Winegardner et al v. Schowengerdt et al

Filing 14

ORDER granting 5 Motion to Dismiss for Lack of Jurisdiction and Remand back to state court on remaining claims. Signed by Magistrate Judge Terence P Kemp on 1/26/12. (jcw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Michael Winegardner, et al.,

:
Case No. 2:11-cv-0905

Plaintiffs,

:

v.

:
Magistrate Judge Kemp

Carl Schowengerdt,
et al.,

:

Defendants.

:

ORDER
The Court held an initial pretrial conference in this case
on January 24, 2012.

All counsel were in attendance.

Based on

the documents that are part of the record, including the pending
motion to dismiss and the parties’ Rule 26(f) report, and based
on discussions had at the conference, the Court makes the
following order.

This is a final order based on the parties’

consent to the jurisdiction of the Magistrate Judge and the
District Judge’s order of reference (#13).
By way of background, this case was filed in the Court of
Common Pleas of Fairfield County, Ohio, as a state law medical
malpractice case.

However, it appears from the notice of removal

that the Muskingum Valley Health Center (not named as a
defendant) was deemed by the Department of Health and Human
Services to be an employee of the Public Health Service as of
January, 2008.

One of the named defendants, Dr. Carl

Schowengerdt, was an employee of that Health Center, apparently
beginning on May 5, 2008.

Thus, he is also deemed to have been

an employee of the Public Health Service on and after that date.
The United States Attorney for this district has certified that

both the Health Center and Dr. Schowengerdt were acting within
the scope of their employment with respect to the matters alleged
in the complaint.

As a result, any claims covered by the

certification can only be pursued under the procedures outlined
by the Federal Tort Claims Act, 28 U.S.C. §§1346(b), 2671 et seq.
The parties agree that, at the time the case was filed, and
at the time of removal, plaintiffs had not submitted an
administrative claim to the Department of Health and Human
Services.

Exhaustion of the administrative claim procedure is a

prerequisite to filing suit under the FTCA.

Thus, any claims

covered by the Act are not properly before the Court.

That has

led the United States to file a motion to dismiss for lack of
jurisdiction.
The motion to dismiss is not opposed.

Plaintiffs’ counsel

has informed the Court that an administrative claim has been
filed, but only recently, and there has been no disposition yet,
so no FTCA claim may be filed at this time.

Thus, any claims

which are subject to the FTCA must be dismissed.
The remainder of the claims in this case are purely state
law claims over which the Court has no independent jurisdiction.
The presence of claims subject to the FTCA was the sole basis for
removal.

Once those claims are dismissed, the appropriate

disposition of the remainder of the case is to remand it to the
Fairfield County Court of Common Pleas.

This is so either

because it would not be a sound exercise of the Court’s
discretion to retain this case, which involves only state-law
claims against non-federal defendants and which is in its infancy
with respect to discovery or other proceedings, or because the
Court has never had such supplemental jurisdiction in the first
instance.

See, e.g., Musson Theatrical, Inc. v. Federal Express

Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (“[i]f the court
dismisses plaintiff's federal claims pursuant to Rule 12(b)(1),
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then supplemental jurisdiction can never exist”)(emphasis in
original); see also Morris v. Washington Mut. Bank, 2011 WL
4507359, *3 (E.D. Mich. September 29, 2011).
For the foregoing reasons, the United States’ motion to
dismiss (#5) is granted.

All claims asserted against defendant

Dr. Schowengerdt for actions which took place on or after May 5,
2008, are dismissed for lack of jurisdiction, which dismissal
shall be without prejudice to the filing of an action under the
FTCA should all necessary prerequisites for bringing such an
action be satisfied.

All other claims against both Dr.

Schowengerdt and the remaining defendants are remanded to the
Court of Common Pleas of Fairfield County, Ohio.

This case is

terminated.
/s/ Terence P. Kemp
United States Magistrate Judge

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