Marra v. Hughes, M.D. et al

Filing 6

MEMORANDUM-DECISION and ORDER: It is ORDERED that Schenectady Family Health Services, Inc.'s # 3 motion to substitute the United States for itself as a Defendant in this action is GRANTED. Schenectady Family Health Services, Inc.'s # 3 motion to dismiss Plaintiff's claims against the United States for lack of subject-matter jurisdiction is GRANTED to the extent that the motion requests the dismissal of those claims without prejudice; otherwise that motion is DENIED; and Plaint iff's claims against the United States are DISMISSED without prejudice for lack of subject-matter jurisdiction. Further ORDERED that the remaining claims in this action (Plaintiff's claims against Defendants George B. Hughes, M.D., George B. Hughes, M.D. Family Medicine, PLLC, Ellis Hospital, and Areta Pidwerbetsky, M.D.) are REMANDED to State Court. The Clerk is directed to forward a copy of the Decision & Order to the Clerk for the Schenectady County Supreme Court. Signed by Judge Glenn T. Suddaby on 7/21/2011. (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
RICHARD A. MARRA,
Plaintiff,
v.

1:11-CV-0400 (GTS/DRH)

GEORGE B. HUGHES, M.D.; GEORGE B. HUGHES,
M.D. FAMILY MEDICINE, PLLC; SCHENECTADY
FAMILY HEALTH SERVS., INC.; ELLIS HOSPIT.;
and ARETA PIDWERBETSKY, M.D.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DAVIDSON FINK, LLP
Counsel for Plaintiff
28 East Main Street, Suite 1700
Rochester, NY 14614

PAUL D. KELLY, ESQ.

BURKE SCOLAMIERO MORTATI & HURD, LLP
Counsel for George B. Hughes, M.D. and
George B. Hughes, M.D. Family Medicine, PLLC
P.O. Box 15085
9 Washington Square, Suite 201
Albany, NY 12203-5085

PETER M. SCOLAMIERO, ESQ.

HON. RICHARD S. HARTUNIAN
United States Attorney for the N.D.N.Y.
Counsel for Schenectady Family Health Servs., Inc.
218 James T. Foley U.S. Courthouse
Albany, NY 12207-2924

DIANE CAGINO, ESQ.
Assistant United States Attorney

THORN GERSHON TYMANN & BONANNI, LLP
Counsel for Ellis Hospital
5 Wembley Court, New Karner Road
P.O. Box 15054
Albany, NY 12212-5054

PAUL D. JURELLER, ESQ.

CARTER, CONBOY, CASE, BLACKMORE,
MALONEY & LAIRD, P.C.
Counsel for Areta Pidwerbetsky, M.D.
20 Corporate Woods Boulevard
Albany, NY 12211

EDWARD D. LAIRD , JR., ESQ.

HON. GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court in this personal injury action filed by Richard A. Marra
("Plaintiff") are the following two motions filed by Schenectady Family Health Services, Inc.
(“Defendant Schenectady”): (1) a motion to substitute the United States of America (“United
States”) for Defendant Schenectady as a defendant in this action, pursuant to the Federal Tort
Claims Act, 28 U.S.C. §§ 2671, et seq.; and (2) a motion to dismiss Plaintiff’s claims against the
United States for lack of subject-matter jurisdiction, pursuant to Fed. R. Civ. P. 12(h)(3). (Dkt.
No. 3.) For the reasons set forth below, Defendant Schenectady’s motion to substitute is
granted. Moreover, Defendant Schenectady’s motion to dismiss is granted to the extent that it
requests the dismissal of Plaintiff’s claims against the United States without prejudice; otherwise
that motion is denied. Finally, the remaining claims in this action–i.e., Plaintiff’s claims against
Defendants George B. Hughes, M.D., George B. Hughes, M.D. Family Medicine, PLLC, Ellis
Hospital, and Areta Pidwerbetsky, M.D.–are remanded to state court.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Claims

Generally, liberally construed, Plaintiff's Complaint alleges as follows.
Between approximately December 21, 2005, and June 11, 2008, George B. Hughes,
M.D., George B. Hughes, M.D. Family Medicine, PLLC, and Schenectady Family Health

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Services, Inc., provided Plaintiff with “continuous general and primary medical care, treatment,
advice and services.” (Dkt. No. 1, Attach. 2, at ¶ 7.) “By reason of [the] negligence,
carelessness, wrongdoing, culpable conduct and/or malpractice” of George B. Hughes, M.D.,
George B. Hughes, M.D. Family Medicine, PLLC, and Schenectady Family Health Services,
Inc., Plaintiff “suffered serious and permanent injuries and disability, including pain and
suffering.” (Id. at ¶ 8.) More specifically, on June 12, 2008, Plaintiff “acutely became
paraplegic[, and was] diagnosed that day with spinal cord compression, T10-T11, osteomyelitis,
disoitis, epidural abscess, and paravertebral abscess.” (Id. at ¶ 9.)
In addition, between April 23, 2008, and “at least” June 6, 2008, Plaintiff sought and was
provided with “radiologic and physical therapy care, treatment, advice and services at Ellis
[Hospital].” (Id. at ¶ 19.) “By reason of [the] negligence, carelessness, wrongdoing, culpable
conduct and/or malpractice” of Ellis Hospital, “its agents, servants, employees, physicians,
including [Areta] Pidwerbetsky, physical therapists and other healthcare professionals, [Plaintiff]
suffered serious and permanent injuries and disability, including pain and suffering.” (Id. at ¶
20.) More specifically, on June 12, 2008, Plaintiff “acutely became paraplegic[, and was]
diagnosed that day with spinal cord compression, T10-T11, osteomyelitis, disoitis, epidural
abscess, and paravertebral abscess.” (Id. at ¶ 21.)
Familiarity with the remaining allegations giving rise to Plaintiff’s claims are assumed in
this Decision and Order, which is intended primarily for the review of the parties.
B.

Two Motions filed by Defendant Schenectady

Generally, in support of its motion for substitution, Defendant Schenectady argues as
follows: (1) Defendant Schenectady is a grantee of the U.S. Department of Health and Human

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Services, and as such, is eligible for malpractice coverage under the Federal Tort Claims Act; (2)
based on the allegations in the Complaint, this action is properly brought under the provisions of
the Federal Tort Claims Act; and (3) the United States has certified that, at all times alleged in
the Complaint, Defendant Schenectady was acting within the scope of its employment as an
employee of the United States. (See generally Dkt. No. 3, Attach. 1 [Def. Schenectady’s Memo.
of Law].)
In addition, in support of its motion to dismiss for lack of subject-matter jurisdiction,
Defendant Schenectady argues that Plaintiff failed to file an administrative claim under 28
U.S.C. 2675(a) before commencing this action, which is a jurisdictional requirement. (Id.)
In lieu of filing a response, Plaintiff’s counsel filed a letter-motion, in which he stated
that “Plaintiff will not file a written response to Defendant [Schenectady’s] motion, and does not
oppose the Court granting said Defendant the relief requested.” (Dkt. No. 5.) Plaintiff’s counsel
further indicated that, “[p]rior to the commencement of this action, Plaintiff was not aware that
Schenectady Family Health Services, Inc. is a federally funded health clinic.” (Id.) Plaintiff’s
counsel also acknowledged that, “before commencing his claims against Schenectady Family
Health Services, Inc. pursuant to the Federal Tort Claims Act[,]” Plaintiff must exhaust his
administrative remedies. (Id.)
II.

ANALYSIS
As an initial matter, the Attorney General’s office has certified that Schenectady Family

was acting within the scope of its employment at the time of the incident out of which the claim
arose. (Dkt. No. 3.) As a result, substitution is mandatory, and therefore the United States shall
be substituted for Defendant Schenectady. See Celestine v. Mount Vernon Neighborhood Health

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Center, 289 F. Supp.2d 392, 398 (S.D.N.Y. 2003) (quoting 28 U.S.C. § 2679[d][2]) (“Once the
Attorney General or the Attorney General's designee has certified ‘that the defendant employee
was acting within the scope of his office or employment at the time of the incident out of which
the claim arose, any civil action . . . shall be deemed an action . . . against the United States . . .
and the United State shall be substituted as the party defendant.’”).
Furthermore, because Plaintiff concedes that he failed to exhaust his administrative
remedies before commencing this action against the United States, the Court lacks subject-matter
jurisdiction to consider Plaintiff’s claims against the United States. See Furman v. U.S. Postal
Service, 349 F. Supp.2d 553, 557 (E.D.N.Y. 2004) (“Compliance with Section 2675 ‘is strictly
construed.’ Without this administrative exhaustion, courts lack subject matter jurisdiction over
the claim.”); Deutsch v. Federal Bureau of Prisons, 737 F. Supp. 261, 266 (S.D.N.Y. 1990)
(“[T]he filing of an administrative claim is considered a jurisdictional prerequisite to maintaining
an action under the FTCA which cannot be waived.”); see also McNeil v. United States, 508 U.S.
106, 112 (1993) (holding that an FTCA action may not be maintained where claimant failed to
exhaust his administrative remedies prior to filing suit, even though claimant sought to exhaust
his administrative remedies after filing). Because the Court has determined that it lacks subjectmatter jurisdiction over Plaintiff’s claims against the United States, these claims are dismissed
without prejudice, pursuant to Fed. R. Civ. P. 12(h)(3).
Finally, having dismissed Plaintiff’s claims against the United States (which were the
only claims over which the Court had original jurisdiction), the Court declines to exercise
supplemental jurisdiction over Plaintiff’s claims against the remaining Defendants. See 28
U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a

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claim [so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution] if . . . the district
court has dismissed all claims over which it has original jurisdiction.”).1 In doing so, the Court
remands Plaintiff’s state law claims because remanding “promote[s] the comity interest that
informs the doctrine of supplemental jurisdiction,” this case is in its infancy, state court was the
forum of Plaintiff's choice, and Plaintiff's counsel was unaware of the federal character of
Schenectady Defendant, i.e., “there is no specter . . . of any bad faith effort to ‘manipulate the
forum’ in a manner that counsels against a remand.” De Hernandez v. Lutheran Med. Ctr.,
01-CV-6730, 2002 WL 31102638, at *2 (E.D.N.Y. Sept. 11, 2002).
ACCORDINGLY, it is
ORDERED that Defendant Schenectady Family Health Services, Inc.’s motion to
substitute the United States for itself as a defendant in this action (Dkt. No. 3) is GRANTED;
and it is further
ORDERED that the Clerk shall substitute the United States for Defendant Schenectady
Family Health Services, Inc., as a defendant in this action; and it is further
ORDERED that Defendant Schenectady Family Health Services, Inc.’s motion to
dismiss Plaintiff’s claims against the United States for lack of subject-matter jurisdiction (Dkt.

1

See also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988) (holding,
later codified in Section 1367(c)(3), that a district court has discretion to remand to state court a
properly removed case involving supplemental claims “upon a proper determination that
retaining jurisdiction over the case would be inappropriate”); Parker v. Della Rocco, 252 F.3d
663, 666 (2d Cir. 2001) (noting that, where one defendant invoked a statute making claims
against it removable and plaintiff later voluntarily dismissed the claim against that defendant,
which was the only jurisdiction-conferring claim, the district court still had the “power” under 28
U.S.C. § 1367 to exercise supplemental jurisdiction over the other claims).
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No. 3) is GRANTED to the extent that the motion requests the dismissal of those claims without
prejudice; otherwise that motion is DENIED; and it is further
ORDERED that Plaintiff’s claims against the United States are DISMISSED without
prejudice for lack of subject-matter jurisdiction; and it is further
ORDERED that the remaining claims in this action–i.e., Plaintiff’s claims against
Defendants George B. Hughes, M.D., George B. Hughes, M.D. Family Medicine, PLLC, Ellis
Hospital, and Areta Pidwerbetsky, M.D.–are REMANDED to state court. The clerk is directed
to forward a copy of the Decision & Order to the Clerk for the Schenectady County Supreme
Court.
Dated: July 21, 2011
Syracuse, New York

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