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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 For the Northern District of California United States District Court 10 HELEN PEREZ, 11 Plaintiff, 12 v. 13 14 CONSOLIDATED TRIBAL HEALTH PROJECT, INC., 15 Defendant. 16 ) Case No. 12-5403-SC ) ) ORDER DENYING MOTION TO ) REMAND ) ) ) ) ) ) ) 17 18 I. INTRODUCTION 19 Plaintiff Helen Perez ("Perez") brings this action in 20 connection with an alleged slip-and-fall injury she sustained on 21 the premises of Defendant Consolidated Tribal Health Project, Inc. 22 ("Tribal Health"). 23 County Superior Court. 24 the grounds that Tribal Health is funded pursuant to the Indian 25 Self-Determination and Education Assistance Act ("ISDEAA"), 25 26 U.S.C. § 450 et seq., and thus Perez's claims are governed by the 27 Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). 28 (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 1 back to state court. ECF No. 16 ("Mot."). Tribal Health has 2 opposed the motion, ECF No. 21 ("Opp'n"), but Perez has not filed a 3 reply brief. 4 this matter appropriate for resolution without oral argument. 5 the reasons set forth below, Perez's motion to remand is DENIED. Pursuant to Civil Local Rule 7-1(b), the Court finds For 6 7 II. On March 3, 2011, Perez visited Tribal Health's facilities in 8 9 BACKGROUND Redwood Valley, California for a medical appointment.1 See ECF No. United States District Court For the Northern District of California 10 1-1 ("Compl."). During her visit, Perez slipped and fell in Tribal 11 Health's restroom. 12 "careless, negligent, and departed from accepted and standard 13 medical standards, generally, and specifically, in failing to 14 properly maintain their office and restroom, causing [her] to 15 sustain personal injuries." 16 concedes that her Complaint "was not a model of clarity," and that 17 she intended only to bring a cause of action for general 18 negligence, not medical malpractice. Id. Perez alleges that Tribal Health was Id. In her motion for remand, Perez Mot. at 7-8. 19 Since at least 2005, Tribal Health has operated under a 20 compact and funding agreement with the United States Department of 21 Health and Human Services ("HHS") pursuant to the ISDEAA. 22 Decl.2 Exs. A ("Tribal Health-U.S. Compact"), B ("CY2011 Funding 23 Agreement"). Pete The Tribal Health-U.S. Compact provides that "FTCA 24 25 26 27 1 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. 2 28 Preston Pete, Consolidated Health's finance director, filed a declaration in opposition to Perez's motion to remand. ECF No. 23 ("Pete Decl."). 2 1 coverage of [Tribal Health] and its employees shall be governed by 2 Pub. L. 93-638, as amended, and federal regulations relating 3 thereto." 4 Agreement is incorporated into the compact, id. Art. VIII § 1, and 5 obligates Tribal Health to provide for a number of programs, 6 services, functions, and activities, including general health 7 services and general program administration, CY2011 Funding 8 Agreement § 2(A), (C). 9 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 10 personnel, property and supply, housekeeping, and 11 telecommunications management," as well as the maintenance of 12 "functional and safe equipment and physical plant." 13 (3). 14 Id. § 2(C)(2)- Perez filed this action in Mendocino County Superior Court on 15 March 5, 2012. 16 arguing that, as a tribal business entity, it was entitled to 17 sovereign immunity. 18 Mayfield overruled the demurrer, finding that the issue called for 19 consideration of evidence beyond that presented on the face of the 20 Complaint. 21 October 12, 2012 and removed the action to federal court on behalf 22 of Tribal Health on October 19, 2012. 23 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 24 that (1) only the United States is a proper defendant in an FTCA 25 action, and (2) Perez failed to file an administrative claim with 26 HHS as required by the FTCA. 27 respond to the motion and the Court issued an order to show cause. 28 At the show cause hearing, Perez's counsel argued that the case was ECF No. 4 ("MTD"). 3 Perez failed to 1 improperly removed. The Court directed Perez to file a motion to 2 remand, which Perez subsequently did. 3 4 III. DISCUSSION 5 In her motion to remand, Perez argues that the Court lacks 6 subject-matter jurisdiction under 28 U.S.C. § 1331, because she 7 does not seek relief under federal law and a federal question is 8 not apparent from the face of her complaint. 9 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 10 an agency of the United States. 11 But § Accordingly, the Court's jurisdiction should be assessed under 28 U.S.C. § 1442(a).3 12 Section 1442(a) allows for the removal to federal court of any 13 civil action against the "United States or any agency thereof . . . 14 for or relating to any act under color of such office . . . ." 15 U.S.C. § 1442(a)(1). 16 favor of removal." 17 1252 (9th Cir. 2006). 18 must demonstrate that (a) it is a 'person' within the meaning of 19 the statute; (b) there is a causal nexus between its actions, taken 20 pursuant to a federal officer's directions, and plaintiff's claims; 21 and (c) it can assert a 'colorable federal defense.'" 22 Here, all three requirements are met. 28 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 23 24 is a federal entity covered by the FTCA for purposes of Perez's 25 negligence claim under the ISDEAA. The ISDEAA provides that tribal 26 27 28 3 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). 4 1 organizations may enter into "self-determination contracts" with 2 the Department of the Interior ("DOI") and HHS to administer 3 programs or services that would otherwise have been administered by 4 the federal government. 5 for the purposes of personal injury claims "resulting from the 6 performance . . . of medical, surgical, dental, or related 7 functions," tribal organizations carrying out self-determination 8 contracts are "deemed to be part of [HHS's] Public Health Service." 9 Id. § 450f(d). United States District Court It also provides that Perez argues that 25 U.S.C. § 450f is inapplicable here 10 For the Northern District of California 25 U.S.C. § 450f. 11 because her injury arose out of a slip and fall, not a personal 12 injury "resulting from the performance . . . of medical, surgical, 13 dental, or related functions." 14 result from Tribal Health's performance of medical functions. 15 Perez visited Tribal Health for a medical appointment. 16 event, to the extent that there is any ambiguity concerning the 17 statutory language "resulting from the performance . . . of medical 18 . . . functions," HHS and DOI have promulgated regulations 19 clarifying that ambiguity. 20 "FTCA [is] the exclusive remedy for a non-medical related tort 21 claim arising out of the performance of a self-determination 22 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 23 24 Mot. at 11-12. nexus between Tribal Health's actions as a federal entity and 25 26 27 28 4 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. 5 1 Perez's claims. 2 appointment at Tribal Health on March 3, 20011. 3 Tribal Health provided her with medical care and that it "was 4 careless, negligent, and departed from accepted . . . standard[s] . 5 . . in failing to properly maintain their office and restroom." 6 Compl. 7 HHS, and the compact and funding agreement obligate Tribal Health 8 to provide general health services, as well as maintenance and 9 management of its facilities. United States District Court For the Northern District of California 10 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 11 12 has asserted a colorable federal defense of sovereign immunity. 13 The FTCA constitutes a waiver of federal sovereign immunity because 14 it permits torts claims against the federal government in certain 15 instances, but it requires plaintiffs to present their claims to 16 the appropriate Federal agency prior filing to suit. 17 § 2675. 18 requirement.5 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// See 28 U.S.C. Tribal Health argues that Perez has failed to meet this See MTD. 27 5 28 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. 6 1 2 IV. CONCLUSION For the reasons set forth above, Plaintiff Helen Perez's 3 motion to remand is DENIED. Defendant Tribal Health's motion to 4 dismiss is still pending before the Court. 5 that motion within fourteen (14) days of the signature date of this 6 Order. 7 with prejudice. Perez shall respond to Failure to do so may result in dismissal of this action 8 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 12 Dated: March 21, 2013 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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