UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -x

TIA WALKER, as Mother and Natural :

Guardian of MAHOGANY GREEN, : ECF Case

:

Plaintiff, : 07 Civ. 3548 (LAK)

:

- against - :

:

THROGS NECK MULTI CARE, P.C., :

GEORGE BERTERO, M.D., LOUIS ROSE, :

M.D., OUR LADY OF MERCY MEDICAL :

CENTER, SOUNDVIEW HEALTH CENTER, :

DAWN DAWSON, M.D., and BHAGWANT :

GILL, M.D., :

:

Defendants. :

- - - - - - - - - - - - - - - - - -x

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO

SUBSTITUTE THE UNITED STATES AS DEFENDANT AND

TO DISMISS THE COMPLAINT AS AGAINST THE UNITED STATES

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

Attorney for United States of

America and Defendants Soundview

Health Center and Dawn Dawson,

M.D.

86 Chambers Street, 3 Floor rd

New York, New York 10007

Telephone: (212) 637-2696

Facsimile: (212) 637-2702

HEATHER K. McSHAIN (HM-5883)

Assistant United States Attorney

- Of Counsel -

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 1 of 17
-iTable of Contents

Preliminary Statement..................... 2

Factual Background ...................... 3

A. Plaintiff’s Tort Claims . . . . . . . . . . . . . . . . 3

B. Soundview and Dawson Were

Employees of the United States at All Times 

Relevant to the Complaint . . . . . . . . . . . . . . 4

C. Soundview and Dawson Were Acting

Within the Scope of Their Federal Employment . . . . . 4

D. Removal to Federal Court . . . . . . . . . . . . . . . 5

E. Failure to File any Administrative Claim . . . . . . . 5

ARGUMENT ........................... 5

POINT I -- THE UNITED STATES SHOULD BE

 SUBSTITUTED AS A PARTY DEFENDANT . . . . . . . 5

POINT II -- PLAINTIFF’S CLAIMS AGAINST THE UNITED STATES

 SHOULD BE DISMISSED FOR LACK OF 

SUBJECT MATTER JURISDICTION . . . . . . . . . . 8

A. Legal Standard ............... 8

B. The Court Lacks Jurisdiction Under

 the FTCA Because Plaintiffs Failed

 to Present an Administrative Claim 

 Before Commencing This Action . . . . . . . 9

Conclusion ......................... 13

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 2 of 17
-iiTable of Authorities

Cases

In re Agent Orange Prod. Liab. Litig., 818 F.2d 210 

(2d Cir. 1987) ....................... 11

Bueno v. Sheldon, No. 99 Civ. 10348, 2000 WL 565192

 (S.D.N.Y. May 9, 2000) . . . . . . . . . . . . . 8, 11, 12

Celestine v. Mount Vernon Neighborhood Health Ctr., 

279 F. Supp. 2d 392 (S.D.N.Y. 2003), 

aff’d 403 F.3d 76 (2d Cir. 2005) . . . . . . . . . . . 8, 11

Cuoco v. Mortisugu, 222 F.3d 99 (2d Cir. 2000) . . . . . . . . 6

Falls Riverway Realty, Inc. v. City of Niagara Falls, 

732 F.2d 38 (2d Cir. 1984) . . . . . . . . . . . . . . . 12

FDIC v. Meyer, 

510 U.S. 471, 114 S. Ct. 996 (1994) . . . . . . . . . . . 10

In re Joint E. & So. Dist. Asbestos Litig., 

14 F.3d 726 (2d Cir. 1993) . . . . . . . . . . . . . . . . 9

Kamen v. American Tel. & Tel. Co., 

791 F.2d 1006 (2d. Cir. 1986) . . . . . . . . . . . . . . . 9

Keene Corp. v. United States,

700 F.2d 836 (2d Cir. 1983) . . . . . . . . . . . . . . . 10

Malik v. Meissner, 82 F.3d 560 (2d Cir. 1996) . . . . . . . 8, 9

McHugh v. University of Vermont, 

966 F.2d 67 (2d Cir. 1992) . . . . . . . . . . . . . . . . 7

McNeil v. United States, 

508 U.S. 106, 113 S. Ct. 1980 (1993) . . . . . . . . . . 10

Millares Guiraldes de Tineo v. United States, 

137 F.3d 715 (2d Cir. 1998) . . . . . . . . . . . . . . 9, 10

Rivera v. United States, 928 F.2d 592 (2d Cir. 1991) . . . . . 6

Robinson v. Overseas Military Sales Corp., 

21 F.3d 502 (2d Cir. 1994) . . . . . . . . . . . . . . 9, 10

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 3 of 17
-iiiRodriguez v. United States, No. 01 Civ. 4975 (ILG), 

2001 WL 1590516 (E.D.N.Y. Nov. 3, 2001) . . . . . . 8, 11, 12

Santiago Rosario v. Estado Libre Asociado de Puerto Rico, 

52 F. Supp. 2d 301 (D. Puerto Rico 1999) . . . . . 7, 8, 11

United States v. Dalm, 

494 U.S. 596, 110 S. Ct. 1361 (1990) . . . . . . . . . . . 9

United States v. Mitchell, 

463 U.S. 206, 103 S. Ct. 2961 (1983) . . . . . . . . . . . 9

United States v. Sherwood, 

312 U.S. 584, 61 S. Ct. 767 (1941) . . . . . . . . . . . 10

United States v. Vazquez, 145 F.3d 74 (2d Cir. 1998) . . . . . 9

Williams v. United States, 947 F.2d 37 (2d Cir. 1991) . . . . 10

Statutes, Regulations and Rules

28 U.S.C. § 1346 ..................... 2, 7

28 U.S.C. § 2671 ....................... 2

28 U.S.C. § 2675 ..................... 3, 10

28 U.S.C. § 2679 .................... passim

28 U.S.C. § 2680 ....................... 2

38 U.S.C. § 7316 ....................... 4

42 U.S.C. § 201........................ 2

42 U.S.C. § 233................... 4, 5, 6, 7

28 C.F.R. § 15.4(a).................... 4, 7

Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . passim

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 4 of 17
MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

By: HEATHER K. McSHAIN (HM-5883)

Assistant United States Attorney

86 Chambers Street, 3 Floor rd

New York, New York 10007

Tel. (212) 637-2696

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - -x

TIA WALKER, as Mother and Natural :

Guardian of MAHOGANY GREEN, : ECF Case

:

Plaintiff, : 07 Civ. 3548 (LAK)

:

- against - :

:

THROGS NECK MULTI CARE, P.C., :

GEORGE BERTERO, M.D., LOUIS ROSE, :

M.D., OUR LADY OF MERCY MEDICAL :

CENTER, SOUNDVIEW HEALTH CENTER, :

DAWN DAWSON, M.D., and BHAGWANT :

GILL, M.D., :

:

Defendants. :

- - - - - - - - - - - - - - - - - -x

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO

SUBSTITUTE THE UNITED STATES AS DEFENDANT AND

TO DISMISS THE COMPLAINT AS AGAINST THE UNITED STATES

Defendants Soundview Health Center (“Soundview”) and Dawn

Dawson, M.D. (“Dawson”), by their attorney, Michael J. Garcia,

United States Attorney for the Southern District of New York,

respectfully submit this memorandum of law in support of this

motion to (i) substitute the United States of America (the

“United States”) as defendant pursuant to 28 U.S.C. § 2679 with

respect to plaintiff’s medical malpractice claims against

Soundview and Dawson, and (ii) dismiss the complaint pursuant to

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 5 of 17
 Plaintiffs also named the following defendants: Throgs 1

Neck Multi Care, P.C., George Bertero, M.D., Louis Rose, M.D.,

Our Lady of Mercy Medical Center, and Bhagwant Gill, M.D. See

Declaration of Heather K. McShain (“McShain Decl.”), Exhibit A

(plaintiff’s complaint).

- 2 -

Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of

subject matter jurisdiction. 

PRELIMINARY STATEMENT

Plaintiff Tia Walker (“Walker”), as mother and natural

guardian of Mahogany Green (“Green”), commenced this medical

malpractice action against Soundview and Dawson, an employee of

Soundview at the time of the events alleged in the complaint, as

well as against other defendants (collectively the “non-federal

defendants”). Pursuant to the Public Health Service Act, 42 1

U.S.C. § 201 et seq. (the “PHS Act”), Soundview and its

employees, like Dawson, were deemed to be employees of the United

States effective February 1, 1997 (the “deeming date”), for

purposes of tort actions seeking damages for injuries allegedly

resulting from the provision of medical-related services. 

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-

2680 (the “FTCA”), provides the exclusive remedy with respect to

plaintiff’s claims against Soundview and Dawson, which concern

allegedly negligent acts and omissions committed by Dawson after

the deeming date while employed at Soundview. Under the FTCA,

the United States shall be substituted as defendant where, as

here, the “defendant employee was acting within the scope of

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 6 of 17
- 3 -

h[er] office or employment at the time of the incident out of

which the claim arose.” 28 U.S.C. § 2679(d)(1). Accordingly,

the United States should be substituted for Soundview and Dawson

as defendant. 

Upon substitution, the Court should dismiss the complaint

as against the United States for lack of subject matter

jurisdiction. As a condition of the waiver of sovereign

immunity, the FTCA requires tort claimants to exhaust

administrative remedies before commencing an action in federal

court. See 28 U.S.C. § 2675(a). Here, however, plaintiff did

not file an administrative claim with the United States

Department of Health and Human Services (“HHS”). Accordingly,

all claims against the United States should be dismissed pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

A. Plaintiff’s Tort Claims

On or about June 15, 2005, plaintiff filed a complaint in

the Supreme Court of New York, County of Bronx, against

Soundview, Dawson, and the non-federal defendants. See McShain

Decl., Exh. A. According to the complaint, Dawson and Soundview,

among others, were negligent when Dawson in or about February

through April of 1999 misdiagnosed Green, and that as a result of

such negligence, Walker’s daughter sustained serious personal

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 7 of 17
- 4 -

injuries. Id. The complaint seeks an unspecified amount in

damages against all of the named defendants. Id. at ¶ 62.

B. Soundview and Dawson Were Employees of the United States at

All Times Relevant to the Complaint

Pursuant to the Public Health Service Act, as amended by

the Federally Supported Health Centers Assistance Act of 1995, 42

U.S.C. § 233(g)-(n) (the “FSHCAA”), Soundview and its employees,

such as Dawson, are deemed to be employees of the United States

Government, effective February 1, 1997, for purposes of civil

actions seeking damages for personal injury resulting from the

performance of medical, surgical, dental or related functions. 

See 42 U.S.C. § 233(a), (g) and (h); Declaration of Richard G.

Bergeron (“Bergeron Decl.”), ¶ 5. Dawson was an employee of

Soundview during all times relevant to the complaint. Id., ¶ 6. 

Therefore, Soundview and Dawson were deemed employees of the

United States at all times relevant to the complaint.

C. Soundview and Dawson Were Acting Within the Scope of Their

Federal Employment

On April 26, 2007, United States Attorney Michael J.

Garcia certified, pursuant to 38 U.S.C. § 7316(c), 28 U.S.C. §

2679, and 28 C.F.R. § 15.4, that Soundview and Dawson were acting

within the scope of their federal employment at the time of the

alleged incidents giving rise to this action. See McShain Decl.,

Exh. B. (Notice of Removal attaching Certification of Michael J.

Garcia at Exhibit B (“Garcia Certification”)).

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 8 of 17
- 5 -

D. Removal to Federal Court

On May 3, 2007, this action was removed to federal court

pursuant to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d)(2). See

McShain Decl., Exh. B. 

E. Failure to File any Administrative Claim

To date, plaintiff has never filed any administrative

claim with HHS, the appropriate federal agency with respect to

the tort claims raised in this action. See Bergeron Decl., ¶ 4.

ARGUMENT

POINT I

THE UNITED STATES SHOULD BE SUBSTITUTED AS PARTY DEFENDANT

As a preliminary matter, the United States should be

substituted as defendant with respect to the tort claims alleged

against Soundview and Dawson. The FSHCAA, 42 U.S.C. § 233(g),

provides that eligible community health centers and their

employees are employees of the Public Health Service for certain

purposes. The Secretary of Health and Human Services deems a

community health center a Public Health Service employee after

the center has qualified for certain federal assistance. See 42

U.S.C. § 233(g)(1)(D) to (G). Once deemed a Public Health

Service employee, a community health center and its employees

enjoy immunity for their acts which relate to their employment,

and any actions against them are treated as actions against the

United States. See 42 U.S.C. § 233(a). 

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 9 of 17
 While the FSHCAA specifically applies to employees of the 2

Public Health Service, the FTCA, which applies generally to all

federal employees, similarly provides that a suit against the

United States is the exclusive remedy for an injury “resulting

from 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. § 2679(b)(1), and provides government

officers and employees acting within the scope of their

employment with absolute immunity from claims of common-law tort,

see Rivera v. United States, 928 F.2d 592, 608-09 (2d Cir. 1991).

- 6 -

Section 233(a) of the FSHCAA expressly provides:

The remedy against the United States provided

by [the FTCA] . . . for damage for personal

injury, including death, resulting from the

performance of medical, surgical, dental, or

related functions . . . by any commissioned

officer or employee of the Public Health

Service while acting within the scope of his

office or employment, shall be exclusive of any

other civil action or proceeding by reason of

the same subject-matter against the officer or

employee . . . whose act or omission gave rise

to the claim.

42 U.S.C. § 233(a). Accordingly, the FSHCAA makes the FTCA “the

exclusive remedy for specified actions against members of the

Public Health Service,” Cuoco v. Mortisugu, 222 F.3d 99, 107 (2d

Cir. 2000), and protects “employees of the Public Health Service

from being subject to suit while performing medical and similar

functions by requiring that such lawsuits be brought against the

United States instead,” id. at 108.2

Here, the Secretary of Health and Human Services deemed

Soundview a Public Health Service employee for purposes of the

FSHCAA and FTCA effective on February 1, 1997. See Bergeron

Decl., ¶ 5, Exh. 1. Pursuant to 42 U.S.C. § 233, 28 U.S.C. §

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 10 of 17
 Upon certification, the action “shall proceed in the same 3

manner as any action against the United States filed pursuant to

section 1346(b) of this title and shall be subject to the

limitations and exceptions applicable to those [FTCA] actions.” 

28 U.S.C. § 2679(d)(4). See also Santiago Rosario v. Estado

Libre Asociado de Puerto Rico, 52 F. Supp. 2d 301, 303-04 (D.

Puerto Rico 1999) (“Once the United States has determined an

entity to be an employee of the Public Health Service, it then

extends the protections of the FTCA.”).

- 7 -

2679(d)(1) and 28 C.F.R. § 15.4, Michael J. Garcia, United States

Attorney for the Southern District of New York, has certified

that defendants Soundview and Dawson were acting within the scope

of their employment as designated employees of the United States

at the time of the incidents alleged in the complaint, in or

about February through April of 1999. See McShain Decl., Ex. B

(Garcia Certification). The Garcia Certification provides the

“basis for the substitution of the United States as a defendant

and for the resultant immunization of the federal employee[s].” 

McHugh v. Univ. of Vt., 966 F.2d 67, 72 (2d Cir. 1992); see

Public Health Service Act § 224(c), 42 U.S.C. § 233(c) (“Upon a

certification by the Attorney General that the defendant was

acting in the scope of his employment ... the proceeding [shall be]

deemed a tort action brought against the United States.”); id. §

224(a), 42 U.S.C. § 233(a) (“The remedy against the United States

provided by [the FTCA] . . . shall be exclusive of any other

civil action or proceeding by reason of the same subject-matter

against the officer or employee (or his estate) whose act or

omission gave rise to the claim.”).3

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 11 of 17
- 8 -

Thus, plaintiff’s tort claims against Dawson and

Soundview should be dismissed with prejudice, and the United

States should be substituted as defendant. See Celestine v.

Mount Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392, 398

(S.D.N.Y. 2003) (substituting the United States in place of

health clinic deemed a federal employee based on United States

Attorney’s certification), aff’d 403 F.3d 76 (2d Cir. 2005);

Rodriguez v. United States, No. 01 Civ. 4975 (ILG), 2001 WL

1590516, at *n.2 (E.D.N.Y. Nov. 3, 2001) (same); Bueno v.

Sheldon, No. 99 Civ. 10348 (JGK), 2000 WL 565192 (S.D.N.Y. May 9,

2000) (same); Santiago Rosario, 52 F. Supp. 2d at 302-04 (same). 

As set forth below, however, the Court lacks subject matter

jurisdiction over plaintiff’s tort claims against the United

States.

POINT II

PLAINTIFF’S CLAIMS AGAINST THE UNITED STATES SHOULD BE DISMISSED 

FOR LACK OF SUBJECT MATTER JURISDICTION

Once the United States is substituted for Dawson and

Soundview, plaintiff’s FTCA action should be dismissed for lack

of subject matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)(1). 

A. Legal Standard 

On a motion to dismiss pursuant to Rule 12(b)(1),

plaintiffs carry the burden of establishing that subject matter

jurisdiction exists over their complaint. See Malik v. Meissner,

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 12 of 17
- 9 -

82 F.3d 560, 562 (2d Cir. 1996); In re Joint E. & So. Dist.

Asbestos Litig., 14 F.3d 726, 730 (2d Cir. 1993). In considering

challenges to subject matter jurisdiction under Rule 12(b)(1),

the Court may consider evidence extrinsic to the pleadings. See

Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.

1986). The consideration of such materials does not convert the

motion to one for summary judgment pursuant to Rule 56. See

United States v. Vazquez, 145 F.3d 74, 80 (2d Cir. 1998). 

B. The Court Lacks Jurisdiction Under the FTCA Because 

Plaintiff Failed to Present an Administrative Claim Before

Commencing This Action

Plaintiff cannot satisfy her burden of establishing

subject matter jurisdiction given her failure to file an

administrative claim prior to commencing this action. 

Principles of sovereign immunity dictate that the United States

cannot be sued without its consent. See United States v.

Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 2965 (1983);

Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d

Cir. 1994). Congress can only waive the Government’s sovereign

immunity through unequivocal statutory language, and may impose

conditions on such a waiver. United States v. Dalm, 494 U.S.

596, 608, 110 S. Ct. 1361, 1368 (1990). Waivers of sovereign

immunity and their conditions – whether substantive, procedural

or temporal – must be strictly applied against the claimant. 

Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 13 of 17
- 10 -

(2d Cir. 1998). If the Government has not waived its sovereign

immunity, or if the conditions under which the Government has

agreed to waive that immunity have not been met, then federal

subject matter jurisdiction does not exist. See United States v.

Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769-70 (1941);

Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991). See

also FDIC v. Meyer, 510 U.S. 471, 474-75, 114 S. Ct. 996, 999-

1000 (1994) (sovereign immunity raises a jurisdictional bar to

suit). 

The FTCA provides a limited waiver of the United States’

sovereign immunity for certain tortious conduct. However, the

FTCA requires that before a claimant may initiate an action

against the United States, “the claimant shall have first

presented the claim to the appropriate Federal agency and his

claim shall have been finally denied by the agency in writing.” 

28 U.S.C. § 2675(a) (emphasis supplied). The requirement that an

administrative claim be filed and finally denied “is

jurisdictional and cannot be waived.” Keene Corp. v. United

States, 700 F.2d 836, 841 (2d Cir. 1983) (requiring strict

adherence to procedures set forth in the FTCA); see also McNeil

v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 1984 (1993)

(FTCA suits are jurisdictionally barred absent exhaustion of

administrative remedies); Robinson, 21 F.3d at 510 (no subject

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 14 of 17
- 11 -

matter jurisdiction where plaintiff “failed to first present his

claim to the appropriate agency”).

Plaintiff’s complaint does not allege that she presented

an administrative claim with respect to Soundview’s or Dawson’s

alleged negligence in their treatment of Green. See McShain

Decl., Exh. A. This failure alone requires dismissal of the

complaint:

The burden is on plaintiff to both plead and

prove compliance with the statutory requirements. 

In the absence of such compliance, a district

court has no subject matter jurisdiction over the

plaintiff’s claim.

In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir.

1987) (citations omitted).

Moreover, plaintiff cannot plead compliance with the

statutory requirements of the FTCA as she has never filed an

administrative claim with an appropriate federal agency. 

Bergeron Decl., ¶ 4. Because plaintiff failed to exhaust her

administrative remedies under the FTCA, her claims against the

United States must be dismissed for lack of subject matter

jurisdiction. See Celestine 289 F. Supp. 2d at 399-400

(dismissing medical malpractice action filed against clinic

deemed Public Health Service employee for failure to exhaust

administrative remedies under FTCA); Rodriguez, 2001 WL 1590516

at *2 (same); Bueno, 2000 WL 565192, at *3 (same); Santiago

Rosario, 52 F. Supp. 2d at 304 (same).

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 15 of 17
 Once the United States is dismissed from this action, the 4

claims against the non-federal defendants should be remanded to

New York State Supreme Court, County of New York, because this

Court never had original jurisdiction over this action. See,

e.g., Rodriguez, 2001 WL 159516, at *2 (remanding malpractice

claims against remaining non-federal defendants after claims

against United States, based on acts of Public Health Service

deemed clinic and doctor were dismissed for failure to exhaust

administrative remedies under FTCA); Bueno, 2000 WL 565192, at *2

(same). Even assuming arguendo that this Court could exercise

supplemental jurisdiction over plaintiff’s claims against the

non-federal defendants, the determination of whether to remand

the remaining state law claims would still be subject to the

Court’s discretion. See Falls Riverway Realty, Inc. v. City of

Niagara Falls, 732 F.2d 38, 42 (2d Cir. 1984). 

- 12 -

Accordingly, the Court should dismiss the complaint for

lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)(1). 

4

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 16 of 17
- 13 -

CONCLUSION

For the foregoing reasons, Soundview and Dawson

respectfully request that the Court: (i) substitute the United

States as defendant with respect to plaintiff’s claims against

them, and, upon substitution, (ii) dismiss the complaint as

against the United States for lack of subject matter

jurisdiction.

Dated: New York, New York

May 10, 2007

Respectfully submitted,

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

Attorney for the United States

of America and Defendants Soundview

Health Center and Dawn Dawson, M.D.

By: /s/ Heather K. McShain 

HEATHER K. McSHAIN (HM-5883)

Assistant United States Attorney

86 Chambers Street, 3 Floor rd

New York, New York 10007

Telephone: (212) 637-2696

Facsimile: (212) 637-2702

Case 1:07-cv-03548-LAK Document 3 Filed 05/10/2007 Page 17 of 17