Toomey et al v. USA et al, No. 5:2012cv00111 - Document 59 (E.D. Ky. 2013)
Court Description: OPINION AND ORDER: 1) Dfts Motions to Alter are GRANTED (DE 50 , 51 , 52 , 53 , 54 ). 2) The Court's 2/8/2013 Opinion and Order (DE 48 ) is AMENDED as follows: a) page 3, sentence is added to end of first full paragraph, "The Agreed O rder was entered by the Court on 5/16/2012 (DE 21 ) dismissing all claims against Lifepoint." b) last sentence of Section II on page 7 is amended to delete any reference to 28 USC 1367(d) and to state only, "The claims will be dismissed wi thout prejudice." c) Paragraph 2 of the ordering clause on page 8 is amended to omit any reference to 18 USC 1367(d) and to state only, "all the Pla's claims against the remaining Dfts are dismissed w/o prejudice pursuant to 18 USC 1367(c)." Signed by Judge Karen K. Caldwell on 4/16/2013.(SCD)cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON CIVIL ACTION NO. 5:12-111 JUDITH TOOMEY, Individually and as Administratrix of Ronald T. Toomey=s Estate, v. PLAINTIFF OPINION AND ORDER UNITED STATES OF AMERICA; MEADOWVIEW REGIONAL MEDICAL CENTER, LLC d/b/a Meadowview Regional Medical Center, LLC; LIFEPOINT HOSPITALS, INC.; JAMES A. YOUNG, M.D.; MARSHALL EMERGENCY SERVICES ASSOCIATES, P.S.C.; RICHARD HARTMAN, M.D.; MAYSVILLE RADIOLOGY ASSOCIATES, P.S.C.; LP AUGUSTA, LLC, d/b/a Bracken County Nursing & Rehabilitation Center; FRAN STAHL, in her capacity as Administrator of Bracken County Nursing & Rehabilitation Center; SHELLEY APPLEGATE, R. N., in her capacity as Director of Nursing of Bracken County Nursing and Rehabilitation Center; UNIVERSITY OF KENTUCKY MEDICAL CENTER; UNIVERSITY HOSPITAL OF THE ALBERT B. CHANDLER MEDICAL CENTER, INC.; STEPHANIE MURPHY, M.D.; and GAYLE (last name unknown), R.N., DEFENDANTS ******** This matter is before the Court on the motions of several of the Defendants to alter the Court s February 8, 2013 Opinion and Order to omit one portion of a sentence (DE 50, 51, 52, 53, 54). In the opinion, the Court dismissed the Plaintiff s claim against the United States under the Federal Tort Claims Act, (FTCA), 28 U.S.C. § 2671 et seq. The Court then declined to exercise jurisdiction over the Plaintiff s state-law claims pursuant to 28 U.S.C. § 1367(c) and dismissed those claims. The Court dismissed the state-law claims without prejudice, stating that, pursuant to 28 U.S.C. § 1367(d), the Plaintiff had at least 30 days in which to file her state-law claims in state court. The Defendants move to alter the opinion to omit the reference to §1367(d). They argue that the Plaintiff s state-law claims were time-barred before the Plaintiff ever filed this federal action. The Defendants are concerned that this Court s recognition of § 1367(d) in its opinion indicates that this Court has determined that the Plaintiff s state-law claims are not time barred. This Court has not made any determination regarding whether any of the Plaintiff s state law claims are time-barred. The Court will therefore amend its prior opinion to prevent any misunderstanding regarding that issue. The Plaintiff may, of course, file her state-court claims in state court and that court will then resolve any argument that the claims are time barred. The Defendant Meadowview Regional Medical Center, LLC d/b/a Meadowview Regional Medical Center ( Meadowview ) also moves the Court to amend the February 8, 2013 Opinion and Order to state that Defendant Lifepoint Hospitals, Inc. was dismissed as a Defendant in this action by Agreed Order dated May 16, 2012. The Court will amend the Opinion and Order to reflect Lifepoint s dismissal. Accordingly, the Court hereby ORDERS as follows: 1) the Defendants motions to alter are GRANTED (DE 50, 51, 52, 53, 54); 2) the Court s February 8, 2013 Opinion and Order (DE 48) is AMENDED as follows: a) On page 3, the following sentence is added to the end of the first full paragraph: The Agreed Order was entered by the Court on May 16, 2012 (DE 21) dismissing all claims against Lifepoint. b) the last sentence of Section II on page 7 of the opinion is amended to delete any reference to 28 U.S.C. § 1367(d) and to state only: The claims will be dismissed without prejudice. c) Paragraph 2 of the ordering clause on page 8 of the opinion is amended to omit any reference to 18 U.S.C. § 1367(d) and to state only, all the Plaintiff s claims against the remaining Defendants are hereby dismissed without prejudice pursuant to 18 U.S.C. § 1367(c). Dated this 16th day of April, 2013. 2
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