IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Michael Winegardner, et al., :

Case No. 2:11-cv-0905

 Plaintiffs, :

 v. : 

Magistrate Judge Kemp

Carl Schowengerdt, 

et al., :

Defendants. :

 

 

 

 ORDER

The Court held an initial pretrial conference in this case

on January 24, 2012. All counsel were in attendance. Based on

the documents that are part of the record, including the pending

motion to dismiss and the parties’ Rule 26(f) report, and based

on discussions had at the conference, the Court makes the

following order. This is a final order based on the parties’

consent to the jurisdiction of the Magistrate Judge and the

District Judge’s order of reference (#13).

By way of background, this case was filed in the Court of

Common Pleas of Fairfield County, Ohio, as a state law medical

malpractice case. However, it appears from the notice of removal

that the Muskingum Valley Health Center (not named as a

defendant) was deemed by the Department of Health and Human

Services to be an employee of the Public Health Service as of

January, 2008. One of the named defendants, Dr. Carl

Schowengerdt, was an employee of that Health Center, apparently

beginning on May 5, 2008. Thus, he is also deemed to have been

an employee of the Public Health Service on and after that date. 

The United States Attorney for this district has certified that

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both the Health Center and Dr. Schowengerdt were acting within

the scope of their employment with respect to the matters alleged

in the complaint. As a result, any claims covered by the

certification can only be pursued under the procedures outlined

by the Federal Tort Claims Act, 28 U.S.C. §§1346(b), 2671 et seq.

The parties agree that, at the time the case was filed, and

at the time of removal, plaintiffs had not submitted an

administrative claim to the Department of Health and Human

Services. Exhaustion of the administrative claim procedure is a

prerequisite to filing suit under the FTCA. Thus, any claims

covered by the Act are not properly before the Court. That has

led the United States to file a motion to dismiss for lack of

jurisdiction.

The motion to dismiss is not opposed. Plaintiffs’ counsel

has informed the Court that an administrative claim has been

filed, but only recently, and there has been no disposition yet,

so no FTCA claim may be filed at this time. Thus, any claims

which are subject to the FTCA must be dismissed.

The remainder of the claims in this case are purely state

law claims over which the Court has no independent jurisdiction. 

The presence of claims subject to the FTCA was the sole basis for

removal. Once those claims are dismissed, the appropriate

disposition of the remainder of the case is to remand it to the

Fairfield County Court of Common Pleas. This is so either

because it would not be a sound exercise of the Court’s

discretion to retain this case, which involves only state-law

claims against non-federal defendants and which is in its infancy

with respect to discovery or other proceedings, or because the

Court has never had such supplemental jurisdiction in the first

instance. See, e.g., Musson Theatrical, Inc. v. Federal Express

Corp., 89 F.3d 1244, 1255 (6th Cir. 1996) (“[i]f the court

dismisses plaintiff's federal claims pursuant to Rule 12(b)(1),

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then supplemental jurisdiction can never exist”)(emphasis in

original); see also Morris v. Washington Mut. Bank, 2011 WL

4507359, *3 (E.D. Mich. September 29, 2011). 

For the foregoing reasons, the United States’ motion to

dismiss (#5) is granted. All claims asserted against defendant

Dr. Schowengerdt for actions which took place on or after May 5,

2008, are dismissed for lack of jurisdiction, which dismissal

shall be without prejudice to the filing of an action under the

FTCA should all necessary prerequisites for bringing such an

action be satisfied. All other claims against both Dr.

Schowengerdt and the remaining defendants are remanded to the

Court of Common Pleas of Fairfield County, Ohio. This case is

terminated.

/s/ Terence P. Kemp 

United States Magistrate Judge

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