Coalts-Young et al v. Glens Falls Hospital et al

Filing 30

ORDER - That Jones is directed to submit a copy of the certification within five (5) days of this Order. That plaintiffs may submit a reply in further support of their cross motion within fourteen (14) days of this Order. Signed by Chief Judge Gary L. Sharpe on 8/7/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHRISTINA COALTS-YOUNG
et al.,
Plaintiffs,

1:14-cv-271
(GLS/CFH)

v.
GLENS FALLS HOSPITAL et al.,
Defendants.
________________________________
ORDER
The court is in receipt of the motion of defendant Mackenzie Jones,
CNM, seeking to substitute the United States as defendant for Jones, and
to dismiss the complaint against the Untied States, pursuant to the Federal
Torts Claims Act,1 (Dkt. No. 8), and plaintiffs Christina Coalts-Young and
Daniel Young’s response and cross motion to remand, (Dkt. No. 20).
First, in their response and cross motion, plaintiffs assert that subject
matter jurisdiction is lacking because the government has not submitted the
requisite certification by the Attorney General pursuant to 28 U.S.C.
§ 2679(d)(2). (Dkt. No. 20, Attach. 1 at 2-3.) In her reply, Jones states that
the certification was provided by the Assistant United States Attorney,

1

See 28 U.S.C. §§ 2671-2680.

Chief of the Civil Division, but that the certification was not attached
“because it is not the practice of th[e United States Attorney’s Office] to
submit those internal documents.” (Dkt. No. 26, Attach. 1 ¶ 8.) While the
court acknowledges that there may have been a recent change in the
policy, the court nevertheless is aware of at least one recent case in which
the government did submit a certification signed by the Chief of the Civil
Division, and did so with its removal papers, and without provocation from
a party or the court. See Kaminksi v. Markham, No. 5:13-cv-1478, Dkt. No.
1, Attach. 1 at 21. Further, the first indication that the certification was
provided appears in Jones’ memorandum of law, filed in support of her
motion to substitute and dismiss, (Dkt. No. 8 at 3-4), which gives the court
pause as to whether a sufficient record has been established that the
certification was in fact provided, and that subject matter jurisdiction has
been established. Accordingly, Jones is directed to file a copy of the
certification referred to in her memorandum of law, (id.), within five (5) days
of this Order.
Second, also in their response and cross motion, plaintiffs dispute
that Jones was acting within the scope of her federal employment at the
time of the incident out of which their claims arose, and request a hearing
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or limited discovery on this issue. (Dkt. No. 20, Attach. 1 at 4.) In her
reply/response, however, Jones submitted an affidavit from Lori Gravelle,
Vice President of Risk Management for Hudson Headwaters Health
Network (HHHN), stating, among other things, that, as part of her
employment with HHHN, and pursuant to a contractual relationship
between HHHN and Glens Falls Hospital, Jones is occasionally assigned
to work shifts on the maternity floor at Glens Falls Hospital, and was so
assigned on May 3, 2010, the day that Coalts-Young was admitted and
delivered her son. (Dkt. No. 26, Attach. 2 ¶¶ 1-4.) Gravelle further stated
that Jones was working in her capacity as an HHHN employee. (Id.) The
court is aware that, pursuant to this District’s Local Rule 7.1(c), plaintiffs
were not permitted to file a reply to Jones’ response to the cross motion
without leave of the court. Although they have not sought permission to do
so, in light of Gravelle’s affidavit and the other documents submitted in
Jones’ reply/response, plaintiffs may submit a reply in further support of
their cross motion within ten (10) days of this Order. Accordingly, it is
hereby
ORDERED that Jones is directed to submit a copy of the certification
within five (5) days of this Order; and it is further
3

ORDERED that plaintiffs may submit a reply in further support of their
cross motion within ten (10) days of this Order; and it is further
ORDERED that the Clerk provide a copy of this Order to the parties.
IT IS SO ORDERED.
August 7, 2014
Albany, New York

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