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OWEN v. U.S.

March 9, 2004.

KATHLEEN OWEN, as Administratrix of the ESTATE OF JOSEPH O'DONNELL, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



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

ORDER AND MEMORANDUM

ORDER

AND NOW, this 9th day of March, 2004, upon consideration of the Government's Motion to Dismiss (Document No. 9, filed November 20, 2003), Plaintiff's Opposition to Defendant's Motion to Dismiss (Document No. 10, filed December 5, 2003), Defendant's Response to Plaintiff's Reply Memorandum (Document No. 13, filed December 24, 2003), Plaintiff's Supplemental Reply Memorandum of Law in Opposition to Defendant's Response to Plaintiff's Reply Memorandum (Document No. 15, filed February 9, 2004), for the reasons set forth in the attached Memorandum, IT IS ORDERED as follows:

  1. That part of defendant's Motion to Dismiss asserting the defense of lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) is DENIED; and,

  2. That part of defendant's Motion to Dismiss asserting the defense of failure to state a claim under Fed.R.Civ.P. 12(b)(6) is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED with respect to the separate negligence claim asserted in Count III of plaintiff's Complaint, and Count III is DISMISSED. The Motion is DENIED with respect to the Wrongful Death Act and Survival Act claims asserted in Counts I and II of plaintiff's Complaint. IT IS FURTHER ORDERED that, because plaintiff's claim is based on the Federal Tort Claims Act, 28 U.S.C. § 2671-2680 ("FTCA"), plaintiff is only entitled to a non-jury trial, 28 U.S.C. § 2402, and plaintiff's demand for a jury trial is STRICKEN.

  MEMORANDUM

 I. FACTS

  This suit arises from the death of plaintiff Kathleen Owen's ("plaintiff) brother, Joseph O'Donnell ("decedent"), on September 1, 2001, allegedly as a result of negligent treatment by government physicians at the Department of Veterans Affairs Medical Center located in Philadelphia, Pennsylvania.

  On November 5, 2001, plaintiff's and decedent's sister, Patricia O'Donnell ("Ms. O'Donnell"), instituted a claim under the FTCA, 28 U.S.C. § 2671-2680, for personal injury and wrongful death by filing Standard Form 95 ("SF 95") with the Department of Veterans Affairs. The form listed Ms. O'Donnell as the claimant and attorney Joseph L. Messa, Jr. as counsel for the claimant. The SF 95 demanded a sum certain of $3,000,000.00 for the personal injury claim and $3,000,000.00 for the wrongful death claim.

  Thereafter, on January 24, 2002, plaintiff was appointed Administratrix of decedent's Estate. Plaintiff alleges that, at the time the SF 95 was filed, the decedent's family intended to have Ms. O'Donnell appointed as Administratrix but later decided that plaintiff should be appointed in her stead. Although the SF 95 was never formally amended to reflect plaintiff's appointment, on October 14, 2002, Mr. Messa forwarded Letters of Administration to the government identifying plaintiff as Administratrix. Plaintiff argues that the Letters of Administration amended the SF 95, thereby substituting plaintiff for Ms. O'Donnell as the claimant.

  Defendant denied the claim in May 2003. Thereafter, plaintiff filed the instant action on August 11, 2003, asserting claims under Pennsylvania Wrongful Death Act, 42 Pa.C.S. § 8301 et seq., and the Survival Act, 42 Pa.C.S. § 8302. Both claims are based on allegations that decedent's death was caused by medical negligence. The Complaint also includes a separate claim for negligence based upon the same allegations.

  Defendant filed a Motion to Dismiss the Complaint for lack of subject matter jurisdiction under Fed.R.Civ.P.12(b)(1) and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). The 12(b)(1) Motion is based on the argument that, because plaintiff did not file a new or amended SF 95 naming herself as claimant, plaintiff failed to exhaust administrative remedies under the FTCA and the Court therefore lacks subject matter jurisdiction. The Rule 12(b)(6) Motion is based on the argument that the statute of limitations bars any claim that plaintiff might attempt to assert in the future after exhausting administrative remedies.

 II. STANDARD

  The standards governing Rule 12(b)(6) and (b)(1) motions for lack of subject matter ...


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