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Murphy v. United States

United States District Court, D. New Mexico

September 4, 2018

DENNIS MURPHY, Guardian Ad Litem for N.E.D., an incapacitated minor; JACOB DOTSON; DOMINIQUE BILLY, individually and as next friend of I.C. and S.D., minors, Plaintiffs,


         Plaintiffs Dennis Murphy, Guardian Ad Litem for N.E.D., Jacob Dotson, and Dominique Billy, individually and as next of friend of minors I.C. and S.D. (Plaintiffs) filed suit against Defendant United States of America (United States or Defendant) seeking damages for alleged medical negligence, negligent training and supervision, and personal injuries under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., and New Mexico state law. See First Amended Complaint (FAC).[1] Plaintiffs' claims arise out of emergency medical treatment rendered to minor child N.E.D. in February 2016 at the Gallup Indian Medical Center (GIMC), an Indian Health Services facility in Gallup, New Mexico following the child's fall from playground equipment in a city park. Plaintiffs allege, among other things, that GEVIC medical personnel failed to properly protect and monitor N.E.D.'s airway following a rapid sequence induction and intubation. See FAC ¶ 36. Plaintiffs claim this ultimately led to deprivation of oxygen for a period sufficient to cause N.E.D. to suffer a permanent hypoxic brain injury. See id.

         On May 25, 2018, Defendant filed a motion to dismiss this suit under Rule 12(b)(7) for failure to join indispensable parties, or, alternatively to force joinder of the City of Gallup and three corporations that Plaintiffs claim manufactured and supplied the playground equipment from which N.E.D. fell. Plaintiffs maintain that N.E.D.'s fall necessitated medical treatment at GIMC giving rise to the claims before this Court.[2] Plaintiffs oppose the Motion and it is fully briefed.[3] On July 18, 2018, the Court held a hearing on the Motion followed by additional arguments on August 2, 2018. The Court, having considered the parties' briefing, arguments, and relevant law will deny the Motion.

         I. BACKGROUND

         On February 28, 2016, then six-year old N.E.D. was playing on playground equipment at the Indian Hills Playground in Gallup, New Mexico. See FAC ¶ 21. Around 3:00 p.m., N.E.D. fell, hitting her head and face on the playground surface material. Id. Approximately one hour later, N.E.D. was taken to the Gallup Indian Medical Center (GIMC) for an evaluation of any injuries related to her fall. Id. ¶¶ 22-23. Dr. Stephen Waite, after evaluating N.E.D., decided to conduct a rapid sequence intubation following administration of Ativan, Ketamine, and succinylcholine in order to assess N.E.D.'s head using a computed tomography (CT) scan. Id. ¶ 24. Following intubation, N.E.D. was accompanied by medical staff to the CT scan room. Id. ¶ 24. While in the room for the CT scan, N.E.D.'s pulse oximeter dropped and she required cardiopulmonary resuscitation (CPR). Id. ¶ 29. At 5:40 p.m., N.E.D. was transferred via medical flight to the University of New Mexico Hospital in Albuquerque, New Mexico where she was further evaluated and treated. Id. ¶¶ 33-34. An MRI performed on N.E.D.'s head on March 2, 2016 demonstrated a hypoxic brain injury from "global hypoxic/anoxic/hypo-perfusion insult." Id. ¶ 34.

         On March 28, 2017, Plaintiffs filed a complaint against Defendant United States under the FTCA seeking damages for medical negligence of federal employees at GEVIC that Plaintiffs claim resulted "in the permanent and irreparable injuries to N.E.D., an incapacitated minor, and to Plaintiffs." See Complaint ¶ 1 (Doc. I).[4] On January 9, 2018, after obtaining leave from the Court, Plaintiffs amended the Complaint to add as defendants Nurse Kellie Smith and Next Medical Staffing, having discovered through early depositions that Nurse Smith, who participated in N.E.D.'s treatment, was a federal contractor potentially outside of FTCA coverage. See Jan. 8, 2018 Order (Doc. 50). The United States ultimately determined that it would provide FTCA coverage over Nurse Smith's personal services contract and was substituted in her place, and the Court dismissed the claims against Next Medical Staffing. See Order to Substitute (Doc. 66); Order to Dismiss (Doc. 70).

         On April 12, 2017, Plaintiffs also filed an action in New Mexico state court against the City of Gallup, which they claim was responsible for maintaining the playground equipment at Indian Hills Playground, as well as PlayPower, Inc., Miracle Recreational Equipment Co., and Churchich Recreation Equipment, LLC (Suppliers), companies Plaintiffs claim manufactured and supplied the particular playground equipment from which N.E.D. fell. The case was dismissed for improper venue, but was refiled with the Eleventh Judicial District Court of the State of New Mexico on January 10, 2018. See Ex. A to Mot., State Court Complaint (Doc. 99- 1). In the State Court Complaint, Plaintiffs assert claims for negligence, negligence per se, and strict liability against the Suppliers, allege that the City of Gallup was negligent in maintaining the playground, and assert that the City of Gallup and Suppliers are jointly and severally liable for all harms suffered by N.E.D., "including the additional/enhanced injuries caused by the Gallup Indian Medical Center." See Ex. A to Mot., State Court Complaint. Plaintiffs seek damages against the City of Gallup and Suppliers not only for any original injury related to N.E.D.'s fall, but also for any injury resulting from "necessary medical attention." Plaintiffs assert that the combined injuries "resulted in extensive brain damage, including impairment of cognitive function, physical paralysis and other injurious health effects that have necessitated medical care, rehabilitation, counseling, and will require medical attention for [N.E.D.'s] lifetime." See Ex. A, State Court Complaint, ¶ 79.

         Defendant United States claims it became aware of the parallel state court proceeding on February 27, 2018 when Suppliers filed a notice of claim with the United States Department of Health and Human Services for contribution/indemnity for the purported negligent medical care provided to N.E.D. at GIMC.[5] See Mot. at 3;Ex. B to Mot., Form 95. Defendant has filed this motion to dismiss for failure to join necessary parties.


         A. Federal Rule of Civil Procedure 19

         Defendant United States moves under Federal Rules of Civil Procedure 12(b)(7), 12(c), 12(h)(2) and 19 to dismiss this action, claiming the City of Gallup and Suppliers (collectively, State Court Defendants) are necessary parties, that joining the City of Gallup and the Suppliers is not feasible, and that the Court should dismiss Plaintiffs' suit in equity and good conscience. See Mot. at 1. The Court may exercise its discretion under Federal Rule of Civil Procedure 12(b)(7) to dismiss an action where a required and indispensable party has not been joined. See N. Arapaho Tribe v. Harnsberger, 697 F.3d 1272, 1277 (10th Cir. 2012). As the proponent of the motion to dismiss under 12(b)(7), Defendant United States bears the burden of showing that the State Court Defendants are necessary and indispensable parties. Citizen BandPotawatomi Indian Tribe of Okla. v. Collier, 17 F.3d 1292, 1293 (10th Cir. 1994). A proponent's burden may be satisfied by providing "affidavits of persons having knowledge of these interests as well as other relevant extra-pleading evidence." Id. (internal quotation marks and citation omitted).

         Rule 19 of the Federal Rules of Civil Procedure "recognizes exceptional circumstances in which the plaintiffs choice of parties or forum must give way because of an absent party's interest in the outcome of the action or involvement in the underlying dispute." Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 131 (2d Cir. 2013). In relevant part, Rule 19[6] provides:

(a)(1) ... A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple or otherwise inconsistent ...

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