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]. Upon consideration of the Motion,
Opposition, Replies, and supplementary briefing, as well as the
entire record herein, and for the reasons set forth below,
Plaintiffs’ Motion to Remand 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”). Defendant Vest’s 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
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
-2- 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 would issue a decision “on or
before August 6, 2009.” Defs.’ Mot. to Stay at 3. The record does
not disclose whether such decision was issued and, if so, on what
date.
On April 14, 2009, Defendant Vest filed a Notice of Removal in
this Court on the basis of federal question jurisdiction [Dkt. No.
1]. On April 20, 2009, Defendant Vest filed a Motion to Dismiss
and substitute the United States [Dkt. Nos. 3 & 4]. First, she
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 the unopposed Motion, Defendant Vest was
1 There does not appear to be any disagreement among the parties on this point.
-3- dismissed without prejudice, and the United States was substituted
as a Defendant [Dkt. No. 14].
On May 4, 2009, Plaintiffs filed their Motion to Remand. On
May 18, 2009, the Non-federal Defendants filed a Motion to Stay,
which was denied on October 8, 2009 [Dkt. No. 33]. On May 28,
2009, Non-federal Defendant Washington Hospital Center filed a
Motion for Leave to File a Third Party Complaint against the United
States [Dkt. No. 18], which was granted on July 13, 2009 [Dkt. No.
27].
II. Analysis
Subsequent to the filing of the United States’ Motion to
Dismiss, Plaintiffs filed their Motion to Remand this case to
Superior Court. The Non-federal Defendants have opposed that
Motion, and the United States has indicated its agreement with the
Motion in its response to Plaintiffs’ Motion to Remand Case to the
District of Columbia Superior Court [Dkt. No. 37]. The Court
concludes that Plaintiffs are entitled to remand for the following
reasons.
As noted above, Plaintiffs originally filed their law suit in
the Superior Court for the District of Columbia. The United States
thereafter removed the case to this Court because of the existence
of a federal question, pursuant to 28 U.S.C. § 1331. Thereafter,
the United States, on behalf of Ms. Vest, was dismissed from the
case because Plaintiffs had failed to exhaust their administrative
-4- remedy under the FTCA. At that point, this Court ceased to have
subject matter jurisdiction over the case.
Section 1447(c) of Title 28 provides:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under Section 1446(a). If at any time before final judgment it appears that the District Court lacks subject matter jurisdiction, the case shall be remanded (emphasis added).
Thus, once the United States was dismissed, this Court no
longer had any subject matter jurisdiction over the case and was
required, by the mandatory language of § 1447(c), to remand the
case to Superior Court. Edwards v. District of Columbia, 616 F.
Supp.2d 112 (D.D.C. 2009) (quoting Republic of Venezuela v. Phillip
Morris, Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (“When it appears
that a district court lacks subject matter jurisdiction over a case
that has been removed from a state court, the district court must
remand the case.”)). See also Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350-51 (1988).2
Defendants argue that this Court never lost jurisdiction over
this case because it has always had diversity jurisdiction pursuant
to 28 U.S.C. § 1332. Defendants are incorrect. Non-federal
Defendants never removed this case. The United States removed it
2 Although Cohill was decided before the 1988 Amendments to § 1447(c) became operative, it is instructive that the Supreme Court reached the conclusion it did even before Congress made that result mandatory.
-5- and removed it only on the basis of federal question jurisdiction.
The fact that Non-federal Defendants might have removed the case on
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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]. Upon consideration of the Motion,
Opposition, Replies, and supplementary briefing, as well as the
entire record herein, and for the reasons set forth below,
Plaintiffs’ Motion to Remand 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”). Defendant Vest’s 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
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
-2- 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 would issue a decision “on or
before August 6, 2009.” Defs.’ Mot. to Stay at 3. The record does
not disclose whether such decision was issued and, if so, on what
date.
On April 14, 2009, Defendant Vest filed a Notice of Removal in
this Court on the basis of federal question jurisdiction [Dkt. No.
1]. On April 20, 2009, Defendant Vest filed a Motion to Dismiss
and substitute the United States [Dkt. Nos. 3 & 4]. First, she
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 the unopposed Motion, Defendant Vest was
1 There does not appear to be any disagreement among the parties on this point.
-3- dismissed without prejudice, and the United States was substituted
as a Defendant [Dkt. No. 14].
On May 4, 2009, Plaintiffs filed their Motion to Remand. On
May 18, 2009, the Non-federal Defendants filed a Motion to Stay,
which was denied on October 8, 2009 [Dkt. No. 33]. On May 28,
2009, Non-federal Defendant Washington Hospital Center filed a
Motion for Leave to File a Third Party Complaint against the United
States [Dkt. No. 18], which was granted on July 13, 2009 [Dkt. No.
27].
II. Analysis
Subsequent to the filing of the United States’ Motion to
Dismiss, Plaintiffs filed their Motion to Remand this case to
Superior Court. The Non-federal Defendants have opposed that
Motion, and the United States has indicated its agreement with the
Motion in its response to Plaintiffs’ Motion to Remand Case to the
District of Columbia Superior Court [Dkt. No. 37]. The Court
concludes that Plaintiffs are entitled to remand for the following
reasons.
As noted above, Plaintiffs originally filed their law suit in
the Superior Court for the District of Columbia. The United States
thereafter removed the case to this Court because of the existence
of a federal question, pursuant to 28 U.S.C. § 1331. Thereafter,
the United States, on behalf of Ms. Vest, was dismissed from the
case because Plaintiffs had failed to exhaust their administrative
-4- remedy under the FTCA. At that point, this Court ceased to have
subject matter jurisdiction over the case.
Section 1447(c) of Title 28 provides:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under Section 1446(a). If at any time before final judgment it appears that the District Court lacks subject matter jurisdiction, the case shall be remanded (emphasis added).
Thus, once the United States was dismissed, this Court no
longer had any subject matter jurisdiction over the case and was
required, by the mandatory language of § 1447(c), to remand the
case to Superior Court. Edwards v. District of Columbia, 616 F.
Supp.2d 112 (D.D.C. 2009) (quoting Republic of Venezuela v. Phillip
Morris, Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (“When it appears
that a district court lacks subject matter jurisdiction over a case
that has been removed from a state court, the district court must
remand the case.”)). See also Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350-51 (1988).2
Defendants argue that this Court never lost jurisdiction over
this case because it has always had diversity jurisdiction pursuant
to 28 U.S.C. § 1332. Defendants are incorrect. Non-federal
Defendants never removed this case. The United States removed it
2 Although Cohill was decided before the 1988 Amendments to § 1447(c) became operative, it is instructive that the Supreme Court reached the conclusion it did even before Congress made that result mandatory.
-5- and removed it only on the basis of federal question jurisdiction.
The fact that Non-federal Defendants might have removed the case on
the basis of diversity is irrelevant -- that factual scenario
simply never existed.3 Even “[i]f federal jurisdiction is
doubtful, a remand to state court is necessary.” Dixon v. Coburg
Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004) (en banc).
An Order shall accompany this Memorandum Opinion.
/s/ November 3, 2009 Gladys Kessler United States District Judge
Copies to: Attorneys of record via ECF
3 Moreover, as Plaintiffs and the United States have argued, there is doubt that it ever could have existed. However, that issue need not be resolved at this time in light of the Court’s ruling.
-6-