United States District Court, M.D. Pennsylvania
WALTER DELLINGER, JR., and LORI L. DELLINGER, Plaintiffs
KARLI RICHARDS, et al., Defendants
before the Court is Defendant United States of America
(“the Government”)'s motion to dismiss
Defendants Summit Health and the Chambersburg Hospital, Wound
Center's (“Defendants”) joinder complaint for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1). (Doc. No. 2.) For the reasons
that follow, the Court will grant the motion.
Walter Dellinger, Jr. (“Plaintiff Walter
Dellinger”) and Lori L. Dellinger (“Plaintiff
Lori Dellinger”),  initiated the instant proceedings by
filing a complaint in the Court of Common Pleas in Franklin
County, Pennsylvania on April 17, 2017. In so doing,
Plaintiffs named as Defendants Ganga Ramidi, M.D., Karli
Richards, Richards Orthopaedic Center and Sports Medicine,
LLC, the Chambersburg Hospital Wound Center, and Summit
Health. Plaintiff's complaint stemmed from complications
experienced by Plaintiff Walter Dellinger in connection with
a surgical procedure performed on his right foot in July of
2015, which caused him to present to the Chambersburg
Hospital Wound Center in the fall of 2015 and ultimately
undergo a subsequent surgical procedure there. See
1:17-cv-01537, Doc. No. 1-1 at 8. On approximately November
18, 2015, Mr. Dellinger was seen by Defendant Ganga Ramidi
(“Ramidi”). See id. at 9. Plaintiff
Walter Dellinger eventually contracted a MRSA infection in
his right leg and experienced injuries in connection with
said infection. See id. at 10. As a result of these
events, Plaintiffs filed suit against the aforementioned
Defendants, asserting claims for negligence and vicarious
August 28, 2017, the Government removed that case to this
Court, which was docketed at 1:17-cv-01537 and assigned to
the undersigned. In the notice of removal, the Government
remarked that Ramidi “was an employee of Keystone Rural
Health Center from December 2, 2013 through December 31,
2015” and, pursuant to the Federally Supported Health
Centers Assistance Act of 1992, Ramidi is considered a
federal employee for purposes of the Federal Tort Claims Act
(“FTCA”). See 1:17-cv-01537, Doc. No. 1
at 2. Accordingly, the Government asserted that
“[p]ursuant to the Westfall Act, codified at 28 U.S.C.
§ 2679, upon certification ‘that the defendant
employee was acting within the scope of his office or
employment at the time of the incident out of which the claim
arose,' the [s]tate [a]ction ‘shall be removed
without bond at any time before trial' to the Middle
District of Pennsylvania.” See Id. at 2-3. The
Government additionally gave notice of removal to this Court,
as well as the fact “that the United States is
substituted as the defendant in place of [Ramidi].”
See id. at 4.
the Government filed said notice of removal, the Government
moved to dismiss the complaint for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
arguing that dismissal was warranted because Plaintiffs
failed to exhaust their administrative remedies because they
had “not filed an administrative tort claim with the
responsible agency, [the] United States Department of Health
and Human Services.” See 1:17-cv-01537, Doc.
No. 5 at 4. In an Order dated October 31, 2017, the Court
granted the motion to dismiss, remanded Plaintiff's case
to state court, and ordered that the federal action be
closed. See 1:17-cv-01537, Doc. No. 8. In finding
that dismissal was warranted, the Court noted that Plaintiffs
failed to file the requisite administrative tort claim, in
contravention of relevant authority dictating that “[a]
plaintiff must first present a claim to the responsible
administrative agency for final decision before bringing a
tort claim against the United States.” See id.
at 4 (citing 28 U.S.C. § 2675(a)).
the Court's Order remanding the previous action,
“[P]laintiff Walter Dellinger submitted an
administrative tort claim to the Department of Health &
Human Services (HHS) claiming that Dr. Ramidi committed
medical malpractice by failing to properly diagnose and treat
his medical condition on November 18, 2015.” (Doc. No.
3 at 3) (citing Doc. No. 3-1 at 63-75). HHS then
“issued a ‘notice of final determination'
denying [the] administrative tort claim, and instructing that
[Plaintiff Walter Dellinger] has six (6) months to either
file for reconsideration with HHS or suit in federal court
against the United States.” (Id.) (citing Doc.
No. 3-1 at 65-75). Plaintiff Walter Dellinger did not file
suit against the Government within said time period, nor did
he request reconsideration of the HHS decision.
September 27, 2018 Defendants Chambersburg Hospital and
Summit Health filed a third-party joinder complaint in the
state action “against the previously dismissed . . .
Ramidi for contribution and indemnification.”
(Id. at 4.) Subsequently, the Government again
removed the action to this Court and substituted itself as a
party in place of Ramidi on the basis that the action
constitutes a proceeding asserted against the United States.
(Id.) The Government then filed the instant motion
to dismiss the joinder complaint for lack of subject matter
jurisdiction and remand this case to state Court on November
9, 2018 (Doc. No. 2), asserting that the Court lacks subject
matter jurisdiction over the third-party complaint against
the Government because:
(1) application of the derivative jurisdiction doctrine
negates subject matter jurisdiction and
(2) Plaintiffs' claims for contribution and
indemnification are premature because they “have not
yet accrued” and, therefore, do not permit Plaintiffs
to demonstrate the existence of a live case or controversy.
(Id. at 4-5.) Having been fully briefed (Doc. Nos.
3, 5, 6), the Government's motion is ripe for
Rule of Civil Procedure 12(b)(1) permits a party to move for
dismissal of a claim on the basis that subject matter
jurisdiction is lacking. See Fed.R.Civ.P. 12(b)(1).
“A 12(b)(1) motion may challenge jurisdiction based on
the face of the complaint or in its existence in fact.”
Henderson v. Nationwide Mut. Ins. Co., 169 F.Supp.2d
365, 367 (E.D. Pa. 2001) (citing Gould Elecs. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000)).
“When the challenge is facial, the [C]ourt must accept
as true all well-pleaded allegations in the complaint and
draw reasonable inferences in favor of the plaintiff[,
]” but when a party raises a factual challenge,
“the [C]ourt is not bound by the allegations in the
pleadings” and “[t]herefore, ‘no
presumptive truthfulness attaches to [the] plaintiff's
allegations' for factual challenges.” See
id. (citation omitted) (quoting Mortensen v. First
Fed. Savs. & Loan Ass'n, 549 F.2d 884, 891 (3d
Cir. 1977)). “Regardless of whether the challenge is
facial or factual, the plaintiff bears the burden of
persuasion.” Id. (citing Mortensen,
549 F.2d at 890); see also Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, at 1409 (3d Cir. 1991)
(“When subject matter jurisdiction is challenged under
Rule 12(b)(1), the plaintiff must bear the burden of
persuasion.” (citing Mortensen, 549 F.2d at
noted supra, the Government asserts that dismissal
of the joinder complaint against it is proper on two grounds:
(1) this Court lack subject matter jurisdiction over the case
by virtue of the doctrine of derivative jurisdiction and (2)
a live case or controversy is not present because
Plaintiffs' claims for contribution and indemnification
have not yet accrued. Because the Court finds that the
application of the derivative jurisdiction doctrine warrants
dismissal, the Court addresses only the former point herein.