Cirino-Encarnacion v. Concilio De Salud Integral, 02-1735.

Decision Date24 January 2003
Docket NumberNo. 02-1735.,02-1735.
PartiesIneabelles CIRINO-ENCARNACIÓN, Plaintiff, Appellant, v. CONCILIO DE SALUD INTEGRAL DE LOIZA, INC.; Héctor M. Cabáin-Hernáindez, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Kevin G. Little, with whom Law Offices of David Efron was on brief, for Appellant.

Gilberto Mayo-Pagán for Appellee Concilio de Salud Integral de Loíza, Inc.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Ineabelles Cirino-Encarnación's three-month-old daughter, Edith, was suffering from respiratory difficulty on April 11, 1998. Cirino took Edith to Concilio de Salud Integral de Loíza, Inc. (CSILI), a medical center where Edith had been treated since birth. Cirino arrived at 7:00 p.m. No one at CSILI examined Edith, and Cirino and her daughter waited until 5:00 a.m., when Edith became cyanotic and unresponsive. Efforts were taken to resuscitate Edith, but they failed, and she was pronounced dead at 5:20 a.m.

On April 8, 1999, Cirino filed an action against CSILI under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd et seq. (2000). The action included a Puerto Rico medical malpractice claim against CSILI and Dr. Héctor M. Cabán-Hernández, under 31 P.R. Laws Ann. § 5141 (2001); the plaintiff asserts supplemental jurisdiction for this claim. See 28 U.S.C. § 1367 (2000). This is an appeal from the dismissal of that action for lack of subject matter jurisdiction. We reverse, because the district court was premature in acting on the motion to dismiss when defendants had not produced relevant jurisdictional discovery, despite having been ordered three times to do so.

I.

We sketch the facts as alleged by the plaintiff. See, e.g., Viqueira v. First Bank, 140 F.3d 12, 15 (1st Cir.1998).

The procedural history shows considerable recalcitrance on the part of CSILI. Cirino first sought discovery by propounding interrogatories and a request for production of documents on July 16, 1999. On October 8, 1999, Cirino moved for entry of default judgment against CSILI; she also moved to compel answers to her outstanding discovery requests. On October 12, 1999, the court entered a default judgment against CSILI, and on October 21, it granted the motion to compel and ordered CSILI to respond by November 8, 1999. CSILI moved to set aside this default on November 24, 1999, and the district court granted the motion on July 11, 2000.

CSILI also filed a motion to dismiss the EMTALA claim for lack of subject matter jurisdiction on November 24, 1999. CSILI had still not responded to discovery, failing to meet the November 8 deadline. The motion to dismiss argued that CSILI was a Community Health Institution (CHI) and, as such, could only be sued under the Federal Tort Claims Act (FTCA) and not directly under EMTALA. See 42 U.S.C. §§ 233(g)(1),(4), 254b. Cirino had not filed an antecedent administrative claim with the appropriate federal agency, here the Department of Health and Human Services, a requirement for tort actions under the FTCA. See 28 U.S.C. § 2675(a) (2000). The motion was accompanied by an affidavit of the Executive Director and two attached documents purporting to show that CSILI was a CHI. Cirino opposed the motion, represented that CSILI had not yet provided the discovery ordered, and argued that under Fed.R.Civ.P. 56(f), discovery was needed before the court could rule on the motion to dismiss.

On July 11, 2000, the court ordered CSILI to provide responses to the outstanding discovery requests by July 31, 2000. CSILI continued to fail to comply, and on August 23, Cirino moved for discovery sanctions. Cirino's filings made clear that jurisdictional discovery would be required before there could be action on the motion to dismiss. The district court referred all pending dispositive motions to a magistrate judge on January 17, 2002; on February 8, that judge denied Cirino's motion for sanctions, but ordered CSILI to respond to the outstanding discovery interrogatories 3(a)-(j) and 14, which related to the issue of subject matter jurisdiction (that is, whether CSILI was a CHI). It is not clear why there was a seventeen-month delay between the motion and any court action upon it.

On March 19, 2002, because CSILI still had not responded to discovery requests, Cirino again moved for discovery sanctions. She reported that discovery had not been produced and asked that CSILI be precluded from defending itself on the subject matter of the withheld discovery and that CSILI be defaulted. This motion was never ruled on.

Despite the pendency of these discovery disputes and CSILI's violation of its discovery obligations, on April 17, the magistrate judge recommended that the EMTALA claim against CSILI and the supplemental claim against Cabán both be dismissed for lack of subject matter jurisdiction. The Report and Recommendation stated:

[P]laintiff has failed to carry her burden of demonstrating why this court should assert subject matter jurisdiction over her claim. Plaintiff does not offer any affirmative evidence or statements to rebut defendant's evidence that it is a federal government agency availed to the FTCA. Further, plaintiff's refutations fail to contradict the factual challenge presented by defendant. Plaintiff's response suggests that substantive, credible evidence only allows this court a "guess" whether to exercise subject matter jurisdiction. Because the party asserting jurisdiction carries the burden of proving it, the plaintiff has failed to prove that this court has subject matter jurisdiction over her claim.

Cirino-Encarnación v. Concilio de Salud...

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    ...and views them—and the inferences drawn from them—in a light most favorable to the pleader. See Cirino – Encarnacion v. Concilio de Salud Integral de Loiza, Inc. , 317 F.3d 69, 70 (1st Cir.2003) (citing Viqueira v. First Bank , 140 F.3d 12, 16 (1st Cir.1998) ); see also Soto v. McHugh , 158......
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