Bederson v. U.S.

• Decision Date: 21 December 2010
• Docket Number: Civil Action No. 09–688 (CKK).
• Citation: 756 F.Supp.2d 38
• Parties: Paul D. BEDERSON, as personal representative of the estate of Robert D. Bederson, deceased, Plaintiff,v.UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

756 F.Supp.2d 38

Paul D. BEDERSON, as personal representative of the estate of Robert D. Bederson, deceased, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 09–688 (CKK).

United States District Court, District of Columbia.

Dec. 21, 2010.

L. Palmer Foret, The Law Firm of L. Palmer Foret, PC, Washington, DC, for Plaintiff.Christian Alexander Natiello, United States Attorney's Office, Washington, DC, H. Kenneth Armstrong, Armstrong, Donohue, Ceppos & Vaughan, Chartered, Rockville, MD, Edward Anthony Gonsalves, Armstrong, Donohue, Ceppos & Vaughan, Rockville, MD, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff Paul Bederson (“Plaintiff”) brings the above-captioned action against Defendants United States of America, Melissa Turner, M.D. (“Dr. Turner”), and Ajay Bakshi, M.D. (“Dr. Bakshi”), asserting two counts of negligent medical care and treatment. See Am. Compl., Docket No. [23], ¶¶ 17–24. Count I is asserted against the United States and Dr. Turner (collectively, “Federal Defendants”), while Count II is asserted against Dr. Bakshi. Id. Presently before the Court is Dr. Bakshi's [10] Motion to Transfer (“Def.'s Mot.”), in which he argues (1) that the Court should transfer this entire case to the Southern Division of the United States District Court for the District of Maryland (“District of Maryland”) pursuant to 28 U.S.C. § 1404(a) (“ § 1404(a)”); or (2) in the alternative, that the Court should sever the claims in this case and then transfer only Count II to the District of Maryland. Plaintiff has filed an opposition, Dr. Bakshi has filed a reply, and the Federal Defendants have filed notice that they have no position as to Dr. Bakshi's motion to transfer under § 1404(a), but oppose Dr. Bakshi's motion to sever. For the reasons set forth below, the Court shall DENY Dr. Bakshi's Motion to Transfer because (1) transfer of this entire case is not appropriate in light of the relevant private and public interest factors that govern the Court's consideration of § 1404(a) transfers; and (2) Dr. Bakshi is properly joined as a party in this case and he will not be prejudiced by litigating this case in the District of Columbia.

I. BACKGROUND

Robert Bederson (“Bederson”) was a citizen of Maryland and a retired member of the U.S. military. Am. Compl. ¶¶ 4, 8–9.¹ On June 1, 2007, Bederson went to the U.S. Department of Veterans Affairs Medical Center located in the District of Columbia at 50 Irving Street, N.W. (“D.C. Medical Center”), for a follow-up appointment regarding his earlier cardiac stenting procedure. Id. ¶¶ 9–10. During this appointment, Bederson complained of feeling weak, tired, and falling easily, and his blood was drawn for analysis. Id. ¶¶ 10–11. Plaintiff avers that Bederson's blood test revealed that he “had developed a significant anemia,” but that Bederson was not informed of these results until June 17, 2007. Id. ¶¶ 11–12. Bederson's treating physician during his June 1, 2007 appointment was Dr. Turner, who was employed by the United States. See id. ¶¶ 6, 12.

On June 14, 2007, before Bederson allegedly discovered the results of his blood test, Bederson underwent an esophagogastroduodenoscopy with biopsy, and a balloon dilatation of a distal esophageal stricture (hereinafter, “esophagogastroduodenoscopy”), which was performed by Dr. Bakshi. Id. ¶ 14. Dr. Bakshi, a resident of the District of Columbia (“District”), is licensed to practice medicine only in the state of Maryland and his office is located in Maryland. Id. ¶ 7; Def.'s Mot., Ex. A (Aff. of Ajay Bakshi, M.D. (“Bakshi Aff.”)) ¶¶ 3–5, 7. According to Dr. Bakshi, he performed Bederson's esophagogastroduodenoscopy in Maryland. See Bakshi Aff. ¶¶ 7, 9. ² Plaintiff avers that before Bederson underwent this procedure, Dr. Bakshi did not properly advise Bederson to cease taking the blood thinner medication that Bederson had been on since his cardiac stenting procedure. Am. Compl. ¶¶ 9, 15. Plaintiff also claims that Dr. Bakshi did not administer intravenous heparin to Bederson either preoperatively or intraoperatively. Id. ¶ 15. Plaintiff alleges that, as a result of both the Federal Defendants' and Dr. Bakshi's negligence, Bederson suffered internal bleeding during the esophagogastroduodenoscopy and had to be hospitalized. Id. ¶¶ 15, 17–24.

The Complaint in this case was filed on April 13, 2009. Plaintiff asserts one claim of medical negligence against the Federal Defendants (Count I) and another against Dr. Bakshi (Count II); both claims arise out of Defendants' care and treatment of Bederson. Am. Compl. ¶¶ 17–24. Plaintiff alleges that this Court has jurisdiction over Count I pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), and over Count II pursuant to this Court's diversity jurisdiction, 28 U.S.C. § 1332. See id. ¶¶ 1–2. Plaintiff further avers that venue is proper in the District because: (1) the acts and omissions comprising Count I occurred in the District; and (2) Dr. Bakshi, the only defendant in Count II, resides in the District. Id. ¶ 3. On August 20, 2009, Dr. Bakshi filed his [8] Answer, [9] Motion to Dismiss Count II for failure to comply with Maryland's Health Care Malpractice Claims Act (“Health Care Malpractice Claims Act”), Md. Cts. & Jud. Code Ann. § 3–2A–01 et seq., and [10] Motion to Transfer. On August 28, 2009, Plaintiff filed, and this Court subsequently granted, a[11] Consent Motion to Stay Dr. Bakshi's motion to dismiss pending Plaintiff's submission of Count II to arbitration pursuant to the Heath Care Malpractice Claims Act. Min. Order (Aug. 29, 2009). Additionally, this Court granted the Federal Defendants' [14] Unopposed Motion to Stay the case as to them pending the outcome of Dr. Bakshi's motion to transfer. Min. Order (Nov. 3, 2009).

On November 25, 2009, the parties advised the Court by a[16] Joint Status Report that the arbitration proceedings regarding Count II had concluded. Accordingly, in a pair of minute orders, the Court lifted the stay as to Dr. Bakshi's motion to dismiss, ordered Dr. Bakshi to show cause as to why the completion of the arbitration proceedings did not moot his motion to dismiss, and provided a schedule for responsive briefing to Dr. Bakshi's motion to transfer. See Min. Orders (Dec. 3, 2009). Dr. Bakshi subsequently withdrew his motion to dismiss. See [17] Praecipe—Withdrawal of Mot. In the motion to transfer that remains, Dr. Bakshi argues (1) that the Court should transfer this entire case to the District of Maryland pursuant to § 1404(a); or (2) in the alternative, that the Court should sever the claims in this case and then transfer only Count II to the District of Maryland. Plaintiff has filed an [18] opposition (“Pl.'s Opp'n”) and Dr. Bakshi has filed a[20] reply (“Def.'s Reply”).

The Federal Defendants have filed a[19] notice of their position (“Notice”), which provides in pertinent part:

[T]he Federal Defendants have no position on [Dr.] Bakshi's Motion to Transfer. Federal Defendants are equally capable of defending this action whether the case is before this Court or the District of Maryland. Thus, Federal Defendants foresee no prejudice whether the case is seated here or in Maryland. Second, the Federal Defendants request that the Court not sever [Dr.] Bakshi from these proceedings. It makes little sense to have two cases in different courts when the nucleus of operative facts involve both defendants. Moreover, to the extent that [Dr.] Bakshi would, at some later point, try to join or have the United States otherwise indemnify him for any liability he may be found to have, the Federal Defendants have a strong preference to have the issues litigated together rather than separately.

Notice at 1–2. The parties' briefing on the pending motion is now complete, and the matter is therefore ripe for review and resolution by this Court.

II. LEGAL STANDARD AND DISCUSSION

A. Motion to Transfer

Dr. Bakshi moves to transfer venue pursuant to § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Accordingly, the threshold consideration in this motion to transfer is whether this case “might have been brought” in the District of Maryland. Claims asserted under the FTCA, such as Count I, “may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b). In comparison, claims asserted pursuant to this Court's diversity jurisdiction, such as Count II, may

be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(a). In this case, the parties agree, as they must, that venue would also be proper in the District of Maryland. See Def.'s Mot. at 3; Pl.'s Opp'n at 3. Plaintiff resides in Maryland, rendering venue for Count I under the FTCA proper in the District of Maryland.³ Additionally, “a substantial part of the events or omissions giving rise to” Count II occurred in Maryland: Dr. Bakshi's and Bederson's relationship was centered in Maryland and Dr. Bakshi performed Bederson's esophagogastroduodenoscopy in Maryland. 28 U.S.C. § 1391(a)(2).

Although the District of Maryland would be a proper venue, Dr. Bakshi still “must demonstrate that the ‘balance of convenience of the parties and witnesses and the interest of justice are in [ ] favor’ ” of transferring venue to the District of...