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).
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.
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).
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
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.
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 ...