Piper v. USA

Filing 6

///ORDER granting 5 Motion to Dismiss. Counts I, II, IV, and that part of Count V pertaining to the United States are dismissed. Clerk shall enter judgment on Counts I, II, IV, and part of Count V, and remand the remainder of the case to the Grafton County Superior Court. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Theresa Piper
v.

Civil No. 12-cv-373-JD

United States of America and
North Country Home Healthcare
and Hospice
O R D E R
Theresa Piper brought negligence claims against two medical
care providers and North Country Home Healthcare and Hospice that
arose from Piper’s overdose of morphine in August of 2009.

The

United States removed the case to federal court because the
medical care providers were employed by Ammonoosuc Community
Health Services, Inc. (“ACHS”), which is deemed to be a federal
employee under the Federally Supported Health Centers Assistance
Act, 42 U.S.C. § 233, making the defendant health care providers
employees of the United States.

The United States, as the

defendant substituted for the health care providers, moves to
dismiss the claims against it, Counts I, II, IV, and part of V,
due to a lack of subject matter jurisdiction.

Piper, who is

represented by counsel, did not respond to the motion to dismiss.

Discussion
In support of its motion, the United States relies on the
affidavit of Meredith Torres, Senior Attorney in the General Law

Division, Office of the General Counsel, Department of Health and
Human Services, and the Certification by the United States
Attorney for the District of New Hampshire, which were filed with
the notice of removal.

Those documents state that ACHS has

received federal grant money from the Public Health Service since
January 1, 2009; that the Secretary of Health and Human Services
has determined that ACHS and its employees have been deemed to be
Public Health Service employees since January 1, 2009; and that
ACHS has been eligible for Federal Tort Claims Act (“FTCA”)
medical malpractice coverage since January 1, 2009.

The United

States also demonstrates, through Torres’s affidavit, that
counsel for Piper filed an administrative tort claim on behalf of
Piper, relating to the events that form the basis of the claims
in this case, on September 10, 2012.
“The FTCA is a limited waiver of sovereign immunity by the
United States whereby a claimant can sue for the ‘negligent or
wrongful act or omission’ of certain government employees.”
Ramirez-Carlo v. United States, 496 F.3d 41, 46 (1st Cir. 2007)
(quoting 28 U.S.C. § 1346(b)(1)).

The limited waiver of

sovereign immunity only applies to those claims that are properly
presented to the appropriate agency within two years of accrual.
28 U.S.C. §§ 2401(b) & 2675(a).

In the absence of a timely filed

administrative claim, federal courts lack jurisdiction to
consider the claim.

Donahue v. United States, 660 F.3d 523, 524

(1st Cir. 2011).
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In this case, the events that gave rise to Piper’s claims
occurred between August 19 and September 1, 2009.

Counsel filed

an administrative tort claim on Piper’s behalf with the
Department of Health and Human Services on September 10, 2012.
Piper makes no argument that her claim accrued at a time after
September 1, 2009.

Therefore, Piper’s administrative claim was

filed more than two years after the date it accrued.

As a

result, the court lacks subject matter jurisdiction over Piper’s
claims against the United States.

See, e.g., Gonzalez v. United

States, 284 F.3d 281, 290-91 (1st Cir. 2002); Z.B. v. Ammonoosuc
Community Health Servs., Inc., 2004 WL 1571988, at *6-*10 (D. Me.
June 13, 2004).
Federal jurisdiction for removal of this case from state
court was based on the United States as a substituted defendant.
The claims against the United States are dismissed.

The only

claims that remain in this case are state claims against North
Country Home Healthcare and Hospice in Count III and Count V.
Once the claims that conferred federal jurisdiction are
dismissed, the court may decline to exercise jurisdiction over
the remaining claims.

28 U.S.C. § 1367(c)(3).

Declining

jurisdiction is encouraged when the federal claims are dismissed
at an early stage of the litigation.

Rodriguez v. Doral Mortg.

Corp., 57 F.3d 1168, 1177 (1st Cir. 1995).

Further, when the

court declines to exercise supplemental jurisdiction over state
claims in a removed case, the court may remand the case to state
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court instead of dismissing the claims without prejudice.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988).
It is appropriate to decline to exercise supplemental
jurisdiction over Piper’s state claims in this case and to remand
the case to Grafton County Superior Court.

Conclusion
For the foregoing reasons, the United States’s motion to
dismiss (document no. 5) is granted.

Counts I, II, IV, and that

part of Count V pertaining to the United States are dismissed.
The clerk of court shall enter judgment accordingly on
Counts I, II, IV, and part of Count V, and remand the remainder
of the case to Grafton County Superior Court.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 19, 2012
cc:

Stanley B. Brinkman, Esq.
Jonathan A. Lax, Esq.
T. David Plourde, Esq.

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