Joachim v. Filipova

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BRIANNA JOACHIM, as Proposed :

Administratrix of the Estate of EDGIRE :

JOACHIM, Deceased, and, BRIANNA : MEMORANDUM & ORDER

JOACHIM, individually, : 22-cv-5719 (DLI)(RML)

:

Plaintiff, :

:

-against- :

:

UNITED STATES OF AMERICA, :

:

Defendant. :

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DORA L. IRIZARRY, United States District Judge:

On July 15, 2022, Brianna Joachim (“Plaintiff”) commenced this action in New York State

Supreme Court, Kings County (“state court”) in her individual capacity and as Proposed

Administratrix of the Estate of Edgire Joachim asserting state law claims against Olga Filipova,

M.D. (“Filipova”) for medical malpractice in her treatment of Plaintiff’s mother, Edgire Joachim

(“Decedent”) between December 9, 2018 and June 15, 2019. See, Compl., Dkt. Entry No. 1-1.

The Attorney General certified Filipova as an employee of the United States of America acting

within the scope of her employment for purposes of this case. See, Certification, Dkt. Entry No.

1-2. On September 23, 2022, the United States of America (“Defendant”) removed the action from

state court to this court, substituting itself for Filipova as the sole defendant pursuant to 42 U.S.C.

§ 233. See, Notice of Removal (“Notice”) Dkt. Entry No. 1. On November 1, 2022, Plaintiff filed

an amended complaint (“Amended Complaint”) naming the United States of America as the

defendant and amending the claims only to include claims under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346, 2671, et. seq. See, Am. Compl., Dkt. Entry No. 10.

Before the Court is Defendant’s motion to dismiss the Amended Complaint(“Motion”) for

lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

Def.’s Mot. to Dismiss (“Mot.”), Dkt. Entry No. 15. Plaintiff opposed. Pl.’s Opp. to Def.’s Mot.

(“Opp.”), Dkt. Entry No. 17. Defendant replied. Def.’s Reply (“Reply”), Dkt. Entry No. 19. For

the reasons set forth below, as the Court lacks subject matter jurisdiction over this matter,

Defendant’s motion to dismiss is granted.

BACKGROUND

From December 9, 2018 through her death due to cerebral venous thrombosis on June 15,

2019, Decedent received medical treatment from doctors at hospitals within the Eastern District of

New York for abnormal blood clotting and related conditions. See generally, Am. Compl.

Decedent received medical treatment from Filipova at Sunset Park Family Health Center (“Sunset

Park”) on March 29, April 5, and June 10, 2019. Id. at ¶¶ 52, 53, and 59. Defendant stipulated

that, “at the time of the incidents alleged,” Filipova “was acting within the scope of her

employment as an employee of [Sunset Park] . . . which has been deemed for [FTCA]

Authorization under the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-

(n), by grantee United States Department of Health and Human Services.” Certification, Dkt.

Entry No. 1-2.

On April 21, 2021, Plaintiff, Decedent’s daughter, submitted a Standard Form 95 (“SF-

95”) to the Department of Health and Hospital Service (“HHS”) claiming negligence, medical

malpractice, and lack of informed consent in the treatment of Decedent and loss of parental

guidance and support and resultant damages in the amount of Twenty Million Dollars

($20,000,000). See, Mot., Ex. A, Dkt. Entry No. 15-2. Plaintiff signed the SF-95 “as [the] natural

daughter and proposed administratrix.” Id. at Box 13a. On April 26, 2021, Plaintiff submitted a

Petition for Letters of Administration for the Estate of Edgire Joachim (“Petition”) to New York

State Surrogate’s Court in Kings County. Am. Compl. at ¶14. On May 5, 2021, HHS

acknowledged receipt of Plaintiff’s SF-95 and requested additional information. Id. at ¶ 8. On

May 19, 2021, Plaintiff “responded and submitted the requested information to Defendant,”

including a copy of the Petition. Id. at ¶ 9. On July 15, 2022, Plaintiff filed the instant action,

which Defendant now moves to dismiss in its entirety pursuant to Fed. R. Civ. P. Rules 12(b)(1)

(“Rule 12(b)(1)”) for lack of subject matter jurisdiction and 12(b)(6) (“Rule 12(b)(6)”) for failure

to state a claim.

LEGAL STANDARD

Subject matter jurisdiction is a threshold requirement in any suit, which “must be shown

affirmatively and that showing is not made by drawing from the pleadings inferences favorable to

the party asserting it.” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation marks

and citation omitted). “A case is properly dismissed for lack of subject matter jurisdiction under

Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Accordingly, when responding to

a defendant’s Rule 12(b)(1) motion, a plaintiff must establish the existence of subject matter

jurisdiction by a preponderance of the evidence. Aurecchione v. Schoolman Transp. Sys., Inc.,

426 F.3d 635, 638 (2d Cir. 2005). Under the FTCA, a plaintiff must make “a timely filing of an

administrative claim with the appropriate government agency pursuant to 28 U.S.C. § 2675(a)” or

otherwise be barred by sovereign immunity. Wyler v. U.S., 725 F.2d 156, 157 (2d Cir. 1983). [I]f

the conditions under which the Government has agreed to waive that immunity have not been met,

federal subject matter jurisdiction does not exist. Rambarrat ex rel. Rambarrat v. United States,

347 F. Supp.2d 6, 8 (S.D.N.Y. 2004) (collecting cases).

In deciding a defendant’s Rule 12(b)(1) motion, a court “‘need not accept as true contested

jurisdictional allegations[,] and may resolve disputed jurisdictional facts by reference to affidavits

and other matters outside the pleadings.’” Kitzen v. Hancock, 2017 WL 4892173, at *2 (E.D.N.Y.

Oct. 27, 2017) (quoting Williams v. Runyon, 1997 WL 77207, at *1 (S.D.N.Y. Feb. 17, 1999)).

Where the jurisdictional challenge is based on the FTCA, the government receives the benefit of

any ambiguities. Moreno v. United States, 965 F. Supp. 521, 524 (S.D.N.Y. 1997).

DISCUSSION

Defendant contends that the Court lacks subject matter jurisdiction because Plaintiff had

not been appointed the administratrix of Decedent’s estate at the commencement of this lawsuit.1

Mot. at 14; see, Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n. 5 (1992) (noting that the

absence of standing is considered a jurisdictional defect and “standing is to be determined as of

the commencement of suit.”); See also, Carrick v. Cent. Gen. Hosp., 51 N.Y.2d 242, 249 (noting

that under New York law, standing is assessed at the time of filing). It is well established that the

United States only can be sued with its consent “and the terms of its consent to be sued in any

court define that court’s jurisdiction to entertain the suit.” Makarova, 201 F.3d at 113 (“The

doctrine of sovereign immunity is jurisdictional in nature . . . and therefore to prevail, the plaintiff

bears the burden of establishing that her claims fall within an applicable waiver.”) (citation

omitted). The FTCA waives sovereign immunity such that “[t]he United States shall be liable,

1 Defendant also contends that the Court lacks subject matter jurisdiction because Plaintiff failed to administratively

exhaust her claims, a jurisdictional requirement under the FTCA. Mot. at 10-14. While the Court need not address

this issue since it lacks subject matter jurisdiction for the reasons set forth in this Memorandum and Order, the Court

nonetheless notes that Defendant’s contentions are based on a flawed reading of the cases and federal regulations upon

which it relies. On the record presented, it appears that Plaintiff had exhausted her administrative remedies because

she “present[ed] the appropriate agency with sufficiently specific information—whether by narrative, evidence, or

other means—to permit the agency to conduct an investigation and then to estimate the value of the claim.” Collins

v. United States, 996 F.3d 102, 114 (2d Cir. 2021) (noting that the FTCA’s presentment requirement’s purpose is to

provide adequate notice to the relevant agency). Accordingly, Defendant’s motion to dismiss on this ground is denied

as it is without merit.

respecting the provisions of this title relating to tort claims, in the same manner and to the same

extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In relevant part, the

FTCA authorizes suits against the United States to recover damages:

for injury or loss of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while acting within

the scope of his office or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). District courts examine the law of the state in which the court sits to

determine capacity to sue as a representative of an estate. See, Estate of Vaiselberg ex rel.

Vaiselberg v. Snow, 2003 WL 1878248, at *1 (S.D.N.Y. Apr. 14, 2003) (citation omitted).

New York law provides that wrongful death and survival actions may be brought only by

the decedent's personal representative, defined as the “person who has received letters to

administer the estate of a decedent.” Jordan v Jordan, 120 A.D.3d 632 (2d Dept. 2014); N.Y. Est.,

Powers & Trusts Law § 1–2.13. “It is well established that the existence of a qualified

administrator is essential to the maintenance of [an estate’s] action and that the statutory right to

recover for wrongful death does not even arise until an administrator has been named through the

issuance of letters of administration.” Carrick, 51 N.Y.2d at 249 n. 2 (1980) (citation omitted).2

The parties do not dispute that, at the time this case was filed in state court, Plaintiff had

not received letters of administration for Decedent’s estate. Consequently, Plaintiff lacks standing

to maintain a wrongful death or survivorship suit. Plaintiff’s receipt of the letters testamentary on

September 16, 2022, does not cure the defect, which must be judged as of the commencement of

2 However, the potential harshness of this rule is tempered by operation of the New York Civil Practice Law and Rule

§ 205(a) that allows plaintiffs to recommence an action within six months of dismissal, if a prior action was timely

commenced but terminated because it was filed by someone other than the appointed administrator. Carrick, 51

N.Y.2d at 249-50 (discussing the application of Section 205(a)); See also, Estate of Capo v. Haquif, 2019 WL

2498369, at *4 (S.D.N.Y. 2019) (finding that the six-month extension afforded under Section 205(a) “may be applied

when a prior wrongful death action has been dismissed due to the lack of an appointed administrator”).

Plaintiff’s suit, i.e., July 15, 2022, and not as of any other date. Lujan, 504 U.S. at 571 n. 5.

Moreover, as Defendant correctly argues, Plaintiff cannot have standing in her individual capacity

under New York law, even upon adequate presentment under the FTCA. See, Opp. at 13-14.

Accordingly, as Plaintiff was not the administratrix at the time she commenced this lawsuit in state

court, the Court lacks subject matter jurisdiction and this action is dismissed.

CONCLUSION

For the reasons set forth above, Defendant’s motion to dismiss the complaint for lack of

subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) is granted.

SO ORDERED.

Dated: Brooklyn, New York

September 27, 2023

/s/

DORA L. IRIZARRY

United States District Judge