Murchison v. United States of America et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that: Plaintiffs Objections to the Report and Recommendation, set forth in a pro se filing at 38 are OVERRULED; The Report and Recommendation entered by Chief United States Magistrate Judge Susan E. Schwab 37 is ADOPTED; Defendants Motion for Summary Judgment 26 is GRANTED; Plaintiffs subsequent, late Motion for an Extension of Time to File a Certificate of Merit 39 is DENIED. The Clerk of Court is directed to a enter judgment in favor of the Defendants and to close the case. (See Order for further details.) Signed by Honorable Matthew W. Brann on 4/25/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KENNETH MURCHISON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
et al.,
Defendants.

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No. 4:16-cv-00206
(Judge Brann)

ORDER
AND NOW, this 25th day of April, 2017, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Objections to the Report and Recommendation, set forth
in a pro se filing at ECF No. 38, are OVERRULED:
a.

Objection #1: “The Federal Tort Claims Act waives sovereign
immunity and grants district courts jurisdiction over tort
claims against the United States ‘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.’” Clayton v. United States, 913 F. Supp.
2d 80, 84 (D.N.J. 2012) (quoting 28 U.S.C. § 1346(b)(1)). “In

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other words, ‘it is the substantive law of the State wherein the
cause of action accrues which governs the liability of the
United States on claims brought under the Federal Tort
Claims Act.’” Clayton, 913 F. Supp. 2d at 84 (Ciccarone v.
United States, 486 F.2d 253, 257 (3d Cir. 1973).
b.

Objection #2: “[T]he [certificate of merit] requirement and its
conditions are facts that can form the basis for a motion for
summary judgment.” Schmigel v. Uchal, 800 F.3d 113, 122 (3d
Cir. 2015) (Krause, J.). Neither is it a viable response to flatly
contend without proof of the most exceptional circumstances,
that a certificate of merit is “impossible to obtain.” In my
view, that reality perhaps suggests that the certificate of merit
requirement has done its job in the instant dispute. Moreover,
this Court has previously afforded the Plaintiff ample
extensions to obtain the necessary certification.

c.

Objection #3: “[F]ailure to submit the certificate is a possible
ground for dismissal by the district court, when properly
presented to the court in a motion to dismiss.” Davis v.

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Pennsylvania Dep’t of Corr., No. 3:12-CV-02161, 2013 WL
6837797, at *9 (M.D. Pa. Dec. 23, 2013) (Mariani, J.) (internal
citation omitted).
d.

Objection #4: Nothing in our common law tradition of justice
prevents a judge from employing a “belt and suspenders”
approach to her analysis. To the contrary, such a tactic is an
advisable one were we to truly prioritize finality.
Nevertheless, Plaintiff also reads too much into a footnote that
did not even purport to reach certain of the conclusions about
which he now complains.

e.

Objection #5: “Under Pennsylvania law, a certificate of merit
must be filed either with the complaint or within sixty days
after the filing of the complaint in any action asserting a
professional liability claim based upon the allegation that a
licensed professional deviated from an acceptable professional
standard.” Brownstein v. Gieda, No. 3:08CV1634, 2009 WL
2513778, at *3 (M.D. Pa. Aug. 13, 2009) (Munley, J.) (internal
citation and quotation marks omitted).

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f.

Objection #6: This motion concerns the grant or denial of
summary judgment, not the dismissal of a complaint.

g.
2.

Objection #7: See Response to Objection #1.

The Report and Recommendation entered by Chief United States
Magistrate Judge Susan E. Schwab, ECF No. 37, is ADOPTED.

3.

Defendants’ Motion for Summary Judgment, ECF No. 26, is
GRANTED.

4.

Plaintiff’s subsequent, late Motion for an Extension of Time to File a
Certificate of Merit, ECF No. 39, is DENIED.

5.

The Clerk of Court is directed to:
a.

Enter judgment in favor of the Defendants;

b.

Docket this Order as a “written opinion,” pursuant to the EGovernment Act of 2002; and

c.

Close this case.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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