Opinion
CIVIL ACTION NO: 03-3052 SECTION: "R" (5)
May 10, 2004
ORDER AND REASONS
Defendant Dr. Stanley Bleich moves the Court to dismiss plaintiff David Walter Acosta's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Plaintiff opposes the motion. Also before the Court is plaintiff's request for a jury trial. For the following reasons, the Court grants defendant's motion to dismiss. Further, the Court has no jurisdiction to entertain plaintiff's request for a jury trial.
I. Background and Procedural History
Plaintiff David Walter Acosta alleges that he visited defendant Dr. Stanley Bleich, who performed an ultrasound on Acosta's heart. Acosta alleges that after the ultrasound, Dr. Bleich informed him and his wife that nothing was wrong with his heart.
Acosta contends that he then discovered that there was a 40% blockage in one of his arteries, which eventually led to a heart attack in May 2003. He claims that Dr. Bleich should have noticed the blockage and treated it before he had his heart attack.
In November 2003, Acosta sued Dr. Bleich in this Court, alleging personal injury and medical malpractice claims. Dr. Bleich now moves the Court to dismiss plaintiff's complaint for lack of subject matter jurisdiction.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a district court's subject matter jurisdiction. The Court properly grants a motion to dismiss for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. See Home Builders Ass'n of Miss., Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A district court may dismiss an action for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); see also Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997) (citations omitted). Defendant raises a "facial attack" on the complaint. Accordingly, the Court must examine whether plaintiff has sufficiently alleged a basis for subject matter jurisdiction, taking all of his allegations in the complaint as true. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 510 (5th Cir. 1980) (citing Mortensen v. First Fed. Savings Loan, 549 F.2d 884, 891 (3rd Cir. 1977)).
III. DISCUSSION
Federal courts are courts of limited subject matter jurisdiction. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). A federal court may not entertain a case unless authorized to do so by the Constitution and legislation. See id. The jurisdiction of federal courts extends to actions that involve a federal question, diversity suits, admiralty actions, suits against foreign states, and bankruptcy proceedings. See 28 U.S.C. § 1330-34. There is a presumption against subject matter jurisdiction "that must be rebutted by the party bringing an action to federal court." Id.
The Court finds that Acosta has not carried his burden in rebutting the presumption against subject matter jurisdiction. The Court first notes that Acosta alleges no basis for jurisdiction in his complaint. Nor does he provide the Court with a basis for jurisdiction in his opposition to Dr. Bleich's motion to dismiss. Nevertheless, two possibilities for jurisdiction exist: federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332.
The Court finds that there is no basis for federal question jurisdiction here under 28 U.S.C. § 1331. Acosta's complaint alleges personal injury and medical malpractice claims that do not arise under federal law. Defendant notes that a liberal construction of Acosta's complaint may allege a claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. The Court finds, however, that Acosta may not sustain a claim against Dr. Bleich under the EMTALA. Although the Fifth Circuit has not explicitly resolved the issue of whether EMTALA provides a private cause of action against physicians, all of the other courts that have done so have held that it does not. See Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1256 (9th Cir. 1995); Delaney v. Cade, 986 F.2d 387, 393-94 (10th Cir. 1993); Baber v. Hospital Corp. of Am., 977 F.2d 872, 876-77 (4th Cir. 1993); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, __ 1040 n. 1 (D.C. Cir. 1991); Alvarez Torres v. Hospital Ryder Mem'l, Inc., — F. Supp.2d —, 2004 WL 523437, at *2 (D. Puerto Rico 2004); Lebron v. Ashford Presbyterian Cmty. Hosp., 995 F. Supp. 241, 243-44 (D. Puerto Rico 1998). Nor does EMTALA provide a federal medical malpractice cause of action. See Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994); Gatewood, 933 F.2d at 1041. Acosta's personal injury and medical malpractice allegations against Dr. Bleich do not allege a claim under federal law.
In his opposition to Dr. Bleich's motion to dismiss, Acosta also admits that he does not allege a cause of action under EMTALA.
Further, diversity of citizenship does not exist here under 28 U.S.C. § 1332. Acosta is a resident of Kenner, Louisiana. Defendant alleges, and plaintiff does not dispute, that Dr. Bleich is a resident of Metairie, Louisiana. The parties are therefore not diverse.
Although Acosta cites to various statutory provisions in his opposition to Bleich's motion to dismiss, none of the provisions cited is a jurisdictional provision. The provisions do not treat, nor do they support, federal subject matter jurisdiction. The Court finds that it has no subject matter jurisdiction over Acosta's suit against Dr. Bleich. Because the Court has no subject matter jurisdiction, it cannot entertain plaintiff's request for a jury trial.
IV. CONCLUSION
For the foregoing reasons, the Court grants defendant's motion to dismiss for lack of subject matter jurisdiction.
New Orleans, Louisiana.