Kaminski v. Markham et al

Filing 9

SUMMARY ORDER - That PHC and Shaben's 3 Motion to Substitute Party and 3 Motion to Dismiss is GRANTED. That the Clerk substitute the United States as defendant in this action in place of Pulaski Health Center and Elaine J. Shaben, N.P. That the complaint is DISMISSED without prejudice. Signed by Chief Judge Gary L. Sharpe on 6/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LOIS KAMINSKI, Individually and
as Administratrix of the Estate of
James F. Fitzgerald, deceased,
Plaintiff,

5:13-cv-1478
(GLS/ATB)

v.
JOSEPH P. MARKHAM, M.D. et
al.,
Defendants.
________________________________
SUMMARY ORDER
Pending is a motion filed by defendants Pulaski Health Center (PHC)
and Elaine J. Shaben, N.P., seeking to substitute the United States as
defendant in this action, and to subsequently dismiss the claims against the
United States. (Dkt. No. 3.) Plaintiff Lois Kaminski, individually and as
administratrix of the estate of James F. Fitzgerald, commenced this action
in September 2013 in Supreme Court of the State of New York, County of
Onondaga. (Dkt. No. 1, Attach. 1 at 2-15.) She alleges negligence and/or
medical malpractice against PHC and Shaben, among other defendants,
stemming from medical care provided to Fitzgerald from February through
May 2012, which ultimately resulted in Fitzgerald’s death on May 23, 2012.

(Id.) On November 27, 2013, PHC and Shaben removed the case to this
court pursuant to 28 U.S.C. § 1441 and the Federal Tort Claims Act
(FTCA).1 (Dkt. No. 1.) PHC and Shaben then filed the pending motion to
substitute and dismiss. (Dkt. No. 3.) For the reasons that follow, the
motion is granted.
The FTCA provides that it shall be the exclusive remedy for “personal
injury or death arising or resulting from the negligent or wrongful act or
omission of any employee of the Government while acting within the scope
of his office or employment.” 28 U.S.C. § 2679(b)(1). Thus, “[u]pon
certification . . . that the defendant employee was acting within the scope of
his . . . employment at the time of the incident out of which the claim arose,
. . . the United States shall be substituted as the party defendant.” Id. §
2679(d)(1). However, a prerequisite to maintaining a tort claim against an
entity covered by the FTCA is that “the claimant shall have first presented
the claim to the appropriate Federal agency and [her] claim shall have
been finally denied by the agency.” Id. § 2675(a).
Here, the United States Attorney certified that at all times alleged in
Kaminski’s complaint, PHC was a facility covered by the FTCA, see 42
1

See 28 U.S.C. §§ 1346(b), 2671-2680.
2

U.S.C. § 233(g), and that Shaben was an employee acting within the scope
of her employment with PHC. (Dkt. No. 1, Attach. 1 at 21-22.) Defendants
therefore argue that the United States must be substituted as a defendant
in place of PHC and Shaben, and that, because Kaminski did not first file
an administrative claim with the appropriate federal agency prior to
commencing this action, the tort claims against the United States must be
dismissed. (Dkt. No. 3, Attach. 2 at 3-5.) The court agrees with
defendants, and, further, Kaminski does not oppose the motion to
substitute and dismiss, as she intends to first “pursue administrative relief
with the relevant [a]gency.” (Dkt. No. 7.) Therefore, the United States is
substituted as defendant in place of PHC and Shaben, and the claims
against it are dismissed without prejudice.
Because Kaminski’s remaining negligence and malpractice causes of
action are issues wholly of state law, the court declines to exercise
supplemental jurisdiction over those claims. “In the absence of original
federal jurisdiction, the decision of whether to exercise jurisdiction over
pendent state law claims is within the court’s discretion.” Butler v.
LaBarge, No. 9:09-cv-1106, 2010 WL 3907258, at *3 (N.D.N.Y. Sept. 30,
2010) (citing Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 121-22 (2d
3

Cir. 2006)). When all federal claims have been dismissed before trial, the
balance of factors in deciding whether to exercise jurisdiction over
remaining state law claims leans toward dismissal. Kolari, 455 F.3d at 122.
Accordingly, the court declines jurisdiction over any state law claims and
they are dismissed from this action.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that PHC and Shaben’s motion to substitute and dismiss
(Dkt. No. 3) is GRANTED; and it is further
ORDERED that the Clerk substitute the United States as defendant
in this action in place of Pulaski Health Center and Elaine J. Shaben, N.P.;
and it is further
ORDERED that the complaint is DISMISSED without prejudice; and it
is further
ORDERED that the Clerk serve a copy of this Summary Order upon
the parties.
IT IS SO ORDERED.
June 5, 2014
Albany, New York

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