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China Carr v. Childbearing Center of Morris Heights

United States District Court, S.D. New York
Nov 25, 2002
02 Civ. 3293 (LAK) (S.D.N.Y. Nov. 25, 2002)

Summary

holding that where plaintiff failed to exhaust administrative remedies under FTCA "any expression on the subject of equitable tolling would be dictum in a matter over which the Court lacks jurisdiction"

Summary of this case from Berenato v. U.S.

Opinion

02 Civ. 3293 (LAK)

November 25, 2002


ORDER


This medical malpractice action was commenced in New York Supreme Court, Bronx County, and removed to this Court by the defendants pursuant to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2).

Defendants now moved to substitute the United States as defendant and to dismiss the action for lack of subject matter jurisdiction. The essence of the argument is that the defendants were acting within the scope of their employment by the United States at the time of the incident in question, that the United States therefore is the only proper defendant, that the claim of necessity must be under the Federal Tort Claims Act (the "FTCA"), and that the Court lacks subject matter jurisdiction over an FTCA claim because plaintiffs filed no administrative claim.

Defendants concede that the defendants and the United States are entitled to the relief they seek. The only point of difference between the parties comes over plaintiffs' request that the Court dismiss without prejudice on the theory that the two year limitation period for filing an administrative claim was equitably tolled, thus enabling plaintiffs to file such a claim and, if unsuccessful, later bring suit under the FTCA while the government argues that dismissal should be with prejudice because equitable tolling would be inappropriate.

The parties misconceive the Court's role here. They agree that the Court lacks subject matter jurisdiction, but fail to perceive that this ends the Court's ability to act in the matter. Any expression on the subject of equitable tolling would be dictum in a matter over which the Court lacks jurisdiction.

In the circumstances, defendants' motion is granted in all respects. The action is dismissed for lack of subject matter jurisdiction.

SO ORDERED


Summaries of

China Carr v. Childbearing Center of Morris Heights

United States District Court, S.D. New York
Nov 25, 2002
02 Civ. 3293 (LAK) (S.D.N.Y. Nov. 25, 2002)

holding that where plaintiff failed to exhaust administrative remedies under FTCA "any expression on the subject of equitable tolling would be dictum in a matter over which the Court lacks jurisdiction"

Summary of this case from Berenato v. U.S.
Case details for

China Carr v. Childbearing Center of Morris Heights

Case Details

Full title:CHINA CARR, etc., et al., Plaintiffs, v. CHILDBEARING CENTER OF MORRIS…

Court:United States District Court, S.D. New York

Date published: Nov 25, 2002

Citations

02 Civ. 3293 (LAK) (S.D.N.Y. Nov. 25, 2002)

Citing Cases

Berenato v. U.S.

Rather, Plaintiff must first exhaust his administrative remedies before questions of timeliness and equitable…