ROBEL v. D'EMILIA et al
Filing
9
OPINION. Signed by Judge Noel L. Hillman on 07/26/2012. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DONNA ROBEL as Administrator
ad Prosequendum of THE ESTATE
OF GRACE EWING, deceased,
CIVIL NO. 12-0716(NLH)(JS)
Plaintiff,
v.
OPINION
JOHN D’EMILIA, et al.,
Defendants.
Appearances
JENNIFER EMMONS TROAST
LOCKS LAW FIRM
457 HADDONFIELD ROAD
SUITE 500
CHERRY HILL, NJ 08002
Attorney for Plaintiff
PAUL J. FISHMAN, UNITED STATES ATTORNEY
DANIEL SHAY KIRSCHBAUM, ASST. U.S. ATTORNEY
OFFICE OF THE U.S. ATTORNEY
970 BROAD STREET
SUITE 700
NEWARK, NJ 07102
Attorney for defendant United States, substituted for defendant
Kevin Jensen, D.O.
HILLMAN, District Judge
This matter comes before the Court by motion of the
Defendant United States to dismiss pursuant to Federal Rule of
Procedure 12(b)(1) for plaintiff’s failure to exhaust
administrative remedies under 28 U.S.C. § 2675.
Plaintiff does not
oppose defendant’s motion and does not dispute that she has not
exhausted her administrative remedies as required.
Accordingly,
this Court cannot exercise subject matter jurisdiction and
defendant’s motion to dismiss will be granted.
Plaintiffs’ request
to remand the state law claims to the Superior Court of New Jersey
also will be granted.
I.
BACKGROUND
According to Plaintiff’s complaint, Plaintiff’s decedent,
Grace Ewing, was admitted to the Kennedy Memorial Hospital
(“Kennedy”) in December of 2009 for suspected colon cancer.
Defendant John D’Emilia, M.D., was responsible for both operating
on Ewing and managing her care post-operatively.
D’Emilia was
aided by several staff at Kennedy in this post-operative care,
including Defendants Kevin Jensen, D.O., Amanda Valvano, D.O., and
Devin Flaherty, D.O. (Id. at ¶ 19, 26, 33).
Plaintiff alleges that
Defendants failed to order several necessary diagnostic tests,
which led to a worsening of Ewing’s condition, and eventually Ewing
went into cardiopulmonary arrest resulting in hypoxic/anoxic
encephalopathy which ultimately caused her death on December 28,
2009.
Donna Robel, as Administrator ad Prosequendum of the
estate of Grace Ewing, filed a medical malpractice action in the
Superior Court of New Jersey on December 2, 2011.
On February 6,
2012, Defendant Dr. Kevin Jensen removed this action to the
district court for the District of New Jersey claiming that “at all
times relevant, [Jensen] was on active duty with the United States
Air Force . . . in a five-year surgical residency training program
2
at the University of Medicine and Dentistry of New Jersey.”
On
February 8, 2012, the United States filed a motion substituting
itself as a Defendant in lieu of Defendant Dr. Kevin Jensen, which
motion was granted.1
On the same day, the United States also filed
a motion to dismiss pursuant to Federal Rule of Procedure 12(b)(1).
Specifically, the United States argues that the Plaintiffs have
failed to exhaust their administrative remedies under the Federal
Tort Claims Act (FCTA).
Plaintiff did not formally respond to the motion to
dismiss, but in a letter to the Court indicated that she would “not
be opposing Defendant Jensen’s motion to dismiss for failure to
exhaust administrative remedies.”
Rather, Plaintiffs asked this
Court to remand this case back to state court given that all
defendants except Jensen were properly served and answered in state
court.
II.
JURISDICTION
This Court exercises jurisdiction on grounds that the
United States is a defendant and that the federal district courts
“have exclusive jurisdiction of civil actions on claims against the
1
28 U.S.C. 2679 (d)(1) provides in relevant part, that “upon
certification by the Attorney General that the defendant was
acting within the scope of his office or employment at the time
of the incident out of which the claim arose . . . the United
States shall be substituted as the party defendant.” 28 U.S.C. §
2679 (d)(1) (West 2012). Furthermore, “this certification of the
Attorney General shall conclusively establish scope of office or
employment for purposes of removal.” 28 U.S.C. § 2679 (d)(2)(West
2012).
3
United States, for money damages, accruing on and after January 1,
1945, for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.”
See 28
U.S.C. § 1346(b)(1).
III. DISCUSSION
A. Standard for 12(b)(1) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) challenges the existence of a federal court’s
subject matter jurisdiction.
Facial attacks contest the
sufficiency of the pleadings, and in reviewing such attacks, the
Court accepts the allegations as true.
Common Cause of Pa v.
Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009).
Factual attacks,
on the other hand, require the Court to weigh the evidence at its
discretion, meaning that allegations have no presumptive
truthfulness.
See Mortensen v. First Fed. Sav. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977).
Although the facts are not in dispute, the Court
characterizes Defendant’s motion as a factual attack since the
Court is required to review evidence outside the pleadings.
See
U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506 (3d
4
Cir. 2007).
B.
Federal Tort Claim Act
It is generally well-accepted that the United States is
immune from suit unless that immunity is waived by Congress.
U.S.
v. Sherwood, 312 U.S. 584, 585, 61 S.Ct. 767, 769 (1941) (“The
United States, as sovereign, is immune from suit save as it
consents to be sued.”) (citations omitted).
Absent such a waiver,
though, federal courts lack subject matter jurisdiction over claims
against the federal government.
538 (1980).
U.S. v. Mitchell, 445 U.S. 535,
The Federal Tort Claims Act (“FTCA”) creates such a
limited waiver and confers federal jurisdiction “in a defined
category of cases involving negligence committed by federal
employees in the course of their employment.”
Dolan v. U.S. Postal
Service, 546 U.S. 481, 484 (2006) (referencing 28 U.S.C. §
1346(b)(1)).
Before this remedy is available, however, an individual
must file his or her tort claim with the appropriate federal
agency.
See 28 U.S.C. § 2675(a).
Only after the federal agency
denies or fails to resolve the claim within six months may the
individual file an action in the District Court.
Santos ex rel.
Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009).
The six
month period is a procedural requirement that is strictly
construed.
See White-Squire v. U.S. Postal Service, 592 F.3d 453,
456 (3d Cir. 2010).
Furthermore, an agency’s final denial of a
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tort claim is a jurisdictional requirement that cannot be waived.
Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009).
Here, there is no dispute that defendant Kevin Jensen, at
all relevant times, was on active duty with the United States Air
Force (“USAF”) and enrolled in a five-year surgical residency
program pursuant to an agreement between University of Medicine and
Dentistry of New Jersey (“UMDNJ”) and the USAF.2
Plaintiff has not
presented any facts disputing defendant’s statement that Dr. Jensen
was a federal employee acting within the scope of his employment
and thus covered under the FTCA.
As such, Plaintiff was required
to file an administrative tort claim prior to filing suit against
the United States in federal court.
As stated in the declaration
of Ferah Ozbek, Colonel for the USAF, a search of the Armed Forces
Claims Information Management System (AFCIMS), indicates that a
tort claim was never filed by the Plaintiff.
dispute Ozbek’s averments.
Plaintiff does not
Moreover, Plaintiff has not alleged any
facts indicating that she has presented any claim to the
appropriate federal agency.
Rather, Plaintiff notes that she had
“no basis to know that Dr. Jensen had some concurrent active
military status” and so did not file a claim under the FTCA.
Therefore, Plaintiff has failed to satisfy the
jurisdictional prerequisite to initiating an act under the FTCA,
2
It appears that Jensen was enrolled in a
fellowship/residency training at the UMDNJ and that the UMDNJ
placed Jensen at Kennedy for his residency training.
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thereby divesting this Court of subject matter jurisdiction over
the federal defendant.
Accordingly, the action will be dismissed
without prejudice against the United States.
Since federal
jurisdiction was predicted upon the United States being a
defendant, the Court declines to exercise supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(c)(3)3 over the remaining state law
claims, and therefore, will remand the case to the Superior Court
of New Jersey.4
IV.
CONCLUSION
For the foregoing reasons, the Defendant’s motion to
dismiss for lack of subject matter jurisdiction will be granted and
the Plaintiff’s request to remand the remaining state law claims
will be granted.
At Camden, New Jersey
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date: July 26, 2012
3
28 U.S.C. § 1367(c)(3) states that the “district courts
may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if ... the district court has dismissed all
claims over which it has original jurisdiction.”
4
The Federal Courts Jurisdiction and Venue Clarification
Act of 2011, Pub.L. No. 112–63, 125 Stat. 758 (2011), amended 28
U.S.C. § 1441(c), now requires that a district court remand
unrelated state law matters that were removed along with federal
claims. See Borough of West Mifflin v. Lancaster, 45 F.3d 780,
788 (3d Cir. 1995) (“[W]here the claim over which the district
court has original jurisdiction is dismissed before trial, the
district court must decline to decide the pendent state claims
unless considerations of judicial economy, convenience, and
fairness to the parties provide an affirmative justification for
doing so.”).
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