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United States District Court, N.D. New York

November 3, 2004.

OTSELIC VALLEY FAMILY HEALTH, N.P., P.C.; FAMILY HEALTH NETWORK OF CENTRAL NEW YORK, INC.;CORTLAND MEMORIAL HOSPITAL; GERARDO PENEIRO, Individually and as agent, officer and/or employee of Cortland Memorial Hospital; SANDRA J. HOLLAND, Individually and as agent, officer and/or employee of Otselic Valley Family Health, N.P.; and ESTHER J. STEINBERG, Individually and as agent, officer and/or employee of Family Health Network of Central New York, Inc., Defendants.

The opinion of the court was delivered by: NEAL McCURN, Senior District Judge

Memorandum-Decision and Order

Plaintiff Shane Pudney commenced this medical malpractice action in New York State Supreme Court, Cortland County on approximately April 21, 2004. Petition for Removal, exh. A thereto. The action was removed on June 30, 2004. Two of the seven defendants, Family Health Network of Central New York, Inc. ("Family Health") and Esther J. Steinberg, M.D.,*fn1 are now moving to have the United States of America substituted in their place; and upon substitution, to dismiss this action as against the U.S. for lack of subject matter jurisdiction. Plaintiff did not file or serve any papers in opposition to this motion.

  In light of the foregoing, as the Local Rules require, the court will determine whether the U.S., as "the moving party[,] has met its burden to demonstrate entitlement to the relief requested ?herein[.]" L.R. 7.1(b)(3). If the U.S. meets this burden, the plaintiff's failure to file or serve any papers in connection with this motion "shall be deemed as consent to the granting . . . of th[is] motion." Id. (emphasis added).

  Discussion I. Removal

  As a necessary prerequisite to removal,*fn2 Assistant United States Attorney General for the Northern District of New York, William F. Larkin,*fn3 certified that "because the FAMILY HEALTH NETWORK OF CENTRAL NEW YORK, INC., was deemed eligible for Federal Tort Claims Act ["FTCA"] coverage effective June 23, 1996 forward to the present day, both it and ESTHER J. STEINBERG. M.D. are considered to be employees of the Public Health Service, at all times alleged in the Complaint during the period from June 23, 1996 forward, and plaintiff's exclusive remedy is against the United States, as set forth in 42 U.S. § 233(g)(1)(A)." Petition for Removal, exh. C thereto (Certification of William F. Larkin (June 30, 2004)). This certification is consistent with the June 24, 1996 letter of Assistant Surgeon General, Director, of the Department of Health & Human Services ("the Department"), verifying that Family Health is a federal government employee covered by the FTCA. Id., exh. B thereto.

  Likewise, in her declaration in support of substitution and dismissal, Beverly R. Dart, an Attorney in the Department's General Law Division, Office of the General Counsel, states that Family Health "was first deemed eligible for [FTCA] malpractice coverage effective June 23, 1996, and that its deemed status has continued without interruption since that date." Declaration of Beverly R. Dart (June 15, 2004) at 2, ¶ 5. Attorney Dart further declared that defendant Steinberg "was an employee of Family Health . . ., at all times relevant to the complaint in this case." Id. at 2, ¶ 6. Thus, Family Health "is an employee of the Federal Government," for purposes of coverage under the FTCA and Dr. Steinberg, as an employee of Family Health, also is eligible for FTCA coverage. Petition for Removal at ¶¶ 6-8, and exh. B thereto. Clearly then "plaintiff's sole remedy regarding any claims based upon [their] alleged acts or omissions are deemed tort actions brought against the United States, and subject to removal to the Federal Court." Koehler v. Cortland Memorial Hospital, 65 F.Supp.2d 103, 106 (N.D.N.Y. 1999) (citation omitted). Indeed, under these circumstances, removal was mandatory. See 42 U.S. § 233(a) (West Supp. 2004).

  II. Substitution

  Having found that this action was properly removed, the next issue is whether the U.S. may be substituted for the federal defendants. As with removal, substitution is not only proper, it is mandatory here. "Once the Attorney General or the Attorney General's designee has certified `that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action . . . shall be deemed an action . . . against the United States . . . and the United State shall be substituted as the party defendant.'" Celestine v. Mount Vernon Neighborhood Health Center, 289 F.Supp.2d 392, 398 (S.D.N.Y. 2003) (quoting 28 U.S.C. § 2679(d)(2)) (and cases cited therein). Family Health and Dr. Steinberg have been properly certified and plaintiff is not challenging that certification. Thus, the court grants the U.S.' motion to substitute it for the two federal defendants. See id.; see also Bueno v. Sheldon, M.D., No. 99CIV10348JGK, 2000 WL 565192, at * 2 (S.D.N.Y. May 9, 2000) (citations omitted) (in medical malpractice action U.S. substituted for health center and doctor who were certified to have been acting within the scope of their federal employment and plaintiff did not challenge certification).

  III. Dismissal

  Pursuant to Fed.R. Civ. P. 12(b)(1), the U.S. is moving to have this action dismissed with prejudice for lack of subject matter jurisdiction. The U.S. offers two reasons why dismissal is proper here. First, plaintiff Pudney failed to present an administrative claim prior to commencing this action. Second, he did not timely commence the underlying state court action.

  Plaintiff "bear[s] the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." APWU v. Potter, 343 F.3d 619 (2d Cir. 2003) (internal quotation marks and citations omitted). For the reasons set forth below, plaintiff Pudney is unable to meet this heavy burden.

  A. "Presentment"

  As a sovereign, the U.S. is immune from suit "save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767 (1941)). "Accordingly, the [U.S.] can only be sued to the extent that it has waived its sovereign immunity by statute." State Farm Mutual Automobile Insurance Company v. United States, 326 F.Supp.2d 407, 411 (E.D.N.Y. 2004) (citing, inter alia, Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998)). "The FTCA, which authorizes tort claims against the United States, constitutes a limited waiver by the United States of its sovereign immunity." Id. (internal quotation marks and citations omitted). "In order to properly maintain a claim under the FTCA, a plaintiff must comply with several strictly construed prerequisites to suit." Id. (internal quotation marks and citations omitted) (emphasis added).

  One such prerequisite is that a plaintiff may not institute an action under the FTCA "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." 28 U.S.C. § 2675(a) (West 1994). This requirement applies even to actions such as the present one which were not originally brought against the U.S. See 28 U.S.C. § 2679(d)(4) (actions in which the U.S. is substituted as a party "shall proceed in the same manner as any action against the [U.S.] filed pursuant to [the FTCA] and shall be subject to the limitations and exceptions applicable to those actions."). "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." Koehler, 65 F.Supp.2d at 106 (citing McNeil v. United States, 508 U.S. 106, 110, 113 S.Ct. 1980, 1983 (1993)).

  Plaintiff Pudney has not met this jurisdictional requirement. There is undisputed proof in the record, in the form of Attorney Dart's declaration, that plaintiff did not "present" an administrative tort claim pertaining to the allegations which are the subject of this malpractice action. See Dart Declaration at 2, ¶ 4. Obviously then, he has not received the necessary agency denial of same. Therefore, this court lacks subject matter jurisdiction over this matter and the court must grant the U.S.' motion to dismiss on this basis. See Celestine, 289 F.Supp.2d at 399-400 (S.D.N.Y. 2003) (where no record evidence that plaintiff ever filed, let alone was denied, an administrative claim, FTCA claim dismissed for lack of subject matter jurisdiction).

  B. Statute of Limitations

  The U.S. further argues that plaintiff's complaint should be dismissed as against it on statute of limitations grounds. The FTCA is unequivocal in this regard: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues[.]" 28 U.S.C. § 2401(b) (West 1994) (emphasis added). This limitation period will not be applied, however, under the following circumstances:

Whenever an action or proceeding in which the [U.S.] is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented . . . if —
(A) the claim would have been timely had it been filed on the date the underlying civil action was commenced, and
(B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action.
28 U.S.C. § 2679(d)(5) (West 1994). This provision "protect[s] plaintiffs who initiated suit in state court without realizing that the defendant was a federal entity." Nin v. Liao, D.D.S., No. 02 Civ. 8308, 2003 WL 21018816, at *4 (S.D.N.Y. May 5, 2003) (citations omitted). Plaintiff Pudney cannot avail himself of this provision, however because his claim would not have been timely even if he presented it upon commencement of this action. This action was commenced on approximately April 21, 2004 — more than two years after November 28, 2001, the date of the acts complained of in the complaint. Because the United States is no longer a party to this action, there is no independent basis for federal jurisdiction. Accordingly, the court remands this case to the New York State Supreme Court, Cortland County. See Rodriguez v. United States, No. 01 CV 4975, 2001 WL 1590516, at *2 (E.D.N.Y. Nov. 3, 2001) (remanding to state court where there was no subject matter jurisdiction under the FTCA for claims against the government, and hence no proper basis for original jurisdiction).

  For the reasons set forth above, the court hereby:

  (1) GRANTS the motion by the United States to be substituted for defendants Family Health Network of Central New York, Inc. and Esther J. Steinberg, M.D.;

  (2) GRANTS the United State's motion to dismiss for lack of subject matter jurisdiction; and

  (3) REMANDS this action to the Supreme Court, Cortland County, State of New York.


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