United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
This case arises from the tragic death of Jy'Zhir Horsey, the infant son of Deidre Horsey ("Ms. Horsey") and Don Hanna, and involves claims of medical malpractice with respect to obstetric care provided to Ms. Horsey.
On December 10, 2014, plaintiff Deidre Horsey, individually and as personal representative of the Estate of Jy'Zhir Horsey ("Jy'Zhir"), and to the use of Don Hanna, filed suit against the United States of America (the "Government"), Three Lower Counties Community Services, Inc. ("Three Counties"), and Peninsula Regional Health System, Inc., d/b/a/Peninsula Regional Medical Center (collectively, "Peninsula"). Ms. Horsey alleges that defendants provided negligent obstetric care to her and to Jy'Zhir in March 2012, resulting in the death of Jy'Zhir on April 25, 2012. Among other things, plaintiff claims defendants failed to recognize that the baby was in fetal distress during Ms. Horsey's labor and failed to undertake a timely delivery by Cesarean Section. ECF 1 at 5. According to plaintiff, as a result of the negligent medical care, the infant "sustained catastrophic anoxic brain injury and died from his injuries...." Id.
The Complaint contains two counts. One is for wrongful death and the other is a survival action. Id. at 3-7. Plaintiff asserts this Court has subject matter jurisdiction "in part under the Federal Tort Claims Act ["FTCA"], 28 U.S.C. § 1346(b), 2671-2680." Id. at 2. She alleges supplemental jurisdiction "over the non-federal defendants [ i.e., Peninsula] pursuant to 28 U.S.C. § 1367." Id.
Three motions are currently pending. One is a motion to dismiss for improper venue, or in the alternative, for intra-District transfer, and the other two are motions to dismiss.
The case was originally assigned to District Judge George J. Hazel, in the Southern Division of this District. On February 13, 2015, Peninsula filed a "Motion to Dismiss for Improper Venue, or, In the Alternative, Motion to Transfer Action for the Convenience of the Parties and Witnesses." ECF 21 ("Transfer Motion"). Peninsula sought, inter alia, a transfer of the case from the Southern Division to the Northern Division. Plaintiff consented to Peninsula's request to transfer, ECF 25, and the case was reassigned to this Court, in the Northern Division, on March 11, 2015.
The Government filed a Motion to Dismiss (ECF 23, "FTCA Motion") on February 26, 2015, pursuant to Fed.R.Civ.P. 12(b)(1), accompanied by a memorandum of law (ECF 23-1, "FTCA Memo"). In its FTCA Memo, the Government argues that this Court lacks subject matter jurisdiction because plaintiff failed to file suit within six months after notice of final denial of her administrative claim, as required by 28 U.S.C. § 2401(b). ECF 23-1 at 7. The Government also asked the Court to dismiss plaintiff's claim against Three Counties, arguing that Three Counties is not a proper defendant under 28 U.S.C. § 2679(a). Id. at 6.
On March 16, 2015, plaintiff submitted two responses in opposition to the FTCA Motion: a response (ECF 26, "FTCA Response") and an amended response (ECF 27, "Amended FTCA Response"). In those responses, plaintiff opposed both of the Government's requests. ECF 26; ECF 27. On April 2, 2015, the Government filed a "Consent Motion to Dismiss [Three Counties], " ECF 30 ("Consent Motion"), in which it stated that plaintiff consented to the Government's motion to dismiss Three Counties. Therefore, I granted the Consent Motion the same day, dismissing Three Counties as a defendant. ECF 32 (Marginal Order).
Plaintiff continues to oppose the Government's motion to dismiss the suit as against the United States. See ECF 30 at 2. The Government has replied. ECF 31 ("Reply").
On March 17, 2015, defendant Peninsula filed a Motion to Dismiss (ECF 28, "Peninsula Motion"), also pursuant to Fed.R.Civ.P. 12(b)(1), arguing that if this Court dismisses plaintiff's FTCA claims against the federal defendants, this Court should dismiss plaintiff's remaining claims against Peninsula for lack of jurisdiction. Plaintiff has responded to the Peninsula Motion but has not expressly opposed it. ECF 29 ("Peninsula Response"). She argues that the Peninsula Motion is premature, because the FTCA Motion is "still pending." Id. at 1. But, she adds that, "[i]n the event that the federal claims are dismissed..., " plaintiff "should be afforded the opportunity to voluntarily dismiss her non-federal claims rather than have them dismissed by the Court." Id.
No hearing is necessary to resolve the motions. See Local Rule 105.6. In light of the transfer of the case to the Northern Division, I shall deny ECF 21 as moot. For the reasons that follow, I will grant, in part, and deny, in part, the Government's FTCA Motion (ECF 23). I will dismiss plaintiff's claims against the Government, and I will deny as moot the Government's request to dismiss Three Counties as a defendant. And, I will hold the Peninsula Motion (ECF 28) in abeyance, for fourteen days, to permit plaintiff the opportunity to file a motion to dismiss voluntarily her claims against Peninsula.
I. Factual and Procedural Background
Plaintiff claims that Jy'Zhir died as a result of allegedly negligent obstretic care provided to her by defendants on March 26, 27, and 28 in 2012, which allegedly resulted in the death of Jy'Zhir Horsey on April 25, 2012. ECF 1 ¶¶ 5-13. Plaintiff filed a claim against the United States of America with the United States Department of Health and Human Services ("HHS"); that claim was denied on November 4, 2013. Id. ¶ 4. With its FTCA Motion, the Government submitted a copy of plaintiff's notice of denial. ECF 23-4 ("Denial Notice"). The Denial Notice is dated November 4, 2013. Id. at 1. And, the Government has included a copy of a United States Postal Service certified mail receipt, id. at 2, which shows that the Denial Notice was mailed the same day, November 4, 2013. Plaintiff has not disputed the authenticity of these documents, or the date of mailing of the Denial Notice. See ECF 26-1; ECF 27 (responses to the FTCA Motion).
Thereafter, plaintiff filed a medical malpractice claim with the Maryland Health Care Alternative Dispute Resolution Office ("HCADRO"). Id. ¶ 3. The Government submitted a copy of plaintiff's HCADRO claim with its FTCA Motion. See ECF 23-5 ("HCADRO Claim"). Plaintiff has not disputed the authenticity of this document. See ECF 26-1; ECF 27. According to the time stamp on the HCADRO Claim, plaintiff filed it on May 6, 2014, naming the United ...