Pryce v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CHANTE PRYCE,

Plaintiff,

21 Civ. 1698 (KPF)

-v.-

OPINION AND ORDER

UNITED STATES OF AMERICA,

Defendant.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Chante Pryce brings this action against the United States of

America pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C.

§§ 1346(b), 1402(b), 2401(b), and 2671-2680, alleging negligence, lack of

informed consent, and negligent hiring in connection with surgery and related

medical care she received from Montefiore Medical Group Comprehensive

Family Care Center (“CFCC”), Montefiore Medical Center Jack D. Weiler

Hospital (“Weiler Hospital”), and Dr. Meleen Chuang. The Government now

moves to dismiss this action pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6), arguing that all of Plaintiff’s claims are time-barred and

that the Court lacks subject matter jurisdiction over the claims against Weiler

Hospital and Dr. Chuang. For the reasons set forth in the remainder of this

Opinion, the Court finds that Plaintiff’s claims against CFCC are time-barred

by the FTCA and that it lacks subject matter jurisdiction over Plaintiff’s claims

against Weiler Hospital and Dr. Chuang. Accordingly, the Court grants the

Government’s motion to dismiss insofar as it dismisses the claims against

CFCC with prejudice and the claims against Weiler Hospital and Dr. Chuang

without prejudice.

BACKGROUND1

A. Factual Background

CFCC and Weiler Hospital are separate medical facilities, both located in

the Bronx, New York. (AC ¶¶ 18, 42). Dr. Chuang provided medical care to

Plaintiff at both facilities. (See id. at ¶ 43). More specifically, from on or about

August 11, 2017, through on or about August 22, 2017, Plaintiff received

medical care from CFCC, Weiler Hospital, and Dr. Chuang. (Id. at ¶¶ 22, 47).

The course of treatment included gynecological surgery, which, as a result of

alleged negligence on the part of CFCC, Weiler Hospital, and Dr. Chuang,

caused Plaintiff to suffer infection and wound disruption, among other serious

1 This Opinion draws its facts from the Amended Complaint (the “Amended Complaint” or

“AC” (Dkt. #15)), the well-pleaded allegations of which are taken as true for the

purposes of this Opinion, and the exhibits attached thereto. These exhibits include: the

order of the Honorable John R. Higgitt, Justice of the Supreme Court of the State of

New York, Bronx County, dated January 6, 2021 (the “January 2021 State Court Order”

(Dkt. #17 at 1-4)); the order from the same court dated May 6, 2021 (the “May 2021

State Court Order” (id. at 5-8)); and Plaintiff’s claim submitted to the Department of

Health and Human Services (“HHS”) on June 8, 2021 (the “2021 HHS Claim” (id. at

10)).

This Opinion further draws its facts from Plaintiff’s claim submitted to HHS on

October 10, 2017 (the “2017 HHS Claim” (Dkt. #36, Ex. C)) and HHS’s notice of denial

of Plaintiff’s claim sent on September 10, 2019 (the “HHS Denial” (id., Ex. D)). See

Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (stating that a court resolving a

motion to dismiss may consider the facts alleged in the complaint, together with “any

statements or documents incorporated in it by reference, as well as ... documents that

the plaintiffs either possessed or knew about and upon which they relied in bringing the

suit” (internal citations omitted)); accord Littlejohn v. City of New York, 795 F.3d 297,

303 n.1 (2d Cir. 2015). The Complaint incorporates by reference each of these

documents.

For ease of reference, the Court refers to the Government’s memorandum of law in

support of its motion to dismiss as “Gov’t Br.” (Dkt. #28); to Plaintiff’s opposition brief

as “Pl. Opp.” (Dkt. #36); and to the Government’s reply brief as “Gov’t Reply” (Dkt. #37).

injuries. (See id. at ¶¶ 26, 51). These injuries caused her to further incur

hospital and medical expenses and to experience significant physical and

emotional distress. (Id. at ¶¶ 27, 52).2

1. The 2017 HHS Claim

On October 10, 2017, Plaintiff submitted an administrative claim to

HHS, seeking redress for the injuries resulting from her surgery. (2017 HHS

Claim; see also AC ¶¶ 3-5).3 Plaintiff identified “Montefiore Medical Group

CFCC” alone as the “[a]ppropriate [f]ederal [a]gency” to which she was

submitting the claim. (2017 HHS Claim). For the date and day of the alleged

accident, Plaintiff wrote “8/11/2017 and continuing[.]” (Id.). Plaintiff

described the basis of the claim as “negligently failing to workup [Plaintiff] prior

to surgery and premature discharge resulting in multiple surgeries, hematoma

infection, abscess, outpatient wound care, scarring and questionable

infertility[.]” (Id.).

2 The Complaint omits information essential to understanding the events underlying this

litigation and each party’s role in those events. For the sake of clarity, the Court notes

a few illuminating details mentioned in Plaintiff’s opposition brief and its supporting

exhibits. Plaintiff was originally seen at the Weiler Hospital Emergency Room on

April 11, 2017, which visit resulted in the scheduling of surgery for August 11, 2017;

the surgery took place at Weiler Hospital; and Dr. Chuang was the surgeon who

operated on Plaintiff on August 11, 2017. (Pl. Opp. 2). In the months leading up to the

surgery, Plaintiff was seen by Dr. Chuang at CFCC multiple times. (See Dkt. #36,

Ex. B). During these visits, which took place in April and July of 2017, Dr. Chuang

evaluated Plaintiff and counseled Plaintiff regarding the upcoming procedure. (See id.).

The Court notes these facts solely for the sake of explaining the role of each medical

provider in this case, and recognizes that Plaintiff “may not amend [her] pleading

through [her] opposition brief.” See Maxim Grp. LLC v. Life Partners Holdings, Inc., 690

F. Supp. 2d 293, 308 (S.D.N.Y. 2010).

3 The Court notes that although the claim is dated October 4, 2017 (2017 HHS Claim),

HHS states in its denial letter that Plaintiff filed the claim on October 10, 2017 (HHS

Denial Letter). Both parties adopt the October 10, 2017 date in their briefing (see Gov’t

Br. 1; Pl. Opp. 3), and the Court will use that date as well.

On September 10, 2019, HHS sent a letter to Plaintiff denying the claim.

(HHS Denial Letter; see also AC ¶ 5). The HHS Denial Letter stated that

Plaintiff had filed an administrative tort claim under the FTCA alleging that

“the medical providers at Montefiore Medical Center, located in Bronx, New

York, committed medical malpractice by failing to perform a proper pre-surgical

work-up and prematurely discharging Ms. Pryce following the surgery.” (HHS

Denial Letter). In denying the claim, HHS explained that “[t]he evidence fail[ed]

to establish that the alleged injuries were due to the negligent or wrongful act

or omission of a federal employee acting within the scope of employment.” (Id.).

The letter advised that Plaintiff could (i) file a written request with HHS for

reconsideration of the denial within six months of September 10, 2019, i.e., on

or before March 10, 2020, or (ii) “file suit against the United States in the

appropriate federal district court” within the same time frame. (Id.).

2. The New York State Court Action

On February 6, 2020, Plaintiff filed suit in New York State Supreme

Court against CFCC, Weiler Hospital, Dr. Chuang, the Visiting Nurse Service of

New York, “John Does” 1 through 10, and “Jane Does” 1 through 10. (See AC

¶ 7). On or about September 21, 2020, CFCC, Weiler Hospital, and Dr.

Chuang (collectively, the “Moving Defendants”) moved to dismiss the action for

lack of subject matter jurisdiction (id. at ¶ 8), arguing that Plaintiff’s claims

against them were governed by the FTCA, and therefore must be brought in

federal district court (see January 2021 State Court Order 3). In an order

dated January 6, 2021, Justice John R. Higgitt granted the motion in part and

denied it without prejudice in part, dismissing Plaintiff’s claims against CFCC

but sustaining Plaintiff’s claims against Weiler Hospital and Dr. Chuang. (Id.

at 4).

In dismissing Plaintiff’s claims against CFCC, Justice Higgitt cited the

2017 HHS Claim, in which Plaintiff had identified CFCC as the “[a]ppropriate

[f]ederal [a]gency,” as well as the HHS Denial Letter, which directed Plaintiff to

bring an action in federal district court if she wished to further pursue a claim

against CFCC. (See January 2021 State Court Order 3). Conversely, Justice

Higgitt noted that Weiler Hospital and Dr. Chuang had not submitted evidence

that Plaintiff’s claims against them were governed by the FTCA, observing that

“no mention [wa]s made of either of [them] in the form associated with

[P]laintiff’s administrative tort claim or the letter from [HHS] denying the

administrative claim.” (Id. at 4). The court left open the possibility that Weiler

Hospital and Dr. Chuang could renew their motion with evidence

demonstrating that Plaintiff’s claims against them, as distinct from her claims

against CFCC, were also governed by the FTCA. (Id.).

On or about March 21, 2021, Weiler Hospital and Dr. Chuang filed a

second motion to dismiss for lack of subject matter jurisdiction. (AC ¶ 11).

Along with their motion, these defendants submitted an FTCA Deeming Notice

from HHS deeming Montefiore Medical Center (“MMC”) to be an employee of the

United States Public Health Service (“PHS”), effective January 1, 2017, through

December 31, 2017. (See May 2021 State Court Order).4 The notice stated

that PHS employees — both deemed entities and individual employees acting

within the scope of their employment — are subject to liability coverage under

the FTCA. (See id.). Weiler Hospital and Dr. Chuang also submitted a

declaration from Dr. Chuang, in which she attested that she had been

employed by MMC since 2013. (See id.). Satisfied that Plaintiff’s claims

against Weiler Hospital and Dr. Chuang were governed by the FTCA, Justice

Higgitt granted their motion and dismissed the action without prejudice as to

them in an order dated May 6, 2021. (Id.).

3. The 2021 HHS Claim

Following the dismissal of the state court action, Plaintiff filed a second

administrative claim with HHS on June 8, 2021 (the “2021 HHS Claim”). (AC

¶ 16). The 2021 HHS Claim is similar to the one Plaintiff submitted in 2017, in

that it identifies the same “date and day of accident” and “basis of claim,” but

the 2021 HHS Claim names “Montefiore MD Jack D. Weiler, Meleen Chuang,

MD-1825” as the appropriate federal agencies. (2021 HHS Claim). As of the

date Plaintiff filed the Amended Complaint in this action, HHS had not made a

final determination on the claim (see AC ¶ 16), and the parties have not

advised the Court of any determinations made in the intervening time period.

4 The Court notes that MMC, CFCC, and Weiler Hospital are each separate entities. (See

generally Recio Decl.).

3. FTCA Coverage in This Matter

In support of its motion to dismiss, the Government submitted a

Declaration from Frances M. Recio, an attorney for the HHS Office of the

General Counsel (“Recio Decl.” (Dkt. #29)). The Recio Declaration lays out the

various contractual relationships between and among each medical center and

doctor relevant to this matter, as well as the FTCA coverage applicable to each.

The Declaration explains the following: Bronx Community Health Network

(“BCHN”) was deemed eligible for FTCA malpractice coverage starting

January 1, 2017, and coverage has continued without interruption since that

time. (Recio Decl. ¶ 4; see also Gov’t Br. 4). The coverage extends to BCHN

and its approved sites, as well as to BCHN employees acting within the scope of

their employment. (Recio Decl. ¶ 4). BCHN, in turn, has a medical servicing

contract with MMC, pursuant to which MMC provides healthcare services at

fifteen approved MMC-owned-and-operated “delivery sites” within BCHN’s

service area. (Id. at ¶ 5). By virtue of MMC’s contractual relationship with

BCHN, HHS deems MMC to be eligible for FTCA coverage as a “subrecipient” to

the extent the medical services at issue were provided at one of the MMC-

owned-and-operated sites listed in BCHN’s federal grant application. (Id. at

¶ 6). CFCC is one of those sites. (Id. at ¶¶ 5-6).

Further, to the extent that a medical provider at one of these sites,

including CFCC, provides a “continuous course of treatment” from the site to

an MMC hospital, such as Weiler Hospital, that treatment is also subject to

FTCA coverage. (Recio Decl. ¶ 6). However, coverage does not extend to other

MMC employees providing care at an MMC hospital. (Id.). Per HHS records,

Dr. Chuang provided medical services to Plaintiff at CFCC, and subsequently

provided medical services to Plaintiff at Weiler Hospital as part of a continuous

course of treatment. (Id. at ¶ 9). HHS accordingly deemed BCHN, CFCC, and

Dr. Chuang to be PHS employees, but did not deem Weiler Hospital to be a PHS

employee. (Id. at ¶¶ 10-11).

B. Procedural Background

After CFCC was dismissed as a defendant from the state court action,

and prior to the state court’s dismissal of Plaintiff’s claims against Weiler

Hospital and Dr. Chuang, Plaintiff commenced the present action against the

United States on February 25, 2021, alleging claims pertaining to CFCC only.

(Dkt. #1). Due to a filing deficiency, the Complaint did not appear on the

docket in its proper form until March 24, 2021. (Dkt. #7). On June 7, 2021,

the Government filed a pre-motion letter indicating its intent to move to

dismiss the Complaint under Rule 12(b)(6), arguing that Plaintiff’s claims

against CFCC were time-barred under the FTCA. (Dkt. #12). On June 8, 2021,

Plaintiff filed an opposition letter indicating her intent to amend the Complaint.

(Dkt. #13). On June 22, 2021, Plaintiff filed the Amended Complaint, the

operative pleading in this matter, expanding the claims to include conduct by

Weiler Hospital and Dr. Chuang — the parties that had since been dismissed

from Plaintiff’s state court action. (Dkt. #15).

On July 16, 2021, the Government renewed its request for a pre-motion

conference regarding its intent to move to dismiss the Amended Complaint

under Rules 12(b)(1) and 12(b)(6); it argued that, in addition to all of the claims

being time-barred, the Court lacked jurisdiction over the claims against Weiler

Hospital and Dr. Chuang because Plaintiff had not exhausted her

administrative remedies under the FTCA. (Dkt. #22). In light of the

anticipated motion, the Court adjourned the initial pretrial conference then

scheduled for July 29, 2021, and set a briefing schedule. (See Dkt. #24). The

Government filed its motion to dismiss on September 3, 2021 (Dkt. #27);

Plaintiff filed her opposition brief on October 29, 2021 (Dkt. #36); and the

Government filed its reply brief on November 17, 2021 (Dkt. #37). The motion

has now been fully briefed and is ripe for the Court’s consideration.

DISCUSSION

A. Applicable Law

1. Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)

The Government grounds its motion in both Rule 12(b)(1) and

Rule 12(b)(6), and so the Court discusses both provisions. Rule 12(b)(1)

permits a party to move to dismiss a complaint for “lack of subject-matter

jurisdiction.” Fed. R. Civ. P. 12(b)(1). “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.” Lyons v. Litton Loan

Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016) (quoting Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000)). “A plaintiff asserting subject

matter jurisdiction has the burden of proving by a preponderance of the

evidence that it exists.” Makarova, 201 F.3d at 113.

A Rule 12(b)(1) motion can be either “facial,” meaning it is based solely

on the allegations of the complaint and exhibits attached to it, or “fact-based,”

meaning it is based on evidence beyond the pleadings. See Harty v. W. Point

Realty, Inc., 28 F.4th 435, 441 (2d Cir. 2022) (quoting Carter v. HealthPort

Techs., LLC, 882 F.3d 47, 56 (2d Cir. 2016)). A plaintiff opposing a facial Rule

12(b)(1) motion bears “no evidentiary burden.” Reliability Inc. v. Doki, No. 20

Civ. 7109 (KPF), 2021 WL 3408589, at *6 (S.D.N.Y. Aug. 4, 2021) (quoting

Carter, 822 F.3d at 56). Instead, to resolve a facial Rule 12(b)(1) motion, a

district court must “determine whether the complaint and its exhibits allege

facts that establish subject matter jurisdiction.” Id. (quoting Carter, 822 F.3d

at 56 (internal quotation marks and alterations omitted)). To make that

determination, a court must “accept the complaint’s allegations as true and

draw all reasonable inferences in favor of the plaintiff.” Id. (quoting Carter, 822

F.3d at 57 (internal quotation marks and alterations omitted)).

“Alternatively, a defendant is permitted to make a fact-based Rule

12(b)(1) motion, proffering evidence beyond the complaint and its exhibits.”

Carter, 822 F.3d at 57; see also MMA Consultants 1, Inc. v. Republic of Peru,

719 F. App’x 47, 49 (2d Cir. 2017) (summary order) (defining fact-based Rule

12(b)(1) motion as one where “the defendant puts forward evidence to challenge

the factual contentions underlying the plaintiff’s assertion of subject-matter

jurisdiction”). “In opposition to such a motion, [a plaintiff] must come forward

with evidence of their own to controvert that presented by the defendant, or

may instead rely on the allegations in the[ir p]leading if the evidence proffered

by the defendant is immaterial because it does not contradict plausible

allegations that are themselves sufficient to show standing.” Katz v. Donna

Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017) (internal citations and

quotations omitted). If a defendant supports its fact-based Rule 12(b)(1)

motion with “material and controverted” “extrinsic evidence,” a “district court

will need to make findings of fact in aid of its decision as to subject matter

jurisdiction.” Carter, 822 F.3d at 57.

“When a defendant moves to dismiss under Rule 12(b)(1) for lack of

subject matter jurisdiction, and also moves to dismiss on other grounds, the

Court must consider the Rule 12(b)(1) motion first.” Reliability Inc., 2021 WL

3408589, at *6 (citing Almazon v. JPMorgan Chase Bank, Nat’l Ass’n, No. 19

Civ. 4871 (VEC), 2020 WL 1151313, at *6 (S.D.N.Y. Mar. 9, 2020), appeal

dismissed, No. 20-1138 (2d Cir. Aug. 4, 2020)); accord Rhulen Agency, Inc. v.

Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990).

Under Rule 12(b)(6), a party may move to dismiss a complaint for “failure

to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).

When considering a motion to dismiss under Rule 12(b)(6), a court should

“draw all reasonable inferences in Plaintiff[’s] favor, assume all well-pleaded

factual allegations to be true, and determine whether they plausibly give rise to

an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.

2011) (internal quotation marks and citation omitted). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). While the plausibility requirement “is not akin to a ‘probability

requirement,’ ... it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id. Toward that end, a plaintiff must provide more than “an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Moreover,

“[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s

liability, it ‘stops short of the line between possibility and plausibility of

entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

2. The FTCA

Where the United States is named as a defendant in a common-law tort

suit, as in the present case, the doctrine of sovereign immunity may present a

jurisdictional bar to suit. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). “The

basic rule of federal sovereign immunity is that the United States cannot be

sued at all without the consent of Congress.” Block v. North Dakota ex rel. Bd.

of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Congress, however, can waive

sovereign immunity, and such waiver is a prerequisite to subject matter

jurisdiction. Presidential Gardens Assocs. v. United States ex rel. Sec’y of Hous.

& Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999). The United States, through

the FTCA, has effected a “limited waiver of sovereign immunity.” United States

v. Orleans, 425 U.S. 807, 813 (1976). That is, with the passage of the FTCA,

Congress “‘waived the sovereign immunity of the United States for certain torts

committed by federal employees’ acting within the scope of their employment.”

Brownback v. King, 141 S. Ct. 740, 746 (2021) (quoting Meyer, 510 U.S. at

475-76) (internal quotation marks omitted). As a result, in certain tort actions

against employees of the federal government, the United States is as liable as a

private individual would be. See 28 U.S.C. § 1346(b)(1).

a. Medical Malpractice Coverage for FQHCs

Pursuant to the Public Health Services Act of 1944, Pub. L. 78-410, 58

Stat. 682, as amended by the Federally Supported Health Centers Assistance

Acts of 1992 and 1995, Pub. L. 102-501, 106 Stat. 3268, Pub. L. 104-73, 109

Stat. 777, the United States “deems” certain health centers that receive federal

funding (known as “Federally Qualified Health Centers,” or “FQHCs”) to be

employees of the Public Health Service. 42 U.S.C. § 233(g)(1)(A), (4). In so

doing, “[t]he United States ... in effect insures designated public health officials

by standing in their place financially when they are sued for the performance of

their medical duties.” Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir. 2000). For

these facilities and their employees, FTCA liability is the exclusive remedy for

tort claims. See 42 U.S.C. § 233(g)(1)(A), (4). Accordingly, to the extent that a

plaintiff wishes to pursue claims against a FQHC or one of its employees, it

must name the United States as the defendant pursuant to the FTCA. See 42

U.S.C. § 233(g).

b. The FTCA Exhaustion Requirement

The FTCA requires that before a plaintiff institutes an action for “a claim

against the United States for money 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 [or her]

office or employment,” the plaintiff must “first present[] the claim to the

appropriate Federal agency,” and the claim must be “finally denied by the

agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a).

Thus, “[t]he FTCA requires that a claimant exhaust all administrative remedies

before filing a complaint in federal district court.” Celestine v. Mount Vernon

Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). This requirement is

jurisdictional and cannot be waived. Id.; accord Manchanda v. Lewis, No. 21-

1088-cv, 2021 WL 5986877, at *2 (2d Cir. Dec. 17, 2021) (summary order). “It

extends to all suits, including those begun in state court.” Celestine, 403 F.3d

at 82.

“[B]ecause the FTCA constitutes a waiver of sovereign immunity, the

procedures set forth in [it] must be adhered to strictly.” Keene Corp. v. United

States, 700 F.2d 836, 841 (2d Cir. 1983). As with other subject matter

jurisdiction inquiries, “[t]he burden is on [the] plaintiff to demonstrate subject

matter jurisdiction in compliance with the FTCA’s requirements.” Hardie v.

United States, 501 F. Supp. 3d 152, 158 (E.D.N.Y. 2020), aff’d, 859 F. App’x

612 (2d Cir. 2021). However, to account for the case in which a plaintiff does

not know that an entity is covered by the FTCA and pursues the action in state

court without first exhausting the required administrative remedies, Congress

added an escape valve in the form of 28 U.S.C. § 2679(d)(5). Section 2679(d)(5)

provides that:

Whenever an action or proceeding in which the United

States is substituted as the party defendant under this

subsection is dismissed for failure first to present a

claim pursuant to section 2675(a) of this title, such a

claim shall be deemed timely … if — [i] the claim would

have been timely had it been filed on the date the

underlying civil action was commenced, and [ii] the

claim is presented to the appropriate Federal agency

within 60 days after dismissal of the civil action.

28 U.S.C. § 2679(d)(5). “[S]tate court actions removed to federal court will still

be considered timely” if the two above criteria are met. Celestine, 403 F.3d at

83. Thus, under the FTCA, a plaintiff “can file an administrative claim within

sixty days following the district court’s dismissal, and her claim in federal court

would be treated — for statute of limitations purposes — as if it had been filed

on ... the date the original suit was filed in state court,” allaying concerns of

unfairness to plaintiffs who are unaware of FTCA coverage and procedures. Id.

at 84 (emphasis in original).

c. The Statute of Limitations and Equitable Tolling

The FTCA further bars a tort claim against the United States “unless it is

presented in writing to the appropriate Federal agency within two years after

such claim accrues or unless action is begun within six months after the date

of mailing, by certified or registered mail, of notice of final denial of the claim

by the agency to which it was presented.” 28 U.S.C. § 2401(b). A time-barred

FTCA claim must be dismissed with prejudice. See Barone v. United States,

No. 12 Civ. 4103 (LAK), 2014 WL 4467780, at *14 (S.D.N.Y. Sept. 10, 2014)

(dismissing FTCA claim with prejudice because it was time-barred). The

FTCA’s time bars are non-jurisdictional, however, and therefore subject to

equitable tolling. United States v. Wong, 575 U.S. 402, 412 (2015).

“Although equitable tolling is applicable only in rare and exceptional

circumstances … it is sometimes necessary as a matter of fairness.” Phillips v.

Generations Fam. Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013) (internal

citations and quotation marks omitted). A litigant seeking equitable tolling

generally bears the burden of establishing “[i] that [she] has been pursuing

[her] rights diligently, and [ii] that some extraordinary circumstance stood in

[her] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The term

“extraordinary” refers “not to the uniqueness of a party’s circumstances, but

rather to the severity of the obstacle impeding compliance with a limitations

period.” PT Rahajasa Media Internet v. Telecomm. & Informatics Fin. Provider &

Mgmt. Ctr., No. 20 Civ. 11035 (PGG), 2022 WL 992841, at *4 (S.D.N.Y. Apr. 1,

2022). To satisfy the burden, it is incumbent upon the plaintiff to “show that

[her] lawyers were reasonably diligent in determining ‘the appropriate parties to

sue, and what, if any, restrictions on the time and forum for bringing such a

claim might exist.’” Phillips, 723 F.3d at 150 (quoting A.Q.C. ex rel. Castillo v.

United States, 656 F.3d 135, 145 (2d Cir. 2011)). There is no per se rule as to

what constitutes diligence; “[r]ather, the district court should consider all of the

relevant facts and circumstances — including whether the plaintiff should have

known to investigate the issue — to determine, utilizing its own discretion,

whether the plaintiff and lawyer were sufficiently diligent.” Id. at 153.

B. Plaintiff’s Claims Against CFCC Are Time-Barred Under the FTCA

The Government focuses first on Plaintiff’s claims against CFCC, arguing

that these claims must be dismissed under Rule 12(b)(6) because they are

time-barred by the FTCA’s statute of limitations. (Gov’t Br. 6-8). As just

discussed, the FTCA bars a tort claim against the United States “unless it is

presented in writing to the appropriate Federal agency within two years after

such claim accrues or unless action is begun within six months after the

date … of final denial of the claim by the agency to which it was presented.” 28

U.S.C. § 2401(b). The Government argues that Plaintiff failed to bring an

action in federal court within six months of HHS’s denial of her claims against

CFCC, and, therefore, her claims against that defendant must be dismissed.

(Gov’t Br. 6-8). Plaintiff concedes that she brought her action in federal court

more than six months after HHS denied her claims against CFCC, but offers

two bases to excuse this failure. First, she argues that Section 2679(d)(5)

renders her claims against CFCC timely because the state court action was

filed within six months of HHS’s denial. (Pl. Opp. 11-12). Second, she argues

that the statute of limitations should be equitably tolled. (Id. at 12-13). The

Court finds that Plaintiff’s claims cannot be made timely by the application of

Section 2679(d)(5) or by equitably tolling the statute of limitations.

As an initial matter, the FTCA’s statute of limitations plainly covers

Plaintiff’s claims against CFCC. Plaintiff, having identified CFCC as subject to

FTCA coverage in 2017, submitted a claim to HHS that was denied on

September 10, 2019. (See HHS Denial Letter). The HHS Denial Letter provided

that if Plaintiff was dissatisfied with HHS’s determination, she could file a

written request for reconsideration by HHS or “file suit against the United

States in the appropriate federal district court within six (6) months from the

date of mailing of [the] determination[.]” (Id. (emphasis added) (citing 28 U.S.C.

§ 2401(b))). Plaintiff instead filed suit in New York State Supreme Court on

February 6, 2020. (AC ¶ 7). She did not file the present action until

February 25, 2021, after CFCC had been dismissed as a defendant from the

state court action, thus missing the statute of limitations by nearly a year.

(See Dkt. #1; January 2021 State Court Order).5 Regardless of what Plaintiff

may have believed about her claims against Weiler Hospital and Dr. Chuang,

the HHS Denial Letter expressly informed her that she had six months after

September 10, 2019, to file her claims against CFCC in federal district court.

The Court finds nothing “ambiguous and misleading” (Pl. Opp. 12) about this

instruction.

Considering now Plaintiff’s arguments for salvaging her claims against

CFCC, the Court finds Plaintiff’s invocation of Section 2679(d)(5) to be

unpersuasive. Plaintiff’s argument distills to a misleading quotation from

Section 2679(d)(5), coupled with an assertion that the present action should be

permitted to stand because “the response of HHS was ambiguous and

misleading as to CFCC[,] leading to the original institution in State Court.” (Pl.

Opp. 12). That is, Plaintiff suggests that she filed the action in state court

because she was unsure of the entities to which the HHS Denial Letter applied,

5 CFCC was dismissed from the state court action without prejudice. (See January 2021

State Court Order). Plaintiff argues that the “‘without prejudice’ portion of the ruling

was an acknowledgment of [their] agreement that the case could be re-instituted in

Federal Court.” (Pl. Opp. 5). Whatever the contours of this “acknowledgement,”

Plaintiff could not reasonably have understood a state court dismissal without prejudice

to be a guarantee that her claims against CFCC would survive a motion to dismiss in a

subsequent federal court action.

given that the agency characterized her claims as against “Montefiore Medical

Center, located in Bronx, New York[.]” (HHS Denial Letter; see also Pl. Opp. 3

(describing the HHS Denial Letter as “confusing and ambiguous, incorrectly

stating that our claim was against ‘the medical providers at Montefiore Medical

Center, located in Bronx New York’ when it was specifically against Montefiore

Medical Center – CFCC”)). Because the state court action was filed within six

months of the HHS Denial Letter, Plaintiff reasons, Section 2679(d)(5) permits

her otherwise untimely federal action to stand.6

In advancing her argument, Plaintiff misquotes Section 2679(d)(5) in a

way that fundamentally alters its meaning. Plaintiff states that the provision

pertains to any “action or proceeding in which the United States is substituted

as the party defendant under this subsection [that] is dismissed for failure to

present a claim[.]” (Pl. Opp. 11). But Plaintiff omits the operative phrase

“pursuant to section 2675(a) of this title,” which limits the application of

Section 2679(d)(5) to claims dismissed pursuant to Section 2675(a). 28 U.S.C.

§ 2679(d)(5). In other words, Section 2679(d)(5) makes an administrative claim

timely if a state court action is dismissed for failure to exhaust administrative

6 While HHS’s characterization of Plaintiff’s claim was not a model of clarity, any

vagueness counseled in favor of action in the opposite direction, i.e., filing suit against

all parties in federal district court. Plaintiff knew that the claim she submitted to HHS

in 2017 identified “Montefiore Medical Group CFCC” as the appropriate federal agency.

(2017 HHS Claim (emphasis added)). Given that the HHS Denial Letter was a direct

response to Plaintiff’s claim, it was only reasonable to assume that HHS’s reference to

“Montefiore Medical Center” meant CFCC. What is more, even if Plaintiff were under

the impression that the HHS Denial Letter included Plaintiff’s claims against Weiler

Hospital and Dr. Chuang, logic would dictate that Plaintiff file suit against all parties in

federal district court per the explicit instructions in the HHS Denial Letter.

remedies under Section 2675(a), and the plaintiff subsequently files an

administrative claim to exhaust administrative remedies prior to pursuing her

claims in federal court. It does not apply here, where Plaintiff did exhaust her

administrative remedies against CFCC, and CFCC was dismissed from the

state court action because the state court lacked subject matter jurisdiction

over the FTCA claims. (See January 2021 State Court Order 3-4). See also

Abdoulaye v. Cimaglia, No. 15 Civ. 4921 (PKC), 2018 WL 1890488, at *5

(S.D.N.Y. Mar. 30, 2018) (finding that Section 2675(a) did not bar plaintiff’s

claims, and therefore that Section 2679(d)(5) did not apply). Put somewhat

differently, Section 2679(d)(5) makes timely certain delayed administrative

claims, but does not do the same for delayed federal district court actions.

Therefore, Section 2679(d)(5) is inapposite to Plaintiff’s claims against CFCC.

The Court additionally finds that Plaintiff’s untimely claims against

CFCC cannot be saved by the doctrine of equitable tolling. While Plaintiff

maintains that she made a “diligent effort in pursuing her right to prosecute

this matter[,]” Plaintiff’s counsel’s lack of diligence — demonstrated by filing

suit in the wrong court — indicates otherwise. (Pl. Opp. 13). See also Palmer-

Williams v. United States, No. 14 Civ. 9260 (CS), 2016 WL 676465, at *7

(S.D.N.Y. Feb. 18, 2016) (finding that the remedy of equitable tolling is limited

to those “who have not contributed to the delay”), aff’d, 675 F. App’x 70 (2d

Cir. 2017) (summary order). Further, Plaintiff cites the COVID-19 pandemic as

an “extraordinary circumstance” without meaningfully explaining how it

affected her ability to pursue her claims. (See Pl. Opp. 13; see also Gov’t

Reply 3 (highlighting that Plaintiff filed the state court action one month before

New York was declared to be in a state of emergency due to the COVID-19

pandemic)). Because Plaintiff has not carried her burden of establishing that

she is entitled to equitable tolling, her claims against CFCC must be dismissed

with prejudice.7

C. The Court Lacks Jurisdiction to Consider Plaintiff’s Claims Against

Weiler Hospital and Dr. Chuang

The Government next argues that Plaintiff’s claims against Weiler

Hospital and Dr. Chuang must be dismissed because Plaintiff failed to exhaust

her administrative remedies as required by Section 2675(a), thereby depriving

the Court of subject matter jurisdiction over her claims; in the alternative, it

argues that these claims are time-barred. (Gov’t Br. 11-13). Plaintiff responds

that “[Weiler] Hospital and Dr. Chuang cannot have it both ways” (Pl. Opp. 10),

by which she means that either her claims against them are “FTCA eligible, in

which case [this] case should … go forward in Federal Court, or they are not, in

which case the action should be remanded to the State Court” (id. at 11).

Because Plaintiff failed to exhaust the required administrative remedies, as

evidenced by her pending 2021 HHS Claim, the Court lacks subject matter

7 The Government also argues that Plaintiff’s claims for lack of informed consent and

negligent hiring must be dismissed because Plaintiff did not raise them before HHS and

thus failed to exhaust administrative remedies as required by Section 2675(a). (See

Gov’t Br. 14-15). While this may be true, the Court finds it unnecessary to analyze the

lack of informed consent and negligent hiring claims separately from the general

negligence claim, as all claims against CFCC arising from Plaintiff’s 2017 surgery are

time-barred under the FTCA.

jurisdiction over her FTCA-eligible claims against Weiler Hospital and Dr.

Chuang as described herein.

Working with the information provided in the Recio Declaration, the

Government argues first that Plaintiff’s claims against Weiler Hospital and Dr.

Chuang are covered by the FTCA insofar as they relate to care that Dr. Chuang

provided at Weiler Hospital that constitutes a “continuous course of treatment”

from the care she provided to Plaintiff at CFCC. (Gov’t Br. 11). But because

Weiler Hospital does not have blanket FTCA coverage, the Government argues

that the United States cannot be held liable for other medical care provided to

Plaintiff by the Hospital or its other employees. (See id.). Thus, “Plaintiff’s

claims with respect to her treatment at [Weiler] Hospital are limited to the care

provided by Dr. Chuang at [Weiler] Hospital in a continuous course of

treatment from the care she provided at CFCC.” (Id.). In Plaintiff’s view, the

Recio Declaration “makes it clear that actions occurring at [Weiler] are exempt

from FTCA requirements, and should have remained in State Court, as the first

State Court action directed.” (Pl. Opp. 8).

The Court resolves the parties’ dispute as follows: The medical care

provided to Plaintiff by Dr. Chuang at Weiler Hospital is subject to FTCA

coverage because it was part of a continuous course of treatment from the care

provided to Plaintiff by Dr. Chuang at CFCC. (See Recio Decl. ¶ 9). Thus, at

this first stage of the analysis, the Court retains jurisdiction over Plaintiff’s

claims against Weiler Hospital and Dr. Chuang that arise under this

“continuous course of treatment” theory. Conversely, to the extent that

Plaintiff’s claims are directed at Weiler Hospital itself, or at other MMC

employees who did not provide continuous care to Plaintiff arising from their

treatment of her at CFCC, such claims are not covered by the FTCA, and the

Court will dismiss them without prejudice to their refiling.8

Ultimately, Plaintiff’s FTCA-eligible claims against Weiler Hospital and

Dr. Chuang must nonetheless be dismissed because Plaintiff failed to exhaust

her administrative remedies with respect to these claims as required by Section

2675(a) at the time this lawsuit was brought. (See Gov’t Br. 11-13). Plaintiff

submitted her claims as to these parties to HHS on June 8, 2021, and HHS

has yet to make a final determination. (See 2021 HHS Claim). Because the

exhaustion requirement is jurisdictional, a court lacks subject matter

jurisdiction where a suit is initiated on a FTCA claim before the agency makes

a final determination on the claim. See 28 U.S.C. § 2675(a); see also McNeil v.

United States, 508 U.S. 106, 113 (1993) (holding that an FTCA action could not

be maintained where a claimant failed to exhaust administrative remedies prior

to filing suit, even though he did so before substantial progress was made in

the litigation).

Plaintiff argues that the Court should retain subject matter jurisdiction

because she was unaware that her claims against Weiler Hospital and Dr.

8 The Court appreciates the frustration that Plaintiff may feel, given the prior dismissal of

her claims against Weiler Hospital and Dr. Chuang in the May 2021 State Court Order.

However, the Deeming Notice lists BCHN as the grantee organization and lists MMC

only as a subrecipient of BCHN’s grant. (Recio Decl., Ex. 5). Moreover, the analysis

contained in the Recio Declaration, and the arguments of the parties in this litigation,

are more precise than the information and arguments presented to Justice Higgitt.

Chuang were covered by the FTCA, and, upon becoming aware, filed the HHS

claims against them after they had been dismissed from the state court action.

(Pl. Opp. 14). On Plaintiff’s account, because the allegations in the 2021 HHS

Claim “derive from the same transaction and occurrence” as the 2017 HHS

Claim, subject matter jurisdiction over the matter is essentially conferred on

this Court. (Id.). Somewhat tellingly, Plaintiff cites no cases to support the

proposition that a federal court has jurisdiction to consider an unexhausted

administrative tort claim where an agency has previously decided a separate,

exhausted claim arising from the same transaction or occurrence. And the

Court is not convinced by Plaintiff’s reasoning that the 2017 HHS Claim

confers subject matter jurisdiction over the claims set forth in the 2021 HHS

Claim merely by virtue of their common factual nucleus. Thus, because

Plaintiff’s administrative claims against Weiler Hospital and Dr. Chuang remain

pending with HHS, the Court lacks subject matter jurisdiction over her FTCA-

eligible claims against them under Section 2675(a).

Perhaps anticipating a future resolution of the 2021 HHS Claim, the

Government argues additionally that Plaintiff’s claims against Weiler Hospital

and Dr. Chuang, much like Plaintiff’s claims against CFCC, are time-barred

and must be dismissed with prejudice. (Gov’t Br. 13). To review, the FTCA

provides that a claim must be “presented in writing to the appropriate Federal

agency within two years after [it] accrues[.]” 28 U.S.C. § 2401(b). Plaintiff

submitted her claim against Weiler Hospital and Dr. Chuang to HHS on

June 8, 2021, well over two years after her claim had accrued in August 2017.9

From this, the Government reasons that the statute of limitations bars

Plaintiff’s claims against Weiler Hospital and Dr. Chuang.10 The Court

concludes, however, that given its acknowledged lack of subject matter

jurisdiction, the prudent course of action is not to opine on the merits of these

claims. See Reliability Inc., 2021 WL 3408589, at *6 (“When a defendant moves

to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, and also

moves to dismiss on other grounds, the Court must consider the Rule 12(b)(1)

motion first.”). Accordingly, Plaintiff’s claims against Weiler Hospital and Dr.

Chuang are dismissed without prejudice for lack of subject matter jurisdiction.

CONCLUSION

The Court’s focus in this Opinion on the legal issues raised in the parties’

submissions should not be taken as a lack of concern for the physical and

emotional injuries alleged by Plaintiff. The fact remains, however, that for the

various reasons set forth in this Opinion, the Court cannot consider her

9 Both of Plaintiff’s administrative claims identify “8/11/2017 and continuing” as the

date the “accident” occurred. (2017 HHS Claim; 2021 HHS Claim). Plaintiff’s

complaint, however, alleges negligence related to treatment from August 11, 2017 to

August 22, 2017. (AC ¶ 3). “Typically, FTCA medical malpractice claims accrue ‘at the

time of injury.’” A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 139 (2d Cir. 2011)

(quoting Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)). The Court

therefore considers the claim to have accrued during the period from August 11, 2017,

to August 22, 2017.

10 The Government seeks to preempt Plaintiff’s use of Section 2679(d)(5) to make the 2021

HHS Claim timely by pointing out that the provision can only be relied upon if the

administrative claim would have been timely had it been filed on the day the underlying

civil action commenced. (Gov’t Br. 13; Gov’t Reply 5). The state court action was

initiated on February 6, 2020, more than two years after the claim accrued. (AC ¶ 7).

The administrative claim would have thus been untimely if it was filed on the day the

state court action was commenced. See 28 U.S.C. § 2401(b).

claims. The Government’s motion to dismiss is GRANTED. Plaintiff's claims

against CFCC are dismissed with prejudice, and Plaintiffs claims against

Weiler Hospital and Dr. Chuang are dismissed without prejudice. The Clerk of

Court is directed to terminate all pending motions, adjourn all remaining dates,

and close this case.

SO ORDERED.

Dated: August 8, 2022 Kathe Mal. flr

New York, New York

KATHERINE POLK FAILLA

United States District Judge

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