United States District Court, N.D. Illinois
For Veronica Hasbun, Plaintiff: Uche O. Asonye, LEAD ATTORNEY, Scott C. Fanning, Asonye and Associates, Chicago, IL.
For Resurrection Health Care Corporation, Defendant: Catherine L. Garvey, LEAD ATTORNEY, Cassiday, Schade & Gloor, Chicago, IL; Anthony Joseph Longo, Cassiday Schade LLP, Chicago, IL.
For United States, Defendant: Harpreet Kaur Chahal, Katherine Ellen Beaumont, United States Attorney's Office (NDIL), Chicago, IL.
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, United States District Judge.
On February 7, 2013, Plaintiff Veronica Hasbun filed the present one-count Amended Complaint sounding in negligence against Defendants the United States and Resurrection Health Care Corporation pursuant to the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 2671. Before the Court are Defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendants' motions and dismisses this lawsuit in its
entirety. See Bogie v. Rosenberg, 705 F.3d 603, 608, 616 (7th Cir. 2013) (dismissal with prejudice appropriate if amending allegations would be futile).
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must " give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's " factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a " complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). " In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiff's favor." AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).
On December 4, 2009, Ms. Hasbun commenced a civil action in the Circuit Court of Cook County, Illinois against Yam Tong, M.D. (" Dr. Tong" ), Resurrection Health Care Corporation (" Resurrection" ); and PCC Community Wellness Center (" PCC" ), alleging assault and battery, negligence, negligent supervision, and intentional infliction of emotional distress. (R. 32, Am. Compl. ¶ 8.) Dr. Tong was a physician for PCC -- a private entity that receives grant money from the United States Public Health Service pursuant to 42 U.S.C. § 233 -- and thus Dr. Tong and PCC are considered employees of the United States for purposes of liability protection under the FTCA. ( Id. ¶ ¶ 9, 10.)
Accordingly, on March 31, 2010, the United States filed a notice of removal of the action to federal court and notice that the United States would be substituted as a party Defendant in lieu of Dr. Tong and PCC. ( Id. ¶ 11.) In this earlier lawsuit, the district court dismissed Ms. Hasbun's claims without prejudice for failure to exhaust. ( Id. ¶ 12.) Thereafter, Ms. Hasbun filed an administrative action with the Department of Health and Human Services (" DHHS" ) regarding her FTCA claim. ( Id. ¶ ¶ 13, 14.) DHHS did not take action within six months of Ms. Hasbun's filing, and thus she filed the present lawsuit on April 6, 2012.  ( Id. ¶ ¶ 16, 17.) Plaintiff's original Complaint in the present lawsuit alleged both negligent supervision and negligence against the United States and Resurrection. On January 17, 2013, the Court granted Defendants' motions to dismiss without prejudice and granted ...