Glover et al v. United States of America

Filing 27

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 1/27/2014. (c/m 1/27/14 am2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
JENNIE J. GLOVER, et al.,

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Plaintiffs,

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v.

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UNITED STATES OF AMERICA,

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Defendant.
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Case No.: PWG-13-2112

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MEMORANDUM OPINION
This Memorandum Opinion disposes of Defendant United States of America’s Partial
Motion to Dismiss, ECF No. 9, and accompanying Memorandum, ECF No. 9-1; Plaintiffs’
Opposition, ECF No. 11, and accompanying Memorandum, ECF No. 11-1; and Defendant’s
Reply, ECF No. 19. A hearing is not necessary. See Loc. R. 105.6. For the reasons stated
below, Defendant’s Partial Motion to Dismiss shall be DENIED.
I. BACKGROUND
For purposes of considering Defendant’s Motion, this Court accepts the facts that
Plaintiffs alleged in the Complaint as true. See Aziz v. Alcoac, 658 F.3d 388, 390 (4th Cir. 2011).
Decedents Julianne Faith McCormack (“Julianne”) and Jillian Angel McCormack (“Jillian”)
were the children of Plaintiffs Jeffrey A. McCormack and Jennie J. Glover. Compl. ¶¶ 4, 7, ECF
No. 1. Because Mr. McCormack was a servicemember in the United States Armed Forces, his
then-wife, Ms. Glover, received health care from the National Naval Medical Center (“NNMC”)
in Bethesda, Maryland. Id. ¶ 21. Following years of infertility, Ms. Glover discovered she was
pregnant in December of 2009. Id. ¶ 20. She received an ultrasound at the NNMC, which
showed a normal twin pregnancy. Id. ¶ 22. Two more ultrasounds yielded normal results: one

later in December and one in February of 2010. Id. ¶¶ 22–24. The February ultrasound was
conducted and interpreted by Dr. Kimberly Hickey, id. ¶ 25, a medical doctor employed at the
NNMC, id. ¶ 19.
On March 24, 2010, Dr. Hickey performed another ultrasound on Plaintiff, from which
Dr. Hickey concluded that “both Julianne and Jillian had adequate growth” and that Ms. Glover’s
cervical measurement was normal. Id. ¶ 25. The day after the last ultrasound, Ms. Glover
reported to Triage at the NNMC with a loss of amniotic fluid, prolapsed amniotic membranes, a
dilated cervix, and a problem with the membrane surrounding one of her twins, and she was
admitted to the hospital. Id. ¶¶ 26–28. Julianne was born on March 30, 2010 and died twentythree days later as a result of complications incident to her premature birth. Id. ¶¶ 30, 32–33.
Jillian was born on April 1, 2010 and died only twenty-three minutes later, also as a result of
complications incident to her premature birth. Id. ¶¶ 36–37. Both twins were born at under
twenty-four weeks’ gestation.

Id. ¶¶ 30, 36.

According to Plaintiffs, “[h]ad defendant’s

employee properly interpreted the March 24, 2010 ultrasound and provided for follow-up
treatment as required by the applicable standard of care, Julianne [and Jillian] would have
remained in utero until a point where when born, [they] would have survived and been
neurologically intact.” Id. ¶¶ 34, 39.
Ms. Glover, for herself and each of the twins, filed claims with the Department of the
Navy, which were denied on December 10, 2012. Id. ¶¶ 12–13. After reconsideration, the Navy
issued its final denial on February 19, 2013. Id. Then, Ms. Glover timely filed two actions in the
Health Care Alternative Dispute Resolution Office, which were transferred to this Court. Id.
¶ 14. Her four-count complaint against the United States under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671–2680 (“FTCA”), alleges: (1) medical malpractice (survivor action) on

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behalf of the estate of Julianne, (2) wrongful death on behalf of Ms. Glover individually for the
death of Julianne, (3) medical malpractice (survivor action) on behalf of the estate of Jillian, and
(4) wrongful death on behalf of Ms. Glover individually for the death of Jillian. Id. Ms. Glover
lists Jeffrey A. McCormack as a “use” plaintiff, although he has not joined this action, and he did
not join the administrative proceedings below. The United States filed the pending motion to
dismiss Mr. McCormack as a plaintiff. That issue has been briefed fully and now is before me.
II. STANDARD OF REVIEW
A defendant can move to dismiss for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1) by asserting that “a complaint simply fails to allege facts upon which subject
matter jurisdiction can be based.”

Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

However, “the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is
afforded the same procedural protection as he would receive under a 12(b)(6) consideration.”
Id.; see Lutfi v. United States, 527 F. App’x 236, 241 (4th Cir. 2013); Fianko v. United States,
No. PWG-12-2025, 2013 WL 3873226, at *4 (D. Md. July 24, 2013). Thus, “the facts alleged in
the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009); see In re KBR, Inc., Burn Pit Litig., 925 F. Supp. 2d 752, 758 (D. Md. 2013) (quoting
Kerns, 585 F.3d at 192). “[W]hen ‘jurisdictional facts are inextricably intertwined with those
[facts] central to the merits, the [district] court should resolve the relevant factual disputes only
after appropriate discovery.’” Blitz v. Napolitano, 700 F.3d 733, 739 (4th Cir. 2012) (quoting
Kerns, 585 F.3d at 193). This Court must act “on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56
(2007) (citations omitted).

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III. DISCUSSION
The sole issue before me is whether Jeffrey A. McCormack should be dismissed as a
party to this FTCA action. The parties agree that Mr. McCormack, after receipt of appropriate
notice under Maryland law, did not pursue an administrative claim and has not appeared in this
lawsuit. See Def.’s Mem. 1–2; Pls.’ Mem. 1.
In moving to dismiss, Defendant argues that Mr. McCormack’s failure to file an
administrative claim forever bars him from being a party against the United States with regard to
the claims in the complaint. Def.’s Mem. 1 (citing 28 U.S.C. § 2675(a)). Thus, according to
Defendant, the United States has not waived sovereign immunity as to Mr. McCormack’s claims
and therefore he must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). Id. at 3. Citing Ahmed
v. United States, 30 F.3d 514, 516 (4th Cir. 1990), Defendant argues that the exhaustion
requirement is jurisdictional. Id.; see 28 U.S.C. § 2401(b) ( “[A] tort claim against the United
States shall be forever barred unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues . . . .”).
In response, Plaintiffs argue that a judgment entered without benefitting Mr. McCormack
could be vacated because the Maryland Wrongful Death Act requires that both parents be parties
to the suit. See Pls.’ Mem. 1–2 (citing Md. Code Ann., Cts. & Jud. Proc. § 3-904(a)(1), (f);
Johnson v. Price, 191 F. Supp. 2d 626, 629 (D. Md. 2001)). In their argument, Plaintiffs cite two
related opinions authored by Chief Judge Chasanow. In each, Judge Chasanow ordered an
FTCA plaintiff, bringing suit under the Maryland Wrongful Death Act, to amend his complaint
to list the decedent’s surviving children as plaintiffs. Id. at 2–3 (citing Chang-Williams v. United
States, ---- F. Supp. 2d ----, 2013 WL 4454597 (D. Md. Aug. 15, 2013); Chang-Williams v.
Dep’t of the Navy, 766 F. Supp. 2d 604 (D. Md. 2011)). According to Ms. Glover, “keeping Mr.
McCormack as a plaintiff will not change the facts of the case in any way, nor will it increase the
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potential exposure of the defendant because Plaintiff’s [sic] recovery is still limited to the
amount claimed on the original administrative claim forms.” Id. at 3–4.
In reply, Defendant does not take issue with Plaintiffs’ reading of Maryland law, but
points to the Fourth Circuit’s holding that each claimant individually must satisfy the
jurisdictional requirements. Def.’s Reply 3 (citing Muth v. United States, 1 F.3d 246, 249 (4th
Cir. 1993)). Therefore, citing the Supremacy Clause of the U.S. Constitution, U.S. Const. art.
VI, cl. 2, and related case law, Defendant argues that the exhaustion requirement of the FTCA
supersedes the party-in-interest requirement of the Maryland Wrongful Death Act. See Def.’s
Reply 2–3.

Defendant argues that the Maryland Wrongful Death Act, a “State statute or

procedural rule,” cannot confer federal jurisdiction where none exists. Id. at 5. Last, Defendant
disagrees that its exposure to liability is not affected by Mr. McCormack remaining as a party.
Id. at 7. Defendant argues that two caps apply to FTCA recovery: (1) the amount sought in the
administrative complaint and (2) the amount a private individual under like circumstances would
receive. Id. (citing 28 U.S.C. § 2674). Defendant argues that “the amount a private individual
under like circumstances would receive” could increase with Mr. McCormack’s participation.
Id. (citing Cts. & Jud. Proc. § 3-2A-09(b)(2)(ii)).1
Generally, “if there are multiple claimants in the matter, each claimant must individually
satisfy the jurisdictional prerequisite of filing a proper claim, unless another is legally entitled to
assert such a claim on their behalf.” Muth, 1 F.3d at 249 (internal quotation marks omitted). I

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This argument first is raised in Defendant’s Reply Brief, and only in passing. It appears to
suggest that Defendant could argue for the application of a common law damages cap lower than
the amount Ms. Glover sought in her administrative claims. Defendant’s argument suggests that,
with Mr. McCormack’s participation as an additional plaintiff, the amount of recovery could rise
closer to what Ms. Glover sought in her administrative claims. However, because this issue has
been raised only in Defendant’s Reply Brief and has not been briefed fully, it is not possible to
address it meaningfully here.
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recognize the potential tension between that general statement and this Court’s decision in, for
example, Chang-Williams v. United States, 2013 WL 4454597. However, I am persuaded that
Chief Judge Chasanow properly reconciled the Maryland Wrongful Death Act, the FTCA, and
Fourth Circuit precedent. Defendant is correct that exhaustion is a non-waivable jurisdictional
requirement.

See, e.g., Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986).

“Nonetheless, because the FTCA ‘was not intended as a trap for the unwary claimant,’ courts in
this district have ‘allowed claims to go forward when all of the plaintiffs have not filed separate
claims and the claims arose out of the same facts and were for the same amount of money.’”
Chang-Williams v. United States, 2013 WL 4454597, at *23 (quoting Starr v. United States, 262
F. Supp. 2d 605, 607 (D. Md. 2003)); see Munger v. United States, 116 F. Supp. 2d 672, 676 (D.
Md. 2000) (“Since the government was preparing for a claim from the administrator of the
estate, they are not prejudiced by a claim from the parents because the standards of law are the
same, even though the theories of recovery are different.”).
As prior cases in this Court establish, whether Mr. McCormack individually filed a claim
is not outcome determinative as to whether the jurisdictional prerequisite of exhaustion is met.
Whether his claim has been presented to the agency depends not on whether he was the
individual to present it, but on whether the Government has “adequate notice to conduct a proper
investigation into the underlying incident and places a ‘sum certain’ on the claim’s value.”
Chang-Williams v. United States, 2013 WL 4454597, at *23 (internal citations omitted). As this
Court explained in Munger and Chang-Williams, exhaustion requires that the claim, but not
necessarily the claimant or the theory of recovery, be presented to the agency. See id.; Munger,
116 F. Supp. 2d at 676. Here, the United States was provided adequate notice, based on Ms.
Glover’s administrative claim, that a potential future action would include a wrongful death

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claim under the Maryland Wrongful Death Act. The Maryland Wrongful Death Act provides
that a wrongful death action “shall be for the benefit of the wife, husband, parent, and child of
the deceased person.” Cts. & Jud. Proc. § 3-904(a)(1). “By its plain terms, this statutory
language should have provided notice to the Government that [decedents’] surviving parents
would be joined in any eventual lawsuit.” Chang-Williams v. United States, 2013 WL 4454597,
at *23.
The logic of the Chang-Williams decision is amplified in this case precisely because Mr.
McCormack has not shown a desire to participate. The omitted parties in Chang-Williams
sought to participate in the lawsuit. See Chang-Williams v. Dep’t of the Navy, 766 F. Supp. 2d at
630–31. Because the Court held that the claims had been presented to the Navy, joinder was
ordered. Id. Here, a judgment entered for the Plaintiffs could be vacated if Mr. McCormack is
not included. See Johnson, 191 F. Supp. 2d at 629 (citations omitted). Therefore, “the court
cannot accord complete relief among existing parties” when a beneficiary is excluded. Fed. R.
Civ. P. 19(a)(l)(A); see also Ward v. Walker, 725 F. Supp. 2d 506, 510–11 (D. Md. 2010)
(holding that decedent’s daughter was a necessary party to the Maryland wrongful death action);
Johnson, 191 F. Supp. 2d at 630 (same). Mr. McCormack’s inclusion protects any judgment
entered for Plaintiffs, see Walker v. Essex, 569 A.2d 645, 648 (Md. 1990) (a judgment should not
be entered “unless it include[s] the interests of all of the known beneficiaries”), and protects the
United States “‘from being vexed by several suits instituted by or on behalf of different equitable
plaintiffs for the same injury, when all the parties could be joined in one proceeding,’” Univ. of
Md. Med. Sys. Corp. v. Muti, 44 A.3d 380, 389 (Md. 2012) (quoting Walker, 569 A.2d at 648).
In contrast, preventing Ms. Glover from including Mr. McCormack, a mandatory party, because

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he did not join in her administrative claims could allow his nonparticipation to bar her claims
completely under the Maryland Wrongful Death Act.
Therefore, because the underlying facts of Mr. McCormack’s claim are identical to those
presented through Ms. Glover’s administrative complaint, I find that the Department of the Navy
was presented with his claims, even though he was not the individual to present them. Further,
when read in conjunction with the Maryland Wrongful Death Act, Ms. Glover’s administrative
claims afforded Defendant adequate notice as to Mr. McCormack’s future inclusion in this
lawsuit and the claims that would be brought for his benefit.
IV. CONCLUSION
For the reasons stated above, Defendant’s Partial Motion to Dismiss shall be DENIED.
A separate order shall issue.

Dated: January 27, 2014

/S/
Paul W. Grimm
United States District Judge

jwr

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