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Annette Hilton-Davis Administratrix of Estate of Lisa J. Hilton, Deceased v. United States of America

July 12, 2012


The opinion of the court was delivered by: Hillman, District Judge


Presently before the Court is the motion of defendant, United States of America, to dismiss plaintiff's complaint for failure to exhaust her administrative remedies under the Federal Tort Claims Act. For the reasons expressed below, the Court will grant defendant's motion and dismiss plaintiff's claims against the United States without prejudice. The Court will also remand the remaining state law claims against defendants LabCorp and Antonius Sehonanda, M.D. for lack of subject matter jurisdiction if plaintiff cannot demonstrate within ten days that diversity jurisdiction exists for these claims.


On September 25, 2009, Lisa J. Hilton, who suffered from Stage IIB cervical cancer, passed away. Believing that the delay in the diagnosis and treatment of Ms. Hilton's cancer was the cause of her death, on September 23, 2011, plaintiff Annette Hilton-Davis, the administratrix of the estate of her sister, filed a wrongful death and survival action against CAMCare Health Corporation and her treating medical providers employed by CAMCare, nurse practitioner Tobi Smolensky, Andrenette Fleming, M.D., registered nurse Karen Way, and "Sue." She also filed suit against LabCorp and LabCorp employee Antonius Sehonandra, M.D.

After CAMCare and the other defendants were served with the complaint, on October 17, 2011, general counsel for CAMCare informed plaintiff's counsel that CAMCare is a Federally Qualified Healthcare Center, and that CAMCare's employees are deemed to be federal employees under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). Having been previously unaware of the status of CAMCare and its employees as covered under the FTCA, plaintiff filed a notice of claim on November 21, 2011. The LabCorp defendants filed their answer on November 28, 2011.

On February 7, 2012, the United States removed plaintiff's case to this Court, and substituted itself as a defendant for CAMCare and CAMCare's medical providers, pursuant to 28 U.S.C. § 2679(d)(2).*fn1 The United States then filed the instant motion to dismiss plaintiff's claims against it for plaintiff's failure to properly comply with the FTCA's requirement that prior to filing suit, plaintiff must have first presented the claim to, and it be denied by, the appropriate Federal agency. Plaintiff has opposed the United States' motion.*fn2


A. Jurisdiction

This Court has "exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346. Unless the requirements of 28 U.S.C. § 1332 are shown, this Court only has supplemental jurisdiction over plaintiff's claims against the non-federal defendants. 28 U.S.C. § 1367(a) ("[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.").

B. Analysis

1. Plaintiff's claims against the United States

In order to institute a civil tort action against the United States, an injured party must comply with two main provisions of the FTCA. One requirement is that the claimant must first present the claim to the appropriate Federal agency, and that agency must either deny that claim in writing, or fail to make a final disposition of that claim within six months after it is filed. It is only after the denial of the claim, or the passage of six months without any action by the government, when the injured party may institute a suit against the United States. See 28 U.S.C. § 2675(a).

The other main requirement is the proper timing of the filing of a claim and a subsequent lawsuit. An injured party must file her notice of claim within two years after such claim accrues. 28 U.S.C. § 2401(b). Additionally, a suit must be filed in court within six months after the date the federal agency denies the claim. Id. Failure to comply with either of these requirements will forever bar a tort claim against the United States. Id.; see also Livera v. First Nat'l State Bank of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989) ("Because the Federal Tort Claims Act constitutes a waiver of sovereign immunity, the Act's established procedures have been strictly construed.").

In this case, plaintiff does not dispute that these provisions of the FTCA apply to her claims against the United States, and she also does not dispute that she did not file her FTCA claim until two months after the expiration of the two-year window. Plaintiff, however, argues that a provision in the FTCA equitably saves her claim from being untimely. She also argues that because the six month pendency of her claim had a May 28, 2012 expiration ...

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