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United States District Court, E.D. New York

February 20, 2004.


The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge



Defendants Brownsville Community Development Corporation and Sandra Gumbs, R.P.A. ("Brownsville," "Gumbs" or "Defendants") bring this motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure seeking dismissal of Plaintiff Antoinette Hutchinson's ("Plaintiff or "Hutchinson") claims asserted in her Amended Complaint concerning Defendants' conduct prior to October 1, 1996. Defendants argue that this Court should decline to exercise supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367 because "exceptional circumstances" present "compelling reasons for declining jurisdiction" and alternatively, because the claims in the Amended Complaint asserting Defendants' liability for their conduct between October 7, 1994 and May 22, 1996 are improperly pleaded and barred by the applicable statutes Page 2 of limitations.

  For the reasons that follow, Defendants' motion is denied.


  For the purposes of this motion to dismiss, the following factual allegations drawn from Plaintiffs Amended Complaint are considered true. From October 7, 1994 through May 12, 1999, Freda Lewis ("Lewis" or "decedent") sought and received professional care for "certain medical conditions and complaints from which she suffered, including gynecological complaints," from a Brooklyn clinic operated and managed by Brownsville known as the Brownsville Multi-Service Family Health Center, and the clinic's employees, including Gumbs and Fannel Alerte, M.D. ("Alerte"). Also during the time period of October 7, 1994 to May 12, 1999, Lewis received medical care from Defendant St. Mary's Hospital of Brooklyn ("St. Mary's"), and its employee, Defendant Ann Marie Ledley-Lewis, D.O. ("Ledley-Lewis"). From May 23, 1996 to May 12, 1999, decedent received medical care from Defendant Jacques Duperval, M.D. ("Duperval"), who is also an employee of St. Mary's.

  Plaintiff's Amended Complaint alleges that:

• The care and services provided by all of the defendants were not rendered in accordance with accepted standards of medical care in the community. As a result, decedent's condition of ovarian cancer went undiagnosed, was permitted to worsen and metastacize, and ultimately caused her death;
• Brownsville and St. Mary's hired and supervised medical personnel who did not possess the requisite knowledge and skill of medical professionals in the community;
  • Defendants failed to inform decedent and/or her representative of the risks and Page 3 hazards of, and alternatives to, the treatments proposed and rendered, which resulted in Defendants' failure to obtain decedent's informed consent to treatment, that a reasonably prudent person would not have undergone the treatment rendered if she had been fully aware of the risks and hazards involved, and that this lack of informed consent was the proximate cause of decedent's injuries and death; and


• Plaintiff and other distributees of decedent's estate have suffered damages as result of Lewis's death.
  On December 23, 1998, Freda Lewis filed an action for medical malpractice in the Supreme Court of New York, Kings County, against Brownsville, Gumbs, Alerte, St. Mary's, Duperval, Ledley-Lewis, and two other St. Mary's employees, Chien-Jen Huang, M.D. ("Huang") and Dr. Jenkins ("Lewis Complaint").*fn1 During the course of the litigation, Lewis learned that the Brownsville clinic became a federally-funded institution beginning October 1, 1996. Pursuant to the Federal Tort Claims Act (FTCA), any lawsuits against Brownsville concerning its conduct on or after that day may be pursued only in a United States District Court. On or about December 13, 1999, the United States filed a notice of removal in this Court, and was substituted as a party defendant for Brownsville and its employees with respect to any liability for events occurring on or after October 1, 1996.

  In the meantime, Lewis died on May 12, 1999. Plaintiff, who is decedent's daughter, became administratrix of decedent's estate upon issuance of Letters of Administration by the Surrogate of Kings County, New York on February 7, 2000. Despite Lewis's death, Plaintiff was Page 4 not substituted as a party in the state action before it was removed to this Court in December 1999.

  On or about June 29, 2000, the federal causes of action against the United States were dismissed without prejudice by this Court because Plaintiff failed to comply with the FTCA prerequisites for bringing an action. In addition to dismissing the federal causes of action, this Court remanded to Supreme Court, Kings County, the state claims against Brownsville, Gumbs and Alerte involving conduct prior to October 1, 1996 and the entirety of the claims against St. Mary's, Duperval, Huang, and Jenkins. Plaintiff thereafter complied with the FTCA requirements and filed a new complaint in this Court on February 28, 2001 against Brownsville, Gumbs and Alerte sounding in negligence, medical malpractice and wrongful death as a result of their conduct from May 23, 1996 to May 12, 1999.

  On March 6, 2001, Plaintiff filed a second complaint in the Supreme Court, Kings County, that largely mirrored the Lewis Complaint but also included a cause of action for wrongful death. The complaint alleged that the relevant conduct extended over a period of time from May 23, 1996 to May 12, 1999. The two state court actions were consolidated in March 2001, are currently viable and remain on that court's trial calendar.

  On July 22, 2003, Plaintiff amended the complaint filed in this Court asserting that this Court should exercise supplemental jurisdiction over the state court claims and defendants. The Amended Complaint also alters Plaintiff's claims by expanding the dates of Defendants' alleged wrongful conduct to include October 7, 1994 to May 22, 1996.



  A case may be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when Page 5 a district court lacks the statutory or constitutional power to adjudicate it. Once challenged, a plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. See Makarova v. United States, 201 F.3d 110 (2d Cir. 2000). Resolving a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure requires this Court to accept the facts alleged in Plaintiffs Amended Complaint as true and resolve all ambiguities and draw all inferences in her favor. See Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). A court may resolve any disputed jurisdictional fact issues by considering evidence outside the pleadings, including affidavits and other documents. Antares Aircraft v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992).


  Defendants argue that this Court should decline to exercise supplemental jurisdiction over Plaintiffs state law claims against them for treatment prior to October 1, 1996, which would require dismissal of these claims for want of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

  Section 1367 of Title 28 of the United States Code ("Section 1367") provides:

(a) Except as provided in subsection[] . . . (c) . . ., in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. . . . (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
  (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Page 6

  In Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442 (2d Cir. 1998), the Court held that the 1990 enactment of Section 1367 altered the common law analysis of supplemental jurisdiction set forth in United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966), which "emphasized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right," and "directed the federal courts, in determining whether to exercise jurisdiction over a case involving state-law claims., to consider and weigh in each case, at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." Itar-Tass, supra, at 445 (citations omitted). By enumerating four circumstances in subsection 1367(c) under which a district court may decline to exercise jurisdiction, Congress intended to "cabin" the Gibbs analysis. Id. at 446. Therefore, a court's discretion to decline supplemental jurisdiction must be founded on one of the categories in subsection 1367(c), and "is informed by whether remanding the pendent state claims comports with the underlying objective of most sensibly accommodating the values of economy, convenience, fairness, and comity." Id. (citations omitted). In addition, the "exceptional circumstances" category found in subsection 1367(c)(4) indicates that "the bases for declining jurisdiction should be extended beyond the circumstances identified in subsections (c)(1)-(3) only if the circumstances are quite unusual," and such determinations should be the "exception rather than the rule." Id. at 448.

  A determination of whether supplemental jurisdiction may be exercised in this case requires this Court to determine first whether Plaintiffs state claims are "so related" to the federal claims that they "form part of the same case or controversy." 28 U.S.C. § 1367(a). If the state claims meet this criterion, then this Court must determine whether any of the statutory factual predicates in subsection 1367(c) trigger its discretion to decline to exercise jurisdiction. If none of the circumstances in subsection 1367(c) are present, supplemental jurisdiction is Page 7 mandatory. Itar-Tass, supra, at 448.

  Plaintiffs state law claims form part of the same case or controversy if they and the federal claims "derive from a common nucleus of operative fact." Gibbs, supra, at 725. Such commonality is found "if, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding." Gibbs, supra, at 725. Hutchinson's state claims against Brownsville and Gumbs share a common nucleus of operative fact with her federal claims. Both sets of claims rely on factual allegations regarding the medical treatment Defendants provided to Lewis beginning in 1994 until her death on May 12, 1999. The allegedly negligent medical care provided to Lewis by Brownsville and Gumbs before October 1, 1996 is a cause of the ultimate harm she allegedly suffered, along with the treatment she received after October 1, 1996. "When several causes combine to cause a harm . . . the causes are part of the same controversy . . . and supplemental jurisdiction is properly exercised." Mueller v. Long Island R.R. Co., No. 89 Civ.7384, 1997 WL 189123 at *2 (S.D.N.Y. Apr. 17, 1997). Moreover, Plaintiffs claims include federal causes of action only because Brownsville began receiving federal funds for its clinic on October 1, 1996. Federal law requires that tort claims for events involving Brownsville and its employees after October 1, 1996 be prosecuted in a United States District Court under the Federal Tort Claims Act. See 28 U.S.C §§ 2671-2680, 1346. Because Hutchinson "would ordinarily be expected to try [] all [of her claims] in one judicial proceeding," this Court has subject matter jurisdiction over her state law claims under Section 1367. Gibbs, supra, at 725; see also Cicio v. Does, 321 F.3d 83 (2d Cir. 2003).

  Defendants do not dispute that Plantiff's federal and state claims share a common nucleus of operative fact. Instead, they argue that "exceptional circumstances" provide "compelling Page 8 reasons" such that this Court should decline to exercise supplemental jurisdiction pursuant to subsection 1367(c)(4). Such a determination requires this Court to find that the circumstances are "quite unusual." Itar-Kass, supra, at 448.

  Defendants argue that supplemental jurisdiction would be unfair to them because Plaintiffs Amended Complaint alleges claims arising from treatment provided to decedent by Defendants between October 7, 1994 and May 22, 1996 that were not alleged in the state court action. Defendants assert that they will have difficulty investigating claims involving treatment that took place nine years ago. (Defs. Mem. at 6.) Plaintiff, however, asserts that depositions of the relevant witnesses have already been conducted and that the inquiry of these witnesses included questions regarding Defendants' treatment of decedent between October 7, 1994 and May 22, 1996. (PL Mem. at 17-18.)

  Defendants also argue that trying Plaintiff's state law claims in federal court could result in inconsistent verdicts because the facts involving Defendants' conduct after October 1, 1996 will be determined by the Court, as is required under the Federal Tort Claims Act, 28 U.S.C. § 2402, but the facts prior to that date will be determined by a jury. However, separate trials in state and federal court may also lead to inconsistent verdicts. Moreover, case law in this Circuit clearly permits district courts to conduct bench trials of claims that must be tried to the court without a jury, while simultaneously trying related claims to a jury, without hindering justice or resulting in confusion. See Matthews v. CTI Container Transp. Int'l, Inc., 871 F.2d 270, 279 (2d Cir. 1989) (holding that statutory provisions requiring that bench trials of claims against a foreign sovereign entitle the foreign sovereign to "the benefit of a court's fact-finding even where such fact-finding differs from the fact-finding of a jury on the same issue in the same trial"); Moloney v. United States, 354 F. Supp. 480 (S.D.N.Y. 1972) (district court's findings of fact in Page 9 claim against the United States under the FTCA differed from jury's findings in claim against co-defendant).

  Therefore, supplemental jurisdiction is entirely appropriate here. The viability of the pre-FTCA claims will be determined by a jury. The viability of the post-FTCA claims will be determined by the Court.


  Defendants also argue that Plaintiffs claims for medical malpractice and wrongful death involving Defendants' conduct between October 7, 1994 and May 22, 1996 are improperly pleaded because they are barred by the applicable statutes of limitations.*fn2 Plaintiff argues in response that the claims she asserts involving these dates are not time-barred because they arose out of the same conduct set forth in her original pleading and therefore relate back to her original pleading.

  Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend its pleading after a responsive pleading is served "by leave of court or by written consent of the adverse party." Here, Plaintiff properly amended her complaint by first obtaining written consent to do so from the United States, on behalf of Brownsville and Gumbs, on May 27, 2003.

  Subsection (c) of Rule 15 provides that an amended pleading relates back to the date of Page 10 the original pleading when:

(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . .
  The central inquiry under Rule 15(c) is "whether adequate notice of the matters raised in the amended pleading has been given to the opposing party within the statute of limitations by the general fact situation alleged in the original pleading." Stevelman v. Alias Research, Inc., 174 F.3d 79, 86 (2d Cir. 1999) (citation omitted).

  A district court addressed the issue of proper notice under similar factual circumstances in Mueller v. Long Island Railroad Co., 1997 WL 189123 (S.D.N.Y. 1997). In Mueller, the court was faced with the question of whether to allow a plaintiff to amend his complaint pending in federal court to include a state claim for medical malpractice. The plaintiff in Mueller suffered physical injury during the course of his employment by the Long Island Railroad Company (LERR) when a piece of metal became lodged in his elbow. He filed suit in federal court against the LJCRR under the Federal Employers Liability Act (FELA). The plaintiff received surgical treatment for his injury at Mount Sinai Medical Center and Mount Sinai Hospital, which he alleged aggravated and exacerbated his original injury. Id. at *1. Plaintiff and his wife then filed a medical malpractice action in state court against Mount Sinai Medical Center and Mount Sinai Hospital and the doctors who performed the surgery.

  Plaintiff later sought to amend his federal complaint to include the state malpractice claim., and the court exercised supplemental jurisdiction because it found a common nucleus of operative fact; thus, the FELA claim and the malpractice claim formed part of the same case or controversy as required under the supplemental jurisdiction provisions of 28 U.S.C. § 1367. The Page 11 medical defendants opposed plaintiffs motion to amend, arguing that the malpractice claim was barred by the New York statute of limitations found in Section 214-b of the New York Civil Practice Law and Rules. The Mueller Court stated that the malpractice claim "would be timely if it relates back to the events set forth in the original state pleading," and determined that "`original pleading,' as that term is used in Ruled 15(c)(2), refers to plaintiffs original complaint against the defendants in the state court action. . . ." Mueller, supra, at *5. The court then found that plaintiffs proposed amendment related back to the date of the original complaint:

In this case, plaintiff filed a timely state claim for malpractice against the medical defendants. The allegations of the state complaint are identical to the allegations in the proposed amended complaint in this Court; as a result, the medical defendants were clearly on notice of the plaintiffs claim from the date the state court complaint was filed. Given that the "linchpin [of Rule 15(c)] is notice," Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1985), I conclude that plaintiffs proposed amendment relates back to the date of the original state court complaint against the medical defendants. Accordingly, plaintiffs proposed malpractice claim is not time-barred and the amendment is not futile.
Mueller, supra, at *6 (S.D.N.Y. 1997).

  The proper question here, then, is whether the Lewis Complaint alleging medical malpractice, filed by Lewis in state court on December 23, 1998, put Defendants "clearly on notice" of the allegations in the Amended Complaint implicating Defendants' conduct between October 7, 1994 and May 22, 1996. The Lewis Complaint alleges, inter alia, that:

On or about January 1, 1994 and continuing up [to] and including the present, plaintiff Freda T. Lewis came under the medical, obstetrical and gynecological management, diagnosis, care and treatment of defendants Gumbs . . . and [Brownsville]. . . . At various times between January 24, 1994 up to and including July 13, 1998, defendants Gumbs . . . and [Brownsville] . . . examined and provided gynecological and/or obstetrical care and advice to Freda T. Lewis. Defendants . . . negligently rendered gynecological and/or obstetrical care and treatment to Freda T. Lewis and negligently advised Freda T. Lewis concerning her condition.
(Lewis Compl. ¶¶ 28, 30-31, Ex. A to PL's Affirm. Opp'n) Page 12

  Although Plaintiffs allegations in her Amended Complaint are not identical to those in the Lewis Complaint, in that they specify the relevant time period in which Defendants provided medical treatment to Lewis as October 7, 1994 to May 12, 1999, there can be no doubt that Defendants' receipt of the Lewis Complaint placed them on notice of Plaintiff's claims regarding Defendants' conduct between October 7, 1994 and May 22, 1996. Relation back of Plaintiff's Amended Complaint will not result, therefore, in "unfair surprise" to the Defendants. See Benfield v. Mocatta Metals Corp., 26 F.3d 19, 23 (2d Cir. 1994) (relation back allowed when there is sufficient commonality between claims, evidence and testimony to support both claims, and there will be no surprise to defendant as a result of amendment); 131 Main Street Assocs. v. Manko, 897 F. Supp. 1507, 1521 (S.D.N.Y. 1995) (late filed claims properly relate back as long as there is no unfair surprise to defendant).

  Therefore, Defendants' statute of limitations claim is flawed and the motion to dismiss on this ground is denied.


  For the foregoing reasons, Defendants' motion to dismiss is denied.


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