NIEVES et al v. ANZABI et al

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 1/23/15. 1/28/15 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
CARMEN NIEVES
:
Plaintiff,
:
:
CIVIL ACTION
v.
:
:
NO. 14-4861
ILHAMA ANZABI, et al.,
:
Defendants.
:
MEMORANDUM OPINION
RUFE, J.

January 23, 2015

Plaintiff brings state-law medical malpractice claims against all Defendants. Presently
before the Court is the motion of Defendants Esperanza Health Center, Inc., Bryan Hollinger,
M.D., Timothy D. Johnston, M.D., Timothy J. Leahman, M.D., and Robert Reich (collectively
“Moving Defendants”) to substitute the United States as the proper defendant and then dismiss
all claims against the United States for lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1).
Factual and Procedural History
Ms. Nieves alleges that she was a patient of Esperanza Health Center and that all other
Moving Defendants are medical professionals who provided care to Ms. Nieves at Esperanza
Health Center. The remaining Defendants are Neshaminy Pharmacy and Ilhama Anzabi, a
pharmacist employed there, who also allegedly provided care to Ms. Nieves. Plaintiff contends
that Defendants provided negligent treatment between July 2011 and April 2012, and that
Defendants’ negligence caused her to suffer permanent injury on April 29, 2012.
On April 23, 2014, Ms. Nieves filed suit against all Defendants in the Philadelphia Court
of Common Pleas regarding the medical treatment she received. On the same day, Ms. Nieves
also filed an administrative claim with the United States Department of Health and Human

Services seeking compensation for the same injuries alleged in the lawsuit. 1 The United States
was not named as a Defendant in the lawsuit. On August 19, 2014, the United States filed a
notice of removal to this Court. Attached to the notice of removal was a determination by the
Attorney General that Moving Defendants “are deemed entities and employees of the Public
Health Service acting within the scope of their deemed federal employment with respect to the
actions or omissions that are the subject” of this case. 2
One week later, Moving Defendants filed the motion to substitute the United States and
then dismiss the claims against the United States for lack of subject-matter jurisdiction. Moving
Defendants contend that due to the Attorney General’s determination, 42 U.S.C. § 233 requires
that the claims against them be treated as tort claims against the United States. Moving
Defendants further contend that the Court lacks subject-matter jurisdiction because the Federal
Tort Claims Act (“FTCA”) 3 required the Plaintiff to exhaust the administrative claims process
before filing this suit. Plaintiff Nieves does not oppose substitution of the United States, but asks
that the Court delay considering dismissal until she is able to exhaust the administrative claims
process.
Standard of Review
Under § 233, entities receiving federal funding as health centers under 42 U.S.C. § 254b
and health care practitioners who work as employees or contractors for such federally supported
health centers are deemed to be employees of the Public Health Service. 4 Upon the Attorney
General’s filing of a certification that Defendants were acting within the scope of their deemed

1

Exh. B to Moving Defendants’ Motion.
Exh. B to Notice of Removal.
3
28 U.S.C. § 2675(a).
4
28 U.S.C. § 233(g).
2

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federal employment at the time of the incident alleged to constitute medical malpractice, the
action is treated as a tort claim against the United States. 5
A motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1) may raise either a facial or a factual challenge to subject-matter
jurisdiction. A facial challenge alleges a failure to plead jurisdictional prerequisites, whereas a
factual challenge alleges that that the prerequisites for jurisdiction do not in fact exist. 6 When
faced with a factual challenge, the Court may “review evidence outside the pleadings” and make
a factual determination as to whether the Court has jurisdiction. 7
Discussion
The Attorney General’s determination constitutes an appropriate certification and
substitution of the United States is unopposed. The United States will therefore be substituted for
Moving Defendants and the claims against Moving Defendants will be treated as claims against
the United States, pursuant to 42 U.S.C. § 233.
The FTCA provides the exclusive remedy for medical malpractice claims against the
United States arising out of the actions of deemed entities and employees of the Public Health
Service acting within the scope of their deemed federal employment. 8 Under § 2675(a) of the
FTCA, such claims are subject to an exhaustion requirement; before filing suit, the plaintiff must
present the claim to the appropriate agency and receive a final denial of that claim. The agency’s
failure to make a final disposition of the claim within six months is deemed to be a denial of the
claim. 9 Fulfillment of § 2675(a)’s exhaustion requirement before filing suit is a prerequisite for

5

28 U.S.C. § 233(a), (c).
CNA v. U.S., 535 F.3d 132, 139 (3d Cir. 2008).
7
Id. at 145 (internal quotations omitted).
8
28 U.S.C. § 233(a), (g).
9
28 U.S.C. § 2675(a).
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federal jurisdiction. 10 Failure to exhaust before filing suit cannot be cured by obtaining a final
denial while the case is pending; even if a final denial occurs early in the litigation process, the
case must be dismissed for lack of subject-matter jurisdiction. 11
Moving Defendants have established that Plaintiff failed to exhaust her administrative
remedies before filing suit. The administrative claim form is dated April 23, 2014, the same date
Plaintiff filed suit in state court. 12 Defendants have presented the declaration of Erica Gibson, a
staff attorney for the Department of Health and Human Services, which states that no final
disposition had been made of Plaintiff’s administrative claim as of August 7, 2014. 13 Plaintiff
does not dispute these facts. The Court therefore finds that Plaintiff did not receive a final denial
of her administrative claim before filing this suit, and because any subsequently obtained final
denial cannot confer subject-matter jurisdiction on this Court, the Court lacks jurisdiction over
the claims against the United States as the substituted party for Moving Defendants.
Jurisdiction Over Claims Against the Remaining Defendants
The Court has an independent obligation to satisfy itself that it retains subject-matter
jurisdiction over this case. 14 Because the claims against the United States must be dismissed, the
Court determines whether the claims against remaining Defendants Neshaminy Pharmacy and
Ms. Anzabi provide a basis for federal jurisdiction. After dismissal of the United States, the
complaint alleges only state-law causes of action against private individuals, and therefore the
Court may only exercise diversity jurisdiction. The federal courts have diversity jurisdiction only
when defendants are citizens of different state(s) from the plaintiff and the amount in controversy

10

Bialowas v. U.S., 443 F.2d 1047, 1049 (3d Cir. 1971).
McNeil v. U.S., 508 U.S. 106, 113 (1993) (holding that case must be dismissed for lack of subject-matter
jurisdiction despite completion of exhaustion requirement before substantial progress was made in the case).
12
Exh. B to Moving Defendants’ Motion.
13
Exh. D to Moving Defendants’ Motion.
14
Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003).
11

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exceeds $75,000. 15 In this case, the remaining Defendants and Plaintiff are all citizens of
Pennsylvania. The Court is therefore without subject-matter jurisdiction over the claims against
Neshaminy Pharmacy and Ms. Anzabi, and these claims will be remanded to the Philadelphia
Court of Common Pleas.
An appropriate order follows.

15

28 U.S.C. § 1332(a).

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