United States District Court, M.D. Pennsylvania
IMEN GHARBI and HATTAB Ben GHARBI, as Administrators of the Estate of E.G., dec'd and in their own right, Plaintiffs,
POTACIA W. FRANCIS, M.D. and UPMC PINNACLE HOSPITALS t/d/b/a UPMC PINNACLE HARRISBURG, Defendants.
H. RAMBO UNITED STATES DISTRICT JUDGE
the court is the motion to dismiss (Doc. 4) filed by
Defendant Dr. Potacia W. Francis, M.D. (“Dr.
Fancis”). Because the motion has merit and Plaintiffs
Imen Gharbi, Hattab Gharbi, and E.G.
(“Plaintiffs”) have failed to properly respond to
it, the court will grant the motion without prejudice.
March 7, 2019, Plaintiffs filed a complaint in the Dauphin
County Court of Common Pleas (“State Court”)
against Dr. Francis and “UPMC Pinnacle Hospitals,
t/d/b/a UPMC Pinnacle Harrisburg, ”
(“UPMC”; collectively, “Defendants”),
asserting negligence, survival, and wrongful death claims,
all based on the allegation that Dr. Francis, and other UPMC
employees, caused the death of Imen and Hattab's son,
E.G., by negligently delivering him. (See Doc. 1-2,
at pp. 9-22.) On April 17, 2019, Plaintiffs filed an amended
complaint. (Id. at pp. 35-46.) On June 13, 2019, Dr.
Francis removed the case to federal court, asserting she was
a federal employee covered by the Federal Tort Claims Act
(“FTCA”), entitling her to have all state law
tort claims brought against her in federal court. (Doc. 1, p.
2.) The notice of removal included a declaration by an
Assistant United States Attorney for the Middle District of
Pennsylvania certifying Dr. Francis was in fact acting as an
employee of the United States Federal Government during the
delivery of E.G., entitling her to FTCA protection. (Doc.
days later, the United States of America (“United
States”) filed a notice of substitution that it was the
proper defendant in place of Dr. Francis. (Doc. 3.) The
United States filed a motion to dismiss the next day, arguing
the court lacked subject matter jurisdiction over
Plaintiffs' claims against the United States because
Plaintiffs had failed to exhaust their administrative
remedies by first filing a complaint with the Department of
Health and Human Services (“DHHS”). (See
generally, Doc. 5.) Plaintiffs never responded to the
September 23, 2019-over three months after the motion to
dismiss was filed, and over two months after Plaintiffs'
response was due-the court issued an order to show cause,
instructing Plaintiffs to explain, within ten days, why the
motion should not be granted. (Doc. 7.)
days later, Plaintiffs filed an ill-conceived and incoherent
“Response” to the order to show cause, wherein
Plaintiffs asserted four arguments: (1) their claims are
meritorious; (2) Plaintiffs had never pleaded “that
Mrs. Gharbi was ever seen at Hamilton Health Center, or any
other medical clinic associated with the state's Patient
Health Service (PHS), or that any of the providers caring for
Mrs. Gharbi at UPMC Pinnacle are federal employees”;
(3) “Plaintiffs have no definitive proof of Dr.
Francis' employment status”; and (4) Plaintiffs
fear that litigating the case in federal court, without
knowing Dr. Francis's employment status, could result in
the statute of limitations running on their claims. (Doc.
10.) Plaintiffs make no effort to explain why they failed,
for two months, to respond to the motion, nor do they address
whether they did file a complaint with the DHHS.
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the burden of proving the
court has jurisdiction over the dispute before it. Gould
Electronics Inc. v. United States, 220 F.3d 169, 178 (3d
Cir. 2000). If a party introduces evidence to demonstrate the
court's lack of jurisdiction, it is considered a
“factual attack, ” entitling the court to
“consider and weigh evidence outside the pleadings to
determine if it has jurisdiction.” Id. A court
properly dismisses a claim for lack of subject matter
jurisdiction, pursuant to the FTCA, if the plaintiff has
failed to exhaust all administrative remedies. Miller v.
United States, 517 Fed.Appx. 62, 62-63 (3d Cir. 2013);
White-Squire v. United States Postal Serv., 592 F.3d
453, 457-58 (3d Cir. 2010) (citing 28 U.S.C. § 2675(b)).
the United States made a prima facie showing that
Plaintiffs' claims should be dismissed for lack of
subject matter jurisdiction. It introduced evidence
establishing the factual basis for its claim that Dr. Francis
was a federal employee and thus entitled to FTCA protections,
including the administrative processing of complaints against
her before a party files suit in court. (Doc. 1-3.)
Plaintiffs failed to respond to the motion within the
fourteen days allotted under Local Rule 7.6, which states
that “[a]ny party who fails to comply with this rule
shall be deemed not to oppose such motion.” On this
fact alone, the court is inclined to grant the motion.
United States v. Eleven Vehicles, 200 F.3d 203,
214-15 (3d Cir. 2000) (“[I]t is not an abuse of
discretion for a district court to impose a harsh result . .
. when a litigant fails to strictly comply with the terms of
a local rule.”); Smith v. Oelenschlager, 845
F.2d 1182, 1184-85 (3d Cir. 1988) (affirming dismissal of
case for party's failure to comply with local rules).
accidents happen, so the court granted Plaintiffs the
opportunity to explain why, months after their response was
due, they had failed to file anything with the court. Instead
of courteously explaining the reason for their error,
Plaintiffs act as if they did nothing wrong, apparently
adopting the Obi-Wan Kenobi strategy of acting as if
“these aren't the [deadlines] you're looking
for.” In addition to being untimely, and lacking a
coherent argument, the brief violates Local Rule 7.8(a),
which requires the parties to cite the authorities supporting
their arguments so the court is not forced to conduct the
parties' legal research on their behalf. The court will
nonetheless do its best to address each argument in turn.
first argument is irrelevant-the question of whether the
court has jurisdiction is separate from whether the case is
meritorious. See Gould Electronics Inc., 220 F.3d at
178. Plaintiffs' second argument appears to rely upon the
misconception that the court is bound by the pleadings in
resolving a factual attack under Rule 12(b)(1).
Plaintiffs' third argument suggests that the court can
only dismiss a case for lack of subject matter jurisdiction
if the Plaintiff is subjectively assured that the evidence
establishes, as a metaphysical certainty, that the court has
no jurisdiction-a position having no basis in law. And
Plaintiffs' fourth argument does not so much amount to a
legal argument-which, again, would require citation to legal
authority-as much as an expression of fear.
perhaps Plaintiffs should listen to Obi-Wan less and Yoda
more, for “[f]ear is the path to the dark side.”
The remedy for Plaintiffs' counsel's fear is legal
research and diligence-including monitoring the
filing of dispositive motions in their cases; reviewing the
local rules of the courts they litigate before; complying
with court orders; and only submitting briefs containing
legal arguments structured in the traditional format of
logic. Having not done any of these basic lawyering tasks,
Yoda would say: “That is why you fail.”