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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARKEITH DAIS, et al.

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

Civ. No. 2:11-cv-03986 (WJM)

OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiffs Markeith Dais and Michelle Dais-Harvey filed this medical malpractice 

action against the United States of America and Dr. Gurmit Chilana (collectively 

“Defendants”). This matter comes before the Court on the Plaintiffs’ motion to reopen

pursuant to Federal Rule of Civil Procedure 60. There was no oral argument. Fed. R. 

Civ. P. 78(b). For the reasons set forth below, the motion to reopen is DENIED.

I. BACKGROUND

A. LEGAL FRAMEWORK

It is well established that “the United States may not be sued without its consent 

and that the existence of consent is a prerequisite for jurisdiction.” United States v. 

Mitchell, 463 U.S. 206, 212 (1983); see also Library of Congress v. Shaw, 478 U.S. 310, 

315 (1986) (“As sovereign, the United States, in the absence of its consent, is immune 

from suit”). Congress may waive sovereign immunity through unequivocal statutory 

language, but all waivers of sovereign immunity must be narrowly construed. Library of 

Congress, 478 U.S. at 318-21.

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, is a

limited waiver of the sovereign immunity by the United States for negligence of federal 

employees committed while acting within the scope of their federal employment. 28 

U.S.C. § 2674. In such cases, the federal employee is immune from suit and the 

plaintiff’s exclusive right of action lies against the United States. 28 U.S.C. § 2679(b). 

To bring a claim under the FTCA, a claimant must first present its tort claim to the 

appropriate federal agency. See 28 U.S.C. § 2675(a); Santos ex rel. Beato v. United 
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States, 559 F.3d 189, 193 (3d Cir. 2009). If the agency denies the claim or fails to 

resolve it within six months, then the claimant may file an action in federal court. See 28 

U.S.C. § 2675(a); Santos, 559 F.3d at 193. This administrative exhaustion requirement 

“is jurisdictional and cannot be waived.” Lightfoot v. United States, 564 F.3d 625, 627 

(3d 2009). 

B. FACTS

Dr. Gurmit Chilana is an obstetrician who worked in his own private practice. 

(Declaration of Pamela R. Perron (“Perron Decl.”) Ex. B, Chilana Dep. 20:10-17, ECF 

No. 33-2.) In the late 1980s or early 1990s, Dr. Chilana started working for the Paterson 

Community Health Center (“PCHC”) on a part-time basis. (Chilana Dep. 16:19-25.) The 

PCHC was deemed to be a federal employee of the Public Health Service for the period

December 15, 1993 through January 1, 1996. (Perron Decl. Ex. A.) In 1993-94, Dr. 

Chilana provided obstetrical services to PCHC patients for approximately four hours a

week. (Perron Decl. Ex. C, Garner 15:13-17, 22:2-23:13.) In 1994, Dr. Chilana carried 

his own professional malpractice insurance through Medical Inter-Insurance Exchange. 

(Perron Decl. Ex. E.) The policy provided for broad coverage of “[i]njury arising out of 

the rendering of or failure to render, on or after the retroactive date, professional services 

by the individual insured.” (Perron Decl. Ex. E, Policy at 1, ¶ I.)

Michelle Dais-Harvey, the mother of Markeith Dais, received prenatal care at the 

PCHC. Ms. Dais-Harvey first presented to PCHC on December 3, 1993. Dr. Chilana, 

among others, provided Ms. Dais-Harvey’s prenatal care. Plaintiffs’ original Complaint 

alleged that, during the course of Ms. Dais-Harvey’s care, Dr. Chilana failed to diagnose 

an inter-uterine growth restriction resulting in the birth of Plaintiff, Markeith Dais, on 

July 12, 1994, with multiple, severe disabilities. Plaintiffs’ Amended Complaint added 

allegations that unknown employees of PCHC negligently failed to carry out testing 

ordered by Dr. Chilana.

C. PROCEDURAL HISTORY

Only the relevant procedural history is summarized here. Plaintiffs initially filed 

an action in state court on June 21, 2007 against Dr. Chilana and PCHC. Dais and DaisHarvey v. PCHC, Chilana, et al., Superior Court of New Jersey, Passaic County PAS-L2613-07. On August 10, 2010, the United States Attorney removed the action to this 

Court based upon certifications that PCHC and Dr. Chilana were deemed federal 

employees acting within the scope of federal employment. 

The United States then moved to dismiss for lack of subject-matter jurisdiction on 

the ground that Plaintiffs had failed to exhaust their administrative remedies. On October 

21, 2010, the Court dismissed the case without prejudice for lack of subject matter 

jurisdiction to allow Plaintiffs an opportunity to exhaust their administrative remedies. 
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Plaintiffs filed an administrative tort claim with the Department of Health and 

Human Services (“HHS”) on November 29, 2010. Plaintiffs described the basis of their

claim as follows: 

This claim arises out of substandard medical care provided by Dr. Gurmit Chilana, 

and [sic] agent, servant and/or employee of Paterson Community Health Center, a 

Federally Qualified Heath Center. More specifically, Dr. Chilana rendered prenatal care to claimant’s mother and failed to property diagnose and treat interuterine growth restriction as is detailed in the report of Dr. Richard Luciani, a 

Board Certified Obstetrician and Gynecologist submitted herewith. As a result, 

Claimant suffers from severe developmental disabilities and will never be able to 

live independently. 

On July 12, 2011, after six months had elapsed without a final disposition of 

Plaintiffs’ administrative claim, Plaintiffs filed a new Complaint in this Court against the

United States and Dr. Chilana. On February 2, 2012, Plaintiffs filed an Amended 

Complaint adding allegations that unidentified PCHC employees negligently failed to 

carry out testing ordered by Dr. Chilana. The United States then moved to dismiss all of

the claims against it that were based on Dr. Chilana’s conduct. 

On October 22, 2012, the Court dismissed the entire Amended Complaint without 

prejudice. In its opinion, the Court noted that Plaintiffs had filed an Amended Complaint 

adding allegations of negligence against unidentified PCHC employees. Dais v. United 

States, No. 2:11-cv-03986, 2012 WL 5200043, at * 2 (D.N.J. Oct. 22, 2012). The Court 

found that Dr. Chilana was not a deemed federal employee. Id. at *4. The Court then 

dismissed the entire Amended Complaint without prejudice, because Plaintiffs had not 

established that the Court had subject matter jurisdiction over the action. Id. On April 4, 

2013, Plaintiffs filed the instant motion, seeking to reopen the case and restore the 

Amended Complaint. 

II. DISCUSSION

Plaintiffs move to restore the Amended Complaint under Federal Rule of Civil 

Procedure 60, arguing that the Court mistakenly dismissed their claims against unknown 

PCHC employees. Defendant argues that restoring the Amended Complaint would serve 

no useful purpose because the Court lacks subject matter jurisdiction over those claims. 

Specifically, Defendant argues that Plaintiffs have failed to administratively exhaust their

claims alleging negligence by unknown employees. The Court, which has jurisdiction 

over this closed case to consider its own jurisdiction, agrees. Atl. City Mun. Utilities 

Auth. v. Reg'l Adm'r, 803 F.2d 96, 103 (3d Cir. 1986) (“[C]ourts have jurisdiction in every 

case to determine their own jurisdiction.”). 

There are two types of challenges to subject-matter jurisdiction: (1) facial attacks, 

which challenge the allegations of the complaint on their face; and (2) factual attacks, 
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which challenge the existence of subject-matter jurisdiction, quite apart from any 

pleadings. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). 

In a factual attack, as is being made here, the Court is free to consider extrinsic evidence 

because the Court’s very power to hear the case is at issue. Id.; Gotha v. United States, 

115 F.3d 176, 179 (3d Cir. 1997). The plaintiff bears the burden of proof that jurisdiction 

does in fact exist. Gould Elec., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). 

No presumptive truthfulness attaches to the plaintiff’s allegations, and the existence of 

disputed material facts will not preclude a trial court from evaluating for itself the merits 

of the jurisdictional claim. Mortensen, 549 F.2d at 891.

First, the record here contains nothing showing that the unknown employees who 

treated Plaintiffs were in fact federal employees. The deposition that Plaintiffs cite for 

this proposition proves only that all but four OB/GYN doctors were federal employees.1 

(Pl’s Reply Br. Ex, A, 15:13-16:2.) It does not speak to whether the other PCHC 

personnel were federal employees. (Id.)

Additionally, Plaintiffs have not administratively exhausted their claims against 

the unknown employees. To satisfy the administrative exhaustion requirement, a 

claimant must give the appropriate agency written notice of his claim sufficient to enable

the agency to investigate, and resolve or settle, the claim. See Roma v. United States, 344 

F.3d 352, 362 (3d Cir. 2003); Tucker v. U.S. Postal Service, 676 F.2d 954, 956 (3d Cir. 

1982). An administrative claim need not propound every theory of liability in order to 

satisfy the FTC. Deloria v. Veterans Admin., 927 F.2d 1009, 1011-12 (7th Cir. 1991). 

However, “[a] plaintiff cannot present one claim to the agency and then maintain suit on 

the basis of a different set of facts.” Id. Accordingly, courts have dismissed allegations 

in FTCA suits that were not alleged in the plaintiff's administrative claim for lack of 

subject matter jurisdiction. See, e.g., Schunk v. United States, 783 F. Supp. 72, 81 

(E.D.N.Y. 1992) (dismissing certain allegations because administrative claim was 

insufficient to allow the government to evaluate those allegations, and therefore plaintiff 

failed to exhaust administrative remedies). For instance, in Skyers v. United States, the 

court dismissed FTCA claims against several defendants that were not named in the 

administrative tort claim. No. 12 Civ. 3432, 2013 WL 3340292, at *13 (S.D.N.Y. July 2, 

2013). There, the plaintiff had filed an administrative tort claim alleging that a single 

 

1 Plaintiff refers to the following testimony:

Q. Dr. Brault also indicated to us that while he couldn't give us any specifics, there were medical

personnel, medical providers, that were W-2 employees prior to 1996 but that he was unaware of any 

specific records that were available.

With that background, can you shed any light on Dr. Chilana or, for that matter, any of the doctors that 

were part of the OB group and their status as to whether they were W-2 employees or 1099 employees as of 

any time prior to 1996?

A. All providers -- with exception of that OB/GYN group, the four of them, all providers were W-2 

employees. That group was the exception, and they were 1099 employees from the time that they started 

until the end of February of '96.
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doctor failed to treat his injury. Id. at *4. The plaintiff then filed an FTCA claim in 

district court against that doctor and several additional defendants arising from the same 

injury. Id. at *1. Because the administrative claim only mentioned the doctor and did not 

complain of any other denial of treatment, the court held that the plaintiff had not 

exhausted his administrative remedies as to the additional defendants and dismissed those 

claims. Id. at *13. 

Plaintiffs have not exhausted their claims against any defendant besides Dr. 

Chilana. Here, the administrative tort claim filed with HHS states:

This claim arises out of substandard medical care provided by Dr. Gurmit Chilana, 

and [sic] agent, servant and/or employee of Paterson Community Health Center, a 

Federally Qualified Heath Center. More specifically, Dr. Chilana rendered prenatal care to claimant’s mother and failed to property diagnose and treat interuterine growth restriction as is detailed in the report of Dr. Richard Luciani, a 

Board Certified Obstetrician and Gynecologist submitted herewith. As a result, 

Claimant suffers from severe developmental disabilities and will never be able to 

live independently. 

(Hawkin’s Decl. Ex. A, at 1, ECF 50-1.) That description conveys quite specifically that 

Dr. Chilana’s conduct is the conduct at issue. Moreover, the administrative tort claim is 

based on different facts than the instant claim. The former alleges that Dr. Chilana failed 

to properly diagnose and treat Plaintiffs, while the latter alleges that Dr. Chilana ordered 

the correct tests and unknown employees failed follow through on his instructions. 

HHS was not afforded the opportunity to investigate, and resolve or settle, the 

allegations of negligence against unknown employees. Contrary to Plaintiffs’ assertion, 

the typographical error in the administrative claim did not put HHS on notice of the 

alleged negligence by unknown employees. Rather, to make grammatical sense of that 

sentence, a reader must assume that the “d” in “and” is a mistake, and would reasonably 

conclude that only Dr. Chilana’s alleged malpractice was at issue. And Dr. Luciana’s 

attached expert report confirmed that Plaintiffs’ claims focused on Dr. Chilana. Dr. 

Luciana wrote that “[a] thorough review of all documents presented indicates that Dr. 

Gurmit Chilana deviated from the accepted standards of care regarding treatment 

rendered to Ms. Michelle Dais-Harvey.” (Pl’s Mt. to Reopen Ex. B, at 2, ECF No. 48-4.) 

He concluded the Case Analysis section of his report by stating that “Dr. Chilana totally 

mismanaged Ms. Dais as indicated.” (Id. at 5.) Finally, HHS’s stated reason for denying 

Plaintiffs’ claim – that “. . . Dr. Chilana was a part-time contractor of PCHC who was not 

entitled to FTCA coverage . . .” – indicates that HHS’s investigation focused on Dr. 

Chilana’s conduct. (See Hawkin’s Decl. Ex. D, at 1.) Thus, the claim filed with HHS 

does not satisfy the administrative exhaustion requirement for the allegations of 

negligence against unknown PCHC employees. 
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Plaintiffs argue that it is the law of the case that the Court has subject matter 

jurisdiction over these claims, because the Court allowed Plaintiffs to file the Amended 

Complaint. This argument fails because the law of the case doctrine only applies to 

issues expressly decided by a court in prior rulings and to issues decided by necessary 

implication. Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 31 (3d Cir. 1994). Because the 

court did not address subject matter jurisdiction in its order permitting the Amended 

Complaint, that order cannot be the basis for a law of the case argument concerning 

jurisdiction. See Walsh v. McGee, 918 F. Supp. 107, 112 (S.D.N.Y. 1996). 

Furthermore, questions of subject matter jurisdiction are generally exempt from 

law of the case principles. 18 Wright, Miller & Cooper, § 4478, at 799 & n. 32. “[A] 

federal court cannot create jurisdiction where none exists.” Steele v. Meadows, No. 07-

cv-3542, 2008 WL 597790, at *1 (E.D. Pa. Mar. 5, 2008). Accordingly, a federal court 

cannot assert jurisdiction merely by relying on its own prior decision that jurisdiction 

over the claim was proper. Walsh, 918 F. Supp. at 112. As Justice Scalia has explained, 

“it is a Court's obligation to dismiss a case whenever it becomes convinced that it has no 

proper jurisdiction, no matter how late that wisdom may arrive.” Wyoming v. Oklahoma, 

502 U.S. 437, 462 (1991) (Scalia, J., dissenting). Therefore, because the record does not 

provide any basis for subject matter jurisdiction and because Plaintiffs have failed to 

satisfy the requirements of the FTCA, the Court must dismiss Plaintiffs’ claims.

III. CONCLUSION

For the reasons stated above, this action is DISMISSED for lack of subject matter 

jurisdiction and Plaintiff’s motion to reopen is DENIED as moot. An appropriate order 

follows.

 /s/ William J. Martini 

 WILLIAM J. MARTINI, U.S.D.J.

Date: November 26, 2013