Franklin et al v. Newton Wellesley Hospital et al
Filing
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Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER: This action is REMANDED to the Suffolk County Superior Court; The Clerk is directed to send a certified copy of the record in this case to the Suffolk Superior Court in accordance with Local Rule 81.1(c), and to enter on a separate document a final judgment as follows: "This case is remanded to the court from which it was removed;" and (3) The Clerk shall close this action on the Court's dockets.(PSSA, 1)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ANN WALLIS FRANKLIN, ET AL.,
Plaintiffs
v.
CIVIL ACTION NO.
12- 11919 -WGY
NEWTON WELLESLEY HOSPITAL, ET
AL.,
Defendants.
MEMORANDUM AND ORDER
YOUNG, D.J.
BACKGROUND
On October 16, 2012, Plaintiffs Ann Wallis Franklin, Esq. (“Ann”), and her twin sister
Elizabeth Paine Franklin (“Elizabeth”), both residents of Chestnut Hill, Massachusetts, filed a
package of materials purporting to remove a civil action pending in the Suffolk County Superior
Court. The various documents constituting the Notice of Removal (Docket No. 1) are not
entirely coherent. One document is entitled “Motion to Remove to Federal Court on Grounds of
Federal Statute.” That document also states “Emergency Medical–Allergens in nose–deadly”
and “Harrassment [sic] of a Massachusetts Attorney [/] Federal Statute [/] $10,000 fine [/] 10 yrs
in jail.” Motion (Docket No. 1 at 1) (brackets added). Also included in the removal package is
a letter dated August 15, 2012 directed to (presumably) to the state court Clerk in which Ann
states she was enclosing an Amended Complaint. The rest of the letter is virtually unintelligible.
From what can be discerned, Ann first complains that there was a mis-diagnosis of
“psychosomatic tooth pain.” Apparently, this alleged mis-diagnosis prevented Ann from
receiving medical or dental insurance care coverage, resulting in the loss of 11 teeth. Second,
Ann asserts a claim of medical malpractice in connection with treatment for cancer of the nose
and upper jaw, and for sinus pain. Third, Ann complains that she was hit by a car door, and was
disfigured by the use of metals to which she is allergic. Id. at 2. The letter request a “remand” to
Federal Court. Id.
Next, enclosed in the removal package was a copy of the Amended Complaint
presumably filed in the Suffolk Superior Court. See Docket No. 1 at 3. The document also
indicates it is a federal court remand, and that the action was both civil and criminal, based on
the harassment of a Massachusetts Attorney. Attached was a list of Defendants, which included
the Newton Wellesley Hospital, Dr. William Flynn, Dr. Bruce Suzuki, Dr. Doug Ross, Valet
Department of Newton Wellesley Hospital, Dr. Paul VonRyll Gryska, Dr. Robin Mayfield,
Robert Kieff of the Department of Plastic Surgery of the Massachusetts Eye and Ear Infirmary,
Stanton Medical Group at St. Elizabeth’s Hospital, Norwood Urgent Care, Dr. Anthony Wiekel,
Dr. Fred Hochberg, Tom Cottle, PhD, Dr. Renee O’Sullivan, and Dr. James Kligenstein. Along
with the Amended Complaint are copies of photographs of Ann over the years, depicting various
stages of recovery from surgeries. Also included is Ann’s resume.
The Amended Complaint is written in a stream-of-consciousness format, with nonsequiturs and immaterial statements. It does, however, shed some further light on the allegations
in the August letter to the state court Clerk. From what can be gleaned, the pleading includes
allegations that in October, 2011, Ann was a passenger in a car with her sister Elizabeth. They
were rushing to Newton Wellesley Hospital for Elizabeth’s pre-op testing prior to surgery for
two malignant polyps. Elizabeth came to a stop in front of the hospital. Ann got out of the car
but could not find her sister. She knelt down to see if her sister had passed out from pain (in
fact, Elizabeth had dropped her pocketbook and was picking it up). The valet at the hospital held
the car door open, and when Ann stood up, her head hit the car door. As a result, she nicked a
blood vessel in her face. She went to Norwood Urgent Care for an X-ray, which showed that she
had a fractured nose. She had surgery on her nose, but there were complications due to the
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discovery of a cyst and tumor in her nose. She consulted plastic surgeons and had three
surgeries. She continues to suffer pain and alleges that there are other surgeries scheduled in the
hopes of resolving her medical problems.
The Amended Complaint also includes allegations concerning the problems Plaintiffs had
with health care insurance coverage (MassHealth, Medicare, and Blue Cross/Blue Shield).
Finally, there is an allegation of abhorrent medical care by doctors in Boston, which
prevented Elizabeth from passing the Bar exam and prevented Ann from completing her medical
degree. Plaintiffs seek $125 million in damages for disfigurement and pain over the course of 35
years due to medical malpractice, and “concealment and deceit with a criminal mind.” Id. at 5.
DISCUSSION
I.
The Removal Fee
Plaintiffs failed to pay the $350.00 removal fee or to seek a waiver thereof. Generally,
this Court would afford litigants an opportunity to satisfy the fee requirements of this Court;
however, because this action is being remanded for the reasons set forth below, no further
opportunity is necessary.
II.
Screening of the Notice of Removal
Federal courts are of limited jurisdiction, “and the requirement of subject-matter
jurisdiction ‘functions as a restriction on federal power.’” Fafel v. Dipaola, 399 F.3d 403, 410
(1st Cir. 2005) (quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 (1982)). “The existence of subject-matter jurisdiction ‘is never presumed.’”
Fafel, 399 F.3d at 410 (quoting Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). A court
has an obligation to inquire sua sponte into its own subject-matter jurisdiction. See McCulloch
v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
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Further, under 28 U.S.C. § 1447(c), this Court may examine a Notice of Removal to determine if
removal is proper. If it appears that the Court lacks subject-matter jurisdiction, the Court must
issue an order for summary remand. Id. The removal statute must be strictly construed, and any
doubts about the propriety of removal should be resolved against the removal of an action. In re
Whatley, 396 F. Supp. 2d 50, 53 (D. Mass. 2005) citing Danca v. Private Health Care Sys., Inc.,
185 F.3d 1, 4 (1st Cir.1999).
III.
Lack of Jurisdiction Over This Removed Action
Under 28 U.S.C. § 1441, only a defendant in a state court action may remove the action
to federal court if the case is one over which the federal court has jurisdiction. See 28 U.S.C.
§ 1441(a). Plaintiffs (such as Ann and Elizabeth) do not have a right to remove a case from state
to federal court. Here, based on the allegations contained in the Amended Complaint, it is clear
that Ann and Elizabeth are plaintiffs in the state court action, and are not the defendants.1
Therefore, there is no right of these Plaintiffs to remove the Suffolk Superior Court case to this
Court.2
1
As an additional matter, putting aside the problem that Ann and Elizabeth are not
defendants, there is a requirement that any Notice of Removal must be filed “within thirty days
after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C.
§ 1446. Based on the letter to the state Clerk dated August 15, 2012, it appears that any attempt
at removal at this juncture is untimely.
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Plaintiffs also do not have any right to removal pursuant to 28 U.S.C. § 1443, which
permits removal by a defendant who assert a “law providing for equal civil rights.” In re
Whatley, 396 F. Supp. at 54. Under § 1443 (1) a party must demonstrate that the right allegedly
denied him or her arises under a federal law providing for specific civil rights stated in terms of
racial equality and that he or she cannot enforce that specified civil right in state courts. Johnson
v. Mississippi, 421 U.S. 213, 219 (1975) (citations omitted). See also McCullough v. Ligon, 430
F. Supp. 2d 846 (E.D. Ark. May 11, 2006); Davis v. Glanton, 921 F. Supp. 1421, 1423 (E. D.
Pa.1996) (Section 1443 (1) is rarely used as a basis for removal and is unavailable where
assertions are grounded solely in the First and Fourteenth Amendments).
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Finally, the Plaintiffs’ allegations of violations of federal law by the various defendants
do not invoke this Court’s subject-matter jurisdiction. Where subject-matter jurisdiction is based
on a federal question, see 28 U.S.C. § 1331, a plaintiff’s complaint must set forth the federal
question. See Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S.
1, 10 (1983) .3 Here, at best, Plaintiffs’ claims involve allegations of medical malpractice,
negligence, and/or harassment. Although the words “Federal Statute” appear on the face of the
pleading, no federal statute is identified, nor can this Court discern any federal question raised by
the allegations contained in the Amended Complaint.
Moreover, there is nothing in the Amended Complaint from which complete diversity can
be found; indeed, the list of Defendants attached to the Amended Complaint indicate that most, if
not all, of the Defendants likely are Massachusetts citizens for the diversity analysis.
In light of the above, Plaintiffs may not remove the state action to this Court, and this
Court lacks subject-matter jurisdiction over this action. Accordingly, this case will be
REMANDED forthwith and closed on this Court’s docket.4
3
There are two exceptions to this “well-pleaded complaint” rule: where adjudication of a
state-law claim “necessarily will involve the determination of a ‘substantial federal question,’”
or where the federal law preempts the state law at issue. Cambridge Literary Properties, Ltd. v.
W. Goebel Porzellanfabrik G.m.g.H. & Co. KG., 510 F.3d 77, 93-94 (1st Cir. 2007). Neither
of these exceptions appears to apply to the present action.
4
One other point to be noted here is that Ann Wallis Franklin has been a licensed attorney
since 1979. Without deciding the issue, the Court questions whether the Notice of Removal was
filed by her in good faith in accordance with Rule 11 of the Federal Rules of Civil Procedure.
See 28 U.S.C. § 1446(a) (including a requirement that the Notice of Removal be filed in
accordance with Rule 11). The Amended Complaint attached to the Notice of Removal (and
considered as part of the Notice of Removal) contains substantial Rule 8 pleading problems.
Additionally, the Amended Complaint appears to invoke liability, at least in part, for matters that
occurred 35 years ago (presumably beyond the applicable statute of limitations). Further, it
appears that Plaintiffs seek criminal prosecution and 10 years incarceration of the Defendants
based on purported malpractice claims. Such a request is not cognizable in this Court because
private citizens may not institute criminal proceedings, and because this Court lacks jurisdiction
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CONCLUSION
Based on the foregoing, it is hereby Ordered that:
(1)
This action is REMANDED to the Suffolk County Superior Court;
(2)
The Clerk is directed to send a certified copy of the record in this case to the Suffolk
Superior Court in accordance with Local Rule 81.1(c), and to enter on a separate
document a final judgment as follows: “This case is remanded to the court from which it
was removed;” and
(3)
The Clerk shall close this action on the Court’s dockets.
SO ORDERED.
DATED: October 31, 2012
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE
over criminal prosecutions unless brought by the United States Attorney. See Kennan v.
McGrath, 328 F.2d 610, 611 (1st Cir. 1964) (per curiam); accord Cok v. Cosentino, 876 F.2d 1,
2 (1st Cir. 1989) (per curiam) (stating that only the United States as prosecutor can bring a
complaint under 18 U.S.C. §§ 241-242); Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999)
(stating that individual citizens have no private right of action to institute federal criminal
prosecutions). Nevertheless, notwithstanding that this Court need not reach the issue of the good
faith, counsel is warned that should she attempt to bring a lawsuit in this Court in the future, any
Complaint must be filed in good faith under Rule 11, must be comply with Rule 8 (setting forth
plausible claims upon which relief may be granted), and must set forth the basis for the Court’s
subject-matter jurisdiction. Failure to comply with these requirements could result in the
imposition of sanctions.
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