OPINION AND ORDER
Plaintiffs Taniya Porter (“Porter”), and her parents, Desiree Robinson and Damon Porter, (collectively “plaintiffs”)' commenced this action against defendants Mount Vernon Neighborhood Health Center (“Mount Vernon”), and its employees, Dinesehandra Ghael, M.D. and Philip Owusu-Ansah, M.D. (collectively the “federal defendants”) as well as against Daniel Hirsch, M.D., Ira Novich, M.D., Mark Glassman, M.D., Lori Semel, M.D., Cynthia Cohen, M.D., and Sound Shore Medical Center of Westchester (“Sound Shore”) (collectively “defendants”). 1 Plaintiffs allege that all defendants were negligent in the care and treatment of Porter and seek monetary damages. All defendants including the federal defendants are sued in their prоfessional capacities. The federal defendants now move (1) to substitute the United States of America (the “United States”) as defendant in their place, pursuant to 28 U.S.C. § 2679 and (2) to dismiss the complaint against the United States рursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. For the reasons stated herein, these motions are granted. As to the remaining defendants, the dismissal of the claims against the government divests this Court of subject matter jurisdiction, and we therefore remand this action to New York State Supreme Court, County of Westchester, from which it was removed to this Court.
BACKGROUND
I. Plaintiffs’Factual Allegations
Plaintiffs’ complaint alleges that Porter received negligent medical care and treatment while a patient at Sound Shore and Mount Vernon and.specifically charges defendants Ghael, Owusu-Ansah, Hirsch, Novich, and Glassman with responsibility therefor. (V.CompltA 58.) Porter sought treаtment from defendants beginning on or about February 22, 2001 and continuing thereafter.
(Id.
at ¶¶ 6, 12, 18, 24, 30, 35, 41, 49, 56.) Porter alleges that defendants “were reckless, careless and negligent in departing from accepted medical practice in the diagnosis, care, treatment and services rendered ...; in failing to properly diagnose and treat ... in an accepted and timely manner; in causing and contributing to the condition ...; and in being reckless and negligent in the сare and
II. Procedural History
On or about August 15, 2003, plaintiffs filed a Summons with Notice in the Supreme Court of the State of New York, County of Westchester against all defendants. The federal defendants assert that pursuant to the Public Health Service Act, as аmended by the Federally Supported Health Centers Assistance Act of 1995, 42 U.S.C. § 201 et seq. (the “FSHCAA”), they are “deemed to be employees of the United States Government, effective November 21, 1994, for purposes of civil actions sеeking damages for personal injury resulting from the performance of medical, surgical, dental or related functions.” (Defs. Mem. Supp. Mot. Substitute and Dismiss at 3; Dart Decl. ¶¶ 5, 6, Ex. A.)
In addition, on April 30, 2004, pursuant to 38 U.S.C. § 7316(c), 28 U.S.C. § 2679, and 28 C.F.R. § 15.3(a), United States Attorney David N. Kelley, certified that Mount Vernon, Ghael and Owusu-Ansah were acting within the scope of their federal employment in their treatment of Porter. (Trager Deck, Ex. C.) On June 1, 2004, this action was removed to federal court pursuant tо 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2) which allow the removal of covered tort actions against Public Health Service employees at any time before trial upon the proper certification by the United States Attorney. (Defs. Mem. Suрp. Mot. Substitute and Dismiss at 3.) It should also be noted that, to date, plaintiffs have not filed an administrative claim with the United States Department of Health and Human Services (“HHS”), the appropriate federal agency cоncerning the claims raised in this action. (Id. at 4; Dart Deck ¶ 4.)
DISCUSSION
I. The Federal Defendants’ Motion to Substitute the United States as Defendant
Mount Vernon, Ghael and Owusu-Ansah move to substitute the United States as a defendant in their place to the extent that plaintiffs’ claims pertain to acts or omissions on or after November 21, 1994, the date as of which Mount Vernon, and Ghael and Owusu-Ansah, as employees of Mount Vernon, were deemed Public Health Service employеes for purposes of the Federal Tort Claims Act (“FTCA”). (Defs. Mem. Supp. Mot. Substitute and Dismiss at 3.)
Suit against the United States is the exclusive remedy for damages “for personal injury, including death, resulting from the performance of medical, surgical, dental or related functions ... by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment.” 42 U.S.C. § 233(a); 28 U.S.C. § 1346(b)(1). Further, upon certification by the Attorney General or his designee that a Public Health Service employee named as a defendant in a civil action “was acting within the scope of his office or employment at the time of the incident оut of which the claim arose” any such claim brought in any civil action or proceeding in state court “shall be removed ... to the district court of the United States ... [s]uch action or proceeding shall be deemed tо be an action or proceeding brought against the United
In the case at bar, pursuant to 28 U.S.C. § 2679(d)(2), 42 U.S.C. § 233(c), and 28 C.F.R. § 15.3(a), the Attorney General’s designee has certified that defendant Mount Vernon and its employees, defendants Ghael and Owusu-Ansah, were acting within the scope of their employment at the time they rendered medical care to Porter. (Trager Decl., Ex. C.) Plaintiffs have not challenged that certification. Therefore, the United States is substituted as defendant in the place of Mount Vernon, Ghael and Owusu-Ansah for any acts or omissions in the treatment of Porter.
See McHugh v. Univ. of Vermont,
It The United States’ Motion to Dismiss the Actiоn as Against the United States
In anticipation of its substitution as a defendant, the United States has moved pursuant to Fed. R. Civ. P. 12(b)(1) to have the action against it dismissed for lack of subject matter jurisdiction. Under the FTCA, a claimant must exhaust all administrative remedies with the appropriate federal agency prior to filing a complaint in federal district court.
See
28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States for money damages fоr injury ... 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, unless the claimant shall have first presented the claim to the appropriate federal agency .... ”);
see also McNeil v. United States,
Here, it appears that plaintiffs have not exhausted their administrative remedies. Indeed, there is no evidence that plaintiffs ever presented their claim to HHS, the appropriate federal agency. (Dart Decl. ¶¶ 1-4.) The fact that plaintiffs have failed to file an administrative claim, as mandated by § 2765(a), requires that the United States’ motion to dismiss for lack of subject matter jurisdiction be granted.
III. Lack of Subject Matter Jurisdiction as to Rеmaining Defendants
Dismissal of the claims against the United States dissolves the sole basis for this Court’s exercise of subject matter jurisdiction over the claims against the remaining defendants. Pursuant to 28 U.S.C. § 1367(a), when district courts in a civil action have original jurisdiction, “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article
We cannot exercise supplemental jurisdiction over plaintiffs’ remaining claims because this Court does not have subject matter jurisdiction over the United States as a defendant.
See
28 U.S.C. § 1447(c) (providing in relevant part: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”);
see also Bueno,
CONCLUSION
For all of the foregoing reasons, the motion of defendants Mount Vernon Neighborhood Health Center, Dr. Dines-chandra Ghael and Dr. Philip Owusu-An-sah to substitute the United States of America (the “United States”) as defendant is granted. The motion of the United States to dismiss the action as against it is also granted; the dismissal is without prejudice because it is based only on failure to exhaust administrative remedies. As to the claims against the remaining defendants, this action is remanded to New York State Supreme Court, County of Westchester for lack of subjeсt matter jurisdiction.
SO ORDERED.