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May 5, 2003


The opinion of the court was delivered by: James C. Francis IV, United States Magistrate Judge

This case concerns an action for personal injury against Morris Heights Health Center ("Morris Heights") and Dr. Brian Hun Liao, a dentist. The plaintiff, Evette Nin, alleges two causes of action against Morris Heights: medical malpractice and failure to obtain informed consent. The United States, on behalf of Morris Heights, now moves under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (1) to substitute the United States as defendant in place of Morris Heights and (2) upon substitution, to dismiss all claims against the United States for lack of subject matter jurisdiction. The parties have agreed to the disposition of this case by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c). For the reasons that follow, the Government's motion is granted.


On September 21, 2001, Evette Nin initiated a medical malpractice action in the Supreme Court of the State of New York, Bronx County. (Verified Complaint, attached as Exh. A to Notice of Removal and Substitution ("Notice of Removal")). Ms. Nin named Morris Heights and Dr. Liao as defendants. On April 9, 2002, Ms. Nin filed an amended summons and complaint. (Amended Verified Complaint ("Am. Compl."), attached as Exh. B to Notice of Removal). Ms. Nin alleges that Morris Heights "departed from accepted and proper dental practices and standards and was negligent and committed malpractice." (Am. Compl., ¶ 7). She further alleges that Morris Heights failed to obtain her informed consent with respect to the dental treatment. (Am. Compl., ¶¶ 11-12). According to Ms. Nin, the treatment period in which the dental malpractice occurred ran from May 18, 2000, through November 2, 2000. (Affirmation of Debra S. Reiser dated Dec. 12, 2002 ("Reiser Aff."), ¶ 7). On October 18, 2002, Ms. Nin's action was removed to this Court pursuant to the Public Health Service Act, 42 U.S.C. § 233(c), and the Federal Tort Claims Act ("FTCA"), 42 U.S.C. § 2679(d)(2). (Notice of Removal). The United States then filed the instant motion.


In considering a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the party asserting jurisdiction has the burden of proving it. Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)); see also In re Joint Eastern & Southern District Asbestos Litigation, 14 F.3d 726, 730 (2d Cir. 1993). Where subject matter jurisdiction is challenged through a Rule 12(b)(1) motion, evidentiary materials beyond the pleadings may be taken into account. See Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Consideration of such documents does not convert the Rule 12(b)(1) motion into a motion for summary judgment under Rule 56. Id.

In considering a motion to dismiss under Rule 12(b)(6), the material allegations of the complaint are accepted as true, all reasonable inferences are drawn in favor of the plaintiff, and the motion must be denied unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The issue in a Rule 12(b)(6) motion is not the likelihood of recovery but whether the plaintiff has met the burden of alleging facts that are not impossible to prove and that state a legally cognizable claim. Chance, 143 F.3d at 701.

A. Federal Tort Claims Act

1. The United States as Proper Party

Under the Public Health Service Act, suit against the United States is the sole remedy for damages "for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment." 42 U.S.C. § 233(a); see also Bueno v. Sheldon, No. 99 Civ. 10348, 2000 WL 565192, at *2 (S.D.N.Y. May 9, 2000). Section 233(a) makes the FTCA the exclusive vehicle for such actions. 42 U.S.C. § 233(a). The FTCA, in turn, provides in pertinent part that it is the exclusive remedy for any claim against the United States "arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). Section 2679 thus "provides government employees with immunity against claims of common-law tort." Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991). The definition of an "employee of the government" includes "officers or employees of any federal agency" and "persons acting on behalf of a federal agency in an official capacity." 28 U.S.C. § 2671.

In accordance with 42 U.S.C. § 233(c), certification by the Attorney General or his designee prompts the removal of a civil action commenced in state court to the United States district court, and "the proceeding is deemed a tort action brought against the United States under the provisions of title 28 and all references thereto." 42 U.S.C. § 233(c). United States Attorneys "are authorized to make the certifications provided for in . . . 28 U.S.C. § 2679(d) . . . and 42 U.S.C. § 233(c) . . . with respect to civil actions or proceedings brought against Federal employees in their respective districts." 28 C.F.R. § 15.3(a). The law further provides that upon certification and removal, the "United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2).

Morris Heights receives funding from the United States Department of Health and Human Services pursuant to the Public Health Services Act, 42 U.S.C. § 201. (Notice of Removal, ¶ 5). Morris Heights was deemed eligible for FTCA malpractice coverage effective June 23, 1996, and this coverage has continued without interruption. (Declaration of Richard G. Bergeron dated April 9, 2002 ("Bergeron Decl."), attached as Exh. C to Notice of Removal, ¶ 5). Assistant Surgeon General Marilyn H. Gaston notified Morris Heights of its eligibility for FTCA malpractice coverage as a United States Public Health Service employee in a letter dated June 21, 1996. (Notice of Removal, ¶ 5; Malpractice Liability Coverage Letter from Assistant Surgeon General Marilyn H. Gaston, M.D., dated June 21, 1996, attached as Exh. 1 to Bergeron Decl.). The United States Attorney has certified that Morris Heights was acting within the scope of employment with respect to the acts or omissions that are alleged to have occurred in this case. Specifically, United States Attorney James B. Comey deemed Morris Heights and its employees to be employees of the federal government, effective June 23, 1996, for the purposes of Section 233 of the Public Health Services Act. (Certification of Scope of Employment Under 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d) dated Oct. 7, 2002, attached as Exh. D to Notice of Removal).

Ms. Nin does not challenge the certification of Morris Heights. (Defendant Morris Heights Health Center's Reply Memorandum of Law in Support of Its Motion to Substitute the United States as Defendant and to Dismiss the Complaint as Against the United States, at 3). Therefore, her exclusive remedy lies in an action against the United States. Under these circumstances, the substitution of the United States as the defendant is automatic. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995); Robinson v. Marano, 79 F. Supp.2d 96, 97 (N.D.N.Y. 2000). Therefore, the Government's motion for substitution is granted.

2. Jurisdiction

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Malik v. Meissner, 82 F.3d 560, ...

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