WESTRAY et al v. MERCY LIFE et al
MEMORANDUM. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 4/13/2016. 4/14/2016 ENTERED AND COPIES E-MAILED.(ahf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MERCY LIFE, et al.,
April 13, 2016
This is a medical malpractice action that was originally filed in Philadelphia County
Court of Common Pleas but was removed to federal court under the Federal Tort Claims Act
("FTCA"). The plaintiff, Sandra Westray, brought this action against Mercy Life, Mercy Health
System, Cardiology Consultants of Philadelphia, P.C., Jefferson Associates in Radiology,
Jefferson University Physicians, Donna Raziano, M.D., Lawanda Goehring, C.R.N.P., Pamneit
Bhogal, M.D., Veronica Covalesky, M.D. and Cynthia Miller, M.D. By an Order dated July 6,
2015, this Court dismissed Dr. Pamneit Bhogal, an employee of the Public Health Service, from
the case and substituted the United States government for Dr. Bhogal. Now before this Court is
the government's motion to dismiss Mercy Life, Mercy Health System, Donna Raziano and
Lawanda Goehring's cross-claim pursuant to Federal Rules of Civil Procedure 12(b)(l) for lack
of subject matter jurisdiction and 12(b)(6) for failure to state a claim. Two responses in
opposition have been filed to the government's motion, one by Veronica Covalesky and
Cardiology Consultants of Philadelphia, and one by Mercy Life, Mercy Health System, Donna
Raziano, and Lawanda Goehring. 1 For the reasons discussed below, I am denying the
government's 12(b)(l) motion to dismiss the cross-claim for lack of subject matter jurisdiction
and I am granting the government's 12(b)(6) motion to dismiss the cross-claim for failure to state
On April 9, 2014, Sandra Westray, the wife and executor of the estate of her deceased
husband, Milton Westray, initiated this case in the Court of Common Pleas of Philadelphia
County. (Doc. No. 163 , Ex. A, 9). Ms. Westray filed an amended complaint on August 5, 2014
and second amended complaint on October 23, 2014. (Id. at 21, 26). The October 23, 2014
complaint ("the operative complaint") alleges various forms of medical malpractice in the
treatment and care of her husband which ultimately led to his death on May 19, 2012. (Doc. No.
14 , Ex. A). In the operative complaint, Ms. Westray asserts a wrongful death and survival cause
of action against each of the defendants. 5 (Id.)
I will refer to these defendants and their responses collectively.
This section focuses on the procedural history of the case rather than the factual basis as the current motion turns
on a procedural question rather than the underlying merit of Ms. Westray's complaint.
Defendant Pamneit Bhogal' s Motion to Substitute and Dismiss Cross-Claim.
Plaintiffs October 23, 2014 Amended Complaint.
The plaintiffs complaint alleges the following counts:
Count One-Wrongful Death, Sandra Westray v. Mercy Life
Count Two-Wrongful Death, Sandra Westray v. Mercy Health System
Count Three-Wrongful Death, Sandra Westray v. Cardiology Consultants of Philadelphia
Count Four-Wrongful Death, Sandra Westray v. Jefferson Associates in Radiology
Count Five-Wrongful Death, Sandra Westray v. Jefferson University Physicians
Count Six-Wrongful Death, Sandra Westray v. Donna Raziano
Count Seven-Wrongful Death, Sandra Westray v. Lawanda Goehring
Count Eight-Wrongful Death, Sandra Westray v. Pamneit Bhogal
Count Nine-Wrongful Death, Sandra Westray v. Veronica Covalesky
Count Ten-Wrongful Death, Sandra Westray v. Cynthia Miller
Count Eleven-Survival, Sandra Westray v. Mercy Life
Count Twelve-Survival, Sandra Westray v. Mercy Health System
Count Twelve [sic]-Survival, Sandra Westray v. Cardiology Consultants of Philadelphia
Count Thirteen-Survival, Sandra Westray v. Jefferson Associates in Radiology
Count Fourteen-Survival, Sandra Westray v. Jefferson University Physicians
Count Fifteen-Survival, Sandra Westray v. Donna Raziano
Count Sixteen-Survival, Sandra Westray v. Lawanda Goehring
Count Seventeen-Survival, Sandra Westray v. Pamneit Bhogal
On July 11, 2014, Ms. Westray filed a certificate of merit for several defendants
including Dr. Bhogal, but on May 8, 2015, Ms. Westray withdrew that certificate of merit as to
Dr. Bhogal. (Doc. No. 16, Ex. A, 16, 29-30). Following the withdrawal of the certificate of
merit, Ms. Westray moved to discontinue all claims against Dr. Bhogal. (Doc. No. 16, Ex. F).
On June 4, 2015, the government, on behalf of Dr. Bhogal, removed the case on the basis that
Dr. Bhogal was a federal employee of the United States government under the Federally
Supported Health Centers Assistance Act, 42 U.S.C. § 233(c). (Doc. No. 1, Ex. B). As a federal
employee, the FTCA governs any tort actions brought against Dr. Bhogal and provides the
United States District Courts with exclusive jurisdiction. (Doc. No. 1, if 4).
On June 9, 2015, the government moved for substitution of the government for Dr.
Bhogal and for dismissal of the operative complaint for lack of jurisdiction. (Doc. No. 2 6). The
Court granted the substitution of the government for Dr. Bhogal by an Order dated July 6, 2015.
(Doc. No. 19\ Furthermore, on August 17, 2015, the Court granted the government's motion to
dismiss Ms. Westray's claims with prejudice for failing to exhaust her administrative remedies.
(Doc. No. 27 8). Currently, the only remaining claim against the government is a cross-claim that
Defendants Mercy Life, Mercy Health System, Dr. Donna Raziano and Lawanda Goehring filed
against the government on June 18, 2015. 9 (Doc. No. 6 10).
Count Eighteen-Survival, Sandra Westray v. Veronica Covalesky
Count Nineteen-Survival, Sandra Westray v. Cynthia Miller
Defendant Pamneit Bhogal's Motion to Dismiss for Lack of Jurisdiction and Motion to Substitute the United
Court Order dated July 6, 2015 permitting the substitution of the government for Dr. Pamenit Bhogal on both the
amended complaint and the cross-claim.
Court Order dated August 17, 2015 dismissing the plaintiff's operative complaint for failure to exhaust
The defendants' cross-claim seeks to hold Dr. Bhogal solely liable, or jointly or severally liable by way of
contribution and/or indemnification ifthe defendants are found to be negligent.
Defendant Mercy Life, Mercy Health System, Donna Raziano and Lawanda Goehring's Cross-Claim against Dr.
STANDARD OF REVIEW
The government moves to dismiss the defendants' cross-claim pursuant to Federal Rule
of Civil Procedure l 2(b)( 1) for lack of subject matter jurisdiction and 12(b)( 6) for failure to state
a claim upon which relief can be granted.
Lack of Subject Matter Jurisdiction
Challenges to subject matter jurisdiction can be made at any time. Fed. R. Civ. P.
12(h)(3). In evaluating a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(l), there is a crucial distinction between "12(b)(l) motions that attack the complaint on its
face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite
apart from any pleadings." Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d
Cir. 1977). "In a facial attack, a defendant argues that the plaintiff did not properly plead
jurisdiction, and the Court must consider the allegations in the complaint as true." Smolow v.
Hafer, 353 F.Supp.2d 561, 566 (E.D. Pa. 2005). A 12(b)(l) motion making a factual attack
asserts that "there is no subject matter jurisdiction because the facts of the case ... do not support
the asserted jurisdiction." Constitution Party of Pa. v. Aichele, 757 F.3d 247, 358 (3d Cir. 2014).
In other words, a facial attack "contests the sufficiency of the pleadings," In re Schering Plough
678 F.3d 235, 243 (3d Cir. 2012), "whereas a factual attack concerns the actual failure of
a [plaintiffs] claims to comport [factually] with the jurisdictional prerequisites." CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008). For both the facial and factual attack, the plaintiff
bears the burden of proving jurisdiction. Smolow, 353 F.Supp.2d at 566.
Failure to State a Claim
A motion to dismiss under Rule 12(b)( 6) of the Federal Rules of Civil Procedure for
failure to state a claim upon which relief can be granted examines the legal sufficiency of the
complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Following the Supreme Court
decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Igbal,
556 U.S. 662, 679 (2009), pleading standards in federal actions have shifted from simple notice
pleading to a more heightened form of pleading, requiring a plaintiff to allege facts sufficient to
show that the plaintiff has a "plausible claim for relief." Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009). A facially plausible claim may not be supported by conclusory
allegations, but must allow the court "to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
When presented with a motion to dismiss for failure to state a claim under Rule 12(b)(6),
district courts should conduct a two-part analysis. Fowler, 578 F.3d at 210. First, the court must
separate the factual and legal elements of the claim. Id. The court "must accept all of the
complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. Second,
the court must determine whether the facts alleged in the complaint demonstrate that the plaintiff
has a "plausible claim ofrelief." Id. (citing Igbal, 556 U.S. at 678).
"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and
plain statement of the claim showing that the plaintiff is entitled to relief." lg bal, 556 U.S. at
677-78. While Federal Rule of Civil Procedure 8(a)(2) does not require the plaintiff to plead
detailed factual allegations, it does demand "more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Id. at 678. In other words, a pleading that offers "labels and
conclusions" or "a formulaic recitation of the elements of a cause of action will not do."
Twombly, 550 U.S. at 555. Moreover, a pleading is not sufficient if it tenders "naked
assertion[s]" devoid of "further factual enhancement." Id.
12(b)(l) Motion to Dismiss
The claims set forth against the government in the plaintiffs operative complaint have
already been dismissed for failure to exhaust administrative remedies. 11 The only remaining
claim against the government is the defendants' cross-claim which is brought under the FTCA.
The United States, as a sovereign, is immune from suit unless it consents to be sued. WhiteSquire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). The FTCA acts as a limited
waiver to sovereign immunity and permits:
claims against the United States, for money damages .... for injury
or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Goverillnent while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(l). Moreover, the FTCA confers exclusive jurisdiction upon federal district
courts over lawsuits arising under the FTCA. Santos v. United States, 559 F.3d 189, 193 (3d Cir.
2009)(citing 28 U.S.C. § 1346(b)). The government requests that the cross-claim against the
government be dismissed under Fed. R. Civ. P. 12(b)(l) for lack of subject matter jurisdiction
and in the alternative, for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For purposes of
deciding the government's 12(b)(l) motion, the relevant question is whether a court retains
subject matter jurisdiction over an ancillary cross-claim where the claims in the operative
complaint have already been dismissed for lack of subject matter jurisdiction.
The government does not dispute that the administrative exhaustion requirement is not applicable to cross-claims
brought under the FTCA. See 28 U.S.C. § 2675(a) ("The provisions of this subsection [regarding administrative
exhaustion] shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third
party complaint, cross-claim, or counterclaim.").
The government argues that this case is governed by the reasoning set forth in Fairview
Park Excavating Co. Inc. v. Al Monzo Const. Co., Inc., 560 F.2d 1122 (3d Cir. 1977). In
Fairview, the plaintiff subcontractor sought to recover payment from its general contractor and a
Pennsylvania Township for construction work that the plaintiff performed under contract. Id. at
1123. The general contractor denied liability and brought a cross-claim against the Township.
Id. at 1123-24. The district court granted the Township's motion to dismiss the plaintiffs claim
and also dismissed the general contractor's cross-claim against the Township for lack of subject
matter jurisdiction. Id. at 1124. In reviewing the district court's dismissal of the cross-claim, the
Third Circuit stated that:
If a federal court dismisses a plaintiffs claims for lack of subject
matter jurisdiction, any cross-claims dependent on ancillary
jurisdiction must necessarily fall as well, because it is the
plaintiffs claim to which the cross-claim is ancillary that provides
the derivative source of jurisdiction for the cross-claim.
Id. at 1125. Here, the government's argument is that Fairview directs me to dismiss the
defendants' cross-claim against the government pursuant to 12(b)(l) since I have already
dismissed the plaintiffs claims against the government for lack of subject matter jurisdiction.
Essentially, the government claims that the plaintiffs operative complaint "provides the
derivative source of jurisdiction for the cross-claim" against the defendants and therefore, the
cross-claim cannot survive independent of that source of subject matter jurisdiction. Id. I cannot
concede the government's argument that Fairview is the appropriate authority governing this
case because the cross-claim in Fairview was based upon diversity jurisdiction rather than, as
here, a claim against the federal government under the FTCA, a federal statute which provides
independent and exclusive jurisdiction to federal districts courts over claims arising under it.
The defendants contend that Carr v. American Red Cross, 17 F.3d 671 (3d Cir. 1994) and
its body of case law rather than the Fairview case is more properly the guidepost for this case
given that it deals with cross-claims in which there is an independent basis for original subject
matter jurisdiction. I agree. In Carr, the Third Circuit determined that the district court erred in
dismissing the plaintiffs claim and the co-defendant's cross-claim against Red Cross, a federal
entity with a charter that conferred federal jurisdiction over civil cases to which it was a party.
Id. at 684. In deciding whether to reinstate the co-defendant's cross-claim, the Carr court noted:
In addition, a corollary effect of the district court's order
dismissing Red Cross from the suit was to dismiss Osteopathic' s
cross-claim against Red Cross as well. Clearly, if the district court
had a basis of independent subject matter jurisdiction over
Osteopathic' s cross-claim against Red Cross. The district court
could not have dismissed Red Cross, nor could it have declined to
exercise jurisdiction over the case, merely because Carr opted not
to pursue his claim against Red Cross.
Carr, 17 F.3d at 683 n.14 (citing Nat'l Res. Bureau, Inc. v. Bartholomew, 482 F.2d 386, 388-89
(3d Cir. 1973).
In a case factually similar to the case at hand, the court applied the reasoning of Carr with
the result that the court denied the government's motion to dismiss the co-defendant's crossclaim for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l). See Tomlin v. Pease,
No. 14-202, 2014 WL 1340624, *4 (E.D. Pa. Apr. 4, 2014)("FTCA cross-claims must proceed in
federal court regardless of whether the plaintiff has a claim pending against the United States.").
In Tomlin, the plaintiff brought a medical malpractice action against the government under the
FTCA and the co-defendants brought a cross-claim against the government. Id. at * 1. The
plaintiff's claims against the government were dismissed for failure to exhaust her administrative
remedies; however, the Tomlin Court ruled that under Carr the co-defendants' cross-claim was
not subject to dismissal because the FTCA provided an independent basis for original subject
matter jurisdiction. Id. at *6.
Here, the defendants' cross-claim against the government is brought under the FTCA
which provides an independent basis for subject matter jurisdiction. For this reason, I believe
that Carr and Tomlin rather than Fairview provides the most applicable guidance on this issue.
Under Carr and Tomlin, even if the plaintiffs claim in the operative complaint against the
government has been dismissed, the defendants' FTCA cross-claim against the government can
survive because it has an independent source of subject matter jurisdiction. Accordingly, I will
deny the government's 12(b)( 1) motion to dismiss the defendants' cross-claim for lack of subject
12(b)(6) Motion to Dismiss
Alternatively, the government requests that this Court dismiss the defendants' crossclaim pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. I will grant the
government's 12(b)(6) motion to dismiss the defendants' cross-claim because the defendants
have failed to present any factual allegations demonstrating that they are entitled to relief.
Instead, their cross-claim presents legal conclusions and formulaic recitations of a cause of
action which are insufficient to survive a 12(b)(6) motion.
Despite the defendants' contention that a "Complaint [sic] need not include detailed
factual allegations to overcome a Rule 12(b)(6) motion to dismiss," it is well-settled that a
"complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face." Bank v. City of Phila., 991 F.Supp.2d 523, 527 (E.D. Pa.
2014)(citations omitted). This means that "threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not suffice" to survive a 12(b)(6) motion to
dismiss. Iqbal, 556 U.S. at 678; Se. Pa. Trans. Authority v. AECOM USA, Inc., No. 10-117,
2010 WL 4703533, *3 (E.D. Pa. Nov. 19, 2010)("The Court of Appeals and several district
courts have noted that the pleading standards set forth in Twombley and lg bal apply with equal
force to crossclaims .... ").
The defendants argue that government's motion to dismiss fails to acknowledge the
seventeen detailed paragraphs in the plaintiffs complaint which provide the necessary factual
support to meet the pleading standard of Rule 8(a). The issue with this argument is that the
defendants have not stated anywhere in their cross-claim that they are incorporating by reference
the allegations set forth in the plaintiffs complaint. Although Rule lO(c) of the Federal Rules of
Civil Procedure provides that a "statement in a pleading may be adopted by reference elsewhere
in the same pleading or in any other pleading or motion," Fed. R. Civ. P. lO(c), courts have been
clear that the adoption in the later pleading must provide "'a degree of clarity which enables the
responding party to ascertain the nature and extent of the incorporation."' Cooper v. Nationwide
Mutual Ins. Co., No. 02-2138, 2002 WL 31478874, *5 (E.D. Pa. Nov. 7, 2002)(citing Gen'l
Accident Ins. Co. of Am. v. Fid. & Deposit Co. of Md., 598 F.Supp. 1223, 1229 (E.D. Pa.
1984)); Muttathottlil v. Mansfield, 381 F. App'x 454, 457 (5th Cir. 2010)("a pleading
incorporating allegations from other documents must clarify which statements are to be
incorporated.")( citations omitted). There is no indication in the defendants' cross-claim that the
cross-claim is incorporating by reference those factual allegations set forth in the plaintiffs
complaint nor is there any clarification regarding the scope of incorporation. Without a
statement of incorporation, I must consider only those allegations set forth on the face of the
cross-claim which I find to be mere legal conclusions and formulaic recitations of a claim for
indemnification and contribution without any factual support. Accordingly, I will grant the
government's 12(b)(6) motion to dismiss.
Even if I did consider those allegations set forth in the plaintiffs complaint in
conjunction with the defendants' cross-claim, I would still find that the defendants' cross-claim
has failed to present sufficient facts to support a claim for indemnification. "The right to be
indemnified for a judgment can arise either through the operation of an express contractual
provision or by means of the common law." Se. Pa. Transp. Authority, 2010 WL 4703533 at *6.
Both the plaintiffs complaint and the defendants' cross-claim are seemingly devoid of any
factual allegations establishing the defendants' right to indemnification. The defendants have
not alleged that they have a contractual relationship with Dr. Bhogal nor have they alleged that
there is a common law principle which might entitle them to indemnification. Essentially, the
defendants' cross-claim makes a naked assertion that they are entitled to indemnification without
any basis in fact. Therefore, even if the defendants had incorporated by reference those
allegations in the plaintiffs complaint, I would still find that the defendants' cross-claim for
indemnification was insufficient to survive the government's motion to dismiss.
For the reasons discussed above, I am denying the government's 12(b)(l) motion to
dismiss for lack of subject matter jurisdiction and I am granting the government's 12(b)(6)
motion to dismiss the cross-claim for failure to state a claim. However, Rule 15 of the Federal
Rules of Civil Procedure mandates that "[t]he court should freely give leave when justice so
requires." Fed. R. Civ. P. 15(a)(2). Therefore, I will give the defendants twenty (20) days to
amend their cross-claim.
An appropriate Order follows.
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