ESTRELLA v. YAHAV et al

Filing 15

OPINION FILED. Signed by Judge Joseph H. Rodriguez on 3/28/16. (js)

UNITED STATES DISTRICT COUR
DISTRICT OF NEW JERSEY
RAMONA ESTRELLA,

:
:

Plaintiffs,
v.

Hon. Joseph H. Rodriguez
Civil Action No. 154286

:

OPINION

ERIC KFIR YAHAV, M.D.,
:
CAMCARE HEALTH CORPORATION,
TEVA PHARMACEUTICALS USA, INC., :
Defendants.

:

This matter is before the Court on Defendants’ motion to dismiss the
Complaint [Doc. 3], Plaintiff’s motion to remand [Doc. 4], and Defendants’
motion to vacate default entered in State court [Doc. 10]. The Court has
considered the motions on the papers pursuant to Federal Rule of Civil
Procedure 78(b).
Background & Procedural History
This matter was originally filed in the Superior Court of New Jersey,
Law Division, Cumberland County on August 25, 2014 seeking damages for
injuries sustained as the result of alleged medical malpractice. (Doc. 1, Not.
Removal, Ex. B.) It was removed to this Court on June 23, 2015 on the
asserted ground that Defendants Eric Kfir Yahav, M.D. and CAMCare
Health Corporation were federal employees under the Federally Supported
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Health Centers Assistance Act of 1995 (“FSHCAA”), 42 U.S.C. § 233(c) and
(g). (Not. Removal.) The Notice of Removal stated: [a]t all times relevant
to this Complaint, the [removing] Defendants were deemed employees of
the United States pursuant to 42 U.S.C. § 233(g).” (Id. at ¶ 3.) Attached as
an exhibit was a June 15, 2015 Certification by an Assistant United States
Attorney asserting that the removing Defendants “were acting within the
scope of their employment as employees of the United States at the time of
the conduct alleged in the Complaint.” (Id., Ex. D.)
At the time of removal, removing Defendants stated they had not
been properly served in the manner specified by Federal Rule of Civil
Procedure 4(i). (Id. at ¶ 1.) It appears, however, that Yahav and CAMCare
were served on September 30, 2014 and October 2, 2014, respectively.
(Rooney Cert., ¶ 4 & Ex. B, C.) The State court docket indicates that Proof
of Service as to CAMCare was filed on January 23, 2015 and as to Yahav on
February 17, 2015. (Not. Removal, Ex. A.) A third Defendant, Teva
Pharmaceuticals, filed an Answer in State court on November 20, 2014.
(Id.) Because removing Defendants failed to answer or otherwise respond
to the suit, Plaintiff requested that the Clerk in State court enter default
against them on May 4, 2015. (Id.; Rooney Cert., ¶ 7 & Ex. E.) More than

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six weeks later, the United States removed the case to this Court. (Doc. 1,
Not. Removal; Rooney Cert., Ex. G, H.)
On July 16, 2015, the removing Defendants filed a motion to dismiss
the Plaintiff’s Complaint for lack of subject matter jurisdiction because
Plaintiff allegedly failed to exhaust available administrative remedies.
[Doc. 3.] Removing Defendants first argue that the United States should be
substituted as Defendant in their place because the Attorney General has
delegated certification authority to the individual United States Attorneys
by 28 C.F.R. § 15.4, so the Certification of Scope of Employment filed in this
Court on June 11, 2015 by the Chief of the Civil Division of the United
States Attorney’s Office for the State of New Jersey suffices to substitute the
United States as the only appropriate Defendant in this suit for personal
injuries arising out of the alleged negligence of removing Defendants. 1
[Doc. 3 Br., pp. 2-4.]

28 U.S.C. § 2679(d)(2) provides, in relevant part, that: “Upon certification
by the Attorney General that the defendant employee was acting within the
scope of his office or employment at the time of the incident out of which
the claim arose, any civil action or proceeding commenced upon such claim
in a State court shall be removed . . . at any time before trial . . . to the
district court of the United States for the district and division embracing
the place in which the action or proceeding is pending. Such action or
proceeding shall be deemed to be an action or proceeding brought against
the United States under the provisions of this title and all references
thereto, and the United States shall be substituted as the party defendant.”
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Next, removing Defendants argue that because Plaintiff did not
present her claim against the United States to the applicable federal agency
and receive a denial letter, she has not exhausted her administrative
remedies under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675(a),
and this Court is without federal subject matter jurisdiction to hear the
case. [Doc. 3 Br., pp. 4-6.]
Subsequently, on August 25, 2015, the United States filed the Health
Resources and Services Administration FTCA Deeming Notices for
CAMCare Health Corporation for calendar years 2011-13. [Doc. 11, Taylor
Decl., Ex. A.] Also on August 25, 2015, removing Defendants filed a motion
to vacate the default entered by the State court on May 4, 2015. [Doc. 10.]
Plaintiff has opposed Defendants’ motion to dismiss and on August 3,
2015 filed a motion to remand the case back to State court. [Doc. 5, 4.] She
argues that the United States lacked standing to remove the case, move to
substitute itself, or move to dismiss because it failed to meet the strict
requirements for removal. 2 Plaintiff further argues that, at the least, the

2

42 U.S.C. § 233 provides:

(c) Removal to United States district court; procedure;
proceeding upon removal deemed a tort action against United
States; hearing on motion to remand to determine availability
of remedy against United States; remand to State court or
dismissal
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case should be automatically stayed pending limited discovery and a
hearing to inquire into this Court’s subject matter jurisdiction. Finally,
Plaintiff argues that the individual doctor is not necessarily considered an
employee or contractor of the United States.
Applicable Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) may involve either a facial challenge to subject matter jurisdiction

Upon a certification by the Attorney General that the defendant
was acting in the scope of his employment at the time of the
incident out of which the suit arose, any such civil action or
proceeding commenced in a State court shall be removed
without bond at any time before trial by the Attorney General to
the district court of the United States of the district and division
embracing the place wherein it is pending and the proceeding
deemed a tort action brought against the United States under
the provisions of Title 28 and all references thereto. Should a
United States district court determine on a hearing on a motion
to remand held before a trial on the merit that the case so
removed is one in which 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: Provided,
That where such a remedy is precluded because of the
availability of a remedy through proceedings for compensation
or other benefits from the United States as provided by any
other law, the case shall be dismissed, but in the event the
running of any limitation of time for commencing, or filing an
application or claim in, such proceedings for compensation or
other benefits shall be deemed to have been suspended during
the pendency of the civil action or proceeding under this
section.
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or a factual challenge to the jurisdictional allegations. Gould Elec., Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000). If the defendant’s attack is
facial—i.e., “asserting that the complaint, on its face, does not allege
sufficient grounds to establish subject matter jurisdiction”—a court must
accept all allegations in the complaint as true. Taliaferro v. Darby Twp.
Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). Alternatively, a defendant
may “challenge a federal court’s jurisdiction by factually attacking the
plaintiff's jurisdictional allegations as set forth in the complaint.”
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
A factual challenge attacks the existence of a court’s subject matter
jurisdiction apart from any of the pleadings and, when considering such a
challenge, a presumption of truthfulness does not attach to a plaintiff's
allegations.” Id.; see also Martinez v. U.S. Post Office, 875 F. Supp. 1067,
1070 (D.N.J. 1995).
“An attack on subject matter jurisdiction that is based on a lack of
administrative exhaustion is a factual challenge and not a facial one.” See,
e.g., J.H. ex rel. J.H. v. Egg Harbor Twp. Bd. of Educ., No. 08–488, 2009
WL 1322514, at * 2 (D.N.J. May 11, 2009); Courtney v. Choplin, 195 F.
Supp. 2d 649, 650 (D.N.J. 2002). When reviewing such a factual attack,
the Court may consider evidence outside the pleadings. Id. at 3.

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Analysis
“In part due to the relatively high cost of obtaining malpractice
insurance for treatment of . . . high-risk patients . . . the efforts to provide
necessary medical care in . . . underserved areas initially faced significant
roadblocks.” Wilson v. Big Sandy Health Care, Inc., 576 F.3d 329, 333 (6th
Cir. 2009). “In response, Congress passed the Federally Supported Health
Centers Assistance Act of 1992, [(“FSHCAA”), 42 U.S.C. §§ 201, 233].”
Lomando v. United States, 667 F.3d 363, 371 (3d Cir. 2011). The FSHCAA
“created a process by which ‘public and nonprofit private entities’ receiving
federal funds pursuant to 42 U.S.C. § 254b(c)(1)(A) and health practitioners
that such entities employ ‘shall be deemed to be [employees] of the Public
Health Service.’ 42 U.S.C. § 233(g)(1)(A).” Id.
“[A]n action against the United States under the FTCA is the exclusive
remedy for persons alleging ‘personal injury, including death, resulting
from the performance of medical . . . or related functions’ by Public Health
Service employees acting within the scope of their employment. 42 U.S.C. §
233(a); see also 42 U.S.C. § 233(g)(1)(A) (reiterating subsection 233(a)’s
exclusivity clause).” Lomando v. United States, 667 F.3d 363, 371-72 (3d
Cir. 2011). The FTCA requires a claimant to exhaust administrative

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remedies before bringing suit against the United States and provides, in
relevant part:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss or property
or personal injury or death caused by the negligent or wrongful
act or omission of any employee of the Government while acting
within the scope of his office or employment, unless the
claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered mail.
The failure of an agency to make final disposition of a claim
within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the
claim for purposes of this section.
28 U.S.C. § 2675(a). Section 2675(a) requires “complete exhaustion of
Executive remedies before invocation of the judicial process.” McNeil v.
United States, 508 U.S. 106, 112 (1993); see also id. at 113 (holding “[t]he
FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies”). “No claim can be brought
under the FTCA unless the plaintiff first presents the claims to the
appropriate federal agency and the agency renders a final decision on the
claim.” Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015). In the Third
Circuit, this exhaustion requirement “is jurisdictional and cannot be
waived.” Id. at 569.
A 1988 amendment to the FTCA known as the Westfall Act, 28 U.S.C.
§ 2671 “provides that tort claims filed in state court against federal
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employees acting within the scope of their employment ‘shall be removed . .
. to the district court of the United States [where the claim is pending] . . .
and the United States shall be substituted as the party defendant.’ 28
U.S.C. § 2679(d)(2).” Santos ex rel. Beato v. United States, 559 F.3d 189,
193 (3d Cir. 2009). The Westfall Act also “includes a clause that saves from
being barred by the statute of limitations certain timely claims filed in the
wrong forum, such as in a state or a federal court rather than with the
appropriate administrative agency. Pursuant to this savings clause an
errant plaintiff whose suit is removed to a district court, and then dismissed
because she failed to bring the timely required administrative claim, will be
credited with the date that she filed her claim in the wrong forum for
purposes of the FTCA’s statute of limitations. Such claims will be deemed
timely under section 2401(b) if (A) the claim would have been timely had it
been filed on the date the underlying civil action was commenced, and (B)
the claim is presented to the appropriate Federal agency within 60 days
after dismissal of the civil action. 28 U.S.C. § 2679(d)(5).” Id. 193-94.
Because the Government had the ability pursuant to 42 U.S.C. §
233(c) to remove the case from State court at any time before trial, see
Celestine v. Mount Vernon Neighborhood Health Center, 403 F.3d 76, 81
(2d Cir. 2005), Plaintiff has no grounds for remand. Further, there is no

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question that the record supports a finding that removing Defendants were
deemed employees of the United States acting within the scope of such
employment as employees of the United States at the time of the conduct
alleged in the Complaint. As such, because Plaintiff has failed to exhaust
administrative remedies as required by the FTCA, the Court must dismiss
the matter for lack of subject matter jurisdiction.
An appropriate Order will be entered.

Dated: March 28, 2016

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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