Dawson v. Sohn et al

Filing 125

ORDER OF REMAND: Order GRANTING 120 MOTION to Remand to State Court filed by Southern Illinois Healthcare, as the Court lacks subject matter jurisdiction. Case remanded to Jackson County, Illinois Circuit Court. Signed by Judge David R. Herndon on 5/31/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERI DAWSON
Plaintiff,
v.

No. 16-827-DRH-SCW

UNITED STATES OF AMERICA, SOUTHERN
ILLINOIS HEALTHCARE d/b/a MEMORIAL
HOSPITAL OF CARBONDALE, and
INTUITIVE SURGICAL, INC.,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is defendant Southern Illinois Hospital Services
d/b/a Memorial Hospital of Carbondale’s (“Memorial Hospital”) motion to remand
(doc. 120). Based on the following, the Court finds that it lacks subject matter
jurisdiction, grants the motion to remand and remands this matter to the
Jackson County, Illinois Circuit Court.
On July 21, 2016, dismissed defendants United States of America and Dr.
Woo Hyun Sohn removed this matter to this Court based on 42 U.S.C. § 233, the
Federally Supported Health Centers Assistance Act (“FSHCAA”) (doc. 1).

The

dispute arises out of an alleged defective robot-assisted hysterectomy underwent
by plaintiff on April 25, 2014, at Memorial Hospital.

Plaintiff asserts the surgery

was performed deviant to the applicable standard of medical care in that she has
suffered from numerous ailments and maladies post-surgery, all related to the
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botched procedure.
On November 21, 2017, then defendant United States of America,
substituted for Dr. Woo Hyun Sohn under the FSHCAA (doc. 33), moved for
summary judgment due to plaintiff’s failure to exhaust her administrative
remedies prior to adding the United States as a party to her case (doc. 83). The
Court granted the motion, with prejudice, on May 22, 2018 (doc 116).
Accordingly, only defendants Memorial Hospital and Intuitive Surgical, Inc.
remain in the litigation. The question before the Court thus, is whether the Court
retains jurisdiction over the remaining state law claims when the government is
no longer a party in a suit removed and brought to federal court via 42 U.S.C. §
233. The Court answers in the negative.
ANALYSIS
A. Westfall Act v. Federally Supported Health Centers Assistance Act
Federal courts are courts of limited jurisdiction and may only hear cases
authorized by the Constitution or Congress. Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). Any uncertainty as to federal jurisdiction must
be resolved in favor of remand. Doe v. Allied–Signal, Inc., 985 F.2d 908, 911 (7th
Cir. 1993). Here, 42 U.S.C. § 233, the FSHCAA, bestowed jurisdiction on this
Court when it was removed to the Southern District of Illinois. Under section
233(a), a Federal Tort Claims Act (“FTCA”) lawsuit against the United States is the
sole remedy “for damage or personal injury, including death, resulting from the
performance of medical, surgical, dental, or related functions . . . by any

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commissioner officer or employee of the Public Health Service while acting within
the scope of his office or employment.”

Under the FSHCAA, entities and

individuals are “deemed” to be employees of the Public Health Service solely for
purposes of the remedy described above in section 233(a).

At all relevant times

to the allegations in the second amended complaint, Dr. Sohn was an employee of
Shawnee Health Service and Development Corporation, and Shawnee Health
Service and Development Corporation was a deemed employee of the Public
Health Service in accordance with the FSHCAA.

See 42 U.S.C. § 233(g)-(n).

Additionally, the United States Attorney certified that Shawnee Health Service and
Development Corporation was a deemed federal entity and that Dr. Sohn was
acting within the scope of his deemed employment as an employee of the Public
Health Service at the time of the alleged incident.

See Certification of Scope of

Employment (doc. 1, ex. C). In such cases, “[u]pon certification by the Attorney
General 1 that the defendant was acting in the scope of his employment at the time
of the incident out of which the suit arose, any civil action or proceeding
commenced in a State court shall be removed . . . to the district court of the
United States[.]” 42 U.S.C. § 233(c).
In the Notice of Removal (doc. 1), the FSHCAA is the only provision cited as
grounds for removal and plainly states that “this action is removable pursuant to
42 U.S.C. § 233.” Id. at 3. The Court is aware that previously, in its November 9,
2016 Order, it sua sponte addressed jurisdiction and labeled the underlying

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A United States Attorney is permitted to issue such certification in lieu of the Attorney General.

See 28 C.F.R. § 15.4 (a).

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matter a “Westfall action” pursuant to 28 U.S.C. § 2679. See doc. 35 at 5. This
label was in error. Under the Westfall Act, federal employees are offered absolute
immunity from common-law tort claims arising out of acts they undertake in the
course of their official duties. Osborn v. Haley, 549 U.S. 225, 229 (2007). Dr.
Sohn however, was not a federal employee, he was a deemed employee of the
Public Health Service under the provisions of the FSHCAA.

While both the

Westfall and FSCHCA Acts behave similarly in their allowance for the substitution
of the United States as a defendant and providing remedies against the United
States for certain wrongful conduct, they are not one in the same; particularly,
when it comes to their removal/remand provisions.
Importantly, a case brought pursuant to § 2679, when properly certified,
establishes conclusive federal jurisdiction, even if the United States is later
dismissed.

See 28 U.S.C. § 2679 (d); see also Mitchell v. Alton Memorial

Hospital, 2016 WL 1637978, *2 (S.D. Ill. Apr. 26, 2016) (Herndon) (“The Westfall
Act changes the remand analysis. Because the Westfall Act makes the Attorney
General’s certification conclusive for removal purposes, certified Westfall cases
differ ‘from the typical case remanded for want of subject-matter jurisdiction’”)
(internal citation omitted). That is not true of the FSHCAA. Under the FSHCAA,
if an action is not available against the United States, as is the case here, then the
“case shall be remanded to the State Court[.]”
added).

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42 U.S.C. § 233(c) (emphasis

So, while similar, the Acts are interpreted as two separate statutes that

have very different consequences when claims are no longer viable against the
United States.
Regarding the FSHCAA, section 233(a) makes the remedy against the
United States under the FTCA exclusive of any other civil action claiming damages
due to injury stemming from a Public Health Service employee’s alleged
negligence. It is an act of limited scope applying only to those deemed employees
of the Public Health Service. The broader reaching coverage of the Westfall Act,
applying to “employees of the government,” does not overlap with the provisions
of the FSHCAA. See Hui v. Castaneda, 599 U.S. 799, 800 (2010) (“Because §
233(a) refers only to ‘[t]he remedy ... provided by [the FTCA] (emphasis added),
only those portions of the FTCA that establish its remedy are incorporated by §
233(a)[.] . . . Section 2679(b) [the Westfall Act] is not such a provision.”). As
such, it is futile to try and argue that the remand provisions of Westfall may be
incorporated here as to keep the case in federal court.

See id. at 800-01

(explaining that to layer all of the FTCA’s procedures contained in the Westfall
Act, section 2679, into 42 U.S.C. § 233(a), would be to effectively imply a repeal of
the FSHCAA and “[r]epeals by implication are not favored and will not be
presumed absent a clear and manifest legislative intent to repeal.

Nothing

suggests that Congress intended §2679(b) to repeal §233(a)’s more comprehensive
immunity”) (internal citation omitted).
Accordingly, as to the underlying litigation, the Court is governed by 42
U.S.C. § 233. Section 233 provides the sole and exclusive means for bringing

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claims for personal injury against the United States when, as here, the offending
physician was employed by a deemed employee of the Public Health Service and
was certified acting within the scope of his employment at the time of the incident.
This case is unlike others in which the Westfall and FSHCAA Acts are both
implicated upon removal.
For example, in Alexander v. Mount Sinai Hosp. Medical Center, while the
Attorney General made his certifications pursuant to section 233, the United
States invoked both section 233 and section 2679 upon removal. 484 F.3d 889,
896 (7th Cir. 2007). In discussing subject matter jurisdiction, the Seventh Circuit
ruled that under section 233, parties cannot challenge such certification and
under section 2679(d), the certification is conclusive for purposes of removal. Id.
at 897.

Thus, because of the invocation of the Westfall Act in the notice of

removal, the case was properly in federal court.

See id. at 896, referencing

Osborn v. Haley, 549 U.S. 225 (2007) for its proposition that subject matter
jurisdiction exists indefinitely under section 2679 once proper certifications are
made (“In the instant case, the Attorney General certified pursuant to section 233
that Sinai was a federally funded health center and that Dr. Onyema was acting
within the scope of his employment at Sinai at the time of the incidents giving rise
to the complaint. In the notice of removal, the United States invoked both section
233 and section 2679(d)(2). Given the invocation of section 2679(d)(2), the
very section the Supreme Court analyzed in Osborn, the question of subject
matter jurisdiction has been answered [affirmatively] by Osborn.”) (emphasis

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added).

Here, the Westfall Act is not implicated – only section 233 - and

accordingly, the Court is not bound by the subject matter jurisdiction analysis
prompted by Westfall’s provisions. Rather, the Court is bound by the provision of
42 U.S.C. § 233(c) which states that when “a remedy by suit within the meaning of
subsection (a) of this section is not available against the United States, the case
shall be remanded to the State Court[.]”
As a result of the above analysis, the Court no longer finds a federal
question to support jurisdiction after its dismissal of the United States in its May
22, 2018 Order.

Thus, the Court turns to alternative avenues to provide federal

jurisdiction.
B. No Finding of Diversity of Citizenship
Federal jurisdiction is proper under 28 U.S.C. § 1332 when there is
complete diversity of the parties and the amount in controversy exceeds $75,000.
“[D]iversity jurisdiction does not exist unless each defendant is a citizen of a
different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 373 (1978).

Corporations are deemed to be citizens of every state

where they are incorporated, and where they have their principal place of
business. 28 U.S.C. § 1332(c). Individuals are citizens of the state in which they
are domiciled. One’s domicile is the place where a person intends to remain. See

Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002).
In this litigation, plaintiff does not plead damages in excess of $75,000.
Plaintiff does plead she, at all relevant times, was a resident of Jackson County,

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Illinois and that defendant Memorial Hospital is authorized to, and does, conduct
business in Jackson County, Illinois. Doc. 68 at 2. To elaborate, in plaintiff’s
deposition, she testified that she has lived in Carbondale, Illinois for almost ten
years, has been employed in Illinois by two separate businesses, and has
benefitted from Illinois resources, including representation by Land of Lincoln
attorneys, a group that provides legal services solely to Illinois residents. See doc.
120, ex. A Pl. depo at p. 5; 9-12; 15; http://lollaf.org/. As a result of these facts,
the Court is inclined to deem plaintiff a citizen of Illinois for purposes of 28
U.S.C. § 1332.
Defendant Memorial Hospital is owned and operated by Southern Illinois
Hospital Services which is incorporated in Illinois and has its principal place of
business in Carbondale, Illinois. See doc. 120, ex. B. Accordingly, there is a lack
of complete diversity as plaintiff and at least one defendant are citizens of the
same State. Thus, the Court does not have jurisdiction under 28 U.S.C. § 1332.
C. Supplemental Jurisdiction Cannot be Invoked to Support Jurisdiction
Under the Facts of this Case
Pursuant to 28 U.S.C. § 1367, “in any civil action in which the district
courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy[.]”
This is true unless expressly provided otherwise by a federal statute. Id. Here,
the FSHCAA, 42 U.S.C. § 322, does expressly provide otherwise.

Per section

322(c), once a claim no longer lies against the United States, the case “shall be
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remanded to the State Court[.]”

The use of the word “shall” indicates a

mandatory remand provision. See Lexecon v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26, 35 (1998) (explaining that use of the mandatory “shall”,
“creates an obligation impervious to judicial discretion”) (internal citation
omitted); see also Judge v. Quinn, 612 F.3d 537, 547 (7th Cir.), opinion amended

on denial of reh'g, 387 F. App'x 629 (7th Cir. 2010).
Consequently, section 233 does not allow for the exercise of supplemental
jurisdiction over the remaining state law claims.
CONCLUSION
Per the above analysis, the Court does not have subject matter jurisdiction
and must remand the case to State Court.

Accordingly,

Motion to Remand (doc. 120) is GRANTED.

Memorial

Hospital’s

Because the Court lacks subject

matter jurisdiction over plaintiff’s cause of action, the Court REMANDS this case
to the Jackson County, Illinois Circuit Court.
IT IS SO ORDERED.

Judge Herndon
2018.05.31
14:48:17 -05'00'
United States District Judge

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