ESTATE OF PEGGY CAMPBELL et al v. SOUTH JERSEY MEDICAL CENTER et al
OPINION. Signed by Judge Joseph H. Rodriguez on 12/20/2016. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Estate of Peggy Campbell by her :
Administrator Ad Prosequendum :
Anthony Campbell and Anthony :
South Jersey Medical Center,
Hon. Joseph H. Rodriguez
Civil Action No. 15-7677
This matter comes before the Court on Defendant Dr. Frinjari’s
Motion for a hearing pursuant to 42 U.S.C. § 233 (l)(2), [Dkt. No. 9]. The
Court has considered the written submissions of the parties, including
those submitted by the United States, as well as the arguments advanced at
the hearing on November 30, 2016. For the reasons set forth below, the
case is remanded to the Superior Court of New Jersey for lack of subject
Background & Procedural History
Defendant Hassan Frinjari is a physician who practices obstetrics and
gynecology. During the relevant time period, he was employed by
Community Health Care, Inc. (“CompleteCare”), which is a community
“health center” receiving grant funds under Section 330 of the Public
Health Service (PHS) Act, 42 U.S.C. § 254b), and a deemed PHS employee.
Plaintiffs are the Estate of Peggy Campbell, by her Administrator Ad
Prosequendum Anthony Campbell and Anthony Campbell. The Complaint
alleges medical and/or professional malpractice against numerous medical
professionals and a medical facility in the course of treatment and surgery
for Plaintiffs’ Decedent, Peggy Campbell. For purposes of this motion, the
relevant allegation is against Defendant Dr. Frinjari, who seeks immunity
by virtue of his deemed PHS employee status. See 42 U.S.C. §§ 233(a) and
At issue is the propriety of Defendant Dr. Frinjari’s removal of this
matter, which was originally filed in the Superior Court of New Jersey on
April 23, 2013. (See Dkt. No. 1, Not. Removal). This matter was removed
on October 23, 2015 and removal is predicated upon the federal employee
status of Dr. Frinjari, pursuant to the Federally Supported Health Centers
Assistance Act of 1995 (“FSHCAA”), 42 U.S.C. § 233(c) and (g).
The FSHCAA permits the Secretary of the U.S. Department of Health
and Human Services (HHS) to extend to federally-funded health center
employees, inter alia, Section 233(a) protection. Section 233 (a) protection
immunizes federal employees “for actions arising out of the performance of
medical or related functions within the scope of their employment by
barring all actions against them for such conduct.” Hui v. Castaneda, 559
U.S. 799, 806 (2010) (emphasis added).
Dr. Frinjari claims that he received assurances from his employer,
CompleteCare, that his defense in this case would be provided by the
federal government because of the FSHCAA. See Frinjari Decl. ¶¶ 7-9. As a
result and because he claims he was never served with the summons and
complaint, Dr. Frinjari took no action to defend himself. In the meantime,
the Superior Court of New Jersey dismissed the other defendants in this
matter, with prejudice, because plaintiffs failed to file an Affidavit of Merit.
However, the claims against Dr. Frinjari remained and on January 24,
2014, plaintiffs filed a Request and Certification for Entry of Default. Dr.
Frinjari, was unaware that a request for default had been entered and the
failed to respond. As a result, on June 27, 2014, the Superior Court of New
Jersey signed an Order for Judgment against Dr. Frinjari for $650,000.
Dr. Frinjari claims that he is immune from suit and that Plaintiffs’
claim is properly against the United States under the FTCA. 28 U.S.C. §
1346(b)(1) (United States “district courts [...] have exclusive jurisdiction of
civil actions on claims against the United States”). The issue in this case is
whether after the entry of a default judgment awarding money damages
removal is proper even though Dr. Frinjari failed to provide notice to the
Attorney General of Plaintiffs’ lawsuit against him, perhaps because he was
unaware or was not properly served1, and the United States never
substituted itself as the proper defendant.2 In other words, pursuant to 42
U.S.C. § 233(l)(2), and 28 U.S.C. § 2679(d)(3), Dr. Frinjari removed this
matter- after the entry of a money judgment against him personally and
without notice to the Attorney General, pursuant to 42 U.S.C. §233 (b),
and/or without the substitution of the United States as the party defendant.
Standard of Review
“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].”
For the purpose of this motion, the Court accepts Dr. Frinjari’s allegation that he was not properly served and
therefore entry of default judgment against him was improvident. Even so, default was entered and the Court’s
function is to determine whether removal was proper. The Court cannot address the propriety of the judgment
without first determining jurisdiction.
Once notified, the Attorney General has a nondiscretionary duty to appear in court within 15 days of notice of the
lawsuit to report whether the “Secretary has determined under subsections (g) and (h) of [Section 233], that such
entity, officer, governing board member, employee, or contractor of the entity is deemed to be an employee of
the Public Health Service for purposes of this section with respect to the actions or omissions that are the subject
of such civil action or proceeding.” Id. at § 233(l)(1).
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
remedies before bringing suit against the United States and provides, in
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
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).
Removal here is predicated upon 42 U.S.C. § 233(c), and 28 U.S.C. §
2679(d)(3). Pursuant to 28 U.S.C. § 2679(d)(2):
“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.”
42 U.S.C. § 233 (c) provides:
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
The United States has 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). At this juncture, Defendant Dr. Frinjari is not yet a deemed
employee of the United States, buit the United States agrees that if it is
properly notified, Dr. Frinjari will qualify as a “deemed” employee under
the Act. In addition, default judgment has been entered against Dr. Frinjari
and money damages have been awarded. As such, the Government
contends that Dr. Frinjari’s removal is improper because there is no federal
Dr. Frinjari claims that removal was achieved before a trial on the
merits and that the default judgment is not final, because prior to removal
Dr. Frinjari filed motions to vacate the default and dismiss the case.
Dr. Frinjari’s removal is untimely pursuant to 42 U.S.C. §233(c), and
this case must be remanded to the Superior Court of New Jersey.3 Section
§233(c) permits removal at any time before trial. 42 U.S.C. §233(c). Here,
default judgment has been entered and money damages awarded. The
Court finds that this is akin to a trial on the merits and forecloses Dr.
Frinjari’s right to remove this matter under 42 U.S.C. §233(c).
The Court finds Dr. Frinjari’s argument that a default judgment is not
a final judgment unpersuasive. Dr. Frinjari relies on A.B. v. Y.Z., 184 N.J.
599, 878 A.2d 807 (Sup. Ct. N.J. 2005) for support. In A.B., the Court, in
the context of proof hearing to determine damages, considered whether
defendant’s right to confront his accuser was violated when the victim was
allowed to appear by closed circuit television. A.B., 184 N.J. 599. In
concluding that the error was harmless, the Court noted the posture of the
case, including the less formal forum of the hearing as not having occurred
in trial, but as a damages proof hearing following entry of procedural
default. Id. (“This was a civil proof hearing after default, not a trial.”).
The Court notes that several arguments have been advanced as to the timeliness of the removal. During oral
argument, the issues were narrowed and the Court will address the issue related to the finality of the entry of
The distinction, between a trial and a proof hearing, drawn by the
New Jersey Supreme Court, was procedural in nature; made to underscore
the harmlessness of permitting a defendant to face his accuser through a
medium, as opposed to face-to-face, when no jury is present. Id. The
Court’s distinction for purposes of characterizing an error as harmless, does
not fortify Dr. Frinjari’s argument here that the default judgment
proceedings are not a final judgment for purposes of 42 U.S.C. §233.
In addition, Dr. Frinjari’s reliance on Oviedo v. United States, 655
F.3d 419 (5th Cir. 2011) is unpersuasive. Under the specific facts of that
case, the Fifth Circuit in Oviedo held that the finality of the Texas state
court judgment, which was a default judgement with a money damages
award, made removal improper. Oviedo, 655 F.3d at 420. In that case,
defendants filed a motion to set aside the trial, but the state court never
ruled on the motion and it became moot seventy-five days after the
judgment was signed. Id. In this regard, the Fifth Circuit found that the
individual defendants’ failure to ask for a hearing allowed the time for an
appeal and the district court’s plenary jurisdiction to lapse. Id. Therefore,
no issues remained in the case. Id.
Then, the United States filed a notice of removal and, once in federal
court, moved to substitute itself for the defaulted individual defendants. Id.
at 422. Ultimately, the Fifth Circuit found removal improper,
“[e]mphasizing the total finality of the state case[.]” Id. The court framed
the issue, one of first impression, as considering the propriety of removal
when “the time for seeking direct review of in the state courts had
completely expired [at the time] the government filed its notice of removal.”
Id. The court bolstered the finality of the judgment as a trial on the merits,
stating that “[t]here is simply no support in our precedent for the
government’s position that a case may be removed to federal court after the
state court’s jurisdiction has wholly expired.” Id. at 423. Dr. Frinjari argues
that the “wholly expired” language renders his removal proper, since, in
light of his motion to set aside the default and to dismiss the case, his
appeal process has not expired in state court. In addition, he argues that
the government’s post-default judgment substitution compels the
government to substitute itself here, and relieve him from the burden of
vacating the judgment. The Court disagrees.
The Court in Oviedo acknowledged that the facts in that case were
unique and that the default judgment was entered by a court of competent
jurisdiction and made payable against the individual defendants, exclusive
of the government. Oviedo, 655 F.3d at 420, 424. Although the court
stated that the defendants’ failure to timely appeal the entry of the default
judgment frustrated the propriety of removal because “the case is final for
purposes of direct review in the state court system[,]” the fact that Dr.
Frinjari filed a motion to vacate default and to dismiss in New Jersey state
court does not justify removal. There is no case law to support the
conclusion that the government is compelled to substitute itself here at this
juncture, simply because it did in Oviedo.
Likewise, the other cases relied upon by Dr. Frinjari do not involve a
default judgement in which money damages were awarded; rather, these
cases were removed during the procedural default stage- no judgment had
been entered. See Estrella v Yahav, No. 15-CV-4286, 2016 WL 1230555
(D.N.J. March 28, 2016); Taylor v. Gilliam, No. 13-CV-2947, 2013 WL
6253654 (D.N.J. Dec. 4, 2013).
Here, Dr. Frinjari has not served the government with the petition
and has removed the matter improperly. Removal pursuant 42 U.S.C.
§233(c) must be made at any time before trial and by the Attorney General.
To permit removal and compel the government to substitute itself, and
perhaps bind itself to a judgment achieved without its participation or
knowledge, would do violence to 42 U.S.C. §233(c). A default judgment in
which money damages are awarded is a final judgment. See N.J. Ct. R.
4:43-2; Wright 7 Miller, 10A Fed. Prac. & Proc. Civ. § 2692 (3d ed. Apr.
2016 update). In addition, because money damages were awarded, there is
no issue left for trial. 4 cf.; Kizer v. Sherwood, 311 F. Supp. 809, 811 (M.D.
Pa. 1970) (removal appropriate where default judgment entered, but trial
on damages remained.).
The fact that Dr. Frinjari filed motions in state court attacking the
validity of the default judgment does not rescue his timeliness argument. In
essence, Dr. Frinjari is asking this Court to review the entry of a money
judgment by a state court of competent jurisdiction. Such a notion offends
principles of comity. See, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)
(both standing for the proposition that a United States District Court has no
subject matter jurisdiction to review final judgments of a state court.); see
also Moncrief v. Chase Manhattan Mortgage Corp., 275 Fed. Appx. 149, 153
(3d Cir. 2008) (“[T]o the extent that [Plaintiff] seeks to ‘appeal from’ the
state court's . . . judgment, the District Court correctly dismissed the claim
See Oviedo, 655 F.3d at 423 (citing Ohio v. Doe, 433 F.3d 502, 507 (6th Cir. 2006) (“We agree with the reasoning
of our sister circuits in ruling that when all that remains of an action is the enforcement of a judgment, removal to
federal court is not authorized.”) (citing In re Meyerland Co., 910 F.2d 1257, 1266 (5th Cir. 1990) (Higginbotham, J.,
concurring in part and dissenting in part), same result reached on reh'g en banc, 960 F.2d 512 (5th Cir. 1992)); Four
Keys Leasing & Maint. Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988) (“[I]t would be a perversion of the removal
process to allow a litigant who is subject to a final judgment to remove that final judgment to the federal courts for
further litigation.”) (other citations omitted).
under Rooker-Feldman.”). As a result, because the removal came after the
entry of a default judgment in which money damages were awarded, the
Court finds that removal is untimely pursuant to 42 U.S.C. §233(c).5
This matter will be remanded to the Superior Court of New Jersey.
Dated: December 20, 2016
s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE
To the extent that Dr. Frinjari relies on 28 U.S.C. § 2679 (d), that statute affords only the Attorney General the
ability to remove a case after, and not the employee defendant, and only after the employee defendant has
properly served the petition on the government. See 28 U.S.C. § 2679 (d)(3), In addition 42 U.S.C. § 233(l) provides
that “deemed” employees are beholden to the removal procedures set forth in 28 U.S.C. 233(c)—not 28 U.S.C. §
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