Perez v. Consolidated Tribal Health Project, Inc.

Filing 29

Order by Hon. Samuel Conti denying 16 Motion to Remand.(sclc1, COURT STAFF) (Filed on 3/21/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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HELEN PEREZ,

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Plaintiff,

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v.

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CONSOLIDATED TRIBAL HEALTH
PROJECT, INC.,

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Defendant.

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) Case No. 12-5403-SC
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) ORDER DENYING MOTION TO
) REMAND
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I.

INTRODUCTION

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Plaintiff Helen Perez ("Perez") brings this action in

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connection with an alleged slip-and-fall injury she sustained on

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the premises of Defendant Consolidated Tribal Health Project, Inc.

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("Tribal Health").

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County Superior Court.

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the grounds that Tribal Health is funded pursuant to the Indian

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Self-Determination and Education Assistance Act ("ISDEAA"), 25

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U.S.C. § 450 et seq., and thus Perez's claims are governed by the

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Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b).

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(Notice of Removal ("NOR")).

Perez initially filed a complaint in Mendocino
The U.S. Attorney subsequently removed on

ECF No. 1

Perez now moves to remand the action

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back to state court.

ECF No. 16 ("Mot.").

Tribal Health has

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opposed the motion, ECF No. 21 ("Opp'n"), but Perez has not filed a

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reply brief.

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this matter appropriate for resolution without oral argument.

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the reasons set forth below, Perez's motion to remand is DENIED.

Pursuant to Civil Local Rule 7-1(b), the Court finds
For

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II.

On March 3, 2011, Perez visited Tribal Health's facilities in

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BACKGROUND

Redwood Valley, California for a medical appointment.1

See ECF No.

United States District Court

For the Northern District of California

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1-1 ("Compl.").

During her visit, Perez slipped and fell in Tribal

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Health's restroom.

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"careless, negligent, and departed from accepted and standard

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medical standards, generally, and specifically, in failing to

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properly maintain their office and restroom, causing [her] to

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sustain personal injuries."

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concedes that her Complaint "was not a model of clarity," and that

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she intended only to bring a cause of action for general

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negligence, not medical malpractice.

Id.

Perez alleges that Tribal Health was

Id.

In her motion for remand, Perez

Mot. at 7-8.

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Since at least 2005, Tribal Health has operated under a

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compact and funding agreement with the United States Department of

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Health and Human Services ("HHS") pursuant to the ISDEAA.

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Decl.2 Exs. A ("Tribal Health-U.S. Compact"), B ("CY2011 Funding

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Agreement").

Pete

The Tribal Health-U.S. Compact provides that "FTCA

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In her Complaint, Plaintiff alleges that her appointment was
either on March 3, 2012 or March 3, 2010. Plaintiff's Motion
states that, due to a scrivener's error, the Complaint sets for the
wrong date. Mot. at 7.
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Preston Pete, Consolidated Health's finance director, filed a
declaration in opposition to Perez's motion to remand. ECF No. 23
("Pete Decl.").
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coverage of [Tribal Health] and its employees shall be governed by

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Pub. L. 93-638, as amended, and federal regulations relating

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thereto."

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Agreement is incorporated into the compact, id. Art. VIII § 1, and

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obligates Tribal Health to provide for a number of programs,

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services, functions, and activities, including general health

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services and general program administration, CY2011 Funding

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Agreement § 2(A), (C).

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program administration includes responsibility for "facilities,

Tribal Health-U.S. Compact Art. IV § 7(a).

The Funding

Under the CY2011 Funding Agreement, general

United States District Court

For the Northern District of California

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personnel, property and supply, housekeeping, and

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telecommunications management," as well as the maintenance of

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"functional and safe equipment and physical plant."

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(3).

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Id. § 2(C)(2)-

Perez filed this action in Mendocino County Superior Court on

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March 5, 2012.

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arguing that, as a tribal business entity, it was entitled to

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sovereign immunity.

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Mayfield overruled the demurrer, finding that the issue called for

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consideration of evidence beyond that presented on the face of the

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Complaint.

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October 12, 2012 and removed the action to federal court on behalf

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of Tribal Health on October 19, 2012.

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Id.

Tribal Health filed a demurrer in Superior Court,

ECF No. 19 ("Pl.'s RJN") Ex. B.

Judge Cindee

The U.S Attorney received notice of the action on

NOR ¶ 2.

After removal, Tribal Health moved to dismiss on the grounds

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that (1) only the United States is a proper defendant in an FTCA

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action, and (2) Perez failed to file an administrative claim with

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HHS as required by the FTCA.

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respond to the motion and the Court issued an order to show cause.

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At the show cause hearing, Perez's counsel argued that the case was

ECF No. 4 ("MTD").

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Perez failed to

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improperly removed.

The Court directed Perez to file a motion to

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remand, which Perez subsequently did.

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III. DISCUSSION

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In her motion to remand, Perez argues that the Court lacks

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subject-matter jurisdiction under 28 U.S.C. § 1331, because she

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does not seek relief under federal law and a federal question is

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not apparent from the face of her complaint.

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1331 does not control here because Perez has brought suit against

Mot. at 9-10.

United States District Court

For the Northern District of California

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an agency of the United States.

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But §

Accordingly, the Court's

jurisdiction should be assessed under 28 U.S.C. § 1442(a).3

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Section 1442(a) allows for the removal to federal court of any

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civil action against the "United States or any agency thereof . . .

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for or relating to any act under color of such office . . . ."

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U.S.C. § 1442(a)(1).

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favor of removal."

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1252 (9th Cir. 2006).

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must demonstrate that (a) it is a 'person' within the meaning of

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the statute; (b) there is a causal nexus between its actions, taken

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pursuant to a federal officer's directions, and plaintiff's claims;

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and (c) it can assert a 'colorable federal defense.'"

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Here, all three requirements are met.

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Section 1442 is to be "interpreted broadly in

Durham v. Lockheed Martin Corp., 445 F.3d 1247,
"A party seeking removal under section 1442

Id. at 1251.

With respect to the first requirement of § 1442, Tribal Health

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is a federal entity covered by the FTCA for purposes of Perez's

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negligence claim under the ISDEAA.

The ISDEAA provides that tribal

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Perez also argues that the action was untimely removed. However,
under the FTCA, the United States has the right to remove an action
to a federal district court "at any time before trial." 28 U.S.C.
§ 2679(d)(2).
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organizations may enter into "self-determination contracts" with

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the Department of the Interior ("DOI") and HHS to administer

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programs or services that would otherwise have been administered by

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the federal government.

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for the purposes of personal injury claims "resulting from the

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performance . . . of medical, surgical, dental, or related

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functions," tribal organizations carrying out self-determination

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contracts are "deemed to be part of [HHS's] Public Health Service."

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Id. § 450f(d).

United States District Court

It also provides that

Perez argues that 25 U.S.C. § 450f is inapplicable here

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For the Northern District of California

25 U.S.C. § 450f.

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because her injury arose out of a slip and fall, not a personal

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injury "resulting from the performance . . . of medical, surgical,

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dental, or related functions."

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result from Tribal Health's performance of medical functions.

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Perez visited Tribal Health for a medical appointment.

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event, to the extent that there is any ambiguity concerning the

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statutory language "resulting from the performance . . . of medical

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. . . functions," HHS and DOI have promulgated regulations

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clarifying that ambiguity.

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"FTCA [is] the exclusive remedy for a non-medical related tort

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claim arising out of the performance of a self-determination

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contract[.]"4

But her injury did

In any

Pursuant to 25 C.F.R. § 900.204, the

As to the second requirement of § 1442, there is a causal

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Mot. at 11-12.

nexus between Tribal Health's actions as a federal entity and

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Perez also argues that HHS admits that the FTCA only protects
health centers from medical malpractice claims, pointing to an HHS
website which states that federally support health centers are
"immune from suit for medical malpractice claims." Mot. at 15.
But nothing on that website states that a health center's immunity
is limited to medical malpractice claims.
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Perez's claims.

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appointment at Tribal Health on March 3, 20011.

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Tribal Health provided her with medical care and that it "was

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careless, negligent, and departed from accepted . . . standard[s] .

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. . in failing to properly maintain their office and restroom."

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Compl.

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HHS, and the compact and funding agreement obligate Tribal Health

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to provide general health services, as well as maintenance and

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management of its facilities.

United States District Court

For the Northern District of California

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Perez's claims arise out of her medical
Perez alleges that

Tribal Health operates under a compact and funding from

See Tribal Health-U.S. Compact;

CY2011 Funding Agreement.
With respect to the third requirement of § 1442, Tribal Health

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has asserted a colorable federal defense of sovereign immunity.

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The FTCA constitutes a waiver of federal sovereign immunity because

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it permits torts claims against the federal government in certain

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instances, but it requires plaintiffs to present their claims to

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the appropriate Federal agency prior filing to suit.

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§ 2675.

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requirement.5

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See 28 U.S.C.

Tribal Health argues that Perez has failed to meet this
See MTD.

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Perez's motion to remand also includes a demand for a jury trial.
That request is DENIED. Pursuant to 28 U.S.C. § 2402, any action
brought under the FTCA must tried by the court without a jury.
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IV.

CONCLUSION
For the reasons set forth above, Plaintiff Helen Perez's

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motion to remand is DENIED.

Defendant Tribal Health's motion to

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dismiss is still pending before the Court.

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that motion within fourteen (14) days of the signature date of this

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Order.

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with prejudice.

Perez shall respond to

Failure to do so may result in dismissal of this action

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IT IS SO ORDERED.

United States District Court

For the Northern District of California

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Dated:

March 21, 2013
UNITED STATES DISTRICT JUDGE

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