ESTATE OF PEGGY CAMPBELL et al v. SOUTH JERSEY MEDICAL CENTER et al, No. 1:2015cv07677 - Document 24 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/20/2016. (dmr)
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ESTATE OF PEGGY CAMPBELL et al v. SOUTH JERSEY MEDICAL CENTER et al Doc. 24 U N ITED STATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY _________________ ____ Estate of Peggy Cam pbell by her : Adm inistrator Ad Prosequendum : Anthony Cam pbell and Anthony : Cam pbell, : Plaintiffs, : : v. : South J ersey Medical Center, : et. al., : : Defendants. : _______________________ : H o n . Jo s e p h H . Ro d rigu e z Civil Action No. 15-7677 Op in io n This m atter com es before the Court on Defendant Dr. Frinjari’s Motion for a hearing pursuant to 42 U.S.C. § 233 (l)(2), [Dkt. No. 9]. The Court has considered the written subm issions of the parties, including those subm itted by the United States, as well as the argum ents advanced at the hearing on Novem ber 30 , 20 16. For the reasons set forth below, the case is rem anded to the Superior Court of New J ersey for lack of subject m atter jurisdiction. Backgro u n d & Pro ce d u ral H is to ry Defendant Hassan Frinjari is a physician who practices obstetrics and gynecology. During the relevant tim e period, he was em ployed by Com m unity Health Care, Inc. (“Com pleteCare”), which is a com m unity 1 Dockets.Justia.com “health center” receiving grant funds under Section 330 of the Public Health Service (PHS) Act, 42 U.S.C. § 254b), and a deem ed PHS em ployee. Plaintiffs are the Estate of Peggy Cam pbell, by her Adm inistrator Ad Prosequendum Anthony Cam pbell and Anthony Cam pbell. The Com plaint alleges m edical and/ or professional m alpractice against num erous m edical professionals and a m edical facility in the course of treatm ent and surgery for Plaintiffs’ Decedent, Peggy Cam pbell. For purposes of this m otion, the relevant allegation is against Defendant Dr. Frinjari, who seeks im m unity by virtue of his deem ed PHS em ployee status. See 42 U.S.C. §§ 233(a) and (g). At issue is the propriety of Defendant Dr. Frinjari’s rem oval of this m atter, which was originally filed in the Superior Court of New J ersey on April 23, 20 13. (See Dkt. No. 1, Not. Rem oval). This m atter was rem oved on October 23, 20 15 and rem oval is predicated upon the federal em ployee status of Dr. Frinjari, pursuant to the Federally Supported Health Centers Assistance Act of 1995 (“FSHCAA”), 42 U.S.C. § 233(c) and (g). The FSHCAA perm its the Secretary of the U.S. Departm ent of Health and Hum an Services (HHS) to extend to federally-funded health center em ployees, inter alia, Section 233(a) protection. Section 233 (a) protection im m unizes federal em ployees “for actions arising out of the perform ance of 2 m edical or related functions within the scope of their em ploym ent by barring all actions against them for such conduct.” Hui v. Castaneda, 559 U.S. 799, 80 6 (20 10 ) (em phasis added). Dr. Frinjari claim s that he received assurances from his em ployer, Com pleteCare, that his defense in this case would be provided by the federal governm ent because of the FSHCAA. See Frinjari Decl. ¶¶ 7-9. As a result and because he claim s he was never served with the sum m ons and com plaint, Dr. Frinjari took no action to defend him self. In the m eantim e, the Superior Court of New J ersey dism issed the other defendants in this m atter, with prejudice, because plaintiffs failed to file an Affidavit of Merit. However, the claim s against Dr. Frinjari rem ained and on J anuary 24, 20 14, plaintiffs filed a Request and Certification for Entry of Default. Dr. Frinjari, was unaware that a request for default had been entered and the failed to respond. As a result, on J une 27, 20 14, the Superior Court of New J ersey signed an Order for J udgm ent against Dr. Frinjari for $ 650 ,0 0 0 . Dr. Frinjari claim s that he is im m une from suit and that Plaintiffs’ claim is properly against the United States under the FTCA. 28 U.S.C. § 1346(b)(1) (United States “district courts [...] have exclusive jurisdiction of civil actions on claim s against the United States”). The issue in this case is whether after the entry of a default judgm ent awarding m oney dam ages 3 rem oval is proper even though Dr. Frin jari failed to provide notice to the Attorney General of Plaintiffs’ lawsuit against him , perhaps because he was unaware or was not properly served 1, and the United States never substituted itself as the proper defendant. 2 In other words, pursuant to 42 U.S.C. § 233(l)(2), and 28 U.S.C. § 2679(d)(3), Dr. Frinjari rem oved this m atter- after the entry of a m oney judgm ent against him personally and without notice to the Attorney General, pursuant to 42 U.S.C. §233 (b), and/ or without the substitution of the United States as the party defendant. Standard of Review “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].” 1 For the purpose of this motion, the Court accepts Dr. Frinjari’s allegation that he was not properly served and therefore entry of default judgment against him was improvident. Even so, default was entered and the Court’s function is to determine whether removal was proper. The Court cannot address the propriety of the judgment without first determining jurisdiction. 2 Once notified, the Attorney General has a nondiscretionary duty to appear in court within 15 days of notice of the lawsuit to report whether the “Secretary has determined under subsections (g) and (h) of [Section 233], that such entity, officer, governing board member, employee, or contractor of the entity is deemed to be an employee of the Public Health Service for purposes of this section with respect to the actions or omissions that are the subject of such civil action or proceeding.” Id. at § 233(l)(1). 4 Lom ando v. United States, 667 F.3d 363, 371 (3d Cir. 20 11). The FSHCAA “created a process by which ‘public an d 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 rem edy for persons alleging ‘personal injury, including death, resulting from the perform ance 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 claim ant to exhaust adm inistrative rem edies 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 m oney 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 em ployee 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 5 claim ant any tim e thereafter, be deem ed 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 rem edies 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 endm ent to the FTCA known as the Westfall Act, 28 U.S.C. § 2671 “provides that tort claim s filed in state court against federal em ployees acting within the scope of their em ploym ent ‘shall be rem oved . . . 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). 6 Rem oval here is predicated upon 42 U.S.C. § 233(c), and 28 U.S.C. § 2679(d)(3). Pursuant to 28 U.S.C. § 2679(d)(2): “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 m enced 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 em bracing the place in which the action or proceeding is pending. Such action or proceeding shall be deem ed 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.” 42 U.S.C. § 233 (c) provides: Upon a certification by the Attorney General that the defendant was acting in the scope of his em ploym ent 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 deem ed 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 m otion to rem and held before a trial on the m erit that the case so rem oved is one in which a rem edy 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 rem edy through proceedings for com pensation or other benefits from the United States as provided by any other law, the case shall be dism issed, but in the event the 7 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. The United States has 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). At this juncture, Defendant Dr. Frinjari is not yet a deem ed em ployee of the United States, buit the United States agrees that if it is properly notified, Dr. Frinjari will qualify as a “deem ed” em ployee under the Act. In addition, default judgm ent has been entered against Dr. Frinjari and m oney dam ages have been awarded. As such, the Governm ent contends that Dr. Frinjari’s rem oval is im proper because there is no federal jurisdiction. Dr. Frinjari claim s that rem oval was achieved before a trial on the m erits and that the default judgm ent is not final, because prior to rem oval Dr. Frinjari filed m otions to vacate the default and dism iss the case. 8 ANALYSIS Dr. Frinjari’s rem oval is untim ely pursuant to 42 U.S.C. §233(c), and this case m ust be rem anded to the Superior Court of New J ersey.3 Section §233(c) perm its rem oval at any tim e before trial. 42 U.S.C. §233(c). Here, default judgm ent has been entered and m oney dam ages awarded. The Court finds that this is akin to a trial on the m erits and forecloses Dr. Frinjari’s right to rem ove this m atter under 42 U.S.C. §233(c). The Court finds Dr. Frinjari’s argum ent that a default judgm ent is not a final judgm ent unpersuasive. Dr. Frinjari relies on A.B. v. Y.Z., 184 N.J . 599, 878 A.2d 80 7 (Sup. Ct. N.J . 20 0 5) for support. In A.B., the Court, in the context of proof hearing to determ ine dam ages, considered whether defendant’s right to confront his accuser was violated when the victim was allowed to appear by closed circuit television. A.B., 184 N.J . 599. In concluding that the error was harm less, the Court noted the posture of the case, including the less form al forum of the hearing as not having occurred in trial, but as a dam ages proof hearing following entry of procedural default. Id. (“This was a civil proof hearing after default, not a trial.”). The Court notes that several arguments have been advanced as to the timeliness of the removal. During oral argument, the issues were narrowed and the Court will address the issue related to the finality of the entry of default judgment. 3 9 The distinction, between a trial and a proof hearing, drawn by the New J ersey Suprem e Court, was procedural in nature; m ade to underscore the harm lessness of perm itting a defendant to face his accuser through a m edium , as opposed to face-to-face, when no jury is present. Id. The Court’s distinction for purposes of characterizing an error as harm less, does not fortify Dr. Frinjari’s argum ent here that the default judgm ent proceedings are not a final judgm ent for purposes of 42 U.S.C. §233. In addition, Dr. Frinjari’s reliance on Oviedo v. United States, 655 F.3d 419 (5 th Cir. 20 11) is unpersuasive. Under the specific facts of that case, the Fifth Circuit in Oviedo held that the finality of the Texas state court judgm ent, which was a default judgem ent with a m oney dam ages award, m ade rem oval im proper. Oviedo, 655 F.3d at 420 . In that case, defendants filed a m otion to set aside the trial, but the state court never ruled on the m otion and it becam e m oot seventy-five days after the judgm ent was signed. Id. In this regard, the Fifth Circuit found that the individual defendants’ failure to ask for a hearing allowed the tim e for an appeal and the district court’s plenary jurisdiction to lapse. Id. Therefore, no issues rem ained in the case. Id. 10 Then, the United States filed a notice of rem oval and, once in federal court, m oved to substitute itself for the defaulted individual defendants. Id. at 422. Ultim ately, the Fifth Circuit found rem oval im proper, “[e]m phasizing the total finality of the state case[.]” Id. The court fram ed the issue, one of first im pression, as considering the propriety of rem oval when “the tim e for seeking direct review of in the state courts had com pletely expired [at the tim e] the governm ent filed its notice of rem oval.” Id. The court bolstered the finality of the judgm ent as a trial on the m erits, stating that “[t]here is sim ply no support in our precedent for the governm ent’s position that a case m ay be rem oved to federal court after the state court’s jurisdiction has wholly expired.” Id. at 423. Dr. Frinjari argues that the “wholly expired” language renders his rem oval proper, since, in light of his m otion to set aside the default and to dism iss the case, his appeal process has not expired in state court. In addition, he argues that the governm ent’s post-default judgm ent substitution com pels the governm ent to substitute itself here, and relieve him from the burden of vacating the judgm ent. The Court disagrees. The Court in Oviedo acknowledged that the facts in that case were unique and that the default judgm ent was entered by a court of com petent jurisdiction and m ade payable against the individual defendants, exclusive 11 of the governm ent. Oviedo, 655 F.3d at 420 , 424. Although the court stated that the defendants’ failure to tim ely appeal the entry of the default judgm ent frustrated the propriety of rem oval because “the case is final for purposes of direct review in the state court system [,]” the fact that Dr. Frinjari filed a m otion to vacate default and to dism iss in New J ersey state court does not justify rem oval. There is no case law to support the conclusion that the governm ent is com pelled to substitute itself here at this juncture, sim ply because it did in Oviedo. Likewise, the other cases relied upon by Dr. Frinjari do not involve a default judgem ent in which m oney dam ages were awarded; rather, these cases were rem oved during the procedural default stage- no judgm ent had been entered. See Estrella v Yahav, No. 15-CV-4286, 20 16 WL 1230 555 (D.N.J . March 28, 20 16); Taylor v. Gilliam , No. 13-CV-2947, 20 13 WL 6253654 (D.N.J . Dec. 4, 20 13). Here, Dr. Frinjari has not served the governm ent with the petition and has rem oved the m atter im properly. Rem oval pursuant 42 U.S.C. §233(c) m ust be m ade at any tim e before trial and by the Attorney General. To perm it rem oval and com pel the governm ent to substitute itself, and perhaps bind itself to a judgm ent achieved without its participation or knowledge, would do violence to 42 U.S.C. §233(c). A default judgm ent in 12 which m oney dam ages are awarded is a final judgm ent. See N.J . Ct. R. 4:43-2; Wright 7 Miller, 10 A Fed. Prac. & Proc. Civ. § 2692 (3d ed. Apr. 20 16 update). In addition, because m oney dam ages were awarded, there is no issue left for trial. 4 cf.; Kizer v. Sherwood, 311 F. Supp. 80 9, 811 (M.D. Pa. 1970 ) (rem oval appropriate where default judgm ent entered, but trial on dam ages rem ained.). The fact that Dr. Frinjari filed m otions in state court attacking the validity of the default judgm ent does not rescue his tim eliness argum ent. In essence, Dr. Frinjari is asking this Court to review the entry of a m oney judgm ent by a state court of com petent jurisdiction. Such a notion offends principles of com ity. See, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Colum bia Court of Appeals v. Feldm an, 460 U.S. 462 (1983) (both standing for the proposition that a United States District Court has no subject m atter jurisdiction to review final judgm ents of a state court.); see also Moncrief v. Chase Manhattan Mortgage Corp., 275 Fed. Appx. 149, 153 (3d Cir. 20 0 8) (“[T]o the extent that [Plaintiff] seeks to ‘appeal from ’ the state court's . . . judgm ent, the District Court correctly dism issed the claim See Oviedo, 655 F.3d at 423 (citing Ohio v. Doe, 433 F.3d 502, 507 (6th Cir. 2006) (“We agree with the reasoning of our sister circuits in ruling that when all that remains of an action is the enforcement of a judgment, removal to federal court is not authorized.”) (citing In re Meyerland Co., 910 F.2d 1257, 1266 (5th Cir. 1990) (Higginbotham, J., concurring in part and dissenting in part), same result reached on reh'g en banc, 960 F.2d 512 (5th Cir. 1992)); Four Keys Leasing & Maint. Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988) (“[I]t would be a perversion of the removal process to allow a litigant who is subject to a final judgment to remove that final judgment to the federal courts for further litigation.”) (other citations omitted). 4 13 under Rooker-Feldm an.”). As a result, because the rem oval cam e after the entry of a default judgm ent in which m oney dam ages were awarded, the Court finds that rem oval is untim ely pursuant to 42 U.S.C. §233(c).5 This m atter will be rem anded to the Superior Court of New J ersey. Dated: Decem ber 20 , 20 16 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE To the extent that Dr. Frinjari relies on 28 U.S.C. § 2679 (d), that statute affords only the Attorney General the ability to remove a case after, and not the employee defendant, and only after the employee defendant has properly served the petition on the government. See 28 U.S.C. § 2679 (d)(3), In addition 42 U.S.C. § 233(l) provides that “deemed” employees are beholden to the removal procedures set forth in 28 U.S.C. 233(c)—not 28 U.S.C. § 2679 (d). 5 14