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Mulvena v. United States

United States District Court, D. Delaware

November 14, 2019

LINDA MULVENA, individually and as Personal Representative of the Estate of GERALD MULVENA; and DANIELLE PABON, Plaintiffs,


         Before me is the Government's Partial Motion to Dismiss Plaintiffs' Complaint for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1). (D.I. 4). I have reviewed the parties briefing and letters (D.I. 6, 9, 10, 11, 12, 13), and considered the Plaintiffs request for oral argument on this matter (D.I. 14). Because this court lacks subject matter jurisdiction over the claims and claimants not previously included in the administrative notice provided to the Department of Veterans Affairs, I will grant Defendant's motion.

         I. BACKGROUND

         Gerald Mulvena died on March 10, 2018, of endocarditis caused by mycobacterium chimera. (D.I. 10, Ex. A at Box 10). On December 5, 2018, Mr. Mulvena's widow, Linda Mulvena, submitted a Standard Form 95 ("SF-95") asserting a claim with the Department of Veterans Affairs ("VA") for her husband's death. (Id., Ex. A). On the form, Mrs. Mulvena sought $2.5 million for "personal injury" and $2.5 million for "wrongful death." (Id., Ex. A, at Box 12).

         The SF-95 asks for a "detail[ed]" account of "the known facts and circumstances attending the damage, injury, or death, identifying persons and property involved, the place of occurrence and the cause thereof." (Id., Ex. A, at Box 8). Mrs. Mulvena's entry reads:

Medical negligence. Breach in the standard of care, including, but not limited to, failure to diagnose and treat mycobacterium chimera.

(Id.). The SF-95 also asks for a description of the injury or cause of death that forms the basis of the claim. (Id., Ex. A, at Box 10). Mrs. Mulvena's response was,

Gerald J. Mulvena died on March 10, 2018 from complication [sic] of mycobacterium chimera, which the providers at the Wilmington VA Hospital failed to diagnose and treat. He is survived by his wife, Linda, and daughters.

(Id.). On January 22, 2019, Plaintiffs' counsel received confirmation from the United States Department of Veteran Affairs, Office of General Counsel, that Plaintiffs' Claim had been received. (Id., Ex. B).

         On June 18, 2019, Plaintiffs filed suit, alleging that the medical staff at the Wilmington Veterans Affairs Medical Center failed properly to diagnose and treat Mr. Mulvena's condition, to obtain appropriate informed consent, and "was otherwise negligent in their care and treatment." (D.I. 1 at ¶ 27). In their complaint, Plaintiffs Linda Mulvena and Danielle Pabon bring individual claims and Linda Mulvena brings a claim as personal representative of the estate of Mr. Mulvena. (Id. at ¶¶ 29-36).


         a. Motion to Dismiss

         Rule 12(b)(1) of the Federal Rules of Civil Procedure mandates the dismissal of an action for "lack of subject matter jurisdiction." A motion to dismiss under Fed.R.Civ.P. 12(b)(1) challenging the court's jurisdiction is treated the same as a Rule 12(b)(6) motion. Gould Ekes. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Constitution Party v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014). "In reviewing a facial attack, 'the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff."' Id. at 358 (quoting In re Schering Plough Corp., 678 F.3d 235, 243 (3d Cir. 2012)). Because a "factual attack" in a Rule 12(b)(1) motion to dismiss addresses the court's power to hear the case, there is no presumption of truthfulness and the court may consider evidence outside the pleadings. CAN v. United States, 535 F.3d 132, 139 (3d Cir. 2008); see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Plaintiffs have the burden of persuading the court that it has jurisdiction. Gould, 220 F.3d at 178.

         b. Federal Tort Claims Act

         Congress has authorized the Federal Tort Claims Act ("FTCA") as an exclusive remedy to seek relief for tortious conduct by agents or employees of the United States or one of its agencies. 28 U.S.C. §2679(b)(1); see also United States v. Smith,499 U.S. 160, 163 (1991). The FTCA requires that, prior to commencing litigation, the claimant "shall have first presented the claim to the appropriate Federal agency" for its review. 28 U.S.C. § 2675(a). If a claimant fails to exhaust this administrative remedy, the district court lacks subject matter jurisdiction to adjudicate the claim. Lightfoot v. United States,564 F.3d 625, 626-27 (3d Cir. 2009). The FTCA's procedural requirements are to be "strictly construed." L ...

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