Opinion
CIVIL 99-1384 (JAG)
April 16, 2002
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before the court on two motions to dismiss. Defendant Dr. Héctor M. Cabán Hernández filed a motion to dismiss for lack of subject matter jurisdiction on November 4, 1999. (Docket No. 12.) Defendant Concilio de Salud Integral de Loíza, Inc., filed a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on November 24, 1999. (Docket No. 15.) Plaintiff Ineabelles Cirino Encarnación filed a response to Dr. Héctor M. Cabán Hernández' motion to dismiss on November 18, 1999. (Docket No. 13.) On December 21, 1999, plaintiff Ineabelles Cirino Encarnación filed a response to Concilio de Salud Integral de Loíza, Inc.'s motion to dismiss. (Docket No. 17.) In addition, plaintiff Ineabelles Cirino Encarnación, defendant Concilio de Salud Integral de Loíza, Inc., and defendant Héctor M. Cabán Hernáandez submitted answers to a court ordered questionnaire on April 29, 2001. (Docket Nos. 24 and 25.)
I. FACTUAL BACKGROUND
On April 11, 1998, at approximately 7:00 p.m., Ineabelles Cirino Encarnación ("Ms. Cirino") took her three-month old daughter Edith Marie Santana Cirino ("Edith") to Concilio de Salud Integral de Loíza, Inc. ("CSILO"). Edith was having respiratory problems, specifically difficulty breathing. Ms. Cirino and her daughter were not given a medical screening examination upon arrival. After some time, Edith received medical examination and treatment, but this treatment failed to properly diagnose and address the medical condition then afflicting her. Edith remained at CSILO and at approximately 5:00 a.m. on April 12, 1998, she turned cyanotic and unresponsive to stimuli. All efforts to resuscitate Edith failed and she was pronounced dead at 5:20 a.m. by Dr. Héctor M. Cabán Hernández ("Dr. Cabán"). Later, Dr. Rosa Rodríguez performed an autopsy on Edith at the Forensic Sciences Institute of the Commonwealth of Puerto Rico and established the cause of death as viral interstitial pneumonitis. (Docket No. 1.)
II. MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(1) states in its relevant part that "[e]very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject-matter[.]" Fed.R.Civ.P. 12(b)(1).
If a court determines that subject matter jurisdiction is lacking, it must dismiss the case and preclude further adjudication on the merits. Christopher v. Stanley-Bostitch, 240 F.3d 95, 100 (1st Cir.), cert. denied, 122 S.Ct. 52 (2001); Rivera v. Reno, 178 F. Supp.2d 78, 79 (D.P.R. 2001); see also Willy v. Coastal Corp., 503 U.S. 131, 137 (1992), reh'g denied, 504 U.S. 935 (2001). The party asserting federal subject matter jurisdiction has the burden of establishing its existence. Martínez-Rosado v. Instituto Médico Del Norte, 145 F. Supp.2d 164, 168 (D.P.R. 2001); see also Murphy v. United States, 45 F.3d 520, 522 (1st Cir.), cert. denied, 515 U.S. 1144 (1995). The court accepts well-plead facts as true and all reasonable inferences therein are drawn in favor of the plaintiff. Rivera v. Reno, 178 F. Supp.2d at 79; see also Aybar v. Crispín-Reves, 118 F.3d 10, 13 (1st Cir. 1997), cert. denied, 522 U.S. 1078 (1998). Yet, when resolving factual disputes that determine the existence of subject matter jurisdiction a court may also review whatever evidence is presented, such as the exhibits submitted in this case. Martínez-Rosado v. Instituto Medico Del Norte, 145 F. Supp.2d at 168; see also Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996). Finally, "[i]f, and only when, it appears that the non-moving party will not be able to assert a colorable claim of subject matter jurisdiction, may the Motion to Dimiss be granted and the complaint be dismissed." Tropical Air Flying Servs., Inc. v. Carmen Feliciano de Melecio, 158 F. Supp.2d 177, 182 (D.P.R. 2001).
III. CSILO's JURISDICTIONAL CLAIM
Defendant CSILO avers that the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd et seq., does not exempt plaintiff from following administrative procedure established by the Federal Tort Claims Act, ("FTCA") 42 U.S.C. § 233(g) and 233(g)(1)(A); 28 U.S.C. § 2675 and 2675(a). Defendant argues that it is a Community Health Center operated pursuant to section 330 of the Public Health Service Act, 42 U.S.C. § 254 et seq., and thus is an agent of the United States. As such, CSILO has been provided liability protection under the FTCA. Pursuant to the FTCA, plaintiff must first file an administrative claim with the United States Department of Health and Human Services before pursuing this suit in federal court. Therefore, plaintiffs failure to conform to administrative procedure mandated by the FTCA denies this court subject matter jurisdiction in the instant case. (Docket No. 15.)
In response, plaintiff first contends that CSILO has failed to provide sufficient and adequate evidence to prove its status as a Community Health Center under federal law. Plaintiff notes that CSILO's three exhibits — an affidavit from its executive director, María E. Lanzot Algarín ("Ms. Algarín"), a 1996 Department of Health and Human Services letter and a 1997 Health Services and Resources Administration "Notice of Grant Award" — are marked with dates preceding the date of the incident, April 11, 1998. (Docket No. 15; exhibits 1-3.) Moreover, plaintiff states that this evidence lacks explication and provides only a "guess" as to whether CSILO is a Community Health Center. Second, plaintiff argues that CSILO's discovery non-compliance renders premature not only any evidentiary challenge to plaintiff's EMTALA claim but this court's judgment as to subject matter jurisdiction. (Docket No. 17.)
The First Circuit Court of Appeals has repeatedly held that compliance with administrative requirements is a jurisdictional prerequisite for a court to entertain suits against the United States under the FTCA. 28 U.S.C. § 2675(a); Coska v. United States, 114 F.3d 319, 323 n. 8 (1st Cir. 1997); Cotto v. United States, 993 F.2d 274, 280 (1st Cir. 1993); Corte-Real v. United States, 949 F.2d 484, 485-486 (1st Cir. 1991); Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir. 1990). The administrative requirements are that the claim must be timely-presented and state a sum certain. Kokaras v. United States, 980 F.2d 20, 22 (1st Cir. 1992), cert. denied., 510 U.S. 819 (1993); Corte-Real v. United States, 949 F.2d at 485-86; González-Bernal v. United States, 907 F.2d at 248; López v. United States, 758 F.2d 806, 809 (1st Cir. 1985). The FTCA claim must be dismissed if plaintiffs fail to exhaust administrative requirements. González v. United States, 2002 WL 471827 (1st Cir. 2002); Cotto v. United States, 993 F.2d at 280; Gonzalez-Bernal v. United States, 907 F.2d at 248.
Defendant's argument pointedly brings this court's essential dilemma into focus — whether CSILO is a government agency and thus plaintiff is obligated to comply with FTCA administrative requirements. Defendant has brought before this court three exhibits which catalogue and help substantiate the claim that it is a federal governmental agency. Plaintiff has responded to defendant's body of evidence with two different answers.
Plaintiff's first response is to assert that defendant's exhibits leave this court with nothing better than a "guess" as to whether defendant's asseverations are true. Plaintiff's second response concerns the dates marked on defendant's exhibits, noting that they precede April 11, 1998, the date of the incident. This argument obscures the significance of defendant's exhibits to this inquiry. The first exhibit, an affidavit by Ms. Algarín, avers that under the Federally Supported Health Centers Assistance Act of 1995, CSILO became entitled to liability coverage under the FTCA. In the second exhibit, dated June 21, 1996, Marilyn H. Gaston, an Assistant Surgeon General, writes that the Department of Health and Human Services deems CSILO an "employee of the government" and provided with "FTCA coverage." Finally, the third exhibit is a "Notice of Grant Award" awarding CSILO monies from the Health Resources and Services Administration ("HRSA") covering the period between June 1, 1997 and May 31, 1998.
Obviously, April 11, 1998 falls between these dates.
These three evidentiary pieces help substantiate defendant's claim that it is in fact a United States government agency. The dates marked on defendant's exhibits do not by themselves refute that CSILO was a federal government agency covered under the FTCA on April 11, 1998. If anything, these exhibits demonstrate that CSILO is what it purports to be. Moreover, there is no evidence to suggest that Ms. Algarin's affidavit claiming FTCA coverage is disingenuous. Finally, one can rightly infer that if CSILO was covered by the FTCA on the date of the incident, then it must have been designated by the United States as part of the federal government at least for purposes of private causes of action brought against it. 28 U.S.C. § 1346, 2671 et seq.
In turn, plaintiff has failed to carry her burden of demonstrating why this court should assert subject matter jurisdiction over her claim. Plaintiff does not offer any affirmative evidence or statements to rebut defendant's evidence that it is a federal government agency availed to the FTCA. Further, plaintiff's refutations fail to contradict the factual challenge presented by defendant. Plaintiff's response suggests that substantive, credible evidence only allows this court a "guess" whether to exercise subject matter jurisdiction. Because the party asserting jurisdiction carries the burden of proving it, the plaintiff has failed to prove that this court has subject matter jurisdiction over her claim. Thus, I recommend that defendant CSILO's motion to dismiss be GRANTED.
Plaintiff argues that it is "premature" for this court to rule on subject matter jurisdiction because of CSILO's failure to comply with discovery obligations. (Docket No. 17.) But plaintiff herself admits she only seeks "among other things, . . . to depose . . . pertinent witnesses and obtain the pertinent hospital policies and procedures[.]" (Docket No. 17, at 3, 1. 6.) I fail to find how this "pertinent" discovery would somehow bear upon my report today.
IV. DR. HÉCTOR M. CABÁN HERNÁNDEZ'S JURISDICTIONAL CLAIM
Should plaintiffs only federal claim be dismissed, I recommend that this court decline to exercise supplemental jurisdiction regarding Dr. Cabán. Plaintiff states that Dr. Cabán is not being sued under EMTALA, but rather under state malpractice law. (Docket No. 13.) Because defendant Dr. Cabán and the claims against him are wholly within the province of Commonwealth law, plaintiff's suit belongs in a Commonwealth court. Therefore, I recommend that Dr. Cabán's motion to dismiss be GRANTED.
Under the provisions of Rule 510.2, Local Rules, District of Puerto Rico, any party who objects to this report and recommendation must file a written objection thereto with the Clerk of this Court within ten (10) days of the party's receipt of this report and recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985), reh'g denied, 474 U.S. 1111 (1986); Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988); Borden v. Secretary of Health Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).