Kasparian, Jr. v. Duffy Health Center, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction

D. Mass.September 2, 2016

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ________________________________________________ ) ABRAHAM KASPARIAN, JR., pro se, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-11551-ADB ) UNITED STATES, DUFFY HEALTH CENTER, INC. ) DUNCAN MACALLISTER, PRESIDENT, WESLEY ) KLEIN, D.O., and MICHAEL FUSCO, ) ) Defendants. ) ) _______________________________________________ ) DEFENDANTS’ MOTION TO DISMISS PURUSANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) and (6) Now come the Defendants, the United States, Duffy Health Center, Duncan Macallister, Dr. Wesley Klein, D.O., and Michael Fusco, R.N., by and through their Attorney Carmen M. Ortiz, United States Attorney for the District of Massachusetts, and move pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), to dismiss this action in its entirety. In Count I, Plaintiff purports to state a claim for “breach of contract,” however no contract exists. Moreover, if a contract did exist, the U.S. Court of Federal Claims would have exclusive jurisdiction over any such claim. With respect to Counts II and III, Plaintiff has not filed an administrative claim with the appropriate federal agency and, as such, his tort claims must be dismissed. WHEREFORE, for these reasons, and the reasons set forth in the accompanying Memorandum in Support of Motion to Dismiss, the Court should grant Defendants’ motion and dismiss Plaintiff’s Complaint in its entirety. Case 1:16-cv-11551-ADB Document 10 Filed 09/02/16 Page 1 of 2 2 Respectfully submitted, CARMEN M. ORTIZ United States Attorney /s/ Jessica P. Driscoll Jessica P. Driscoll, BBO No. 655394 Assistant United States Attorney U.S. Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3398 Dated: September 2, 2016 Jessica.Driscoll@usdoj.gov Certification of Compliance with Local Rule 7.1 Because Local Rule 7.1 requires only that “counsel” confer, I did not confer with Plaintiff, who is pro se, before filing this motion. Dated: September 2, 2016 /s/ Jessica P. Driscoll Jessica P. Driscoll Assistant United States Attorney CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document was served by first class mail on: Plaintiff, pro se Abraham Kasparian, Jr. 154 Weir Road Yarmouth Port, MA 02675 /s/ Jessica P. Driscoll Jessica P. Driscoll Dated: September 2, 2016 Assistant United States Attorney Case 1:16-cv-11551-ADB Document 10 Filed 09/02/16 Page 2 of 2