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 Service, Inc.; )

and Androscoggin Valley Hospital, )

)

Defendants. )

____________________________________)

UNITED STATES’ MOTION TO DISMISS

COUNTS I, II, AND IV OF THE COMPLAINT

Defendant United States of America requests that this Court dismiss counts I, II, and IV

of this medical malpractice action under Federal Rules of Civil Procedure 12(b)(1) because the

Court lacks subject matter jurisdiction. Plaintiff William D. Hilton commenced this action in

New Hampshire Superior Court against, inter alia, Coos County Family Health Service, Inc.

(“Coos”) and Jeanne M. Charest, a nurse practitioner employed by Coos, asserting state-law

claims based on allegations that Plaintiff received negligent treatment for appendicitis. Because

Coos has been deemed a federal employer by the United States Department of Health and

Human Services (“HHS”) pursuant to the Federally-Supported Health Centers Assistance Act of

1992, see 42 U.S.C. § 233, the United States has been substituted as the defendant for the claims

against Coos and Charest. As a result of this substitution, the state-law claims against Coos and

Charest were converted into Federal Tort Claims Act (“FTCA”) claims against the United States. 

The United States has removed this action to this Court. See 28 U.S.C. §§ 1441, 1442(a)(1),

1446 and 2679(d)(2).

Case 1:07-cv-00292-PB Document 7 Filed 10/03/07 Page 1 of 3
2

The Court should now dismiss the counts against the United States because they are

untimely. To establish jurisdiction under the FTCA, Plaintiff had to file an administrative claim

with HHS within two years of the accrual of his cause of action. Plaintiff’s action is predicated

on a ruptured appendix that he suffered in March 2003, and, therefore, he had until March 2005,

to file his administrative claim. Plaintiff failed to do so. Accordingly, the counts against the

United States are “forever barred” and should be dismissed for a lack of subject matter

jurisdiction. 28 U.S.C. § 2401(b).

In support of this motion, the United States refers the Court to the Memorandum of Law

in Support of United States’ Motion to Dismiss Counts I, II, and IV of the Complaint with

attached exhibits and to the record of this litigation.

Because this is a dispositive motion, Plaintiff’s concurrence has not been sought.

Therefore, the United States requests that the Court grant this motion and enter an order

dismissing counts I, II, and IV for a lack of subject matter jurisdiction.

Respectfully submitted,

THOMAS P. COLANTUONO

United States Attorney

/s/ Seth R. Aframe

By:

Seth R. Aframe

Assistant United States Attorney

MA Bar No. 643288

U.S. Attorney’s Office

53 Pleasant Street, Fourth Floor

Concord, NH 03301-3904

603-225-1552

Seth.Aframe@usdoj.gov

October 3, 2007

Case 1:07-cv-00292-PB Document 7 Filed 10/03/07 Page 2 of 3
3

CERTIFICATE OF SERVICE

I certify that on this 3rd day of October, 2007, the foregoing Motion and accompanying

Memorandum of Law with attached exhibits was mailed via first-class, postage prepaid mail to

Mark A. Abramson, Esq., at Abramson, Brown & Dugan, 1819 Elm Street, Manchester, NH

03104, and via ECF to counsel for Androscoggin Valley Hospital, Ronald J. Lajoie, Esq. 

 /s/Seth R. Aframe 

Seth R. Aframe, Assistant U.S. Attorney

Case 1:07-cv-00292-PB Document 7 Filed 10/03/07 Page 3 of 3