UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

William D. Hilton, )

 )

Plaintiff, )

 )

v. ) Civil No. 07-292-PB

 )

Jeanne M. Charest, ARNP; )

Coos County Family Health Services, Inc.; )

Androscoggin Valley Hospital, )

 )

Defendants )

DEFENDANT, ANDROSCOGGIN VALLEY HOSPITAL’S,

MOTION TO DISMISS COUNT III OF THE COMPLAINT

NOW COMES the defendant, Androscoggin Valley Hospital, by and through its

attorneys, Wadleigh, Starr & Peters, and says as follows:

1. The plaintiff, William D. Hilton, commenced this action in New Hampshire

Superior Court against Coos County Family Health Services, Inc. and Jeanne M.

Charest, a nurse practitioner employed by Coos. Count III of the Complaint is a claim

against Androscoggin Valley Hospital (AVH). The United States substituted itself as the

defendant for the claims against Coos and Charest, converted these claims into

Federal Tort Claims Act claims against the United States, and removed the entire

action to this Court on September 13, 2007. This Court exercised supplemental

jurisdiction over the state law claims against AVH pursuant to 28 U.S.C. §1367(a).

2. On December 21, 2007, this Court dismissed all FTCA claims leaving only

the state law claim against AVH.

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3. 28 U.S.C. §1367(c)(3) provides that this court may decline jurisdiction

when “the district court has dismissed all claims over which it has original jurisdiction.” 

A court will generally only retain jurisdiction over non-federal claims in the rare situation

in which discovery has been completed and the parties are prepared to immediately go

to trial when the federal claims are dismissed. Coppage v. Mann, 906 F.Supp. 1025

(E.D. VA 1995). Nevertheless, “if the federal claims are dismissed before trial, even

though not insubstantial in a jurisdictional sense, the state claims should be dismissed

as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). See

also McCloskey v. Mueller, 446 F.3d 262, 272 (lst Cir. 2006); Gibson v. Weber, 431

F.3d 339 (8th Cir. 2005); Weathers v. Milbrook Central School District, 486 F.Supp.2d

273 (S.D.N.Y. 2007); Sykes v. McPhillips, 412 F.Supp.2d 197 (N.D.N.Y. 2006); and

Porter v. Hirsch, 345 F.Supp.2d 400 (S.D.N.Y. 2004).

4. Whereas no federal claims remain and there has been no discovery, the

state law claims against AVH should be dismissed.

5. Because this is a dispositive motion, plaintiff’s concurrence has not been

sought.

WHEREFORE, the defendant, Androscoggin Valley Hospital, respectfully

requests this Honorable Court:

A. Dismiss Count III of the Complaint; and

B. Grant such other relief as the Court deems just and equitable.

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G:\D48000\48435\Pleadings\Motion to Dismiss.wpd 3

Respectfully submitted,

Androscoggin Valley Hospital

By its Attorneys,

WADLEIGH, STARR & PETERS

Date: January 16, 2008 By: /s/ Ronald J. Lajoie 

 Ronald J. Lajoie, NH Bar #1416

 Michael J. Tierney, NH Bar #17173

 95 Market Street

 Manchester, NH 03101

 (603)669-4140

CERTIFICATE OF SERVICE

I hereby certify that on this 16 day of January, 2008, a copy of the foregoing

th

Motion to Dismiss was forwarded via ECF to Mark A. Abramson, Esquire, and Holly B.

Haines, Esquire, counsel for the plaintiff, and to Gretchen Leah Witt, Esquire, and Seth

R. Aframe, Esquire, counsel for co-defendants.

 /s/ Ronald J. Lajoie 

 Ronald J. Lajoie, NH Bar #1416

 Michael J. Tierney, NH Bar #17173

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