Wewe v. Mt. Sinai Hosp.

518 F.Supp.3d 643

Paul T. WEWE, Plaintiff,

v.MT. SINAI HOSPITAL, World Trade Center Health and Monitor Program (WTC HP), and September 11th Victim Compensation Fund, Defendants.

19-CV-5000 (KAM)

United States District Court, E.D. New York.

Signed February 11, 2021

Paul T. Wewe, Brooklyn, NY, pro se.

Leila Cardo, Rubin, Fiorella & Friedman, New York, NY, for Defendant Mt. Sinai Hospital.

Matthew Mailloux, United States Attorney's Office, Brooklyn, NY, for Defendant September 11th Victim Compensation Fund (VCF).

MEMORANDUM AND ORDER

KIYO A. MATSUMOTO, United States District Judge:

On September 3, 2019, Plaintiff Paul T. Wewe ("Plaintiff"), proceeding pro se , commenced this action against Mt. Sinai Hospital¹ , the World Trade Center Health and Monitor Program ("WTC HP"), and the September 11^th Victim Compensation Fund ("VCF") (collectively "defendants"), requesting an order that VCF change the onset date of plaintiff's economic loss due to his disability, and compensate him accordingly. Plaintiff further requests an order that the WTC HP and MSM provide the VCF with plaintiff's correct surgery date and that the onset date of economic loss be adjusted accordingly. (See generally ECF No. 1, Complaint dated 9/3/2019 (Compl.).)

Presently before the court are the VCF's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)"), and MSM's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)") for failure to state a claim. (ECF No. 34, Motion to Dismiss for Lack of Jurisdiction by September 11th Victim Compensation Fund; ECF No. 37, Motion to Dismiss for Failure to State a Claim by Mt. Sinai Hospital.) Plaintiff has also filed additional unauthorized submissions which the court considered. (ECF Nos. 41-48.) The VCF and MSM's motions to dismiss are granted as set forth below, and Plaintiff's claims against the VCF and Mt. Sinai are dismissed.

BACKGROUND

I. The September 11^th Victim's Compensation Fund

In response to the September 11, 2001 terrorist attacks, Congress enacted the Air Transportation Safety and System Stabilization Act of 2001 (the "Air Stabilization Act"), in order to "provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11, 2001." Air Stabilization Act, Pub.L. 107–42, 115 Stat. 230, § 403 (September 22, 2001). The Air Stabilization Act "established a Victim Compensation Fund with an expeditious, non-judicial proceeding to enable claimants to liquidate their claims promptly, and without assuming the risks and delays inherent in court proceedings." In re Sept. 11th Litig. , No. 21 MC 97 (AKH), 2007 WL 1965559, at *1 (S.D.N.Y. July 5, 2007). An individual who chooses to pursue this non-judicial route, "waives the right to file a civil action (or to be a party to an action) in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001." Air Stabilization Act, § 405(c)(3)(B)(i).

The Air Stabilization Act also provides that "the Attorney General, acting through a Special Master ... shall administer the compensation program established ...." Id. at § 404 (a)(1). The compensation determined by the Special Master is "final and not subject to judicial review." Id. at § 405 (b)(3). The Air Stabilization Act was originally only opened to claims from December 21, 2001 through December 22, 2003. Id. at § 405 (b)(3). As a result, in January 2011, Congress passed the James Zadroga 9/11 Health & Compensation Act of 2010 (the "Zadroga Act"), which was intended to, and did, reopen the VCF and expand upon the Air Stabilization Act. See generally the Zadroga Act, 76 Fed. Reg. 54112, 54112 (Aug. 31, 2011) (codified at 28 C.F.R. § 104). The Zadroga Act clarifies that the amount of compensation received by the claimant "shall be reduced by all collateral source compensation the claimant has received or is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001, or debris removal in the immediate aftermath ...." Id. at § 104.47. On July 29, 2019, the Zadroga Act was reauthorized. Pub. L. No. 116-34.

II. Procedural History

On February 27, 2019, plaintiff filed a complaint against the VCF in this court alleging that his "claim was not properly re-evaluated by the VCF Claim Examiner" and asked that the VCF determination "reflect a full re-evaluation with [a disability] onset time [starting on] 07/23/2009 not 05/13/2013." See generally Wewe v. September 11th Victim Compensation Fund , No. 19-cv-1152, Complaint. On September 19, 2012, Mr. Wewe filed VCF Claim No. 0007221 and was awarded compensation by the VCF's Special Master. Wewe v. September 11th Victim Compensation Fund , No. 19-cv-1152, Letter Pursuant to November 15, 2019 Order, Dkt. No. 27. Plaintiff filed several amendments to his claim in which he alleged that his disability onset date was July 23, 2009, but the VCF had determined that Plaintiff became disabled on May 16, 2013 and calculated his compensation based on said date. Id. As of July 1, 2019, the Special Master had awarded Mr. Wewe a total of $751,728.91. Wewe v. September 11th Victim Compensation Fund , No. 19-cv-1152, July 1, 2019 Letter from VCF to Plaintiff, Dkt. No. 21-1.

Though the VCF intended to file a motion to dismiss, Mr. Wewe wrote to this court prior to such a motion being filed on September 3, 2019, requesting to dismiss the action. Wewe v. September 11th Victim Compensation Fund , No. 19-cv-1152, Letter dated 9/3/2019 from Paul Wewe to Judge Matsumoto. Accordingly, without objection, this court dismissed the action on September 6, 2019. Wewe v. September 11th Victim Compensation Fund , No. 19-cv-1152, Dkt. Order Dismissing Case 9/6/2019.

On the same day that plaintiff requested to dismiss his original complaint, he filed a second complaint initiating the instant action. (Compl.) Similar to Mr. Wewe's complaint in Wewe v. September 11th Victim Compensation Fund , plaintiff alleges that the VCF calculated his compensation based on an incorrect disability onset date and that MSM "should provide to the VCF ... the correct date." (Compl. at 3.) Plaintiff also demands that the "VCF compensate for past, present, and future economic loss of earning[s]." Id . On January 9, 2020, this court issued a scheduling order for VCF's proposed motion to dismiss for lack of subject matter jurisdiction. (Dkt. Order, 1/9/2020.) On January 16, 2020, MSM asked to join the motion to dismiss briefing schedule and on January 21, 2020, the court granted the motion. (ECF No. 28, First Motion to Dismiss for Failure to State a Claim by Mt. Sinai Hospital; Dkt. Order, 1/21/2020.) On February 7, 2020, the defendants served their motions to dismiss and memoranda in support of their motions to dismiss. (ECF No. 34, Motion to Dismiss for Lack of Jurisdiction by VCF; ECF No. 35, Memorandum in Support of VCF's Motion to Dismiss for Lack of Jurisdiction; ECF No. 37, First Motion to Dismiss for Failure to State a Claim by MSM; ECF No. 38, Memorandum in Support of MSM's Motion to Dismiss for Failure to State a Claim.) On March 23, 2020, plaintiff served defendants with his opposing memorandum of law. (ECF No. 32, Memorandum of Law in Opposition to Defendant's Motion to Dismiss.) On April 6, 2020, the VCF and Mt. Sinai Hospital filed their replies in support of their motions to dismiss. (ECF No. 36, Reply in Support of Motion to Dismiss for Lack of Jurisdiction filed by VCF; ECF No. 40, Reply in Support of Motion to Dismiss for Failure to State a Claim filed by MSM.) On April 10, 2020, plaintiff filed a response to defendants’ memoranda of law. (ECF No. 41, Response to Defendant's 2nd Memorandum of Law.)

DISCUSSION

I. Standard of Review

A. Rule 12(b)(1)

" ‘A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.’ " Roman v. C.I.A. , No. 11-CV-5944, 2013 WL 210224, at *4 (E.D.N.Y. Jan. 18, 2013) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ). It is well-settled that the "plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure , 290 F.3d 493, 497 (2d Cir. 2002) ). In reviewing a Rule 12(b)(1) motion to dismiss, the court "must accept as true all material factual allegations in the complaint, but [the court is] not to draw inferences from the complaint favorable to plaintiff[ ]." J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir. 2004). Moreover, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id.

B. Rule 12(b)(6)

When considering a motion to dismiss under Rule 12(b)(6), a district court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted). In considering a 12(b)(6) motion, the court may refer to "documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Tech., Inc. , 987 F.2d 142, 150 (2d Cir. 1993) (internal citations omitted); see also Chambers v. Time Warner, Inc. , 282 F.3d 147, 153 (2d Cir. 1993) (clarifying that "reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of a...