ESTRELLA v. YAHAV et al, No. 1:2015cv04286 - Document 15 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 3/28/16. (js)
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ESTRELLA v. YAHAV et al Doc. 15 UNITED STATES DISTRICT COUR DISTRICT OF NEW J ERSEY RAMONA ESTRELLA, : : Plaintiffs, v. Hon. J oseph H. Rodriguez Civil Action No. 154286 : OPINION ERIC KFIR YAHAV, M.D., : CAMCARE HEALTH CORPORATION, TEVA PHARMACEUTICALS USA, INC., : Defendants. : This m atter is before the Court on Defendants’ m otion to dism iss the Com plaint [Doc. 3], Plaintiff’s m otion to rem and [Doc. 4], and Defendants’ m otion to vacate default entered in State court [Doc. 10 ]. The Court has considered the m otions on the papers pursuant to Federal Rule of Civil Procedure 78(b). Background & Procedural History This m atter was originally filed in the Superior Court of New J ersey, Law Division, Cumberland County on August 25, 20 14 seeking dam ages for injuries sustained as the result of alleged m edical m alpractice. (Doc. 1, Not. Rem oval, Ex. B.) It was rem oved to this Court on J une 23, 20 15 on the asserted ground that Defendants Eric Kfir Yahav, M.D. and CAMCare Health Corporation were federal em ployees under the Federally Supported 1 Dockets.Justia.com Health Centers Assistance Act of 1995 (“FSHCAA”), 42 U.S.C. § 233(c) and (g). (Not. Rem oval.) The Notice of Rem oval stated: [a]t all tim es relevant to this Com plaint, the [rem oving] Defendants were deemed em ployees of the United States pursuant to 42 U.S.C. § 233(g).” (Id. at ¶ 3.) Attached as an exhibit was a J une 15, 20 15 Certification by an Assistant United States Attorney asserting that the rem oving Defendants “were acting within the scope of their em ployment as em ployees of the United States at the tim e of the conduct alleged in the Com plaint.” (Id., Ex. D.) At the tim e of rem oval, rem oving Defendants stated they had not been properly served in the m anner specified by Federal Rule of Civil Procedure 4(i). (Id. at ¶ 1.) It appears, however, that Yahav and CAMCare were served on Septem ber 30 , 20 14 and October 2, 20 14, respectively. (Rooney Cert., ¶ 4 & Ex. B, C.) The State court docket indicates that Proof of Service as to CAMCare was filed on J anuary 23, 20 15 and as to Yahav on February 17, 20 15. (Not. Rem oval, Ex. A.) A third Defendant, Teva Pharm aceuticals, filed an Answer in State court on November 20 , 20 14. (Id.) Because rem oving Defendants failed to answer or otherwise respond to the suit, Plaintiff requested that the Clerk in State court enter default against them on May 4, 20 15. (Id.; Rooney Cert., ¶ 7 & Ex. E.) More than 2 six weeks later, the United States rem oved the case to this Court. (Doc. 1, Not. Rem oval; Rooney Cert., Ex. G, H.) On J uly 16, 20 15, the removing Defendants filed a m otion to dism iss the Plaintiff’s Com plaint for lack of subject m atter jurisdiction because Plaintiff allegedly failed to exhaust available adm inistrative remedies. [Doc. 3.] Removing Defendants first argue that the United States should be substituted as Defendant in their place because the Attorney General has delegated certification authority to the individual United States Attorneys by 28 C.F.R. § 15.4, so the Certification of Scope of Em ploym ent filed in this Court on J une 11, 20 15 by the Chief of the Civil Division of the United States Attorney’s Office for the State of New J ersey suffices to substitute the United States as the only appropriate Defendant in this suit for personal injuries arising out of the alleged negligence of rem oving Defendants. 1 [Doc. 3 Br., pp. 2-4.] 1 28 U.S.C. § 2679(d)(2) provides, in relevant part, that: “Upon certification by the Attorney General that the defendant em ployee was acting within the scope of his office or em ploym ent at the tim e of the incident out of which the claim arose, any civil action or proceeding com menced upon such claim in a State court shall be rem oved . . . at any tim e before trial . . . to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.” 3 Next, rem oving Defendants argue that because Plaintiff did not present her claim against the United States to the applicable federal agency and receive a denial letter, she has not exhausted her adm inistrative remedies under the Federal Tort Claim s Act (“FTCA”), 28 U.S.C. § 2675(a), and this Court is without federal subject m atter jurisdiction to hear the case. [Doc. 3 Br., pp. 4-6.] Subsequently, on August 25, 20 15, the United States filed the Health Resources and Services Adm inistration FTCA Deem ing Notices for CAMCare Health Corporation for calendar years 20 11-13. [Doc. 11, Taylor Decl., Ex. A.] Also on August 25, 20 15, rem oving Defendants filed a m otion to vacate the default entered by the State court on May 4, 20 15. [Doc. 10 .] Plaintiff has opposed Defendants’ m otion to dism iss and on August 3, 20 15 filed a m otion to rem and the case back to State court. [Doc. 5, 4.] She argues that the United States lacked standing to rem ove the case, m ove to substitute itself, or m ove to dism iss because it failed to m eet the strict requirements for rem oval. 2 Plaintiff further argues that, at the least, the 2 42 U.S.C. § 233 provides: (c) Rem oval to United States district court; procedure; proceeding upon rem oval deemed a tort action against United States; hearing on m otion to rem and to determ ine availability of remedy against United States; remand to State court or dism issal 4 case should be autom atically stayed pending lim ited discovery and a hearing to inquire into this Court’s subject m atter jurisdiction. Finally, Plaintiff argues that the individual doctor is not necessarily considered an em ployee or contractor of the United States. Applicable Standard A m otion to dism iss pursuant to Federal Rule of Civil Procedure 12(b)(1) m ay involve either a facial challenge to subject m atter jurisdiction Upon a certification by the Attorney General that the defendant was acting in the scope of his em ployment at the tim e of the incident out of which the suit arose, any such civil action or proceeding com m enced in a State court shall be rem oved without bond at any tim e before trial by the Attorney General to the district court of the United States of the district and division em bracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of Title 28 and all references thereto. Should a United States district court determ ine on a hearing on a motion to rem and held before a trial on the merit that the case so rem oved is one in which a remedy by suit within the m eaning of subsection (a) of this section is not available against the United States, the case shall be rem anded to the State Court: Provided, That where such a rem edy is precluded because of the availability of a remedy through proceedings for compensation or other benefits from the United States as provided by any other law, the case shall be dism issed, but in the event the running of any lim itation of tim e for com m encing, or filing an application or claim in, such proceedings for com pensation or other benefits shall be deem ed to have been suspended during the pendency of the civil action or proceeding under this section. 5 or a factual challenge to the jurisdictional allegations. Gould Elec., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 20 0 0 ). If the defendant’s attack is facial—i.e., “asserting that the com plaint, on its face, does not allege sufficient grounds to establish subject m atter jurisdiction”—a court m ust accept all allegations in the com plaint as true. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 20 0 6). Alternatively, a defendant m ay “challenge a federal court’s jurisdiction by factually attacking the plaintiff's jurisdictional allegations as set forth in the complaint.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A factual challenge attacks the existence of a court’s subject m atter jurisdiction apart from any of the pleadings and, when considering such a challenge, a presum ption of truthfulness does not attach to a plaintiff's allegations.” Id.; see also Martinez v. U.S. Post Office, 875 F. Supp. 10 67, 10 70 (D.N.J . 1995). “An attack on subject m atter jurisdiction that is based on a lack of adm inistrative exhaustion is a factual challenge and not a facial one.” See, e.g., J .H. ex rel. J .H. v. Egg Harbor Twp. Bd. of Educ., No. 0 8– 488, 20 0 9 WL 1322514, at * 2 (D.N.J . May 11, 20 0 9); Courtney v. Choplin, 195 F. Supp. 2d 649, 650 (D.N.J . 20 0 2). When reviewing such a factual attack, the Court m ay consider evidence outside the pleadings. Id. at 3. 6 Analysis “In part due to the relatively high cost of obtaining m alpractice insurance for treatm ent of . . . high-risk patients . . . the efforts to provide necessary m edical care in . . . underserved areas initially faced significant roadblocks.” Wilson v. Big Sandy Health Care, Inc., 576 F.3d 329, 333 (6th Cir. 20 0 9). “In response, Congress passed the Federally Supported Health Centers Assistance Act of 1992, [(“FSHCAA”), 42 U.S.C. §§ 20 1, 233].” Lom ando v. United States, 667 F.3d 363, 371 (3d Cir. 20 11). The FSHCAA “created a process by which ‘public and nonprofit private entities’ receiving federal funds pursuant to 42 U.S.C. § 254b(c)(1)(A) and health practitioners that such entities em ploy ‘shall be deem ed to be [em ployees] of the Public Health Service.’ 42 U.S.C. § 233(g)(1)(A).” Id. “[A]n action against the United States under the FTCA is the exclusive remedy for persons alleging ‘personal injury, including death, resulting from the performance of m edical . . . or related functions’ by Public Health Service em ployees acting within the scope of their em ploym ent. 42 U.S.C. § 233(a); see also 42 U.S.C. § 233(g)(1)(A) (reiterating subsection 233(a)’s exclusivity clause).” Lom ando v. United States, 667 F.3d 363, 371-72 (3d Cir. 20 11). The FTCA requires a claimant to exhaust adm inistrative 7 remedies before bringing suit against the United States and provides, in relevant part: An action shall not be instituted upon a claim against the United States for money dam ages for injury or loss or property or personal injury or death caused by the negligent or wrongful act or om ission of any employee of the Governm ent while acting within the scope of his office or em ploym ent, unless the claim ant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered m ail. The failure of an agency to m ake final disposition of a claim within six m onths after it is filed shall, at the option of the claim ant any tim e thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). Section 2675(a) requires “com plete exhaustion of Executive remedies before invocation of the judicial process.” McNeil v. United States, 50 8 U.S. 10 6, 112 (1993); see also id. at 113 (holding “[t]he FTCA bars claim ants from bringing suit in federal court until they have exhausted their adm inistrative rem edies”). “No claim can be brought under the FTCA unless the plaintiff first presents the claim s to the appropriate federal agency and the agency renders a final decision on the claim .” Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 20 15). In the Third Circuit, this exhaustion requirem ent “is jurisdictional and cannot be waived.” Id. at 569. A 1988 am endment to the FTCA known as the Westfall Act, 28 U.S.C. § 2671 “provides that tort claim s filed in state court against federal 8 em ployees acting within the scope of their employment ‘shall be removed . . . to the district court of the United States [where the claim is pending] . . . and the United States shall be substituted as the party defendant.’ 28 U.S.C. § 2679(d)(2).” Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 20 0 9). The Westfall Act also “includes a clause that saves from being barred by the statute of lim itations certain tim ely claim s filed in the wrong forum, such as in a state or a federal court rather than with the appropriate adm inistrative agency. Pursuant to this savings clause an errant plaintiff whose suit is rem oved to a district court, and then dism issed because she failed to bring the tim ely required adm inistrative claim , will be credited with the date that she filed her claim in the wrong forum for purposes of the FTCA’s statute of lim itations. Such claims will be deemed tim ely under section 240 1(b) if (A) the claim would have been tim ely had it been filed on the date the underlying civil action was com m enced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dism issal of the civil action. 28 U.S.C. § 2679(d)(5).” Id. 193-94. Because the Governm ent had the ability pursuant to 42 U.S.C. § 233(c) to rem ove the case from State court at any tim e before trial, see Celestine v. Mount Vernon Neighborhood Health Center, 40 3 F.3d 76, 81 (2d Cir. 20 0 5), Plaintiff has no grounds for rem and. Further, there is no 9 question that the record supports a finding that rem oving Defendants were deemed em ployees of the United States acting within the scope of such em ploym ent as employees of the United States at the time of the conduct alleged in the Complaint. As such, because Plaintiff has failed to exhaust adm inistrative remedies as required by the FTCA, the Court m ust dism iss the m atter for lack of subject m atter jurisdiction. An appropriate Order will be entered. Dated: March 28, 20 16 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 10
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