas, 656 F.3d at 619-25.

Here, the case has not been decided on the merits, and dismissal
without prejudice is the proper result.

See Abu-Humos, 2015 WL

7710374, at n.1 (“dismissal is strongly indicated when the issue
is raised before any substantive matters have been addressed.”).
Thus, the Court dismisses Count IV without prejudice for lack of
derivative jurisdiction.

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Having dismissed Count IV, the Court does not have original
jurisdiction over the remaining claims in the complaint.
an

instance,

a

court

may

decline

to

jurisdiction over those remaining claims.

exercise

In such

supplemental

28 U.S.C. § 1367(c)(3).

Here, the Court finds that it would not be appropriate to exercise
supplemental jurisdiction over Plaintiff’s remaining claims, and
they are remanded to the Lake Superior Court.

See Whitely v.

Moravec, 635 F.3d 308, 311 (7th Cir. 2011) (recognizing that “a
district

judge

has

discretion

to

relinquish

supplemental

jurisdiction and remand once the federal claim has dropped out” of
a lawsuit).
Finally, because the Court has ruled on the motion to dismiss,
the motion for summary ruling is denied as moot.

CONCLUSION
For the reasons set forth above, the motion to dismiss (DE
#8) is GRANTED.

Count IV is DISMISSED WITHOUT PREJUDICE for lack

of derivative jurisdiction.
#24) is DENIED AS MOOT.

The motion for summary ruling (DE

The Clerk is directed to REMAND the

remaining claims to Lake Superior Court for further proceedings.

DATED:

December 4, 2017

/s/RUDY LOZANO, Judge
United States District Court

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