FOGG-INMAN v. FISTER, MD et al

Filing 17

ORDER ON MOTION TO SUBSTITUTE PARTY granting 6 Motion to Substitute Party. JEFFREY FISTER, MD and PENOBSCOT COMMUNITY DENTAL CENTER terminated By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOANN L. FOGG-INMAN,
Plaintiff,
v.
JEFFREY FISTER, DMD and
PENOBSCOT COMMUNITY
HEALTH CENTER, INC.
Defendants.

)
)
)
)
)
)
)
)
)
)
)

1:19-cv-00197-JAW

ORDER ON MOTION TO SUBSTITUTE PARTY
On December 28, 2018, Joann Fogg-Inman, acting pro se, filed a complaint in
the Penobscot County Superior Court for the state of Maine against Penobscot
Community Dental Center and Dr. Jeffrey Fister, DDS, alleging that Dr. Fister
committed malpractice and discriminated against her when he performed oral
surgery on her on November 22, 2015. Notice of Removal, Attach. 2, Compl. (ECF
No. 1); State Ct. Record, Attach. 2, Docket Report (ECF No. 8). On May 3, 2019, the
Defendants removed the case from state to federal court on the ground that Dr. Fister
and the Penobscot Community Health Center, Inc. 1 are employees of the Public
Health Service and therefore are subject to the Federal Tort Claims Act. Notice of
Removal at 2 (ECF No. 1). The United States explained its view that once the United
States Attorney General certifies that a health center or employee named as a

The United States affirmatively represented that, even though Ms. Fogg-Inman filed suit
against Penobscot Community Dental Center, there is no such entity and that Penobscot Community
Health Center, Inc. operates a dental center, which employed Dr. Fister. The United States therefore
assumed that Ms. Fogg-Inman intended to name Penobscot Community Health Center, Inc. as the
corporate defendant. The United States of Am.’s Notice of Removal at 1 n.1 (ECF No. 1).
1

defendant in a state court action was acting within the scope of his, her, or its
employment, the United States’ “deeming” action requires that the case be removed
from state to federal court and the proceeding must be considered a tort action against
the United States. Id. at 1-2.
After the United States removed the action to federal court, on May 6, 2019,
the United States moved to substitute itself as the sole defendant in the case and
separately moved to dismiss the complaint for failure to exhaust administrative
remedies. The United States of Am.’s Mot. to Substitute (ECF No. 6); The United
States of Am.’s Mot. to Dismiss for Lack of Subject Matter Juris. (ECF No. 7). The
United States served the Plaintiff with copies of the motions on May 8, 2019. Id. at
6. Although her response was due by May 28, 2019, Ms. Fogg-Inman did not file a
timely response to the United States’ motions. Id. at 3.
On July 16, 2019, the Court issued an Order to Show Cause, directing Ms.
Fogg-Inman to respond to the United States’ motions within two weeks of the date of
the order. Order to Show Cause (ECF No. 10). In addition, the Court stated that in
her response, Ms. Fogg-Inman must show cause as to why her Complaint should not
be dismissed for failure to prosecute her civil action. Id. at 2. Ms. Fogg-Inman’s
response was due by August 2, 2019. Id.
On July 29, 2019, Ms. Fogg-Inman filed a motion to extend the time within
which to respond to the Court order. Mot. to Extend Time (ECF No. 11). In her filing,
Ms. Fogg-Inman asked for a 90-day extension because she is having “a severe medical
injury unrelated to this dental case.” Id. at 1. On August 8, 2019, the Court granted

2

in part and denied in part Ms. Fogg-Inman’s motion for extension of time and allowed
her until October 8, 2019 to file a response. Order on Mot. for Extension of Time (ECF
No. 14).
On October 8, 2019, Ms. Fogg-Inman filed a response but only to the motion to
dismiss the complaint. Resp. to Mot. to Dismiss for Lack of Juris. (ECF No. 16). She
wrote:
I Joann Fogg-Inman . . . am asking you not to dismiss my case 1:19-cv00197-JAW . . ..
Id. In her response, Ms. Fogg-Inman does not mention the motion to substitute party
and, as she has failed to respond to the motion to substitute party, she has waived
the right to object to the motion and the Court grants the motion to substitute party.
Moreover, in reviewing the United States’ motion to substitute party, the Court is
well satisfied that the United States, not Penobscot Community Health Center, Inc.
or Dr. Fister individually, is the proper Defendant to Ms. Fogg-Inman’s Complaint.
The Court notes that the United States’ motion to dismiss the Complaint is not
yet ripe for decision because the United States has a right to reply to Ms. FoggInman’s response. Its reply is due on or before October 22, 2019.
The Court GRANTS The United States of Am.’s Mot. to Substitute (ECF No. 6)
and the United States of America is hereby substituted for Jeffrey Fister, DMD and
Penobscot Community Health Center, Inc.

3

SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 10th day of October, 2019

4