Baldwin v. United States of America et al

Filing 25

MEMORANDUM-DECISION and ORDER - That the United States' motion to dismiss (Dkt. No. 13) is GRANTED. That Baldwin's amended complaint (Dkt. No. 5) is DISMISSED. That Baldwin's cross-motion to amend her amended complaint (Dkt. No. 21) is DENIED with leave to renew in full compliance with the Local Rules of Practice and this Memorandum-Decision and Order. That Baldwin may renew her motion for leave to amend within fourteen (14) days of this Memorandum-Decision and Order. That, if Baldwin fails to renew her motion for leave to amend in the time permitted, the clerk is directed to enter judgment without further order of the court. Signed by Senior Judge Gary L. Sharpe on 2/8/21. (jel, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KALONIE BALDWIN, as
Administratrix of the Estate of
JOHN E. BALDWIN, JR.,
Deceased,
Plaintiff,

1:20-cv-214
(GLS/CFH)

v.
UNITED STATES OF AMERICA,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Anderson, Moschetti Law Firm
26 Century Hill Drive
Suite 206
Latham, NY 12110
FOR THE DEFENDANT:
HON. ANTOINETTE T. BACON
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

JEFFREY K. ANDERSON, ESQ.

EMER M. STACK
Assistant U.S. Attorney

Gary L. Sharpe
Senior District Judge

MEMORANDUM-DECISION AND ORDER
Plaintiff Kalonie Baldwin, as Administratrix of the Estate of John E.

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Baldwin, Jr., Deceased (hereinafter “the decedent”) brings this action
against defendant United States of America alleging claims pursuant to the
Federal Tort Claims Act (FTCA).1 (Am. Compl., Dkt. No. 5.) Pending is
the United States’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
and (6), (Dkt. No. 13), as well as Baldwin’s cross-motion to amend her
amended complaint, (Dkt. No. 21). For the reasons that follow, the United
States’ motion to dismiss is granted, and Baldwin’s cross-motion to amend
is denied, with leave to renew.
I. Background
A.

Facts2
At all relevant times, the decedent was a patient at the Albany

Stratton Veterans Affairs Medical Center (hereinafter “the VA”). (Am.
Compl. ¶ 12.) In early June of 2015, the decedent went to the VA for a
colonoscopy, where an anal lesion was noted, but no biopsy was
completed. (Id. ¶¶ 13-14.) The decedent was not informed about this
finding, and no referral for a biopsy of the lesion was made. (Id. ¶ 15.)

1

See 28 U.S.C. §§ 2671-80.

2

The facts are drawn from Baldwin’s amended complaint, (Dkt. No.
5), and presented in the light most favorable to her.
2

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In July of 2015, the decedent was admitted to the VA, where “rectal
bleeding apparently due to an exophytic perianal lesion” was discovered.
(Id. ¶ 16.) “According to the record, [an] anoscopy was performed,” but a
“biospy of the lesion did not take place.” (Id. ¶¶ 16-17.) A few days later,
decedent was seen by Dr. Jerome Hill, “but no biopsy of the lesion took
place.” (Id. ¶ 19.)
In August 2015, decedent was admitted again to the VA, and seen by
Dr. Jacqueline Smith, “who noted that in June, a colonscopy was done and
that []a large exophytic anal/perianal lesion was found and not biopsied.”
(Id. ¶¶ 21-22 (internal quotation marks omitted).) Dr. Smith also noted that
“the question on consult only referred to [decedent’s] psoriasis and not the
mass, so it wasn’t assessed.” (Id. ¶ 22.) Two days later, decedent, having
had no biopsy of the lesion, was discharged. (Id. ¶ 23.)
In May 2016, decedent was admitted to the VA for a third time “for a
surgical consult conducted during his stay at the [VA],” where he “was
given a diagnosis . . . of anal squamous cell carcinoma.” (Id. ¶¶ 24-25.)
Decedent died on September 11, 2017 from metastatic colon cancer.
(Id. ¶ 26.)
B.

Procedural History
3

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Baldwin commenced this action on February 27, 2020 against the
United States and the Department of Veterans Affairs. (Dkt. No. 1,
Compl.) She filed an amended complaint on May 19, 2020, (Am. Compl.),
and voluntarily dismissed the action against the Department of Veterans
Affairs on May 26, 2020, (Dkt. No. 12). Generally, Baldwin alleges that
employees of the VA failed to timely diagnose and treat the decedent’s
colon cancer, leading to his death. (Am. Compl. ¶¶ 27-34.) Although not
specifically enumerated in the amended complaint, the parties appear to
agree that the causes of action asserted by Baldwin are: (1) a wrongful
death claim, and (2) a medical malpractice claim.3 (Id.)
II. Standards of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the governing
standard, the court refers the parties to its prior decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

3

In referring to the causes of action brought, the parties
interchangeably use “personal injury” and “negligence” with respect to the
wrongful death and medical malpractice claims. For ease of discussion,
the court will refer to the causes of action as wrongful death and medical
malpractice claims.
4

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The standard of review under Fed. R. Civ. P. 12(b)(1) is similar,
except that the court “may refer to evidence outside the pleadings,” and
“[a] plaintiff asserting subject matter jurisdiction has the burden of proving
by a preponderance of the evidence that it exists.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted).
III. Discussion
A.

United States’ Motion to Dismiss
The United States seeks dismissal of Baldwin’s claims on the

following grounds: (1) the court lacks subject matter jurisdiction, because
the United States is not liable for the alleged negligence of Dr. Charles
Casale, an independent contractor, and, thus, sovereign immunity bars the
instant lawsuit; (2) Baldwin’s medical malpractice claim4 is untimely,
because she failed to file an administrative claim with the VA within two
years of when critical facts of the decedent’s injury were known or should
have been known; and (3) Baldwin failed to comply with N.Y. C.P.L.R.

4

Although the United States refers to this as a “personal injury”
claim, (Dkt. No. 13, Attach. 1 at 12-14), because this portion of the United
States’ memorandum distinguishes between a personal injury claim and a
wrongful death claim, noting that the wrongful death claim is timely, (id. at
13 n.4), it is presumed that the United States is referring to Baldwin’s
medical malpractice claim.
5

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§ 3012-a by failing to attach a certificate of merit to her complaint. (Dkt.
No. 13, Attach. 1 at 7-16.)
To state a medical practice claim under New York law, which is
applicable to Baldwin’s FTCA claim by virtue of 28 U.S.C. § 2674, a plaintiff
must establish the following elements: “(1) a deviation or departure from
accepted medical practice, and (2) evidence that such departure was a
proximate cause of injury.” Doane v. United States, 369 F. Supp. 3d 422,
446 (N.D.N.Y. 2019) (quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, (2d
Dep’t 2003)). To state a wrongful death claim under New York law, the
decedent’s personal representative must plead: “(1) the death of a human
being, (2) the wrongful act, neglect or default of the defendant by which the
decedent’s death was caused, (3) the survival of distributees who suffered
pecuniary loss by reason of the death of decedent, and (4) the
appointment of a personal representative of the decedent.” Quinn v.
United States, 946 F. Supp. 2d 267, 277 (N.D.N.Y. 2013) (quoting Chong
v. N.Y.C. Transit Auth., 83 A.D.2d 546, 547 (2d Dep’t 1981)).
In her response, Baldwin fails to address the United States’

6

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arguments with respect to subject matter jurisdiction and timeliness.5 (See
generally Dkt. No. 21, Attach. 4.) In the Northern District, where a plaintiff,
in her opposition papers, fails to oppose several arguments by a defendant
in its motion to dismiss, “the movant’s burden is lightened such that, in
order to succeed, the movant need only show facial merit in support of its
motion, which has appropriately been characterized as a lightened
burden.” Breezee v. Colvin, No. 5:14-CV-1114 GTS, 2015 WL 5725083, at
*2 (N.D.N.Y. Sept. 28, 2015) (citations omitted); see Lefevre v. Cty. of
Albany, No. 1:14-CV-155, 2015 WL 1626005, at *3 (N.D.N.Y. Apr. 13,
2015) (citations omitted) (“The failure to oppose a motion to dismiss a
claim is deemed abandonment of the claim, and, in the Northern District of
New York, is deemed consent to granting that portion of the motion.”)).6

5

Notably, in addition to her proposed second amended complaint,
attached to Baldwin’s opposition to the motion to dismiss are facts and
legal arguments in an attorney affidavit, as well as exhibits to a medical
expert’s declaration, (see generally Dkt. No. 21), all of which are not
properly submitted on a motion to dismiss.
6

In any event, Baldwin concedes dismissal of her “negligence”
claim based on Dr. Casale’s status as an independent contractor, and
also appears to concede dismissal of her “personal injury” claim,
“preserving the wrongful death claim.” (Dkt. No. 21, at 2.) Although it is
unclear which claims Baldwin is referring to, it is of no moment, because
the court lacks subject matter jurisdiction over the action.
7

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Thus, because Baldwin has failed to respond to the United States’
arguments with respect to subject matter jurisdiction and timeliness, the
only remaining issue is whether the United States has “met its burden to
demonstrate entitlement to the relief requested through th[ose]
argument[s].” Cossey v. David, No. 904-CV-1501, 2007 WL 3171819, at
*4 (N.D.N.Y. Oct. 29, 2007) (internal quotation marks and citations
omitted).
Here, the United States’ arguments that the court lacks subject
matter jurisdiction over Baldwin’s claims arising out of Dr. Casale’s alleged
negligence because of his status as an independent contractor, and that
the statute of limitations bars Baldwin’s medical malpractice claim because
she did not file an administrative claim with the VA within two years from
accrual of her claim, (Dkt. No. 13, Attach. 1 at 6-14), are facially
meritorious. As such, the United States has met its burden to demonstrate
entitlement to dismissal of Baldwin’s claims.
To the extent Baldwin argues, in an affidavit, that “there are material
issues of fact precluding dismissal of the Amended Complaint based upon
allegations of negligence dating from June of 2015, in the failure of
defendant to evaluate the perianal lesion when [the decedent] was seen by
8

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Dr. Sacco and Dr. Hill,” (Dkt. No. 21 at 6), such argument fails.7 Indeed, in
determining whether a claim survives a motion to dismiss, unlike a motion
for summary judgment, the court considers only “whether the complaint
includes factual allegations sufficient to raise a right to relief above the
speculative level.” Gonzalez v. Carestream Health, Inc., 520 F. App’x 8, 10
(2d Cir. 2013) (internal quotation marks and citation omitted). Here, even
accepting as true all plausible allegations of fact, and drawing all
reasonable inferences in favor of Baldwin, there are no
allegations in the amended complaint to suggest liability arising from Dr.
Sacco and Dr. Hill, or any other employee at the VA. Thus, Baldwin has
failed to state a claim.
Accordingly, because the United States cannot be held liable for the
conduct alleged here, and because Baldwin has failed to state a claim

7

Notably, Baldwin’s arguments, made in an affidavit, are in violation
of Local Rule 7.1(b)(2)’s proscription against affidavits containing legal
arguments. See N.D.N.Y. L.R. 7.1(b)(2) (“An affidavit must not contain
legal arguments but must contain factual and procedural background that
is relevant to the motion the affidavit supports”); Topliff v. Wal-Mart Stores
East LP, No. 6:04-CV-0297, 2007 WL 911891, *23 (N.D.N.Y. Mar. 22,
2007) (“[T]o the extent that [p]laintiff’s counsel is attempting to present
arguments in refutation of the arguments advanced by [d]efendant . . . ,
the place for those arguments is in [p]laintiff’s opposition memorandum of
law.” (citation omitted)).
9

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upon which relief may be granted, the United States’ motion to dismiss is
granted, and Baldwin’s claims against it are dismissed.
B.

Baldwin’s Cross-Motion to Amend
Baldwin seeks to amend her pleading for a second time. (Dkt.

No. 21, Attach. 2.) In reply, the United States argues that leave to amend
should be denied because Baldwin’s cross-motion fails to comply with the
Local Rules, and is otherwise meritless. (Dkt. No. 22 at 9-11.)
Specifically, the United States maintains that Baldwin did not serve a
proper notice of motion and provide a return date for the motion, nor did
she denote the changes in her proposed second amended complaint by
redline or other equivalent means. (Id. at 9-10.) Further, amendment
would be futile, the United States contends, because Baldwin names the
Department of Veterans Affairs as a defendant, despite having stipulated
to its dismissal from this lawsuit in May 2020; she restates the same
medical malpractice claim, despite having conceded that the claim is time
barred; and, as explained above, the court lacks subject matter jurisdiction.
(Id. at 10-11.) The court agrees with the United States.
As relevant here, Fed. R. Civ. P. 15 allows a party not otherwise
permitted to amend its pleading to do so with leave of the court. See Fed.
10

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R. Civ. P. 15(a)(2). The Rule mandates that “[t]he court should freely give
leave when justice so requires.” Id. Barring “futility, undue delay, bad faith
or dilatory motive, repeated failure to cure deficiencies by amendments
previously allowed, or undue prejudice to the non-moving party,” leave
should generally be granted. Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 126 (2d Cir. 2008). “The non-moving party bears the burden of
establishing why leave to amend should not be granted.” Linares v.
Richards, No. 08-CV-3243, 2009 WL 2386083, at *9 (E.D.N.Y. Aug. 3,
2009) (citations omitted).
A proposed amendment is considered futile if it “would fail to cure
prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.” Panther Partners Inc. v. Ikanos Comms, Inc.,
681 F.3d 114, 119 (2d Cir. 2012) (citation omitted). The amendment
should be denied as futile only “if it appears beyond doubt that the plaintiff
can plead no set of facts that would entitle him to relief.” Milanese v. RustOleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Accordingly, “the standard
for denying leave to amend based on futility is the same as the standard
for granting a motion to dismiss.” IBEW Local Union No. 58, Pension Trust
Fund & Annuity Fund v. Royal Bank of Scotland Group, PLC, 783 F.3d
11

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383, 389 (2d Cir. 2015). In making this decision, courts must “consider the
proposed amendments along with the remainder of the complaint, accept
as true all non-conclusory factual allegations therein, and draw all
reasonable inferences in plaintiff’s favor.” Panther Partners, 681 F.3d at
119 (internal quotation marks, citations, and alterations omitted).
First and foremost, as noted by the United States, Baldwin runs afoul
of this District’s Local Rules, which require that a motion to amend “set
forth specifically the proposed insertions and deletions of language and
identify the amendments in the proposed pleading, either through the
submission of a redline/strikeout version of the pleading sought to be
amended or through other equivalent means.” N.D.N.Y. L.R. 15.1(a).
Indeed, Baldwin has made alterations without specifically identifying them,
(see generally Dkt. No. 21, Attach. 2), and, thus, the court is left to read the
proposed second amended complaint line-by-line to determine where
Baldwin made deletions and alterations.
The court, although not required, has done so, and notes that the
only meaningful changes appear to include the following alterations to
events occurring in June 2015: decedent “was seen . . . by Joseph Sacco,
MD, who noted that ‘other active medical issues include profuse psoriatic
12

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lesions, and rectal bleeding apparently due to an exophytic perianal lesion.
An anoscopy was performed during hospitalization and he is scheduled to
see dermatologist tomorrow, presumably for biopsy’”; “no anoscopy was
performed for evaluation of decedent’s anal lesion prior to June 11, 2015”;
and, “decedent was seen by dermatologist Jerome Hill, MD, who did not
evaluate decedent’s anal lesion.” (Dkt. No. 21, Attach. 2 at 4-5.) These
changes would not cure the deficiencies identified above, because they still
fail to show that Baldwin is entitled to relief, rendering amendment futile.
Accordingly, Baldwin’s cross-motion, as filed, is denied. However, in an
abundance of caution, and because it appears that better pleading may be
able to cure the deficiencies with respect to Baldwin’s wrongful death
claim, she may renew her motion for leave to amend in full compliance with
the Local Rules of Practice and in accordance with this MemorandumDecision and Order.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the United States’ motion to dismiss (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Baldwin’s amended complaint (Dkt. No. 5) is
13

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DISMISSED; and it is further
ORDERED that Baldwin’s cross-motion to amend her amended
complaint (Dkt. No. 21) is DENIED with leave to renew in full compliance
with the Local Rules of Practice and this Memorandum-Decision and
Order; and it is further
ORDERED that Baldwin may renew her motion for leave to amend
within fourteen (14) days of this Memorandum-Decision and Order; and it
is further
ORDERED that, if Baldwin fails to renew her motion for leave to
amend in the time permitted, the Clerk is directed to enter judgment
without further order of the court; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
February 8, 2021
Albany, New York

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