J.S.R. v. Washington Hospital Center Corporation ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
J.S.R., a minor by his mother )
and next friend )
JACQUELINE ROJAS POLANCO, )
et. al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-693 (GK)
)
WASHINGTON HOSPITAL CENTER )
CORPORATION, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff J.S.R., a minor, and his parents, Plaintiffs
Jacqueline Rojas Polanco and Jorge Salguero, (“Plaintiffs”), bring
this action against non-federal Defendants Washington Hospital
Center Corporation, Virginia Leslie, Whitney Pinger, and Victoria
Vest (“non-federal Defendants”).
This matter is now before the Court on Plaintiffs’ Motion to
Remand to the Superior Court for the District of Columbia (“Motion
to Remand”) [Dkt. No. 6], non-federal Defendants’ Motion to Stay
Proceedings Pending Exhaustion of Plaintiffs’ Administrative
Remedies for Federal Claims (“Motion to Stay”) [Dkt. No. 13], and
Plaintiffs’ Motion for Leave To File a Sur-Surreply to Defendants’
Surreply to Plaintiffs’ Motion to Remand. Upon consideration of
the Motions, Oppositions, Replies, Surreply, and Sur-Surreply, the
entire record herein, and for the reasons set forth below, parties
are required to provide additional briefing regarding Plaintiffs’
Motion to Remand, non-federal Defendants’ Motion to Stay is denied,
and Plaintiffs’ Motion for Leave to File a Sur-Surreply is granted.
I. Background
In this case, J.S.R. suffered permanent brain damage during
his birthing process. He and his parents allege that medical
malpractice caused the damage. As a result of the alleged
malpractice, Plaintiff J.S.R. now suffers from a variety of very
serious mental and physical ailments, including cerebral palsy and
seizures.
On July 31, 2008, Plaintiffs filed a Complaint in the Superior
Court of the District of Columbia. They alleged that J.S.R.’s
injuries were caused by non-federal Defendants’ negligence (Count
I), that his parents suffered injuries as a result of non-federal
Defendants’ negligence (Count II), and that non-federal Defendants
negligently inflicted emotional distress (Count III). Plaintiffs
request $65 million in damages for Count I, $10 million in damages
for Count II, and $10 million in damages for Count III, in addition
to costs and “other . . . necessary and proper” relief. Defs.’
Notice of Removal, Ex. 1.
Defendant Vest is an employee of Unity Health Care, Inc.
(“Unity Health”). Defs.’ Mot. to Dismiss at 2 (Apr. 20, 2009)
[Dkt. No. 3]. Unity Health is a grantee of the Department of
Health and Human Services (“HHS”). Id. As a result, Defendant
-2-
Vest is considered an employee of the United States. See id. (“By
operation of statute, Ms. Vest has been deemed to be an employee of
the United States of America for purposes of liability under the
Federal Tort Claims Act.”).1 Due to Defendant Vest’s status as a
federal employee, Plaintiffs filed an administrative claim with HHS
on February 6, 2009. Id.; see Pls.’ Opp’n to Defs.’ Mot. to
Dismiss at 1. HHS has indicated it will issue a decision “on or
before August 6, 2009.” Defs.’ Mot. to Stay at 3.
On April 14, 2009, federal Defendant Vest filed a Notice of
Removal in this Court on the basis of federal question jurisdiction
[Dkt. No. 1]. On April 20, 2009, the United States filed a Motion
to Dismiss Ms. Vest and substitute the United States [Dkt. Nos. 2,
3 & 4]. She first argued that the United States must be
substituted because of her status as a federal employee. Second,
she argued that after such substitution, the United States would
have to be dismissed because Plaintiffs did not exhaust their
administrative remedies as required by the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671, et seq. (2008). Plaintiffs did not
oppose the Motion but reserved the “right to re-file the claim
against C.N.M. Vest” and the “right to explore the basis for
federal jurisdiction” at the “appropriate” time. Pls.’ Opp’n to
Defs.’ Mot. to Dismiss at 2. On May 19, 2009, the Court granted
1
There does not appear to be any disagreement among the
parties on this point.
-3-
the unopposed Motion, Defendant Vest was dismissed without
prejudice, and the United States was substituted as a Defendant
[Dkt. No. 14].
On May 4, 2009, Plaintiffs filed a Motion to Remand. On May
18, 2009, the non-federal Defendants filed a Motion to Stay, and on
May 28, 2009, Defendant Washington Hospital Center filed a Motion
for Leave to File a Third Party Complaint against the United
States. On July 13, 2009, the Motion for Leave to File a Third
Party Complaint was granted [Dkt. No. 27].
II. Analysis
A. Plaintiffs’ Motion to Remand
Plaintiffs argue that the case should be remanded because this
Court does not have, and never had, subject matter jurisdiction to
hear it. In the alternative, Plaintiffs argue that even if
diversity jurisdiction exists, the Court should exercise its
discretion to remand the case. In response, non-federal Defendants
argue that the Court has subject matter jurisdiction to hear the
case because there is complete diversity.
The parties concluded their extensive briefing on this issue
on June 16, 2009. Thereafter, on July 13, 2009, the Motion for
Leave to File a Third Party Complaint was granted. The ruling on
that Motion may well affect the parties’ analysis, and possibly
their final position, on the Motion to Remand. Consequently, all
parties are to simultaneously submit supplementary briefs, of no
-4-
more than 10 pages (and preferably less), no later than October 20,
2009. Because the Court has no wish to further delay ruling on
this Motion, there will be no additional briefing on the issue, no
extensions of time, and no extensions of page limits.
B. Defendants’ Motion to Stay
Non-federal Defendants requested a stay of all proceedings in
this Court until August 6, 2009, the date on which Plaintiffs will
exhaust their administrative remedies. Defs.’ Mot. to Stay at 3.
That date has come and gone. Therefore, the Motion will be denied
as moot.
An Order shall accompany this Memorandum Opinion.
/s/
October 8, 2009 Gladys Kessler
United States District Judge
Copies to: Attorneys of record via ECF
-5-