Anderson et al v. Medicare Insurance et al
Filing
28
ORDER granting 17 Motion to Dismiss/General; adopting Report and Recommendations re 24 Report and Recommendation.(Written Opinion) Signed by Judge Patrick J. Schiltz on 7/20/2015. (ECW) cc: Andersons on 7/20/2015 (LPH).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SHIRLEY J. ANDERSON and ARNOLD
R. ANDERSON,
Case No. 14‐CV‐4832 (PJS/HB)
Plaintiffs,
ORDER
v.
MEDICARE INSURANCE; NEW RIVER
MEDICAL CENTER; GUARDIAN
ANGELS TCU OF ELK RIVER, MN;
DR. DAVID KRAKER; DR. GREGG
DYSTE; DR. MARK R. MOUNT; and
DR. STEVEN LOCKMAN,
Defendants.
Shirley J. Anderson, pro se.
Friedrich A.P. Siekert, UNITED STATES ATTORNEY’S OFFICE, for defendant
Medicare Insurance.
Plaintiff Shirley J. Anderson and her late husband Arnold R. Anderson filed a
lawsuit in Minnesota state court against various doctors and medical facilities, as well
as against “Medicare Insurance.” ECF No. 1‐1 at 1. (“Medicare Insurance” is not an
entity that can be sued; the real party in interest is the Secretary of the Department of
Health and Human Services, to which the Court will refer as “the government.”)
Anderson’s complaint alleges that her husband received substandard medical care from
the defendant doctors and facilities. The complaint also alleges that “Medicare . . . did
nothing to monitor and hold th[e] doctor[s] accountable” and demands that the
government “start policing all surgeons, doctors and facilities that are contracted to care
for patients.” ECF No. 1‐1 at 3‐4. The complaint seeks $200 million in punitive
damages. Id. at 4. After the doctors were dismissed from the suit (because Anderson
did not provide the affidavits of expert review required by Minn. Stat. § 145.682), ECF
Nos. 1‐2, 1‐3, 1‐4, the government removed the case to federal court.
This matter is before the Court on Anderson’s objection to the May 4, 2015
Report and Recommendation (“R&R”) of Magistrate Judge Hildy Bowbeer. Judge
Bowbeer recommends that the motion to dismiss the claim against the government be
granted for three independent reasons: (1) Anderson’s claim is barred by the doctrine
of sovereign immunity, (2) Anderson did not properly serve the government, and
(3) Anderson’s allegations fail to state a claim on which relief can be granted. The Court
has conducted a de novo review of the R&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b).
Anderson’s objection does not address any substantive aspect of Judge
Bowbeer’s analysis. In particular, Anderson does not attempt to meet her burden to
establish that the government has waived sovereign immunity, see Riley v. United States,
486 F.3d 1030, 1031‐32 (8th Cir. 2007), or her burden to provide evidence that she
properly served the government, see Fed. R. Civ. P. 4(l)(1); Northrup King Co. v. Compania
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Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995).1
Moreover, Anderson does not explain how the facts alleged in her complaint would
give her a right to recover damages from the government. Stone v. Harry, 364 F.3d 912,
914‐15 (8th Cir. 2004) (“Though pro se complaints are to be construed liberally, they still
must allege sufficient facts to support the claims advanced.” (citations omitted));
see also Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 854 (8th Cir. 2014) (district
courts do not have “sweeping duty” to “devise legal theories for pro se plaintiffs”; claim
1
Because the case was removed from state court, Anderson had 120 days from
the date of removal (rather than from the filing of the complaint) to properly serve the
government. See 28 U.S.C. § 1448; Fed. R. Civ. P. 4(m), 81(c)(1); Cardenas v. City of Chi.,
646 F.3d 1001, 1004 (7th Cir. 2011); 4B Charles Alan Wright, Arthur R. Miller, & Adam
N. Steinman, Federal Practice and Procedure § 1137, at 283 (4th ed. 2015). The case was
removed on November 21, 2014, ECF No. 1; the deadline for Anderson to serve the
government was thus March 23, 2015. On February 6, 2015, when the government
moved to dismiss for improper service and submitted a declaration stating that it had
not been properly served under Fed. R. Civ. P. 4(i), ECF Nos. 17, 19, 20, Anderson still
had time to effectuate service. Yet Anderson has not provided any evidence that she
properly served the government.
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must be “discernable”). The Court will therefore adopt the R&R (with the exception of
one phrase2) and dismiss the claim against the government with prejudice.3
A procedural matter remains: The government has provided state‐court filings
showing that many of the other defendants were dismissed before this case was
removed. ECF Nos. 1‐2, 1‐3, 1‐4.4 But it is not clear from the record (or from the Court’s
search of the Minnesota judiciary’s publicly available online database) whether all of the
defendants other than the government were dismissed in state court. It appears to the
Court that at least one defendant (New River Medical Center) may not have been
dismissed. (The government appears to agree that New River Medical Center remains
2
The R&R asserts that “the Medicare program is not authorized to oversee the
quality of care provided by physicians and contracted facilities.” ECF No. 24 at 7
(emphasis added). This is not accurate, as the government does have some authority to
oversee facilities, including through surveys by state agencies. See 42 U.S.C. § 1395aa.
Anderson’s complaint, however, is that “Medicare . . . did nothing to monitor and hold
th[e] doctor[s] accountable.” ECF No. 1‐1 at 3 (emphasis added). The federal
government does not have authority to monitor the care given by individual physicians.
3
Two of the grounds for dismissal recommended by Judge Bowbeer—sovereign
immunity and improper service—relate to the Court’s jurisdiction and therefore on
their own would result in dismissal without prejudice. Hart v. United States, 630 F.3d
1085, 1091 (8th Cir. 2011) (sovereign immunity); Smith v. Ghana Commercial Bank, Ltd.,
379 F. App’x 542, 543 (8th Cir. 2010) (per curiam, unpublished) (improper service). But
the third ground—failure to state a claim—warrants dismissal with prejudice. Ahmed v.
United States, 147 F.3d 791, 797‐98 (8th Cir. 1998).
4
Unlike this Court’s docket, the state‐court docket identifies as additional
defendants the medical practices with which the doctors appear to be affiliated, see ECF
No. 1‐1, but those additional defendants were also dismissed before removal, ECF
Nos. 1‐2, 1‐3, 1‐4.
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in the case, as it includes the facility in the caption of its filings, e.g., ECF Nos. 19, 26,
and asks the Court “to remand any remaining claims against any other defendant back
to Anoka County District Court,” ECF No. 19 at 2.)
The dismissal of Anderson’s claim against the government therefore does not
end the matter, as Anderson’s claims against at least one other defendant apparently
remain pending. The Court has discretion to exercise supplemental jurisdiction over
the remaining state‐law claims, dismiss those claims without prejudice, or remand the
case to state court. See 28 U.S.C. § 1367(c)(3); Carnegie‐Mellon Univ. v. Cohill, 484 U.S.
343, 348‐53 (1988); Lindsey v. Dillard’s, Inc., 306 F.3d 596, 598‐99 (8th Cir. 2002); Green v.
Ameritrade, Inc., 279 F.3d 590, 594‐95 (2002). Given that this lawsuit is still in its early
stages, the Court will not exercise supplemental jurisdiction over any remaining state‐
law claims. See Cohill, 484 U.S. at 350; see also Hervey v. Cnty. of Koochiching, 527 F.3d 711,
726‐27 (8th Cir. 2008) (explaining that when federal claims are dismissed leaving only
state claims, “[i]n most cases” supplemental jurisdiction should not be exercised to
“avoid needless decisions of state law” and “as a matter of comity and to promote
justice between the parties” (quoting Ivy v. Kimbrough, 115 F.3d 550, 552‐53 (8th Cir.
1997)). To save the parties from having to refile their papers in state court and the
Minnesota courts from having to reprocess the case, the Court will remand this matter
to state court. See Cohill, 484 U.S. at 350‐53.
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ORDER
Based on all of the files, records, and proceedings herein, the Court OVERRULES
Anderson’s objection [ECF No. 25] and ADOPTS the R&R [ECF No. 24], with the
exception of the phrase “and contracted facilities” appearing on page 7. IT IS HEREBY
ORDERED THAT:
1.
The government’s motion to dismiss [ECF No. 17] is GRANTED.
2.
Anderson’s claim against the government is DISMISSED WITH
PREJUDICE.
3.
This matter is REMANDED to the Minnesota District Court, Tenth Judicial
District.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 20, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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