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Boteo v. United States

United States District Court, D. Massachusetts

September 30, 2014

JUAN BOTEO, and AURA GONZALEZ, individually and on behalf of B.B., Plaintiffs,


GEORGE A. O'TOOLE, Jr., District Judge.

The magistrate judge to whom this matter was referred has recommended that the defendants' motion to dismiss for lack of jurisdiction be denied and that the Court stay the plaintiffs' action pending the United States' receipt of specified information from the plaintiffs for a period of six months. The United States has filed an objection to the Report and Recommendation ("R&R") and the plaintiffs have filed a reply to the objection.

I. Discussion

A. Sufficiency of the Plaintiffs' Claim

In its objection, the United States raises several new arguments. As the plaintiffs observe, an objection to an R&R is not the proper venue to present new legal arguments. Paterson-Leicht Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988) ("[Rule 72(b)] does not permit a litigant to present new initiatives to the district judge."). However, the United States asserts that these arguments deal with subject matter jurisdiction and are thus not waivable. The plaintiffs deny that these arguments are jurisdictional. Rather, they contend that the First Circuit and the Supreme Court have proposed new distinctions between jurisdictional and procedural rules, particularly with regards to the Federal Torts Claim Act ("FTCA"). See Gonzalez v. Thaler, 132 S.Ct. 641, 650-51 (2012); Sanchez v. United States, 740 F.3d 47, 54 (1st Cir. 2014). However, neither court has expressly found that elements of the FTCA previously deemed jurisdictional are in fact procedural. Regardless, to the extent that the government's new arguments are jurisdictional, they are unavailing.

First, the United States contends that the plaintiffs failed to meet their burden of establishing subject matter jurisdiction because their complaint does not allege that an administrative claim against the United States was timely presented to a federal agency under 28 U.S.C. § 2675(a).[1] The plaintiffs originally filed their claim in state court, where they named individual doctors and health centers as defendants. Only later did the defendants remove the case to federal court and substitute the United States as the proper party in interest. While the plaintiffs did explain the basis for jurisdiction in their opposition to the United States' motion to dismiss, the United States asserts that this information must have been set forth in the complaint.

Generally, a plaintiff need not allege subject matter jurisdiction where the defendant has moved for removal. Indeed, the burden of establishing subject matter jurisdiction usually lies with the moving party in such instances. Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009) (interpreting general removal procedures in the context of the Class Action Fairness Act). And while the plaintiffs must show that they satisfied the jurisdictional requirements of the FTCA, the government does not explain why it was insufficient for them to do so in their opposition to the United States' motion to dismiss. Indeed, nothing in 28 U.S.C. § 2679, which provides for proper removal procedures where the United States is substituted as a defendant, indicates that the plaintiff must have established subject matter jurisdiction in its complaint when a defendant initiates removal.

The United States also notes that the plaintiffs' demand letter did not specifically name the United States or a federal agency as a party. However, the government provides no support for its contention that § 2675(a) requires an explicit reference to the government entity being sued. The Magistrate Judge found - and this Court agrees - that the plaintiff's demand letter satisfied § 2675(a)'s presentation and sum certain requirements. The test under § 2675(a) is whether the "language of an administrative claim serves due notice that the agency should investigate the possibility of particular (potentially tortious) conduct and includes a specification of the damages sought." Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 40 (1st Cir. 2000). As the Magistrate Judge explained, the plaintiffs' claim satisfied this requirement.

In addition, the United States contends that the three claimants improperly aggregated their demand in a single sum certain. The United States cites Lopez-De Robinson v. United States for the proposition that each claimant must individually satisfy the requirements of § 2675(a) to avoid dismissal. However, Lopez-De Robinson is not on point; there, a claimant was omitted from the claim entirely. 1997 WL 259551 at *3 & n.1 (1st Cir. May 13, 1997) ("Plaintiff filed an administrative claim with the Department of Veterans Affairs in which she identified herself but not her late husband's estate as claimant."). By contrast, all three claimants were listed in the plaintiffs' demand letter. Accordingly, the agency was "on notice of who was actually pursuing the claim and the amount of the claim." Id. at *3. The United States' numerous citations are similarly unpersuasive. For example, as the plaintiffs point out, the government cites a case in which the court observes that "it appears permissible for multiple claims to be asserted on a single claim form." Haceesa v. United States, 309 F.3d 722, 734 (10th Cir. 2002). Contrary to the government's position, such phrasing suggests that aggregation of claims is allowed under § 2675(a). Furthermore, as explained herein, the primary inquiry under § 2675(a) is whether the claim provides the agency notice of the damages sought. Dynamic Image Techs., Inc., 221 F.3d at 40. The plaintiffs' letter clearly stated that the plaintiffs collectively sought $10 million in damages. Accordingly, the purpose of § 2675(a) is sufficiently satisfied.

B. Stay Order

The magistrate judge recommended that the Court stay the case for six months while the parties exchange relevant information. In its opposition, the United States argues that the Court lacks authority to stay the case. However, the Court need not reach this issue. This case was filed in February 2013, and the United States has yet to file an answer. In over a year of litigation, the parties have not even begun discovery. If the magistrate judge's recommendation for a stay takes effect, the case will not proceed until 2015, two years after filing.

While the magistrate judge reasoned that a stay would enable the plaintiffs to respond to the United States' request for more information, discovery would serve this same purpose. To the extent the stay would allow the parties to discuss settlement options, the parties may do so during the discovery process. At this point, the case will not be served by further delays.

II. Conclusion

Having reviewed the relevant pleadings and submissions, as well as the objection to the R&R, I approve and ADOPT the magistrate judge's recommendation as to the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction. I DECLINE to adopt the Magistrate Judge's recommendation as to the stay.

Accordingly, the Defendants' Motion (dkt. no. 18) to Dismiss for Lack of Jurisdiction is DENIED.



I. Introduction

On or about November 7, 2012, the plaintiffs, Juan Boteo and Aura Gonzalez, on behalf of their minor daughter, B.B., filed a medical malpractice complaint in the Middlesex Superior Court in Massachusetts based on the alleged negligent care of B.B. The named parties-defendant were Joseph M. Smith Community Health Center ("Health Center"), Mount Auburn Hospital, Julie E. Caruth, M.D., Nandita Nandig, M.D., Deborah Wong, M.D. and John/Jane Doe, M.D./D.O. The case was subsequently removed to the federal court on February 5, 2013.

On September 27, 2013, the United States Attorney moved to substitute the United States of America as a proper party defendant for Dr. Caruth and the Health Center pursuant to 28 U.S.C. § 2679(d).[1] (#16) The motion was granted on April 2, 2014. (#28) As a result, the claims alleged against Dr. Caruth and the Health Center, now the United States ...

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