                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
J.S.R., a minor by his mother )
and next friend               )
JACQUELINE ROJAS POLANCO,     )
et. al.,                      )
                              )
     Plaintiffs,              )
                              )
     v.                       )           Civil Action No. 09-693 (GK)
                              )
WASHINGTON HOSPITAL CENTER    )
CORPORATION, et al.,          )
                              )
     Defendants.              )
______________________________)

                           MEMORANDUM OPINION

     Plaintiff   J.S.R.,    a   minor,    and   his    parents,   Plaintiffs

Jacqueline Rojas Polanco and Jorge Salguero, (“Plaintiffs”), bring

this action against non-federal Defendants Washington Hospital

Center Corporation, Virginia Leslie, Whitney Pinger, and Victoria

Vest (“non-federal Defendants”).

     This matter is now before the Court on Plaintiffs’ Motion to

Remand to the Superior Court for the District of Columbia (“Motion

to Remand”) [Dkt. No. 6], non-federal Defendants’ Motion to Stay

Proceedings   Pending   Exhaustion       of   Plaintiffs’    Administrative

Remedies for Federal Claims (“Motion to Stay”) [Dkt. No. 13], and

Plaintiffs’ Motion for Leave To File a Sur-Surreply to Defendants’

Surreply to Plaintiffs’ Motion to Remand.             Upon consideration of

the Motions, Oppositions, Replies, Surreply, and Sur-Surreply, the

entire record herein, and for the reasons set forth below, parties
are required to provide additional briefing regarding Plaintiffs’

Motion to Remand, non-federal Defendants’ Motion to Stay is denied,

and Plaintiffs’ Motion for Leave to File a Sur-Surreply is granted.

I.   Background

     In this case, J.S.R. suffered permanent brain damage during

his birthing process.        He and his parents allege that medical

malpractice   caused   the   damage.     As    a   result   of   the   alleged

malpractice, Plaintiff J.S.R. now suffers from a variety of very

serious mental and physical ailments, including cerebral palsy and

seizures.

     On July 31, 2008, Plaintiffs filed a Complaint in the Superior

Court of the District of Columbia.            They alleged that J.S.R.’s

injuries were caused by non-federal Defendants’ negligence (Count

I), that his parents suffered injuries as a result of non-federal

Defendants’ negligence (Count II), and that non-federal Defendants

negligently inflicted emotional distress (Count III).             Plaintiffs

request $65 million in damages for Count I, $10 million in damages

for Count II, and $10 million in damages for Count III, in addition

to costs and “other . . . necessary and proper” relief.                Defs.’

Notice of Removal, Ex. 1.

     Defendant Vest is an employee of Unity Health Care, Inc.

(“Unity Health”).      Defs.’ Mot. to Dismiss at 2 (Apr. 20, 2009)

[Dkt. No. 3].     Unity Health is a grantee of the Department of

Health and Human Services (“HHS”).        Id.      As a result, Defendant


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Vest is considered an employee of the United States.                See id. (“By

operation of statute, Ms. Vest has been deemed to be an employee of

the United States of America for purposes of liability under the

Federal Tort Claims Act.”).1              Due to Defendant Vest’s status as a

federal employee, Plaintiffs filed an administrative claim with HHS

on February 6, 2009.             Id.; see Pls.’ Opp’n to Defs.’ Mot. to

Dismiss at 1.           HHS has indicated it will issue a decision “on or

before August 6, 2009.”           Defs.’ Mot. to Stay at 3.

        On April 14, 2009, federal Defendant Vest filed a Notice of

Removal in this Court on the basis of federal question jurisdiction

[Dkt. No. 1].       On April 20, 2009, the United States filed a Motion

to Dismiss Ms. Vest and substitute the United States [Dkt. Nos. 2,

3   &       4].   She    first   argued    that   the   United   States   must   be

substituted because of her status as a federal employee.                  Second,

she argued that after such substitution, the United States would

have to be dismissed because Plaintiffs did not exhaust their

administrative remedies as required by the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671, et seq. (2008).                 Plaintiffs did not

oppose the Motion but reserved the “right to re-file the claim

against C.N.M. Vest” and the “right to explore the basis for

federal jurisdiction” at the “appropriate” time. Pls.’ Opp’n to

Defs.’ Mot. to Dismiss at 2.              On May 19, 2009, the Court granted



        1
          There does not appear to be any disagreement among the
parties on this point.

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the   unopposed   Motion,   Defendant   Vest    was   dismissed   without

prejudice, and the United States was substituted as a Defendant

[Dkt. No. 14].

      On May 4, 2009, Plaintiffs filed a Motion to Remand.         On May

18, 2009, the non-federal Defendants filed a Motion to Stay, and on

May 28, 2009, Defendant Washington Hospital Center filed a Motion

for Leave to File a Third Party Complaint against the United

States.     On July 13, 2009, the Motion for Leave to File a Third

Party Complaint was granted [Dkt. No. 27].

II.   Analysis

      A.    Plaintiffs’ Motion to Remand

      Plaintiffs argue that the case should be remanded because this

Court does not have, and never had, subject matter jurisdiction to

hear it.      In the alternative, Plaintiffs argue that even if

diversity    jurisdiction   exists,   the   Court   should   exercise   its

discretion to remand the case. In response, non-federal Defendants

argue that the Court has subject matter jurisdiction to hear the

case because there is complete diversity.

      The parties concluded their extensive briefing on this issue

on June 16, 2009.     Thereafter, on July 13, 2009, the Motion for

Leave to File a Third Party Complaint was granted.           The ruling on

that Motion may well affect the parties’ analysis, and possibly

their final position, on the Motion to Remand.         Consequently, all

parties are to simultaneously submit supplementary briefs, of no


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more than 10 pages (and preferably less), no later than October 20,

2009.     Because the Court has no wish to further delay ruling on

this Motion, there will be no additional briefing on the issue, no

extensions of time, and no extensions of page limits.

     B.     Defendants’ Motion to Stay

     Non-federal Defendants requested a stay of all proceedings in

this Court until August 6, 2009, the date on which Plaintiffs will

exhaust their administrative remedies.     Defs.’ Mot. to Stay at 3.

That date has come and gone.   Therefore, the Motion will be denied

as moot.

     An Order shall accompany this Memorandum Opinion.




                                        /s/
October 8, 2009                        Gladys Kessler
                                       United States District Judge


Copies to: Attorneys of record via ECF




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