                    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].           Upon consideration of the Motion,

Opposition, Replies, and supplementary briefing, as well as the

entire   record   herein,   and    for     the    reasons   set   forth   below,

Plaintiffs’ Motion to Remand 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”).     Defendant Vest’s 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

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


                                   -2-
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 would issue a decision “on or

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

not disclose whether such decision was issued and, if so, on what

date.

      On April 14, 2009, Defendant Vest filed a Notice of Removal in

this Court on the basis of federal question jurisdiction [Dkt. No.

1].     On April 20, 2009, Defendant Vest filed a Motion to Dismiss

and substitute the United States [Dkt. Nos. 3 & 4].                  First, she

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      the    unopposed    Motion,   Defendant    Vest   was




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

                                       -3-
dismissed without prejudice, and the United States was substituted

as a Defendant [Dkt. No. 14].

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

May 18, 2009, the Non-federal Defendants filed a Motion to Stay,

which was denied on October 8, 2009 [Dkt. No. 33].       On May 28,

2009, Non-federal Defendant Washington Hospital Center filed a

Motion for Leave to File a Third Party Complaint against the United

States [Dkt. No. 18], which was granted on July 13, 2009 [Dkt. No.

27].

II.    Analysis

       Subsequent to the filing of the United States’ Motion to

Dismiss, Plaintiffs filed their Motion to Remand this case to

Superior Court.     The Non-federal Defendants have opposed that

Motion, and the United States has indicated its agreement with the

Motion in its response to Plaintiffs’ Motion to Remand Case to the

District of Columbia Superior Court [Dkt. No. 37].        The Court

concludes that Plaintiffs are entitled to remand for the following

reasons.

       As noted above, Plaintiffs originally filed their law suit in

the Superior Court for the District of Columbia. The United States

thereafter removed the case to this Court because of the existence

of a federal question, pursuant to 28 U.S.C. § 1331.    Thereafter,

the United States, on behalf of Ms. Vest, was dismissed from the

case because Plaintiffs had failed to exhaust their administrative


                                 -4-
remedy under the FTCA.    At that point, this Court ceased to have

subject matter jurisdiction over the case.

     Section 1447(c) of Title 28 provides:

          A motion to remand the case on the basis of
          any defect other than lack of subject matter
          jurisdiction must be made within 30 days after
          the filing of the notice of removal under
          Section 1446(a). If at any time before final
          judgment it appears that the District Court
          lacks subject matter jurisdiction, the case
          shall be remanded (emphasis added).

     Thus, once the United States was dismissed, this Court no

longer had any subject matter jurisdiction over the case and was

required, by the mandatory language of § 1447(c), to remand the

case to Superior Court.     Edwards v. District of Columbia, 616 F.

Supp.2d 112 (D.D.C. 2009) (quoting Republic of Venezuela v. Phillip

Morris, Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (“When it appears

that a district court lacks subject matter jurisdiction over a case

that has been removed from a state court, the district court must

remand the case.”)). See also Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350-51 (1988).2

     Defendants argue that this Court never lost jurisdiction over

this case because it has always had diversity jurisdiction pursuant

to 28 U.S.C. § 1332.        Defendants are incorrect.   Non-federal

Defendants never removed this case.    The United States removed it


     2
          Although Cohill was decided before the 1988 Amendments to
§ 1447(c) became operative, it is instructive that the Supreme
Court reached the conclusion it did even before Congress made that
result mandatory.

                                 -5-
and removed it only on the basis of federal question jurisdiction.

The fact that Non-federal Defendants might have removed the case on

the basis of diversity is irrelevant -- that factual scenario

simply   never   existed.3   Even   “[i]f   federal   jurisdiction   is

doubtful, a remand to state court is necessary.”      Dixon v. Coburg

Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004) (en banc).

     An Order shall accompany this Memorandum Opinion.




                                       /s/
November 3, 2009                      Gladys Kessler
                                      United States District Judge


Copies to: Attorneys of record via ECF




     3
          Moreover, as Plaintiffs and the United States have
argued, there is doubt that it ever could have existed. However,
that issue need not be resolved at this time in light of the
Court’s ruling.

                                -6-
