Estate of Carr ex rel. Carr v. U.S.

• Decision Date: 02 March 2007
• Docket Number: No. EP-06-CV-00179-KC.,EP-06-CV-00179-KC.
• Citation: 482 F.Supp.2d 842
• Parties: The ESTATE OF Miller CARR, brought by Daisy CARR, as Representative of the Estate, and Daisy Carr, Individually, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Texas

482 F.Supp.2d 842

The ESTATE OF Miller CARR, brought by Daisy CARR, as Representative of the Estate, and Daisy Carr, Individually, Plaintiff, v. UNITED STATES of America, Defendant.

No. EP-06-CV-00179-KC.

United States District Court, W.D. Texas, El Paso Division.

March 2, 2007.

COPYRIGHT MATERIAL OMITTED

Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, for Plaintiff.

Katherine A. Lehmann, U.S. Attorney's Office, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, United States District Judge.

On this date, the Court considered "Defendant's Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment" ("Defendant's Motion"). For the reasons set forth herein, Defendant's Motion is GRANTED.

I. BACKGROUND

The instant case involves a claim by the Estate of Miller Carr, represented by Daisy Carr, and Daisy Carr, individually, ("Plaintiff') against the United States of America ("Defendant") for medical negligence.

On September 24, 2003, Miller Carr retained the services of Walter L. Boyaki ("Boyaki") for injuries and damages resulting from medical negligence, which he allegedly suffered between August 2002 and July 2003. Def.'s Proposed Undisputed Facts 1 (citing Def.'s Ex. 1); Pl.'s Resp. to Proposed Undisputed Facts I.1 (admitting the same). Shortly thereafter, on October 3, 2003, Miller Carr filed an individual administrative claim with Defendant, alleging medical malpractice for failing to properly diagnose, treat, and operate on his esophageal cancer. Def.'s Proposed Undisputed Facts 2 (citing Def.'s Exs. 1, 2, and 4); Pl.'s Resp. to Proposed Undisputed Facts I.2 (admitting the same). Miller Carr then passed away on March 5, 2004. Pl.'s Resp. in Opp'n to Def.'s Mot. to Dismiss or in the Alternative for Summ. J., Ex. B. ("Pl.'s Resp.").

On March 24, 2004, Plaintiff signed an administrative claim form against Defendant, alleging medical malpractice and wrongful death for failing to properly diagnose and treat esophageal and other cancer in her deceased husband, Miller Carr. Def.'s Proposed Undisputed Facts, Ex. 3. Plaintiff filed this claim with the Army Claims Service on March 26, 2004, thereby amending Miller Carr's administrative claim of October 3, 2003. Id.

On April 30, 2004, Plaintiff signed the contract, which was initially signed by her husband, retaining Boyaki as counsel in the medical malpractice case. Def.'s Proposed Undisputed Facts 4 (citing Def.'s Ex. 1); Pl.'s Resp. to Proposed Undisputed Facts I.4 (admitting the same).

On February 4, 2005, Defendant denied Plaintiffs administrative claim by certified letter. Def.'s Proposed Undisputed Facts 5 (citing Def.'s Ex. 4); Pl.'s Resp. to Proposed Undisputed Facts I.5 (admitting the same). In this certified letter, Defendant advised Plaintiff of her right to file suit in district court, or to request reconsideration from the Department of Veterans Affairs General Counsel ("VA"), within six months. Def.'s Proposed Undisputed Facts 5 (citing Def.'s Ex. 4); Pl.'s, Resp. to Proposed Undisputed Facts I.5 (admitting the same).

On June 20, 2005, Plaintiff, individually, filed a bankruptcy petition under Chapter 13 of the United States Bankruptcy Code, with the United States Bankruptcy Court for the Western District of Texas in El Paso, cause no. 05-31403. Def.'s Proposed Undisputed Facts 6 (citing Def.'s Ex. 5); Pl.'s Resp. to Proposed Undisputed Facts I.6 (admitting the same).

Thereafter, on August 2, 2005, Plaintiff filed suit against Defendant in the United States District Court for the Western District of Texas for medical negligence. Def...'s Proposed Undisputed Facts, Ex. 6. The judge assigned to this case was the Honorable Frank Montalvo. Id. On this same date, Plaintiff also requested reconsideration from the VA. Def.'s Proposed Undisputed Facts, Ex. 7.

On August' 29, 2005, Plaintiff filed an "Amended Schedules and Summary" in the United States Bankruptcy Court, listing the wrongful death suit against the Veterans Affairs Medical Clinic as exempt personal property of an unknown value. In re Daisy D. Carr, No, 05-31403 (Bankr.W.D. Tex. filed June 20, 2006), doc. no. 8. The United States Bankruptcy Court entered an order confirming Plaintiffs bankruptcy plan on November 28, 2005. Id., doc. no. 10.

On October 12, 2005, Plaintiff moved for a voluntary dismissal without prejudice of her federal district court case pending before Judge Montalvo. Def.'s Proposed Undisputed Facts 8 (citing Def.'s Ex. 8); Pl.'s Resp. to Proposed Undisputed Facts I.8 (admitting the same). On October 14, 2005, the VA denied Plaintiffs request for reconsideration by certified letter. Def.'s Proposed Undisputed Facts 9 (citing Def.'s Ex. 9); Pl.'s Resp. to Proposed Undisputed Facts I.9 (admitting the same). Judge Montalvo granted Plaintiffs request for voluntary dismissal without prejudice on October 20, 2005. Def.'s Proposed Undisputed Facts 10 (citing Def.'s Ex. 10); Pl.'s Resp. to Proposed Undisputed Facts I.10 (admitting the same).

On January 30, 2006, Boyaki contacted Plaintiffs bankruptcy attorney, Carl Johnson ("Johnson"), to both inform Johnson that Boyaki would file suit for the death of Miller Carr and to request "the appropriate paperwork" in light of the pending bankruptcy. Pl.'s Resp., Ex. B; Def.'s Reply to Pl.'s Resp. to Proposed Undisputed Facts II.2 (admitting the contents of the unauthenticated letter attached to Plaintiffs Response, without objecting to it). Johnson contacted the Bankruptcy Trustee, Stuart C. Cox ("Trustee"), via email on February 23, 2006. Pl.'s Resp., Ex. B; Def.'s Reply to Pl.'s Resp. to Proposed Undisputed Facts II.2 (admitting the contents of the unauthenticated email attached to Plaintiffs Response, without objecting to it). Johnson informed the Trustee that he would tie amending the bankruptcy schedules because he "just learned that the Debtor ha[d] a wrongful death claim against the VA," even though the "Amended Schedules and Summary" of August 29, 2005 already included the wrongful death suit as an asset. Pl.'s Resp., Ex. B; Def.'s Reply to Pl.'s Resp. to Proposed Undisputed Facts II.2 (admitting the contents of the unauthenticated email attached to Plaintiffs Response, without objecting to it).

On March 7, 2006, the Trustee wrote to Boyaki informing him that the commencement of the bankruptcy created an estate consisting of all legal or equitable interests of the Debtor, and hence that any proceeds of the wrongful death suit would be property belonging to this bankruptcy estate. Pl.'s Resp., Ex. B; Def.'s Reply to Pl.'s Resp. to Proposed Undisputed Facts II.2 (admitting the contents of the unauthenticated letter attached to Plaintiffs Response, without objecting to it). The Trustee advised Boyaki that he would need to obtain approval from both the Trustee and the United States Bankruptcy Court in order to pursue the wrongful death action in federal district court. Pl.'s Resp., Ex. B; Def.'s Reply to Pl.'s Resp. to Proposed Undisputed Facts II.2 (admitting the contents of the unauthenticated letter attached to Plaintiffs Response, without objecting to it).

On April 4, 2006, Plaintiff filed "Debtor's Motion to Approve Employment of Counsel" with the United States Bankruptcy Court. Pl.'s Resp. Ex. B. In this motion, Plaintiff represented that she had retained Boyaki after the death of her husband, in order to provide adequate representation of her legal rights in a matter relating to her husband's medical malpractice claim against Defendant. Id. She requested that the. United States Bankruptcy Court approve the employment of Boyaki to perform the professional services required in connection with the civil case. Id. The United States Bankruptcy Court approved the employment of Boyaki "as counsel for the Debtor in a civil case" on May 3, 2006. Id.

On May 18, 2006, Plaintiff filed the instant action in federal district court, alleging violations of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq.

II. DISCUSSION

A. Standards

Defendant has filed a Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. The standards for each are discussed below:

1. Motion to dismiss

Federal courts are courts of limited jurisdiction. Peoples Nat'l Bank v. Office of the Comptroller of the Currency of the United States, 362 F.3d 333, 336 (5th Cir. 2004). Without jurisdiction conferred by statute, federal courts lack the power to adjudicate claims. Id. A party may challenge a district court's, subject matter jurisdiction by filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). 12(b)(1).

A motion to dismiss pursuant to Rule 12(b)(1) must be considered before any other challenge, because a court must have jurisdiction before determining the validity of a claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994).. In ruling upon such motion, a district court is free to weigh the evidence and satisfy itself as to its power over the case. MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir.1992). In making this ruling, the district court may rely upon: (1) the complaint alone, (2) the complaint supplemented by undisputed facts in the record, or (3) the complaint supplemented by undisputed facts in addition to the court's resolution of disputed facts. Barrera-Montenegro v. United. States and Drug Enforcement Admin., 74 F.3d 657, 659 (5th Cir.1996).

The standard of reviewing a motion to dismiss pursuant to 12(b)(1) depends upon whether the defendant makes a facial or factual challenge to the plaintiffs complaint. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). When the defendant makes a facial attack by the mere filing of a Rule 12(b)(1) motion, the trial court looks to the sufficiency of the plaintiffs allegations, which are presumed to be true. Id. When the defendant makes a factual attack by providing affidavits, testimony, and other evidence challenging the court's jurisdiction, the plaintiff must submit facts in...