United States District Court, D. Alaska
ORDER AND OPINION
[RE: MOTION AT DOCKET 38]
JOHN W. SEDWICK, Senior District Judge.
I. MOTION PRESENTED
At docket 38, Plaintiffs Jaclyn Cabales ("Cabales") and Jonathan Cabales (collectively "Plaintiffs") request that the court stay the equitable allocation claims and abstain from exercising jurisdiction until Plaintiffs' state law claims are resolved. Defendant Arctic Chiropractic Bethel ("Arctic") opposes at docket 49. Defendant Christopher Twiford, D.C. ("Twiford") opposes at docket 51. Plaintiffs reply at docket 57. Oral argument was not requested and would not assist the court.
In March of 2013, Plaintiffs filed a complaint in state court against Arctic, Albert Morgan ("Morgan"), and Twiford for medical malpractice. The complaint alleges that in April of 2011, Morgan, a chiropractor at Arctic, damaged Cabales's right vertebral artery during a chiropractic neck manipulation. It alleges that based on her sudden onset of symptoms after the neck manipulation and based on Morgan's concern that she may have suffered an aneurysm, Cabales was taken to Yukon Kuskokwim Health Corporation ("YKHC") Emergency Room. The complaint alleges that Morgan failed to inform the doctors at YKHC about Cabales's recent neck manipulation, and thus the doctors diagnosed her with the flu and sent her home. Cabales returned to YKHC two days later, and the doctors then realized the seriousness of her condition and arranged to medavac her to Anchorage. During the departure preparation or during transport, Cabales suffered a seizure. The complaint alleges that Cabales's seizure and the damages stemming therefrom were the result of the negligent chiropractic care she received at Arctic.
In January of 2014, Arctic filed a third-party complaint against YKHC in state court. The third-party complaint asserts a claim for "Apportionment of Damages" against YKHC under AS 09.17.080, alleging that the YKHC doctors' misdiagnosis, and the subsequent treatment delay, caused Cabales's seizure and thus at least some of the fault should be allocated to YKHC. YKHC is deemed to be part of the Indian Health Service, and thus any medical malpractice actions against YKHC are deemed to be actions against the United States under the Federal Tort Claims Act ("FTCA"). In June of 2014 YKHC removed the action to this court. The United States was then substituted as the third-party defendant.
The United States moved to dismiss any claims for damages or monetary recovery against the United States due to Plaintiffs' failure to file a timely claim under 28 U.S.C. § 2401(b). The United States argued that "while [Arctic] may be entitled to seek apportionment of fault to the United States under AS 09.17.080, Plaintiffs are time-barred from obtaining any monetary award or judgment against the United States." The United States relied on a District of Alaska case, Stingley v. Raskey.  The court granted the motion during the oral argument heard on December 8, 2014. Defendant Twiford also filed a motion for leave to file a third-party complaint against the United States for apportionment of fault under AS 09.17.080, and the court granted the motion.