Appellate Case: 15-2044     Document: 01019645622         Date Filed: 06/24/2016     Page: 1
                                                                                       FILED
                                                                           United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                             Tenth Circuit

                               FOR THE TENTH CIRCUIT                               June 24, 2016
                           _________________________________
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
  ESTATE OF VERA CUMMINGS, by and
  through Personal Representative Elicia
  Montoya,

        Plaintiff - Appellant,

  v.                                                            No. 15-2044
                                                    (D.C. No. 1:12-CV-00081-WJ-GBW)
  UNITED STATES OF AMERICA;                                      (D. N.M.)
  MOUNTAIN VIEW REGIONAL
  MEDICAL CENTER,

        Defendants - Appellees.
                        _________________________________

                                        ORDER
                           _________________________________

  Before KELLY, MATHESON, and McHUGH, Circuit Judges.
                    _________________________________

         This matter is before the court on appellee Mountain View Regional Medical

  Center’s Motion for Clarification, which we have construed as a petition for panel

  rehearing. See Fed. R. App. P. 40. Upon consideration, and as construed, the request is

  granted to the extent of the change made to the last sentence on page 13 in the revised

  decision attached to this order. The clerk of court is directed to file the new Order &

  Judgment forthwith.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk
Appellate Case: 15-2044      Document: 01019645622    Date Filed: 06/24/2016FILED
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                                                               United States Court of Appeals
                                                                         Tenth Circuit

                        UNITED STATES COURT OF APPEALS                  June 24, 2016
                                                                    Elisabeth A. Shumaker
                                      TENTH CIRCUIT                     Clerk of Court


   ESTATE OF VERA CUMMINGS, by
   and through Personal Representative
   Elicia Montoya,

            Plaintiff - Appellant,

   v.                                                      No. 15-2044
                                               (D.C. No. 1:12-CV-00081-WJ-GBW)
   UNITED STATES OF AMERICA;                                (D.N.M.)
   MOUNTAIN VIEW REGIONAL
   MEDICAL CENTER,

            Defendants - Appellees.


                                ORDER AND JUDGMENT *


  Before KELLY, MATHESON, and McHUGH, Circuit Judges.


        The Estate of Vera Cummings, by and through personal representative

  Elicia Montoya, brought this action in state court for medical negligence and

  wrongful death against three doctors (Mark Leatherwood, M.D., Raquel Neeley,

  M.D., and Enrique R. Martinez, M.D.) and Mountain View Regional Medical

  Center, a private, for-profit hospital in Las Cruces, New Mexico. Substituting



        *
          This order and judgment is not binding precedent, except under the
  doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
  however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
  Cir. R. 32.1.
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  itself for the defendant doctors, the government removed the case to federal court,

  where the district court granted summary judgment to the private hospital after a

  discovery dispute. Then, determining the doctors were federal actors triggering

  the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401(b), 2671–74,

  the court dismissed the remaining claims against the government for lack of

  subject matter jurisdiction. We exercise jurisdiction under 28 U.S.C. § 1291, and

  we affirm the district court’s dismissal of the claims against the government, but

  vacate its rulings against Mountain View with instructions to the district court to

  remand the case to state court.



                                     Background

        On January 28, 2008, Ms. Cummings was admitted to the emergency

  department at Mountain View when she suddenly became dizzy and confused.

  After being treated by doctors for about 10 days, she was released to another local

  health care facility where her daughter worked as nurse. Four days later, on

  February 10, 2008, she died.

        In January 2011, nearly three years after her death, Ms. Cummings’s estate

  sued the doctors and Mountain View for medical negligence and wrongful death

  in New Mexico state court, alleging the doctors improperly medicated her and

  failed to feed or hydrate her. In April 2011, the doctors’ insurance carrier

  informed the estate that the government may consider the doctors to be federal

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  actors. See Aplt. Br. at 8. The estate then notified the appropriate federal agency

  by filing a standard notice form (an SF 95).

        In January 2012, the government certified that the doctors were federal

  employees at the federally funded Ben Archer Health Clinic in Hatch, New

  Mexico, and when they treated Ms. Cummings at Mountain View, they were

  acting within the scope of their federal employment. The government removed

  the case to federal court and substituted itself for the defendant doctors. The

  estate challenged the removal and lost. Over the next three years, the court issued

  three separate orders that are the foundation for this appeal.

        A. The court holds that the doctors were acting within the scope of
        their federal employment

        In 2012, the government filed a motion to dismiss, or in the alternative a

  motion for summary judgment, arguing that the estate failed to comply with the

  FTCA, which applied because the doctors were acting within the scope of their

  federal employment when they treated Ms. Cummings. In response, the estate

  disputed that the doctors were federal actors for purposes of the suit and

  maintained that the FTCA did not apply. After allowing for written discovery,

  the court found that the doctors were acting within the scope of their federal

  employment when they treated Ms. Cummings at Mountain View, and thus, the

  FTCA was the estate’s only path to recovery. The court ordered additional

  briefing on whether the estate had complied with the FTCA in pursuing its claims


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  against the government.

        B. The court grants summary judgment to Mountain View in part
        based upon a failure to timely designate an expert

        After a discovery deadline extension, the magistrate judge provided that the

  estate had to designate its experts and provide reports by May 1, 2014. Because

  of an oversight by its counsel, the estate failed to do so. On June 1, Mountain

  View designated its experts, provided reports, and moved for summary judgment

  on all claims. The estate responded with an unsworn report from an expert and

  asked the court to defer a ruling on the motion for summary judgment. After

  briefing closed, the estate obtained a contested extension to designate an expert

  by August 1, 2014, which it did. Meanwhile, the case was reassigned and the

  newly assigned district judge granted summary judgment after sua sponte

  overruling the magistrate’s grant of an extension. The district court denied

  reconsideration of the matter.

        C. The court dismisses the claims against the government for lack of
        subject matter jurisdiction

        In November 2014, the estate and the government filed cross motions for

  summary judgment. The estate claimed that the government failed to offer any

  evidence to rebut its expert report that alleged the doctors did not adhere to

  applicable standards of care; the government argued that report was untimely, and

  therefore inadmissible, so the estate failed to carry its burden of proof. A month

  later, the government filed another motion to dismiss, arguing the court lacked

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  jurisdiction because the estate’s claims were untimely filed under the FTCA. In

  February 2015, the district court dismissed the estate’s claims against the

  government sua sponte for lack of subject matter jurisdiction.



                                      Discussion

        On appeal, the estate challenges three of the district court’s rulings: (1) the

  FTCA applies because the doctors were working within the scope of their federal

  employment when they treated Ms. Cummings at Mountain View; (2) the estate

  failed to exhaust administrative remedies under the FTCA; and (3) Mountain

  View is entitled to summary judgment. To prevail against the government, the

  estate must show either that the doctors were not acting within the scope of their

  federal employment when they treated Ms. Cummings or that the estate satisfied

  the FTCA’s requirements. To prevail against Mountain View, the estate must

  show that disputed, material facts preclude summary judgment or that federal

  jurisdiction over these state claims never existed.

        We review the district court’s determinations de novo. Radil v. Sanborn

  W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004) (de novo review for

  dismissal for lack of subject matter jurisdiction); Richman v. Straley, 48 F.3d

  1139, 1145 (10th Cir. 1995) (de novo review for certification that employees were

  acting within the scope of their federal employment). We apply the same

  summary judgment standard as the district court, specifically, Fed. R. Civ. P.

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  56(a), to determine whether “there is no genuine dispute as to any material fact

  and the movant is entitled to judgment as a matter of law.”

        A. The doctors are federal actors for purposes of this suit

        The estate first argues that the defendant doctors were not acting within the

  scope of their federal employment when they treated Ms. Cummings at Mountain

  View, the private hospital. Although federal employees, 1 the doctors treated her

  at the private hospital where they occasionally staffed the emergency department

  for extra pay. After examining the doctors’ responsibilities for Ben Archer (the

  federal clinic) and the private hospital, the district court held that the doctors

  were federal actors for purposes of this lawsuit. We agree.

        Some explanation of the structure of the federal clinic and the private

  hospital is necessary first. The federal clinic employs all three defendant doctors

  and requires them to care for their patients at the clinic and at local hospitals. II

  Aplt. App. 645 (“The physician will provide health care within and outside the

  clinic for clinic patients and in emergencies for the general public.”). To

  facilitate this requirement, the clinic ensures that a rotating doctor is available on

  nights and weekends (the clinic call schedule) to attend to hospitalized patients,

  see id. at 668, and requires that all clinic doctors have admitting privileges at a

        1
            The parties agree that at the time of Ms. Cummings’s death, the
  defendant doctors were employed by Ben Archer Health Clinic (the federal
  clinic), and the clinic and its employees acting within the scope of their federal
  employment can only be sued according to the parameters of the FTCA. See 42
  U.S.C. § 233(a), (g)(1)(A) (emphasis added).

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  local hospital, see id. at 654. The doctors with admitting privileges at Mountain

  View must also adhere to the private hospital’s conditions, including staffing the

  emergency department at the private hospital on certain nights and weekends (the

  city call schedule). Id. at 668–69. While on the city call schedule, they admit

  patients who arrive at the emergency departments to the private hospital. Once

  admitted, the patients’ regular medical providers will assume their care, and if

  patients lack a primary care doctor, then the admitting physician will continue

  their treatment at the private hospital. Id. Clinic doctors with admitting

  privileges at Mountain View must participate in both call schedules, and they are

  paid differently depending on which call schedule is in effect. Id. When working

  on the clinic call schedule, the doctors receive a percentage of the fee earned

  when clinic patients are treated at local hospitals, including Mountain View; the

  doctors on their city call schedule receive a flat fee. Id.

        Examining the doctors’ duties under both systems, there is only one way a

  clinic doctor with admitting privileges at the private hospital would assume

  responsibility for Ms. Cummings’s care outside the scope of his regular, federal

  employment. The clinic doctor would have to: (1) be working on the city call

  schedule and, (2) admit a patient without a primary care provider. Neither

  occurred here. On January 28, 2008, when Ms. Cummings was admitted, no

  clinic doctor was staffing the emergency room for the private hospital. Id. at 669.

  The doctor in charge of the emergency department that night did call one of the

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  defendant doctors for advice, but the defendant doctor was contacted not as an

  occasional contractor at the private hospital but as Ms. Cummings’s clinic

  physician. I Aplt. App. 429, 435. Accordingly, Ms. Cummings had a primary

  care doctor when she was admitted to the private hospital. 2 She had been treated

  at the federal clinic for several years, prompting another doctor to call a clinic

  physician about her care. Because she was a patient, the clinic required a clinic

  doctor oversee her treatment at the private hospital. II Aplt. App. 668. Any

  doubts are dispelled by looking at who paid the clinic doctors for Ms.

  Cummings’s care. The federal clinic issued checks to the defendant doctors

  specifically for Ms. Cummings’s treatment at the private hospital. Id. at 675–79.

        On appeal, the estate argues that the clinic doctors were not contractually

  required to provide care at local hospitals, because that requirement is contained

  in a signed job description and those descriptions are separate from the

  employment contract. Therefore, the estate claims, Ms. Cummings’s admission

  and treatment must have been under the auspices of the agreement with Mountain

  View. Aplt. Br. at 19. Contracts can, however, validly include provisions of a

  document not physically part of the contract itself, including a document that is

  not itself a contract. 17A C.J.S. Contracts § 402. The contracts here refer

        2
           On appeal, the estate argues that having been a patient in the past does
  not make Ms. Cummings a clinic patient “for the rest of her life.” Aplt. Br. at 19.
  The estate never contends Ms. Cummings terminated her care at the clinic or
  sought a new provider. Therefore, there is no reason to doubt Ms. Cummings was
  a clinic patient at the time of her death.

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   explicitly to these job descriptions (“[s]ervices shall be provided as described in

   the official description of the position,” see, e.g., II Aplt. App. 605),

   incorporating these descriptions by reference into the contract, see Holmes v.

   Colo. Coal. for Homeless Long Term Disability Plan, 762 F.3d 1195, 1210 n.13

   (10th Cir. 2014), cert. denied, 135 S. Ct. 1402 (2015). Therefore, we must reject

   the estate’s argument to disregard them.

         B. The estate failed to comply with FTCA requirements

         When Congress enacted the FTCA in 1946, it permitted individuals to sue

   the government for “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.” 28 U.S.C. § 1346(b)(1). This waiver of the federal

   government’s immunity, however, is narrowly construed. Lehman v. Nakshian,

   453 U.S. 156, 161 (1981) (“[T]his Court has long decided that limitations and

   conditions upon which the Government consents to be sued must be strictly

   observed and exceptions thereto are not to be implied.” (quoting Soriano v.

   United States, 352 U.S. 270, 276 (1957))). That forces plaintiffs, like the estate,

   to adhere closely to every rule and requirement of the FTCA, including the

   condition to exhaust their administrative remedies before appearing in federal

   court. 28 U.S.C. § 2675(a) (requiring claimants to “first present[] the claim to the

   appropriate Federal agency”) (emphasis added). This notice requirement is

   “jurisdictional and cannot be waived.” Bradley v. United States ex rel. Veterans

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   Admin., 951 F.2d 268, 270 (10th Cir. 1991).

         After receiving the government’s second motion to dismiss, the district

   court held sua sponte that it lacked subject matter jurisdiction because the estate

   did not comply with the FTCA requirement to present the claim to the appropriate

   federal agency before filing suit. The plaintiff estate does not dispute the timing:

   the estate sued in state court and then notified a federal agency, and after that, the

   government removed the suit to federal court. On appeal, the estate argues the

   suit’s removal to federal court satisfies the timing requirements, and if not, the

   court should use its equitable powers to waive the order of the administrative

   filing. Neither argument persuades us to deviate from the narrow limitations

   prescribed by the FTCA.

         The estate argues first that the suit’s removal to federal court should

   constitute a new filing, thus satisfying the exhaustion requirement. Federal

   jurisdiction depends on facts as they exist when the initial complaint is filed.

   Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989). As the

   district court noted, our decision in Duplan v. Harper, 188 F.3d 1195 (10th Cir.

   1999), considered a similar situation—a suit was filed in state court and then

   notice of the claim was filed to the appropriate federal agency—and affirmed the

   general rule that new filings in an existing suit cannot correct the failure to

   exhaust administrative requirements. Id. at 1199 (“Allowing claimants . . . to

   cure the jurisdictional defect by filing an amended complaint would render the

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   exhaustion requirement meaningless and impose an unnecessary burden on the

   judicial system.”). We did endorse a narrow exception to this rule. The federal

   action can suffice as a new action if the court administratively closed the case, the

   plaintiff filed an amended complaint, and the government agrees to treat it as a

   new action. Id. at 1200. None of these things happened here. The estate did not

   attempt to file an amended complaint, choosing instead to rely on the

   government’s removal to federal court. As our precedent demonstrates, this is

   clearly not enough.

         The estate then essentially argues for equitable estoppel, asking us to waive

   the administrative exhaustion requirement. Aplt. Br. at 15–16. We have held the

   requirement to exhaust is jurisdictional, see Bradley, 951 F.2d at 270, and

   jurisdictional requirements cannot be waived. See United States v. Kwai Fun

   Wong, 135 S. Ct. 1625, 1631 (2015) (noting that when a requirement is

   jurisdictional, “a litigant’s failure to comply . . . deprives a court of all authority

   to hear a case”). The estate relies on recent precedent to question whether

   administrative exhaustion is still considered jurisdictional. Aplt. Br. at 15 (citing

   Barnes v. United States, 776 F.3d 1134 (10th Cir. 2015)). This precedent,

   however, discusses whether the time to file in federal court after administrative

   exhaustion is jurisdictional, not whether administrative exhaustion itself is

   jurisdictional. Barnes, 776 F.3d at 1139–40 (“We start by observing that the

   FTCA has both an administrative-exhaustion requirement . . . and a statute of

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   limitations” and “we ask whether . . . [the] statute of limitations may operate to

   bar an FTCA claim.”) (emphasis added). Finding no support for the argument

   that this exhaustion is not jurisdictional, we cannot overlook the requirement.

         C. The district court lacked jurisdiction over the supplemental claims

         The estate’s final argument on appeal concerns Mountain View, the other

   defendant. The district court awarded summary judgment to the private hospital

   in part based upon a failure of proof related to the expert disclosure deadline. It

   is uncontested that the district was exercising supplemental jurisdiction. Apart

   from the merits, the estate correctly argues that if the district court’s dismissal of

   the case for lack of subject matter jurisdiction is affirmed, the prior rulings on the

   supplemental claims must be extinguished. Aplt. Br. at 27.

         Federal courts are courts of limited jurisdiction that can only entertain

   certain claims. When a case is properly in federal court, however, the district

   court has supplemental jurisdiction over any claims that are “so related” to the

   jurisdiction-invoking claim “that they form part of the same case or controversy

   under Article III.” 28 U.S.C. § 1367(a). If a district court dismisses the federal

   claims on the merits, it can as a matter of discretion exercise supplemental

   jurisdiction. But when a district court dismisses the federal claims for lack of

   subject matter jurisdiction, it lacks such discretion and must dismiss the

   supplemental claims without prejudice. See Estate of Harshman v. Jackson Hole

   Mountain Resort Corp., 379 F.3d 1161, 1167 (10th Cir. 2004); Scott v. Pasadena

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   Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002); see also 16 Moore’s

   Federal Practice Civil § 106.66 (collecting cases). Though Mountain View argues

   that the estate has waived this issue for failure to cite authority or develop its

   argument, supplemental jurisdiction is incompatible with a Rule 12(b)(1)

   dismissal for lack of subject matter jurisdiction. Musson Theatrical, Inc. v. Fed.

   Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996).

         The dismissal of the federal claims is AFFIRMED. The district court’s

   rulings on the supplemental claims against Mountain View are VACATED with

   instructions to the district court to remand to New Mexico state court.


                                           Entered for the Court

                                           Paul J. Kelly, Jr.
                                           Circuit Judge




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