M.B. v. Gray, D.D.S. et al

Filing 5

DECISION and ORDER re 3 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Defendants' motion to substitute the United Sates as the sole defendant in this action is GRANTED; and the United States' motion to dismiss this action is GRANTED; and the complaint is DISMISSED in its entirety. Signed by Judge David N. Hurd on 2/13/2015. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------M.B., an infant, by and through his [mother]
and natural guardian, Janene M. Patterson,
Individually,
Plaintiff,
-v-

1:14-CV-1355

SONIA E. GRAY, D.D.S.; NEW PALTZ
HEALTH CENTER; and HUDSON RIVER
HEALTHCARE, INC.,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

MAINETTI, MAINETTI & O'CONNOR, P.C.
Attorneys for Plaintiff
P.O. Box 3058
303 Clinton Avenue
Kingston, NY 12402

ALFRED B. MAINETTI, ESQ.

HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
Attorneys for Defendants
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207

CATHLEEN B. CLARK, ESQ.
Ass't United States Attorney

DAVID N. HURD
United States District Judge

DECISION and ORDER
I. INTRODUCTION
On July 9, 2014, plaintiff "M.B."—an infant, by and through his mother and natural
guardian, Janene M. Patterson—initiated this action in New York State Supreme Court,
Ulster County. This action stems from injuries M.B. sustained as a result of an allegedly
botched root canal on July 30, 2013. Plaintiff asserts claims of dental malpractice,
negligence, breach of contract, and loss of companionship against defendants Dr. Sonia E.
Gray, D.D.S. ("Dr. Gray"), New Paltz Health Center, and Hudson River Healthcare, Inc.
(collectively "defendants").
On November 6, 2014, defendants removed this action to federal court pursuant to 28
U.S.C. § 1441(a) and 42 U.S.C. § 233(c). They maintain that since Hudson River
Healthcare, Inc.—as a grantee of the United States Department of Health and Human
Services ("HHS")—is eligible for Federal Tort Claims Act ("FTCA") coverage and as Dr. Gray
was an employee of Hudson River Healthcare, Inc. at the relevant time, plaintiff's exclusive
remedy is against the United States pursuant to the FTCA. See 42 U.S.C. § 233(a).
Shortly after the removal, defendants filed a motion seeking to substitute the United
States as the sole defendant in this action and, in turn, to dismiss for lack of subject matter
jurisdiction. Plaintiff has failed to file any response to the motion, which was considered on
submit without oral argument.
II. DISCUSSION
Defendants correctly note that the United States is the only proper defendant to this
action. Plaintiff alleges that the negligence and/or malpractice of Dr. Gray, an employee of a
federally-funded healthcare clinic, caused the alleged harm. The FTCA specifically provides:
-2-

Upon certification by the Attorney General 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 or proceeding commenced upon
such claim in a United States district court shall be deemed an action against
the United States under the provisions of this title and all references thereto,
and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1). Defendants have submitted a certification, made under the authority
of the Attorney General, that Dr. Gray "was acting within the scope of her employment as an
employee of the United States of America at the time of the alleged incidents." Defs.' Notice
of Removal, Ex. 3, ECF No. 1-3. Accordingly, the United States will be substituted as the
sole defendant in this action. See Hui v. Castaneda, 559 U.S. 799, 810 (2010) (such
certification "transforms an action against an individual federal employee into one against the
United States").
Defendants next argue that the complaint must be dismissed because plaintiff did not
file an administrative claim. The FTCA mandates that, before filing a civil action, "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); see also Torres v. United States, No. 12-CV-6011, 2014 WL
4805035, at *3 (E.D.N.Y. Sept. 26, 2014) (explaining that the administrative claim must be
submitted within two years after the claim accrues).
There is no indication that plaintiff ever filed an administrative claim with the
appropriate federal agency, HHS. Meredith Torres, a Senior Attorney in the General Law
Division, Office of General Counsel, at HHS, confirmed that a search of the applicable claims
database uncovered "no record of an administrative tort claim filed by Janene M. Patterson,
Individually and as Mother and Natural Guardian of [M.B.], or an authorized representative

-3-

relating to Hudson River HealthCare, Hudson River HealthCare New Paltz and/or Sonia
Gray, D.D.S." Defs.' Notice of Removal, Ex. 2, ECF No. 1-2, ¶ 4. Again, plaintiff has not
offered any opposition to this argument.
Accordingly, the United States' motion to dismiss for lack of subject matter jurisdiction
will be granted. See Porter v. Hirsch, 345 F. Supp. 2d 400, 403 (S.D.N.Y. 2004) ("The
exhaustion requirement under § 2765(a) [sic] is jurisdictional, and failure to exhaust
administrative remedies prior to bringing a claim under the FTCA divests the district court of
subject matter jurisdiction over that claim.").
III. CONCLUSION
Pursuant to the FTCA, the United States is the only proper defendant in this action.
Further, plaintiff has failed to exhaust the available administrative remedies prior to initiating
this civil action.
Therefore, it is
ORDERED that
1. Defendants' motion to substitute the United States as the sole defendant in this
action is GRANTED and the Clerk of the Court is directed to amend the caption accordingly;
2. The United States' motion to dismiss this action is GRANTED; and
3. The Complaint is DISMISSED in its entirety.
IT IS SO ORDERED.
The Clerk of the Court is directed to enter judgment accordingly and close the file.

-4-

Dated: February 13, 2015
Utica, New York.

-5-