The opinion of the court was delivered by: Garaufis, United States District Judge.
Defendants Central Brooklyn Medical Group P.C. s/h/a Bedford Medical Center, Central Brooklyn Medical Group, Bedford Williamsburg Center ("Group") and defendant New York City Health and Hospitals Corporation ("NYCHHC") (collectively "Defendants") move to dismiss or remand this case to State court for lack of subject matter jurisdiction, or alternately, for reasons of collateral estoppel, to affirm the decision by Judge Marsha Steinhardt of New York State Supreme Court, Kings County granting Defendants summary judgment. (Mem. L. Dft. Group Mot. Remand & Apply Collateral Estoppel ("Group Mem.") at 2; Mem. L. Dft's Mot. To Dismiss ("NYCHHC Mem.") at 1-2.) Sheldon Ornstein, as executor of the estate of Irma Grant,*fn1 ("Ornstein" or "Plaintiff") responds that the State court did not have jurisdiction when Judge Steinhardt's decision was issued and therefore that the decision granting summary judgment to defendants is invalid.
For the reasons set forth below, Group's and NYCCHC's motions to remand are granted.
Irma Grant ("Grant") was treated by the Lyndon Baines Johnson Health Complex prior to 1994.*fn2 (Affirmation in Opp. ("Ornstein Resp.") at 2.) In 1994, she followed her gynecologist to the defendant Group's facility, where she was treated from August 1994 until February 1997. (Id.) On or about July 7, 1997, Grant was treated at Woodhull Hospital ("NYCCHC Hospital").*fn3
(NYCCHC Mem. Ex. C ("NYCCHC Verified Answer") at 1.) In November 1997 Grant was diagnosed with Stage 3B cervical cancer. (Ornstein Resp. at 3.)
Irma Grant filed a personal injury lawsuit against the Group, NYCCHC, the Lyndon Baines Johnson Health Complex, and Marie Bunag, M.D. in the Supreme Court of the State of New York, King's County in February 1999. (Group Mem. Ex. A ("Verified Complaint").) Ms. Grant died of cervical cancer in April 1999. (Group Mem. at 3.) In 2000, after Ms. Grant's executor took over the matter, Grant's case was consolidated with a related case also pending in New York State court. (Id. at 4; Id. Ex. C ("Amended Verified Complaint").)
In July 2004, the Group and NYCCHC each filed a motion for summary judgment. (See Group Mem. Ex. F ("Group Summary Judgment Motion"); NYCCHC Mem. Ex. F ("Steinhardt Order") at 2.) After hearing oral argument, Judge Marsha Steinhardt of the New York Supreme Court issued a decision granting defendants summary judgment. (Steinhardt Order.) The decision is dated October 27, 2004 and was entered into the docket file on November 4, 2004. (Id.) Plaintiff was served with a Notice of Entry on November 15, 2004. (Group Mem. Ex. G)
On October 27, 2004, the United States substituted itself as a defendant in place of defendant Lyndon Baines Johnson Health Complex, finding the health complex to be an employee of the United States for purposes of the Federal Tort Claims Act, 28 U.S.C. §2671, et seq. (Group Mem. Ex. H ("Notice of Removal").) The United States Attorney's Office for the Eastern District of New York filed a Notice of Removal to bring the case to federal court on October 27, 2004, coincidentally the same date Steinhardt signed the summary judgment decision. (Id.) In February 2005, claims against the United States were dismissed without prejudice to allow the plaintiff to exhaust administrative remedies as required under the Federal Tort Claims Act. (Stipulation and Order of Feb. 3, 2005.)
In June of 2005, defendants Group and NYCCHC filed in this court a motion to dismiss or remand the present case. The defendants raised two issues: (1) does this court currently have subject matter jurisdiction over this case; and (2) did the state court have jurisdiction at the time Judge Steinhardt issued her summary judgment decision such that collateral estoppel would apply to the instant federal case.
I. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. The Federal Tort Claims Act (FTCA) provides federal district courts with "exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by 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. § 1346 (b). However, this court had no other source of subject matter jurisdiction and so lost subject matter jurisdiction when the claims against the United States were dismissed without prejudice. The plaintiff filed a claim, pursuant to the FTCA, with the United States Department of Health and Human Services, Claims Office on March 1, 2005. (Ornstein Resp. at 3.) Ornstein could have added the United States as a defendant to this case as early as September 2005. (See Stipulation of Feb. 3, 2005.) Instead the plaintiff filed a new case, Slaughter v. United States, 05 Cv 5003 (RJD) (SMG) in December 2005. The parties in that case indicated a willingness to stipulate to the consolidation of Slaughter with this case. (Slaughter, 05 Cv 5003 (RJD) (SMG), Minute Entry of Feb. 21, 2005.) But the cases have yet to be consolidated. As the claims against the present defendants are remanded for the reasons set forth below, the question of consolidation is moot.
I hereby GRANT the motion to dismiss for lack of subject matter jurisdiction. Due to the fact that Ornstein and the United States may very well be in the process of filing the stipulation for consolidation, which would provide this court with subject matter jurisdiction, I will ...