United States District Court, D. Nebraska
SAMONE T. PARKER, Individually and as Special Administrator of the Estate of Tonya L. Drapeau, deceased; Plaintiff,
THE UNITED STATES OF AMERICA, VISTA STAFFING SOLUTIONS, INC., NEVINE MAHMOUD, M.D.; and ROBIN HARRIS, R.N.; Defendants.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment, ECF No. 49,
filed by Defendant United States of America (Government), and
the Motion to Deny or Defer Ruling on the Government's
Motion, ECF No. 63, filed by Plaintiff Samone Parker. For the
reasons stated below, the Motions will be denied.
following facts are those alleged in the Amended Complaint,
ECF No. 42, and assumed true for purposes of the pending
in the morning on March 21, 2016, Tonya Drapeau went to the
emergency department at Winnebago Hospital in Winnebago,
Nebraska-a federally operated medical facility and part of
the Great Plains Area Indian Health Service. When she
arrived, Drapeau stated she was having difficulty breathing.
Dr. Nevine Mahmoud; Robin Harris, a registered nurse; and
Dena Neiman, a nurse practitioner, attended to Drapeau and
evaluated her condition. They observed that Drapeau's
heart rate and respiratory rate were high and collectively
diagnosed her with anxiety hyperventilation. They did not
order or perform any laboratory tests or other tests to
measure Drapeau's blood sugar and she was discharged from
Drapeau was discharged, Dr. Mahmoud, Harris, and Nieman each
reviewed Drapeau's medical history to ensure their
initial evaluation and diagnosis was accurate. Although
Drapeau's medical records reflected that she was diabetic
with a history of experiencing diabetic ketoacidosis, Dr.
Mahmoud, Harris, and Nieman did not attempt to contact her to
notify her that she may be suffering from diabetic
ketoacidosis rather than anxiety hyperventilation.
in the afternoon, Drapeau returned to Winnebago Hospital in
an ambulance and in critical condition. After laboratory
testing revealed that her blood sugar level was dangerously
high and that she was suffering from diabetic ketoacidosis,
Drapeau was transported to a medical center in Sioux City,
Iowa. She died two days later from diabetic ketoacidosis.
January 26, 2017, Parker submitted a claim to the United
States Department of Health and Human Services (DHHS) under
28 U.S.C. § 2675(a) asserting the Government was liable
for Dr. Mahmoud's, Harris's, and Neiman's alleged
negligence which caused Drapeau's death. DHHS did not
make a final disposition of the claim within six months and,
on March 20, 2018, Parker filed this wrongful death and
survival action pursuant, in relevant part,  to the Federal
Tort Claims Act, 28 U.S.C. § 1346, 2671 et
seq., and Nebraska law, Neb. Rev. Stat. §§
30-810, 25-1401. According to the Amended Complaint,
Parker's wrongful death and survival action is based on
three separate counts of negligence for which the Government
is liable: negligent failure to diagnose and treat (Count I);
negligent failure to warn (Count II); and negligent hiring,
training, and supervision (Count III). After the Government
filed an Answer, ECF No. 45, it moved to dismiss the Amended
Complaint arguing the Court lacks subject-matter jurisdiction
over the claims against the Government. ECF No. 49. The
Government alternatively argued that the Court should dismiss
the claims against the Government under Rule 12(c) or Rule 56
of the Federal Rules of Civil Procedure. Id.
Subject-Matter Jurisdiction-Fed. R. Civ. P. 12(b)(1)
order to properly dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1),  the complaint must be
successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (Osborn v.
United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)).
“In a facial challenge to jurisdiction, the court
presumes all of the factual allegations concerning
jurisdiction to be true and will grant the motion only if the
plaintiff fails to allege an element necessary for subject
matter jurisdiction.” Young Am. Corp. v. Affiliated
Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005)
(citing Titus, 4 F.3d at 593). In a factual
challenge to jurisdiction, “there is substantial
authority that the trial court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case.” Osborn, 918 F.2d at 730. “In
short, no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Iowa League of Cities v. EPA, 711
F.3d 844, 861 (8th Cir. 2013) (citing Osborn, 918
F.2d 724, 730). The plaintiff has the burden of proving
jurisdiction exists[.]” Kennedy Bldg. Assocs. v.
Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (citing
Cty. of Los Angeles v. Davis, 440 U.S. 625, 631
(1979)). “Once the evidence is submitted, the district
court must decide the jurisdictional issue, not simply rule
that there is or is not enough evidence to have a trial on
the issue.” Osborn, 918 F.2d 724.
Judgment on the Pleadings-Fed. R. Civ. P. 12(c)
motion under Rule 12(c) for judgment on the pleadings is
evaluated under “the same standard used to address a
motion to dismiss for failure to state a claim under
Fed.R.Civ.P. 12(b)(6).” Clemons v. Crawford,
585 F.3d 1119, 1124 (8th Cir. 2009) (quoting Ashley Cty.
v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d ...