action to bring the co-defendants back into the federal action.
Retention would also avoid duplication of disclosure in state
court in which the United States Attorney would not be involved.
The United States does not oppose this request.
The motion to substitute the United States as a defendant for
Dr. Zimmerman will be granted. Title 42 U.S.C. § 233(a) provides
that the remedy for damages against the United States for damage
for personal injury including death from the performance of
medical, surgical, dental or related functions by an employees of
the Public Health Service while acting within the scope of
employment, shall be exclusive of any other civil action or
proceeding by reason of the same subject matter against the
employee whose act or omission gave rise to the claim.
Title 42 U.S.C. § 233(c) provides that upon certification of
the Attorney General that the defendant was acting within the
scope of his or her federal employment at the relevant time, the
action may be removed to federal court anytime prior to trial and
would thereafter be "deemed a tort action brought against the
United States under the provisions of Title 28 and all references
Title 42 U.S.C. § 233(g) contains the procedure for certain
entities and their employees which receive federal grants under
one of four statutory programs to be deemed to be employees of
the Public Health Service for purposes of the exclusive remedy
provision of § 233(a). Employees of Family Health Network of
Central New York are included in the category of "community
Family Health Network of Central New York had Federal Tort
Claims Act coverage and Dr. Zimmerman was an employee acting
within the scope of her employment as Public Health Service
Employee at the time of the allegations in plaintiff's complaint.
Therefore, plaintiff's sole remedy regarding any claims based
upon her alleged acts or omissions are deemed tort actions
brought against the United States, and subject to removal to the
Federal court. Apple v. Jewish Hospital and Medical Center,
570 F. Supp. 1320, 1322 (E.D.N.Y. 1983).
The United States will also be dismissed as a defendant without
prejudice because the record clearly shows that the plaintiff has
not yet met the administrative claim filing requirements of
28 U.S.C. § 2675(a). The statute's explicit direction that an
"action shall not be instituted . . . unless the claimant shall
have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in
writing and sent by certified or registered mail" is perfectly
clear. McNeil v. United States, 508 U.S. 106, 110, 113 S.Ct.
1980, 1983, 124 L.Ed.2d 21 (1993). Filing a claim under this
statute is a jurisdictional necessity and a precursor to invoking
the judicial process against the United States for damages
stemming from actionable behavior by a federal employee. Id.
After the dismissal of the United States as a party, the case
against the remaining state defendants should be remanded to the
New York State Supreme Court, Cortland County.
"[P]endant jurisdiction is a doctrine of discretion not of
plaintiff's right. Its justification lies in considerations of
judicial economy, convenience and fairness to the litigants; if
these are not present, a federal court should hesitate to
exercise jurisdiction over state claims." United Mine Workers v.
Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139 16 L.Ed.2d 218
(1966). Because the federal claim will be dismissed in this case,
there remains no independent basis for federal jurisdiction.
"Certainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the
state claims should be dismissed as well." Id. at 726, 86 S.Ct.
at 1139. See also 28 U.S.C. § 1367(c)(3) (codifying existing
case law and giving district courts discretion to decline to
exercise supplemental jurisdiction where "the district
court has dismissed all claims over which it has original
Additional considerations are the possibility that Anne Marie
Zimmerman, M.D., the sole federal defendant, could be eliminated
from the case if plaintiff's administrative remedies are
successful, and the fact that both parties agree that this court
should retain jurisdiction is not, in itself, sufficient to grant
continuing jurisdiction to a federal court. Blount v. Peerless
Chemicals (P.R.) Inc. 316 F.2d 695, 696 (2d Cir. 1963), cert.
denied, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963).
Based upon the foregoing, the court grants the United States'
motions to substitute itself as a Defendant for Anne Marie
Zimmerman, M.D., and to dismiss the complaint as against the
United States, and remands the case to the New York State Supreme
Court, Cortland County.
IT IS SO ORDERED.
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