Thorton et al v. Maryland General Hospital, Inc.
Filing
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MEMORANDUM. Signed by Judge William M Nickerson on 5/8/13. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DENISE THORNTON et al.
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v.
MARYLAND GENERAL HOSPITAL
et al.
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Civil Action No. WMN-13-162
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MEMORANDUM
Pending before the Court are Plaintiffs’ Motion to Sever,
ECF No. 27, and Third-Party Defendant Dana Lee, M.D.’s (“Dr.
Lee”) Motion to Dismiss and Remand to State Court, or
Alternatively, Motion to Substitute, Sever, and Stay Action.
ECF No. 29.
The motions are fully briefed.
Upon consideration
of the pleadings and applicable law, the Court determines that
no hearing is necessary, Local Rule 105.6, and that the Third
Party Complaint against Dr. Lee will be dismissed but the action
will not be remanded to state court.
Plaintiffs’ Motion to
Sever will be denied as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit has an unusual procedural history.
It arises
from the death of Cierra Randolph while a patient at Maryland
General Hospital (“MGH”).
Plaintiffs initially filed this
medical malpractice/wrongful death action in the Circuit Court
for Baltimore City naming MGH as the sole defendant.
1
ECF No. 2.
After learning that two of the physicians involved in Ms.
Randolph’s care, Dr. Harold T. Rowson and Dr. Dana Lee, were not
MGH employees, Plaintiffs filed an Amended Complaint naming Drs.
Rowson and Lee as additional defendants.
ECF No. 15.
Plaintiffs subsequently learned that Dr. Lee was employed
at all times relevant by the People’s Community Health Center, a
federally-funded community health center.
As such, he is deemed
a federal employee under the provisions of the Federally
Supported Health Centers Assistance Act (FSHCAA).
See Wilson v.
Big Sandy Healthcare, Inc., 553 F. Supp. 2d 825, 829-30 (E.D.
Ky. 2008) (citing 42 U.S.C. § 233).
The United States Attorney
for the District of Maryland, as representative of the Attorney
General of the United States, filed a certification pursuant to
28 U.S.C. § 2679(d) that Dr. Lee was acting within the scope of
his federal employment at the time of the incident out of which
Plaintiffs’ claim arose and notified Plaintiffs that the
government would be defending Dr. Lee and would be removing the
case to this Court.
To avoid removal, Plaintiffs dismissed the
claims against Dr. Lee, without prejudice, on November 19, 2012.
Plaintiffs still seek recovery for Dr. Lee’s alleged negligent
acts, but now from MGH under a theory of “ostensible agency.”
ECF No. 27 at 5.
MGH subsequently filed a third-party complaint against Dr.
Lee in January 2013 for indemnity and contribution.
2
ECF No. 23.
Dr. Lee then removed the case to this Court on January 15, 2013,
pursuant to 28 U.S.C. § 1442(a), which states that “[a] civil
action . . . that is commenced in a State court . . . may be
removed . . . to the district court of the United States for the
district and division embracing the place wherein it is pending”
where the claim is brought against “any officer (or any person
acting under that officer) of the United States or of any agency
thereof, in an official or individual capacity, for or relating
to any act under color of such office or on account of any
right, title or authority claimed under any Act of Congress.”
On January 22, 2013, Plaintiffs filed their motion to sever Dr.
Lee from the case, arguing that MGH’s third-party complaint
against Dr. Lee was not timely.
ECF No. 27.
The following day,
Dr. Lee filed the present motion to dismiss and remand the case
to state court, or alternatively, to substitute, sever, and stay
the claims against him.
ECF No. 29.
Plaintiffs responded
supporting Dr. Lee’s motion to dismiss.
ECF No. 33.
MGH and
Dr. Rowson opposed both Dr. Lee’s motion to dismiss and Dr.
Lee’s and Plaintiffs’ motions to sever.
ECF Nos. 35-38.
II. DISCUSSION
A. Jurisdiction Over Claims Against Dr. Lee
3
Dr. Lee argues that the claims against him must be
dismissed under the derivative jurisdiction doctrine.1
“The
doctrine of derivative jurisdiction requires that a federal
court’s jurisdiction over a removed case mirror the jurisdiction
that the state court had over the action prior to removal.”
Palmer v. City Nat’l Bank, of West Virginia, 498 F.3d 236, 239
(4th Cir. 2007).
Because federal employees acting within the
scope of their employment are immune from suit in state courts
except where immunity has been waived, the state court had no
jurisdiction over the claims against Dr. Lee.
Relying on the
Fourth Circuit’s affirmation in Palmer of the continued
viability of the doctrine of derivative jurisdiction, the
government argues that, because the state court had no
jurisdiction over the claims against Dr. Lee, this Court has no
jurisdiction over those claims.
In Palmer, Defendant City National Bank of West Virginia
served a third-party complaint on two federal agencies: the
Farms Service Agency and U.S. Department of Agriculture.
Id.
The federal agencies filed a notice of removal pursuant to 28
1
Dr. Lee also argues the following in support of his motion to
dismiss and remand: (1) MGH’s third-party claim against Dr. Lee
was untimely, and; (2) MGH’s counts I and II failed to state a
claim because MGH is alleged to have committed “active
negligence” which prohibits assertion of an indemnity claim
against Dr. Lee. Because the Court is dismissing the claims
against Dr. Lee based on the derivative jurisdiction doctrine,
these arguments do not need to be addressed.
4
U.S.C. § 1442(a)(1), based on their federal agency status.
Id.
Following removal, the federal agencies filed a motion to
dismiss the third-party complaint, arguing that the doctrine of
derivative jurisdiction applied and that, under that doctrine,
the federal court also lacked jurisdiction over the federal
agencies.
Id.
The Fourth Circuit agreed and affirmed the
district court’s dismissal of the claims against the federal
agencies for lack of subject matter jurisdiction.
Id. at 246.
In reaching this conclusion, the Fourth Circuit
acknowledged the somewhat anomalous result of the dismissal of
removed actions that would have been within the exclusive
jurisdiction of the federal courts had they been originally
filed in federal court.
Id. at 245.
The court also noted the
criticism leveled at the doctrine by other courts.
Id.
(quoting, inter alia, Welsh v. Cunard Lines, Ltd., 595 F. Supp.
844 (D. Ariz. 1984), which deemed the derivative jurisdiction
doctrine as “‘an archaic concept that impedes justice’” and “‘is
out of tune with the federal rules.’”).
Nonetheless, the Fourth
Circuit concluded that Congress had never altered this
longstanding rule, at least as to removals under § 1442.
The
Fourth Circuit observed that a then-recent amendment to the
general removal statute, 28 U.S.C. § 1441, actually confirmed
the continued viability of the doctrine as applied to removals
under § 1442.
In 2002, Congress amended § 1441 to provide:
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“‘The court to which a civil action is removed under this
section is not precluded from hearing and determining any claim
in such civil action because the State court from which such
civil action is removed did not have jurisdiction over that
claim.’”
Id. (quoting 28 U.S.C. § 1441(f), emphasis added by
Fourth Circuit).
The court concluded from the language used in
that amendment that Congress’s abrogation of derivative
jurisdiction was limited to removals under § 1441 and that the
doctrine remains viable for removals under § 1442.
Id. at 246.
To avoid the controlling precedent of Palmer, MGH argues
that Dr. Lee improperly removed the case under § 1442 and that
the Court should re-characterize the removal as taking place
under 42 U.S.C. § 233.
In support, MGH relies on an unreported
district court decision from the District of Hawaii.
Nye v.
Hilo Med. Ctr., Civ. No. 09-00220 JMS/KSC, 2010 WL 931926 (D.
Haw. Mar. 11, 2010).
In Nye, the District Court of Hawaii found
that the federal third-party defendant improperly removed its
case under § 1442 because the third-party defendant, like Dr.
Lee, was a health care provider as defined in § 233(g) of the
FSHCAA.
Id. at *3.
Because the third-party defendant was only
eligible to remove the case to federal court due to its § 233
designation, the court concluded that removal under § 1442 was
improper.
The court then found that the derivative jurisdiction
did not apply under a § 233 removal.
6
Assuming, arguendo, that this Court could re-characterize
the ground for removal, it would be of no avail to MGH.
While
courts like Nye, in other circuits, have reached a different
conclusion, the Fourth Circuit has stated that the derivative
jurisdiction doctrine has been abrogated only as to removals
under § 1441.
Palmer, 498 F.3d at 245-46 (“[T]here is no
legislative history to support the view that Congress intended
to . . . eliminate the derivative-jurisdiction doctrine entirely
. . . ‘Congress left no doubt that Section 1441(f) applies only
to removals under Section 1441 and not to removals under any
other section of the United States Code.’”) (quoting Barnaby v.
Quintos, 410 F.Supp.2d 142, 144 (S.D.N.Y. 2005); see also, Jiron
v. Christus St. Vincent Reg’l Med. Ctr., --- F. Supp. 2d ---,
Civ. No. 12-428, 2012 WL 7869678 (D.N.M. Nov. 7, 2012)
(recognizing that courts, including Nye, have reached a
different conclusion but holding that removals under § 233 are
subject to the derivative jurisdiction doctrine).
Therefore,
whether the case was properly removed under § 1442 or § 233 is
inapposite.
Under Palmer, the derivative jurisdiction applies
to both removal statutes and, accordingly, the claims against
Dr. Lee must be dismissed.
B. Remand of the Remaining Claims
Dr. Lee, joined by Plaintiffs, argues that if the claims
against him are dismissed this case should be remanded to state
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court for further proceedings.
ECF No. 29-1 at 11; ECF No. 33.
Dr. Lee asserts that, without claims against the United States,
only state common law tort claims remain and no additional
subject matter jurisdiction exists.
Id.
In what might also
seem like a somewhat anomalous result, the Court finds that this
action cannot be remanded to the state court.
Once a case has been removed pursuant to a § 2679(d)
certification, the Supreme Court has held that the district
court must retain jurisdiction over the case.
549 U.S. 225, 245 (2007).
Osborn v. Haley,
In Osborn, the defendant had been
certified under § 2679(d)(2) as a federal employee acting within
the scope of his employment.
Id. at 234.
After being deemed a
federal employee, the defendant removed the case to federal
court under § 1442.
Id.
The District Court subsequently
overruled the § 2679(d)(2) certification, removing the United
States as a party to the case.
Because “the United States was
no longer before the court[,] the parties were not of diverse
citizenship, and no federal law was at issue[,]” the district
court held that it did not have subject-matter jurisdiction over
the case and remanded it to the state court.
Id. at 234-35.
In
reviewing that decision, the Supreme Court held that §
2697(d)(2) precluded the district court from remanding the case.2
2
Section 2679(d)(2) provides in pertinent part that the
“certification of the Attorney General shall conclusively
8
As one district court has observed, there is in the
language of Osborn some ambiguity as to whether the prohibition
on remand of cases removed pursuant to § 2679(d)(2) is limited
only to cases where the district court rejects the § 2679(d)(2)
certification or whether it applies to all cases removed under
that provision.
Anselmo v. Mull, Civ. No. 12-1422, 2012 WL
4863661 at *2-*3 (E.D. Cal. Oct. 11, 2012).
In support of the
limited scope is the following language: “Congress gave district
courts no authority to return cases to state courts on the
ground that the Attorney General's certification was
unwarranted”; “[w]ere it open to a district court to remand a
removed action on the ground that the Attorney General's
certification was erroneous, the final instruction in §
2679(d)(2) would be weightless.”
(emphasis added).
Osborn, 549 U.S. at 241–42
Supporting the more sweeping scope is this
language:
when the Attorney General certifies scope of
employment, triggering removal of the case to a
federal forum[,] . . . § 2679(d)(2) renders the
federal court exclusively competent and
categorically precludes a remand to the state
court. Our decision . . . leaves the district
court without authority to send a certified case
back to the state court.
Id. at 243.
establish the scope of office or employment for purposes of
removal.”
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While at least one district court in another circuit has
adopted the more limited reading of Osborn, see Salazar v. PCC
Community Wellness Center, Civ. No. 08–1764, 2010 WL 391383
(N.D. Ill. Jan. 29, 2010), the only district court in this
circuit to have reached the issue and of which this Court is
aware, Kebaish v. Inova Health Care Services, 731 F. Supp. 2d
483, 487 (E.D. Va. 2010), followed the broader reading.
While
acknowledging that Osborn involved the rejection of the scope of
employment certification, the court in Kebaish concluded that
“Osborn holds that § 2679(d)(2) provides a conclusive basis for
federal subject matter jurisdiction in all cases, regardless of
whether certification is ultimately upheld.”
487 (citing Osborn, 549 U.S. at 243)).
731 F. Supp. 2d at
The court found that
this result was also more consistent with previous Fourth
Circuit decisions holding that the jurisdiction properly
acquired by the removal under 2679(d)(2) “‘was effectively
mandatory and did not permit a discretionary remand following
denial of the federal immunity defense.’”
Id. (quoting Mangold
v. Analytic Servs., Inc., 77 F.3d 1442 (4th Cir. 1996), which
cited Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir. 1994)); see
also Ross v. Bryan, 309 F.3d 830 (4th Cir. 2002); Borneman v.
United States, 213 F.3d 819 (4th Cir. 2000).
While this Court certainly could echo the sentiment of its
sister court that “this case presents an undeniably appealing
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candidate for remand, given that no federal claims or defendants
remain,” it must also echo that court’s conclusion that “the
Supreme Court’s decision in Osborn nonetheless forcloses
remand.”
Kebaish, 731 F. Supp. 2d at 487-88.
III. CONCLUSION
For the foregoing reasons, the claims against Dr. Lee will
be dismissed but the Court declines to remand the case to state
court.
A separate order will issue.
____________/s/______________________
William M. Nickerson
Senior United States District Judge
May 8, 2013
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