The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
For the second time in less than two years, the dispute underlying this case is before this Court following removal from state court. Dr. Wilfrido A. Castillo, M.D. ("Dr. Castillo"), a defendant in the previous action before this Court, now moves as a third-party defendant to dismiss the claims asserted against him by the Bronx-Lebanon Hospital Center ("Bronx-Lebanon"). For the reasons stated below, we grant Dr. Castillo's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
A.Q.C., the infant plaintiff, was born to her mother, Paquita Castillo, on February 1, 2005. (Notice of Removal Ex. E ¶ 5.) Plaintiff was delivered by, among others, Dr. Castillo, who had served as the mother's regular obstetrician at a prenatal clinic run by Urban Health Plan. Castillo v. United States, 09 Civ. 9113 (NRB), Dkt. No. 15, Decl. of Paquita Castillo ¶ 5. Plaintiff was delivered at Bronx-Lebanon, where Dr. Castillo maintained delivery privileges. Id. ¶ 11.
On February 6, 2009, plaintiff instituted an action against Dr. Castillo and Bronx-Lebanon in the Supreme Court of New York, Bronx County. (Notice of Removal ¶ 1; Id. Ex. A.) The complaint asserted two causes of action: (1) a claim that plaintiff was injured due to the negligence and malpractice of Dr. Castillo and the hospital's employees; and (2) a claim for lack of informed consent. (Id. Ex. A ¶¶ 5-17.)
On October 22, 2009, the U.S. Attorney for the Southern District of New York certified that, for purposes of the claims asserted against Dr. Castillo for medical care provided after January 1, 2005, Dr. Castillo was an employee of the United States and was acting within the scope of his employment. (Id. ¶ 4; Id. Ex. B.) Based on this certification, on November 2, 2009, Dr. Castillo removed the action to the Southern District of New York pursuant to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2). (Id. ¶ 5; Id. Ex. C.)
On December 21, 2009, plaintiff filed an amended complaint, substituting the United States as a defendant for Dr. Castillo and maintaining the claims against Bronx-Lebanon. (Id. ¶ 6; Id. Ex. D.) On May 14, 2010, this Court granted the motion to dismiss of the United States. A.Q.C. ex rel. Castillo v. United States, 715 F. Supp. 2d 452 (S.D.N.Y. 2010), aff'd, 656 F.3d 135 (2d Cir. 2011). We held that plaintiff's claim against the United States under the Federal Tort Claims Act ("FTCA") was untimely because plaintiff had failed to file an administrative complaint within the time required following the accrual of the claim. See id. at 456-64. Having dismissed the claim against the United States, which was the sole basis for federal jurisdiction, we dismissed plaintiff's remaining claim against Bronx-Lebanon without prejudice to its re-filing in the appropriate forum. See id. at 464.
On December 7, 2010, plaintiff filed a new action in the Supreme Court of New York, Bronx County, naming Bronx-Lebanon as the sole defendant. (Notice of Removal ¶ 8; Id. Ex. E.) The complaint asserted the same causes of action as those alleged in the original action. Notably, the complaint specified that the alleged negligence by Bronx-Lebanon and its employees occurred between January 31, 2005 and February 7, 2005, the latter date being the day that the infant plaintiff was discharged from the hospital. (Id. Ex. E ¶ 5.) Subsequently on March 22, 2011, Bronx-Lebanon filed a third-party complaint against Dr. Castillo, seeking indemnification and/or contribution for any judgment levied against Bronx-Lebanon in plaintiff's favor. (Id. ¶ 10; Id. Ex. F.)
On April 14, 2011, the U.S. Attorney for the Southern District of New York again certified that Dr. Castillo is an employee of the United States and was acting within the scope of his employment for purposes of claims asserted against him for medical care rendered after January 1, 2005. (Id. ¶ 12; Id. Ex. G.) Based on this certification, Dr. Castillo removed the action to this Court on April 18, 2011. Unlike the previous notice of removal, however, in removing the instant action to federal court, Dr. Castillo cited 28 U.S.C. § 1442(a)(1) as a basis for removal in addition to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2). (Id. ¶ 13.)
III.The Instant Motion to Dismiss
On August 8, 2011, Dr. Castillo, represented by the U.S. Attorney for the Southern District of New York, filed a motion to dismiss the third-party complaint for lack of subject matter jurisdiction. Dr Castillo contends that under the doctrine of "derivative jurisdiction," this Court does not have subject matter jurisdiction over Bronx-Lebanon's third-party FTCA claim because the state court lacked jurisdiction over that claim prior to removal. (Mem. of Law in Supp. of Mot. to Dismiss Third Party Compl. for Lack of Subject Matter Jurisdiction by Def. Wilfrido A. Castillo, M.D. at 1.)
In its opposition, Bronx-Lebanon asserts that it has obtained records revealing that plaintiff's mother was first treated by Dr. Castillo in July 2004 and was again treated by Dr. Castillo in November 2004. (Mem. of Law in Opp. to Third-Party Def.'s Mot. to Dismiss Third-Party Compl. at 2-3.) Bronx-Lebanon contends that because the U.S. Attorney's certification states that Dr. Castillo was a federal employee only beginning on January 1, 2005, its third-party claim is not fully covered by the FTCA given that the doctor-patient relationship began prior to this date. (Id. at 3-4.) Bronx-Lebanon maintains this position despite the fact that plaintiff's complaint lists January 31, 2005 as the first date of the alleged negligence. In ...