The opinion of the court was delivered by: Munson, Senior District Judge.
MEMORANDUM-DECISION AND ORDER
On or about October 3, 1997, plaintiff instituted this action
in the Supreme Court of the State of New York, County of
Cortland, alleging wrongful death as a result of the negligent
medical care and treatment provided by the defendants to Paul
Koehler on October 6, 1995. The suit named Cortland Memorial
Hospital; Anne Marie Zimmerman M.D.; Robert Eberly, M.D.; and J.
Lee Ambrose, M.D. as defendants. In April, 1998, pursuant to
42 U.S.C. § 233(a) and (c), the United States removed this action
from the New York state court to the United States District Court
for the Northern District of New York.
Pursuant to the requirements of 42 U.S.C. § 233(c), the Office
of the United States Attorney certified that at all times alleged
in plaintiff's complaint, after March 27, 1995, Anne Marie
Zimmerman, M.D., was an employee of the Family Health Network of
Central New York, Inc., which had been declared eligible for
Federal Tort Claims Act ("FTCA") malpractice coverage on March
27, 1995. The coverage was confirmed in a letter to the health
care organization from the Assistant Surgeon General dated March
28, 1995. The letter stated that the Family Health Network of
Central New York, Inc., and its employees and full-time
contractors, were covered by the Federally Supported Healthcare
Centers Assistance Act of 1992. The effective period of
eligibility for FTCA malpractice protection was March 27, 1995 to
December 31, 1995, and included the date the alleged malpractice
took place. The United States Attorney maintains that this
coverage now permits the United States to be substituted as a
defendant for Dr. Zimmerman because it converted plaintiff's
state law complaint against Dr. Zimmerman and the allegations
against her contained therein, into a tort action against the
United States governed by provisions of the FTCA,
28 U.S.C. § 2671, et seq.
The United States Attorney further asserts, that once the
United States becomes a substitute defendant, the action against
it should be dismissed without prejudice for failure to exhaust
administrative remedies. Title 28 U.S.C. § 2675(a) of the FTCA
directs that Federal courts may not exercise jurisdiction over a
suit under the FTCA unless the claimant first files an
administrative claim with the appropriate agency. Wisner v.
United States, 154 F.R.D. 39 (N.D.N.Y. 1994). This notice of
claim requirement of the FTCA is strictly construed, as the FTCA
constitutes a limited waiver of the United States' sovereign
immunity. Richland-Lexington Airport Dist. v. Atlas Properties,
Inc., 854 F. Supp. 400 (D.S.C. 1994).
The United States Attorney has presented the Declaration of
Elizabeth Jordan Gianturco, Chief, Litigation Branch, Division of
Business and Administrative Law, Office of the Counsel General,
Washington D.C., which states that a review of administrative
claims received by the United States Department of Health and
Human Services does not show that plaintiff ever presented the
required administrative claim to that agency.
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.) ...