Rafiy et al v. The County of Nassau et al

Filing 79

ORDER granting 51 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, defendant NGS's motion to dismiss is granted in full for lack of subject matter jurisdiction and for failure to state a claim. Accordingly, plaintiffs' claims against NGS are dismissed with prejudice. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/4/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-6497 (JFB) (GRB)

_____________________

PHILIP M. RAFIY, M.D., INDIVIDUALLY, AND
LONG ISLAND SPINE & ORTHOPEDICS, P.C.,
Plaintiffs,
VERSUS

THE COUNTY OF NASSAU, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
January 4, 2017
___________________

JOSEPH F. BIANCO, District Judge:

Defendants NGS, Emblem, United, and
Empire moved to dismiss plaintiffs’
complaint pursuant to Federal Rule of Civil
Procedure 12(b), and after the motions were
fully submitted and the Court held oral
argument, plaintiffs stipulated to dismissal
without prejudice of their claims against
Emblem, United, and Empire. Accordingly,
the Court considers only NGS’s motion to
dismiss for lack of subject matter jurisdiction
and for failure to state a claim.

Plaintiffs Phillip Rafiy, M.D. (“Dr.
Rafiy”) and Long Island Spine &
Orthopedics, P.C. (“LISO”) (collectively,
“plaintiffs”) bring this action pursuant to 42
U.S.C. §§ 1983 and 1985 (“Section 1983”
and “Section 1985”) and various New York
state tort claims against defendants The
County of Nassau, the Nassau County
District Attorney, Former District Attorney
Kathleen Rice, Andrew Weiss, William
Walsh, and Diane Peress (collectively, the
“County
Defendants”);
National
Government Services, Inc. (“NGS” or
“defendant”); Emblem Health, Inc./Group
Health Incorporated (“Emblem”); United
Healthcare (“United”); Empire Blue Cross
Blue Shield (“Empire”); and several Jane and
John Doe Assistant District Attorneys and
police officers, as well as other unknown
entities or individuals.

For the reasons set forth below,
defendant’s motion is granted in full. As a
threshold matter, the Court finds that NGS is
an entity of the federal government. With
respect to the individual claims, the Court
holds that: (1) plaintiffs’ claim under Section
1983 is not applicable to the federal
government and, because NGS is a Medicare
administrative contractor and is therefore
considered an agent of the Secretary of
Health and Human Services, any Section

1

constitutional and state law rights, as well as
those of his business LISO, in connection
with that prosecution. (Id. ¶ 80; see also
generally id. ¶¶ 1-7.)

1983 claim against NGS must be dismissed;
(2) plaintiffs’ Bivens claim against NGS must
be dismissed because sovereign immunity
bars suits against federal agencies; (3) the
Section 1985 conspiracy claim against NGS
must be dismissed because medical
doctors are not a protected class under the
statute; (4) the complaint must be dismissed
because NGS is entitled to official immunity
for acts taken in its capacity as a Medicare
contractor; and (5) the state tort claims
against NGS must be dismissed because
plaintiffs failed to file an administrative
claim with the Department of Health and
Human Services under the Federal Tort
Claims Act prior to filing the instant action.
In addition, the Court denies plaintiffs leave
to replead because the defects in their claims
are substantive in nature.

NGS is a New York corporation that
conducts
business
with
medical
providers and patients and administers
Medicare programs, payments, and services.
(Id. ¶¶ 45-46.) Plaintiffs claim that NGS 2
“act[ed] at the behest of” the County
Defendants and thereby “became a party to
the concerted effort along with the other
Defendants to deprive and the violate of [sic]
Plaintiffs’ constitutional rights, as well as
state and common law rights.” (Id. ¶ 47; see
also id. at ¶¶ 123-24.) Specifically, plaintiffs
contend that NGS “intentionally and
selectively submitted documentation—
without the corresponding exculpatory
material—in order to violate Plaintiffs’
constitutional and state law rights for the
sole purpose of securing a guilty verdict.”
(Id. ¶ 101; see also id. ¶¶ 151-52 (alleging
that NGS “acted with actual malice” and
“maliciously promoted
the criminal
prosecution and took an active role in
launching the criminal investigation and
action against the Plaintiffs”).)

I. BACKGROUND
A. Facts
The following facts are taken from the
complaint, and the Court limits its analysis to
those facts that pertain to NGS. The Court
assumes them to be true for the purpose of
deciding this motion and construes them in
the light most favorable to plaintiffs as the
non-moving party.

Accordingly, plaintiffs allege that
defendant violated 42 U.S.C. §§ 1983 and
1985 and also assert various New York state
law claims against NGS. (Id. at 29-41.)

On or about November 6, 2013, Dr. Rafiy
was indicted in New York state court on three
counts of Grand Larceny and seven counts of
Falsifying Business Records. (Compl., ECF
No. 1, ¶ 81.) Count 1 of the indictment
alleged theft of $14,899.17 from NGS. (Id.
¶¶ 73, 81.) Following a jury trial, Dr. Rafiy
was acquitted of all charges on November 13,
2014. (Id. ¶ 104.) 1 Dr. Rafiy alleges that the
County Defendants conspired to violate his

B. Procedural History
Plaintiffs commenced this action on
November 12, 2015. (ECF No. 1.) On April
28, 2016, NGS filed its motion to dismiss the
complaint for lack of subject matter
jurisdiction and for failure to state a claim

1

2

The Complaint states that only Dr. Rafiy was
indicted, but that both plaintiffs were acquitted of all
charges. (Id. ¶¶ 81, 104.) Accordingly, it is unclear
whether LISO was also prosecuted.

Plaintiffs also appear to refer to NGS alternatively as
“MEDICARE” in their complaint. (See, e.g., id. ¶¶ 73
81, 83.)

2

statements contained in the affidavits,” Attica
Cent. Sch., 386 F.3d at 110.

pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). (ECF No. 51.)
Plaintiffs submitted their opposition on June
15, 2016 (ECF No. 67), and defendant filed
its reply on June 30, 2016 (ECF No. 70). The
Court held oral argument on July 7, 2016
(ECF No. 74) and has carefully considered
the parties’ submissions. 3

B. Failure to State a Claim
In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.

II. STANDARD OF REVIEW
Relevant here are Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), which
respectively govern motions to dismiss for
lack of subject matter jurisdiction and
motions to dismiss for failure to state a claim.
The following standards of review are
applicable to motions brought under these
provisions.
A. Subject Matter Jurisdiction
When a court reviews a motion to dismiss
for lack of subject matter jurisdiction under
Rule 12(b)(1), it “must accept as true all
material factual allegations in the complaint,
but [it is] not to draw inferences from the
complaint favorable to plaintiffs.” J.S. ex rel.
N.S. v. Attica Cent. Schs., 386 F.3d 107, 110
(2d Cir. 2004). The burden of proving
subject
matter
jurisdiction
by
a
preponderance of the evidence is on the
plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
“In resolving a motion to dismiss for lack of
subject matter jurisdiction under Rule
12(b)(1), a district court . . . may refer to
evidence outside the pleadings” to resolve the
jurisdictional issue, Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)
(citing Kamen v. American Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir. 1986)), but a
court “may not rely on conclusory or hearsay

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two principles for a
district court to follow in deciding a motion
to dismiss. 556 U.S. 662 (2009). First,
district courts must “identify[] pleadings that,
because they are no more than conclusions,
are not entitled to the assumption of truth.”
Id. at 679. “While legal conclusions can
provide the framework of a complaint, they
must be supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.

3

As noted, Emblem, United, and Empire also moved
to dismiss the complaint (see ECF Nos. 55, 56, and
60), but following oral argument, plaintiffs stipulated

to dismissal without prejudice of their claims against
those parties, which the Court so ordered on August
15, 2016 (ECF No. 78).

3

III. DISCUSSION
2. Analysis
Defendant argues that plaintiffs’ claims
against must be dismissed for the following
reasons: (1) this Court lacks subject matter
jurisdiction with respect to plaintiffs’ 42
U.S.C. § 1983 cause of action because NGS
is a federal governmental entity and
is therefore not subject to Section 1983
claims; (2) NGS is entitled to official
immunity; (3) plaintiffs have failed to
adequately state a conspiracy claim pursuant
to 42 U.S.C. § 1985; and (4) plaintiffs have
failed to administratively exhaust their state
law tort claims. For the reasons set forth
below, defendant’s motion is granted in full.

Defendant argues that “NGS is a
Medicare
Administrative
Contractor
(‘MAC’), contracted with the Centers for
Medicare and Medicaid Services (‘CMS’),
which is a component of the Department of
Health and Human Service (‘HHS’).” (Mem.
of Law in Supp. of Def. NGS’s Mot. to
Dismiss (“Def.’s Br.”), ECF No. 52, at 1.)
Accordingly, defendant contends that CMS
and, by extension, HHS are the real parties in
interest with respect to plaintiffs’ claims
against NGS, and that plaintiffs’ suit is
therefore against the federal government.
(Id. at 3-5.)

A. NGS’s Relationship to the Federal
Government

Plaintiffs acknowledge in their complaint
that NGS is a corporation that “administers
Medicare programs, payments and services
to medical providers and patients in the State
of New York . . . .” (Compl. ¶¶ 45-46.)
Nevertheless, they argue that “NGS has
failed to affirmatively establish that it is in
fact a ‘federal officer’ or ‘agency’ and its
obligation to competently do so cannot be
waived.” (Pls.’ Mem. of Law in Opp’n to the
Mot. to Dismiss (“Pls.’ Br.”), ECF No. 67, at
12.) Similarly, at oral argument, plaintiffs
conceded that defendant is a Medicare
contractor but claimed that such status does
not mean that NGS is a federal entity. In
addition, plaintiffs assert in their brief that
“[t]here is no basis for this Court to take
judicial notice of” NGS’s relationship to the
federal government. (Id. at 6.)

1. Applicable Law
The Medicare Act, 42 U.S.C. §§ 1395 et
seq., authorizes the Secretary of Health and
Human Services (“HHS”) to “enter into
contracts with any eligible entity to serve as
a medicare administrative contractor
[(“MAC”)] with respect to the performance
of” certain functions, such as payment
services, id. § 1395kk-1(a)(1). The Centers
for Medicare and Medicaid Services
(“CMS”) is “the federal agency situated
within [HHS] that administers the Medicare
program on behalf of the Secretary of HHS,”
Estate of Landers v. Leavitt, 545 F.3d 98, 103
(2d Cir. 2008), as revised (Jan. 15, 2009)
(footnoted omitted), and because MACs “act
on behalf of CMS” with respect to Medicare
administration, “CMS is the real party of
interest in any litigation involving the
administration of the program” by a MAC.
42 C.F.R. § 421.5(b). 4

However, it is axiomatic that a court may
take judicial notice of relevant law and
administrative regulations, either at the
request of a party or sua sponte, including on

4

This regulation refers to indemnification of Medicare
“intermediaries” and “carriers” rather than
contractors, id., but “on or after October 1, 2005, any
reference to an ‘intermediary’ or ‘carrier’ in a

regulation shall be deemed a reference to a MAC,”
Medicare Program, 71 Fed. Reg. 67960, 68181 (Nov.
24, 2006).

4

B. Section 1983

a motion to dismiss. See, e.g., Christman v.
Skinner, 468 F.2d 723, 726 (2d Cir. 1972)
(“Although there may be some question
about whether it was proper to consider this
affidavit on the motion to dismiss without
giving plaintiff the opportunity to submit
counteraffidavits, it was proper for the court
to take judicial notice of these regulations.”);
In re Frito-Lay N. Am., Inc. All Nat. Litig.,
No. 12-MD-2413 (RRM) (RLM), 2013 WL
4647512, at *4 (E.D.N.Y. Aug. 29, 2013) (“A
district court may consider matters of which
judicial notice may be taken without
converting a motion to dismiss into one for
summary judgment.” (citing Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406,
425 (2d Cir. 2008)) (taking judicial notice of
the Federal Register and Code of Federal
Regulations); United States v. Knauer, 635 F.
Supp. 2d 203, 206 n.2 (E.D.N.Y. 2009) (“[I]t
is long established that courts may take
judicial notice of the rules and regulations of
an administrative agency . . . .”).

To maintain a claim under 42
U.S.C. § 1983, a plaintiff must allege that an
individual deprived him of his constitutional
rights while acting under color of state law.
See Ginsberg v. Healey Car & Truck
Leasing, Inc., 189 F.3d 268, 271 (2d Cir.
1999); Young v. Suffolk Cty., 922 F. Supp. 2d
368, 385 (E.D.N.Y. 2013). Thus, “[a]n
action brought pursuant to 42 U.S.C. § 1983
cannot lie against federal officers.” Kingsley
v. Bureau of Prisons, 937 F.2d 26, 30 n.4 (2d
Cir. 1991); see also Dotson v. Griesa, 398
F.3d 156, 162 (2d Cir. 2005) (“This court has
long construed the phrase ‘under color of
state law’ as used in related civil rights
statutes, notably 42 U.S.C. § 1983, to apply
only to state actors, not federal officials.”).
Here, the Court has determined that
CMS—a federal agency—is the real party in
interest in this litigation, which arises from
NGS’s administration of Medicare programs
and services. As a result, plaintiffs cannot
state a Section 1983 claim because NGS
acted under color of federal, rather than state,
law. Accordingly, all of plaintiffs’ 42
U.S.C. § 1983 claims against NGS are
dismissed. 5

Accordingly, the Court concludes, based
on the undisputed fact that NGS is a Medicare
contractor charged with administering
Medicare functions and pursuant to the
relevant statutory and regulatory framework
discussed above, that CMS—and HHS by
extension—is the “real party of interest” in
this litigation, 42 C.F.R. § 421.5(b), which
arises from Dr. Rafiy’s prosecution for,
inter alia, alleged theft from “defendant
National
Government
Service,
Inc.
(‘MEDICARE’)” based on alleged “double
billing” (Compl. ¶¶ 73, 83-84).

C. Section 1985
To sustain a Section 1985 claim for
conspiracy to deprive an individual of his
federal civil rights, a plaintiff must show,
inter alia, that the conspiracy was “motivated
by ‘some racial or perhaps otherwise class-

5

To the extent that the complaint can be construed to
assert Bivens claims for deprivation of constitutional
rights by a federal actor, see Megna v. Food & Drug
Admin., No. 08-CV-1435 (JFB) (WDW), 2009 WL
749900, at *4 (E.D.N.Y. Mar. 17, 2009)
(citing Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971)), aff’d sub nom. Megna
ex rel. Megna v. Food & Drug Admin., 377 F. App’x
113 (2d Cir. 2010), such claims fail because the Bivens

doctrine authorizes suits against individuals, and not
the United States or federal agencies like CMS and
HHS, see F.D.I.C. v. Meyer, 510 U.S. 471, 484-86
(1994). Thus, plaintiff cannot assert a Bivens claim
against NGS because sovereign immunity bars civil
rights suits against federal agencies.

5

v. Empire Blue Cross Blue Shield, the Second
Circuit extended official immunity to a
Medicare contractor in a suit that contested
the contractor’s reporting of alleged
Medicare fraud to law enforcement because
“[t]he policy considerations underlying the
extension of official immunity to a federal
official's duty to investigate and report
suspected fraud apply with equal force to a
fiscal intermediary or carrier.” 152 F.3d 67,
73 (2d Cir. 1998). The Court further noted
that the “carriers and fiscal intermediaries
that administer the millions of Medicare
claims filed annually are indispensable
components of the governmental program
and are in a unique position to combat the
drain on public resources caused by
fraudulent claims.” Id.

based, invidious discriminatory animus
behind the conspirators’ action.’” Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7
F.3d 1085, 1088 (2d Cir. 1993) (quoting
United Bhd. of Carpenters, Local 610 v.
Scott, 463 U.S. 825, 829 (1983)). Plaintiffs
have not stated a plausible claim here because
their
complaint
does
not
allege
discrimination based on a protected class.
They argue that NGS, in concert with the
County Defendants, targeted plaintiffs due to
their “high public standing” as members of
the “elite” (Pls.’ Br. at 19), but do not point
to any authority holding that medical doctors
or other professionals qualify as a protected
class under Section 1985, and the Court
concludes that no such protected class exists
under the law. The Court accordingly finds
that plaintiffs have failed to adequately plead
a claim under that statute. See Brito v.
Arthur, 403 F. App’x 620, 621 (2d Cir. 2010)
(“Aside from conclusory assertions,
Appellant failed to provide any factual
allegations that Appellees engaged in a
conspiracy, or that they were motivated by
unlawful discriminatory intent or animus.”).

Accordingly, NGS is also entitled to
official immunity with respect to all of
plaintiffs’ claims against it because, as a
Medicare contractor, defendant was “acting
pursuant to the requisite degree of
generalized
government
authorization
inasmuch as [it was] approved as fiscal
intermediaries under the Medicare program.”
Grp. Health Inc. v. Blue Cross Ass’n, 739 F.
Supp. 921, 932 (S.D.N.Y. 1990). To the
extent that Dr. Rafiy’s prosecution stemmed
from alleged Medicare fraud, Pani
determined that such conduct is immune
from suit because the “investigation and
reporting of possible Medicare fraud is
precisely the type of delegated discretionary
function that the public interest requires to be
protected by immunity.” 6 152 F.3d at 73; see
also S. Rehab. Grp., P.L.L.C. v. Sec’y of

D. Official Immunity
“The doctrine of official immunity is
designed to promote the effective
administration of government affairs by
ensuring that government officials are ‘free
to exercise their duties unembarrassed by the
fear of damage suits.’” Murray v. Northrop
Grumman Info. Tech., Inc., 444 F.3d 169,
174 (2d Cir. 2006) (quoting Barr v.
Matteo, 360 U.S. 564, 571 (1959)). In Pani
6

Plaintiffs err in relying on Rochester Methodist
Hospital v. Travelers Insurance Company, 728 F.2d
1006 (8th Cir. 1984), for the proposition that NGS is
not entitled to immunity because it acted beyond the
scope of its authority by “engag[ing] in acts that both
undermined and exceeded [its] respective authority
and obligations.” (Pls.’ Br. at 17-18.) As the Second
Circuit noted in Pani, Rochester dealt with sovereign,
rather than official, immunity and was thus inapposite.

152 F.3d at 73. So, too, is Rochester inapplicable here,
and the Eighth Circuit has separately held in a decision
pre-dating Rochester that “[i]t is well settled that
Medicare intermediaries and carriers can be
governmental agents for immunity purposes” and that
“official status should be extended to . . . a consultant
to a Medicare carrier.” Bushman v. Seiler, 755 F.2d
653, 655 (8th Cir. 1985).

6

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.

Health & Human Servs., 732 F.3d 670, 680
n.7 (6th Cir. 2013) (collecting official
immunity cases). Thus, all of plaintiffs’
claims must be dismissed based on the
doctrine of official immunity.
E. Exhaustion

28 U.S.C. § 1346(b)(1). By enacting the
FTCA, Congress waived the United States’
sovereign immunity for claims arising out of
torts committed by federal employees. See
id. “The waiver of sovereign immunity under
the FTCA, 28 U.S.C. § 1346(b), is strictly
limited to suits predicated upon a tort cause
of action cognizable under state law and
brought in accordance with the provisions of
the FTCA,” Finelli v. Drug Enforcement
Agency, No. 92 Civ. 3463 (PKL), 1993 WL
51105, at *5 (S.D.N.Y. Feb. 24, 1993), and
this constitutes the exclusive remedy for torts
committed by federal employees in the
course of their duties, see, e.g., James v. U.S.,
No. 99 Civ. 4238 (BSJ), 2000 WL 1132035,
at *1 (S.D.N.Y. Aug. 8, 2000); Olmeda v.
Babbits, No. 07 Civ. 2140 (NRB), 2008 WL
282122, at *5 (S.D.N.Y. Jan. 25, 2008);
Finelli, 1993 WL 51105, at *1 (“While this
provision does not apply to suits for violation
of federal constitutional or statutory rights, it
is well settled that it does provide
Government employees with absolute
immunity against claims of common-law
tort.” (citing Rivera v. United States, 928
F.2d 592, 608 (2d Cir. 1991))).

Finally, NGS argues that plaintiffs’ New
York state law tort claims must be dismissed
for failure to exhaust administrative
remedies, as required by the Federal Tort
Claims Act (“FTCA”), which provides that
an
action shall not be instituted upon a
claim against the United States for
money damages 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, unless the claimant
shall have first presented the claim to
the appropriate Federal agency and
his claim shall have been finally
denied by the agency in writing and
sent by certified or registered mail.
28 U.S.C. § 2675(a).
1. Applicable Law
Pursuant to the FTCA, district courts
have

The Supreme Court has clearly stated, in
interpreting the statutory text of the FTCA,
that “[t]he FTCA bars claimants from
bringing suit in federal court until they have
exhausted their administrative remedies.”
McNeil v. United States, 508 U.S. 106, 113
(1993). Specifically, the FTCA requires that
claimants first present their claims to the
appropriate federal agency within two years
of accrual, and their claims must be denied in
writing before claimants may file suit in

exclusive jurisdiction of civil actions
on claims against the 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

7

F. Leave to Amend

federal court. See 28 U.S.C. §§ 2401(b),
2675(a). “The administrative exhaustion
requirement derives from a cardinal principle
of law—that the United States, as sovereign,
is immune from suits in the courts of law.”
Mosseri v. F.D.I.C., Nos. 95 Civ. 723 (BJS),
97 Civ. 969 (BSJ), 1999 WL 694289, at *7
(S.D.N.Y. Sept. 8, 1999). Failure to comply
with this requirement results in dismissal of
the suit. See McNeil, 508 U.S. at 113 (“The
FTCA bars claimants from bringing suits in
federal court until they have exhausted their
administrative remedies. Because petitioner
has failed to heed that clear statutory
command, the District Court properly
dismissed his suit.”); see also Celestine v.
Mount Vernon Neighborhood Health Ctr.,
403 F.3d 76, 82 (2d Cir. 2005) (“The FTCA
requires that a claimant exhaust all
administrative remedies before filing a
complaint in district court. This requirement
is jurisdictional and cannot be waived.”).

In the event of dismissal, plaintiffs
request an opportunity to amend their
complaint to cure any deficiencies. (Pls.’ Br.
at 22.) “Leave to amend, though liberally
granted, may properly be denied for: undue
delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure
deficiencies by amendments previously
allowed, undue prejudice to the opposing
party by virtue of allowance of the
amendment, futility of amendment, etc.”
Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d
Cir. 2008) (citation omitted). Here, the
deficiencies in plaintiffs’ claims are
substantive in nature and, as such, cannot be
remedied by amendment. Accordingly, the
Court declines to grant plaintiffs leave to file
an amended complaint.
IV. CONCLUSION

2. Analysis

For the foregoing reasons, defendant
NGS’s motion to dismiss (ECF No. 51) is
granted in full for lack of subject matter
jurisdiction and for failure to state a claim.
Accordingly, plaintiffs’ claims against NGS
are dismissed with prejudice.

In the instant case, the Court has
determined that CMS—and by extension
HHS—is the real party in interest in this
litigation, and plaintiffs have failed to
exhaust their tort claims within that agency,
as required by the FTCA. As the declaration
of HHS attorney Kara Hicks states, no
administrative tort claim with respect to
plaintiffs has previously been presented
to HHS. 7 (Decl. of Kara Hicks, ECF No.
54, ¶ 5.) Accordingly, the Court lacks
jurisdiction over plaintiffs’ state law tort
claims.

SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge
Dated:

7

As noted supra, when considering a motion to
dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), the Court may consider affidavits
and other materials beyond the pleadings to resolve

January 4, 2017
Central Islip, NY

jurisdictional questions. See, e.g., Makarova, 201
F.3d at 113.

8

***
Plaintiffs are represented by Michael G.
Levin of Levin & Chetkof LLP, 265 Post
Avenue, Suite 290, Westbury, New York
11590. Defendant National Government
Services, Inc. is represented by Diane C.
Leonardo-Beckmann, Assistant United
States Attorney, on behalf of Robert L.
Capers, United States Attorney, Eastern
District of New York, 610 Federal Plaza, 5th
Floor, Central Islip, New York 11722.

9