ESTATE OF DARWIN UZIEL GARCIA MOREL et al v. CUNALZAK et al

Filing 5

MEMORANDUM AND ORDER permitting Plaintiff to amend the complaint w/in 21 days, and advising of her obligation to observe the time limit for service, see Fed. R. Civ. P. 4(m), and to comply with the special procedures for serving the United States see Fed. R. Civ. P. 4(i); etc. Signed by Judge Kevin McNulty on 5/11/16. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ESTATE OF DARWIN UZIEL GARCIA
MOREL, by the Administratrix Ad
Prosequendum and General
Admjnjstratrjx MARIA E. MOREL
FORTUNA, and MARIA E. MOREL
FORTUNA,

No. 16-cv-1640 (KM)(MAH)

MEMORANDUM and ORDER

Plaintiffs,
V.

ROSEMARY CUNALZAK, CNM,
TRINITAS REGIONAL MEDICAL
CENTER, NEIGHBORHOOD HEALTH
SERVICES CORP., et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Every federal court complaint shall contain “a short and plain
statement of the grounds for the court’s jurisdiction....” Fed. R. Civ. P.
8(a)(1). The complaint in this wrongful death action contains no such
jurisdictional statement. It does allege, however, that one defendant, Ms.
Cunaizak, is “employed by defendant Neighborhood Health Services
Corporation pursuant to the Federal Public Health Service Act, 42 U.S.C.
233(a).” (Cplt.

¶

4) The Complaint asserts state law causes of action, and

also contains demands for answers to interrogatories and other items
required by the New Jersey Rules of Court.
By order dated March 29, 2016, I directed the plaintiffs to show
cause why the complaint should not be dismissed for want of federal
subject matter jurisdiction. Plaintiffs’ counsel timely responded (ECF No.
4), explaining that he had filed the action in state court, but that the

United States Attorney had “requested that the matter be dismissed and
that we pursue our administrative remedies.” Counsel apparently did so;
attached to his letter is a letter from the United States Department of
Health & Human Services, dated March 15, 2016, denying an
administrative tort claim under the Federal Tort Claims Act (FTCA), 28

§ 1346(b), 240 1(b), 267 1—80. The letter advises counsel that he

U.S.C.

may, at his option, file suit against the United States in the appropriate
federal district court within six months, citing 28 U.S.C.

§ 2401(b).

I will treat plaintiff’s submission as a motion to amend the
Complaint. Because there has been no motion or responsive pleading,
paintiff may amend as of right. See Fed. R. Civ. P. 15(a).
Accordingly, IT IS this 11th day of May, 2016,
ORDERED as follows:
1.

Plaintiff may, within 21 days, amend the complaint to make

it clear that, as to any “federal agency” or “employee of the government”
as defined in the VT’CA, she invokes the court’s subject matter
jurisdiction under 28 U.S.C.

§ 1346(b), and asserts her causes of action

against the United States pursuant to the Federal Tort Claims Act. 28
U.S.C.

§ 2671

et seq. The basis for federal jurisdiction over any non

governmental parties should be stated as well.
Plaintiff is advised of her obligation to observe the time limit for
srvice, see Fed. R. Civ. P. 4(m), and to comply with the special
p:ocedures for serving the United States see Fed. R. Civ. P. 4(i).

KEVIN MCNULTY
United States District Judge