Lee v. Jones et al
ORDER AND OPINION The court severs plaintiff's claims against the United States and Defendant Jones and grants 6 Motion to Dismiss as to United States; grants 16 Motion to Remand as to claims against Defendant Jones to the Court of Common Pleas of Allendale County for further proceedings. Signed by Honorable J Michelle Childs on 6/23/2015.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Dr. Robert Jones, and United States,
Civil Action No. 1:14-cv-04158-JMC
ORDER AND OPINION
This matter is before the court pursuant to Plaintiff Linda Lee’s (“Plaintiff”) Motion to
Remand the case to the Court of Common Pleas for Allendale County, South Carolina. (ECF
No. 16.) Defendant United States1 (“United States”) submits that its Motion to Dismiss (ECF
No. 6) the action for lack of subject matter jurisdiction should be granted, but does not oppose
Plaintiff’s Motion to Remand once Plaintiff’s action against the United States has been
dismissed. (ECF No. 19.) Defendant Dr. Robert Jones (“Defendant Jones”) did not respond to
Plaintiff’s Motion to Remand.2 For the reasons set forth herein, the court SEVERS Plaintiff’s
claims against the United States and Defendant Jones, GRANTS the United States’ Motion to
Dismiss (ECF No. 6) as to claims against the United States, and GRANTS Plaintiff’s Motion to
Remand (ECF No.16) as to claims against Defendant Jones.
Low Country Health Care System, Inc. (“LCHCS”) had initially been named a defendant in this
action. By order of this court, LCHCS was substituted with the United States pursuant to 28
U.S.C. § 2679(d)(2). (ECF No. 12.)
On May 14, 2015, Defendant Jones filed a Motion to Alter or Amend Order, or in the
alternative, Petition for Certification of Scope of Employment Status in Civil Action No. 1:14cv-04159-JMC. He notes in this Petition that he seeks the same remedy in this related case. On
May 15, 2015, the Clerk of Court made a docket entry alerting Defendant Jones that he could not
spread the entry of this Petition into this and other related cases because they are not associated.
However, Defendant Jones failed to file this Petition in this case. Therefore, it will not be
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
From about 1999 to 2009 or 2010, Plaintiff alleges Defendant Jones sexually assaulted
her during medical appointments at Low Country Health Care System, Inc.’s (“LCHCS”)
facility. (ECF No. 1-1 at 4 ¶ 4, 5 ¶ 8.) Defendant Jones was an employee of LCHCS during this
time. (Id. at 4 ¶ 5.) On October 13, 2013, Plaintiff filed a Complaint in the Court of Common
Pleas for Allendale County, South Carolina, alleging negligence against LCHCS, intentional
infliction of emotional distress against Defendant Jones with LCHCS’ aid, and outrage against
Defendant Jones. (Id. at 1, 5 ¶ 14, 6 ¶ 16, 7 ¶ 21.) For jurisdictional purposes, Plaintiff alleged
she is a citizen of Georgia,3 Defendant Jones operates as a physician in South Carolina, and
LCHCS operates as a healthcare provider in South Carolina. (Id. at 4 ¶¶ 1–3.)
The United States Attorney for the District of South Carolina certified that LCHCS, as an
entity covered by the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)–
(n), was acting as an employee of the United States under the Federal Tort Claims Act (“FTCA”)
during the incidents involved here. (ECF No. 1-3 at 1–2.) Defendant Jones, however, was not
certified as acting within the scope of his employment and cannot be deemed an employee of the
federal government. (ECF 1-3 at 2.)
On October 24, 2014, the United States filed a Notice of Removal, as concerns LCHCS,
asserting that the action should be removed pursuant to 42 U.S.C. § 233(c), which calls for any
civil action or proceeding in a state court to be removed upon the Attorney General’s
certification that the defendant was acting within the scope of its employment at the time of the
incident at issue and the action be treated as a tort action against the United States under Title
In her Complaint, Plaintiff alleges she is a citizen of Georgia. (ECF No. 1-1 at 4 ¶ 1.)
However, in her Motion to Remand (ECF No. 16), Plaintiff states she is a citizen of South
Carolina. (ECF No. 16-1 at 1.)
28.4 (ECF No. 1 at 2–3 ¶ 6.) The United States cited that any civil suit brought in a state court
against the United States is removable to the United States district court “for the district and
division embracing the place wherein it is pending.” (ECF No. 1 at 3 ¶ 7 (citing 28 U.S.C. §
On October 31, 2014, the United States filed a Motion to Dismiss the action pursuant to
Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that Plaintiff failed to exhaust her
administrative remedies before filing suit pursuant to the FTCA. (ECF No. 6 at 1; ECF No. 6-1 at
4.) On December 12, 2014, Plaintiff filed a Motion to Remand, asserting that no basis of
removal exists as to claims against Defendant Jones. (ECF No. 16-1 at 2.) Plaintiff urges the
court to remand the entire matter or sever and remand the claims against Defendant Jones
pursuant to 28 U.S.C. § 1441(c)(2). (Id. at 2–3.) The United States filed a Response to
Plaintiff’s Motion to Remand on January 5, 2015. (ECF No. 19 at 1.)
The court has jurisdiction over Plaintiff’s claims against the United States pursuant to 28
U.S.C. § 1331 because these claims were removed to this court under 42 U.S.C. § 233(c) once
LCHCS was certified by the U.S. Attorney for the District of South Carolina as acting in the
scope of its employment during the incidents giving rise to this suit. (See ECF No. 1 at 2–3.)
LEGAL STANDARD AND ANALYSIS
A. Severance of Plaintiff’s Claims Against the United States and Defendant Jones
Rule 21 of the Federal Rules of Civil Procedure provides that the court may “sever any
claim against a party.” Fed. R. Civ. P. 21. A court severing claims against parties to a suit under
Rule 21 has “virtually unfettered discretion in determining whether or not severance is
The Notice of Removal was filed on behalf of LCHCS only.
Grayson Consulting, Inc. v. Cathcart, No. 2:07-cv-02992-DCN, 2014 WL
1512029, at *2 (D.S.C. Apr. 8, 2014) (internal citation and quotations omitted). Four factors are
considered in evaluating severance under Rule 21: (1) whether the issues sought to be severed
are “significantly different from one another;” (2) whether the issues require different witnesses
and evidence; (3) whether the “party opposing severance will be prejudiced; and (4) whether the
party requesting severance will be prejudiced if the claims are not severed.” Id. (citation
omitted). Additionally, when a civil action is removed, 28 U.S.C. § 1441(c)(2) provides that the
court may sever and remand to the state court from which it was removed any claim that is not
within the original or supplemental jurisdiction of the court. 28 U.S.C. § 1441(c)(2).
Plaintiff moves for remand of this action or, alternatively, for claims against Defendant
Jones to be severed and remanded. (ECF No. 16-1 at 3.) The United States does not oppose
severance of the claims against itself and Defendant Jones. (See ECF No. 19.) Defendant Jones
did not respond to Plaintiff’s Motion to Remand.
It is appropriate to sever the claims against the United States and Defendant Jones. While
the claims do involve the same facts, Plaintiff would be unduly prejudiced if the claims against
both the United States and Defendant Jones were dismissed because the statute of limitations as
to claims against Defendant Jones has expired. (ECF No. 16-1 at 2.) See Grayson, 2014 WL
1512029, at *2.
In light of the potential prejudice to Plaintiff and neither Defendant’s
opposition, Plaintiff’s claims against the United States and Defendant Jones are severed.
B. Dismissal of Plaintiff’s FTCA Claims Against the United States Pursuant to Rule 12(b)(1)
The party invoking federal jurisdiction has the burden of proof. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). The Fourth Circuit has held that “[w]hen a defendant
challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the district court is to regard the
pleadings as mere evidence . . . and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Evans v. B. F. Perkins Co., 166 F.3d
642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991)). “The moving party should prevail only if the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of
law.” Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768.
As a sovereign, the United States is immune from suit unless it consents to be sued.
United States v. Sherwood, 312 U.S. 584, 586 (1941). The United States may define the terms
and conditions upon which it can be sued. Soriano v. United States, 352 U.S. 270, 276 (1957).
The FTCA is a waiver of sovereign immunity with certain specific limitations. 28 U.S.C. §§
1346(b), 1402(b), 2401(b), 2671–2680. The limitations on the FTCA’s waiver of sovereign
immunity are to be strictly construed. Sherwood, 312 U.S. at 590; see also Childers v. United
States, 442 F.2d 1299, 1303 (5th Cir. 1971) (holding plaintiff’s claim barred by the six month
period limitation of Title 28 § 2401(b) because the provision is entitled to strict construction and
equitable considerations do not extend that period).
The FTCA “bars claimants from bringing suit in federal court until they have exhausted
their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). A claimant
must first present their claim to the appropriate federal agency before instituting an action against
the United States for injury or loss caused by the negligence or wrongful act of a government
employee acting within the scope of his or her employment. 28 U.S.C. § 2675(a). After
presentment of the administrative claim, suit cannot be commenced until the agency denies the
claim or six months have elapsed. Id. A claim is “presented” to an agency when that agency
receives an “executed Standard Form 95 or other written notification of an incident . . . .”
Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994) (quoting 28 C.F.R. § 14.2(a)) (internal
quotations omitted). A tort claim against the United States must be presented to the appropriate
federal agency within two years after the claim accrues, otherwise, such a claim is barred. 28
U.S.C. § 2401(b).
This administrative process is jurisdictional and cannot be waived.
Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986).
Plaintiff’s claims against the United States should be dismissed pursuant to Rule
12(b)(1). Plaintiff was required to present her claim to the appropriate federal agency before
filing suit in court. See 28 U.S.C. § 2675(a). Plaintiff filed her Complaint in state court on
October 31, 2013, but she never filed any claim with the Department of Health and Human
(ECF No. 1-1 at 1; ECF No. 1-2 at 1–2 ¶ 4.)
Plaintiff failed to exhaust her
administrative remedies before filing suit, and her suit is thus barred. See McNeil, 508 U.S. at
Because this administrative process is jurisdictional, this court lacks subject matter
jurisdiction. See Henderson, 785 F.2d at 123. Therefore, the United States’ Motion to Dismiss
pursuant to Rule 12(b)(1) is granted.
C. Plaintiff’s Motion to Remand as to Claims Against Defendant Jones
Federal courts are courts of limited jurisdiction. A defendant is permitted to remove a
case to federal court if the court would have had original jurisdiction over the matter. 28 U.S.C.
§ 1441(a). A federal court has original jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Where the Attorney
General certifies that a defendant employed by the Public Health Service was “acting in the
scope of his employment at the time of the incident out of which the suit arose,” the suit will be
removed from state court and treated as a tort action against the United States under Title 28.5
42 U.S.C. § 233(a), (c). Absent this certification, removal pursuant to 42 U.S.C. § 233(c) is not
possible. Metcalf v. West Suburban Hosp., 912 F. Supp. 382, 385 (N.D. Ill. 1996).
A federal court also has “original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
– (1) citizens of different States . . . .” 28 U.S.C. § 1332(a). In cases in which the district court’s
jurisdiction is based on diversity of citizenship, the party invoking federal jurisdiction has the
burden of proving the jurisdictional requirements for diversity jurisdiction. See Strawn v. AT&T
Mobility LLC, 530 F.3d 293, 298 (4th Cir. 2008) (holding that in removing case based on
diversity jurisdiction, party invoking federal jurisdiction must allege same in notice of removal
and, when challenged, demonstrate basis for jurisdiction). Because federal courts are forums of
limited jurisdiction, any doubts as to whether a case belongs in federal or state court should be
resolved in favor of state court. See Auto Ins. Agency, Inc. v. Interstate Agency, Inc., 525 F.
Supp. 1104, 1106 (D.S.C. 1981) (citations omitted).
Under Section 1332, there must be
complete diversity of all parties. Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806). Complete
diversity exists where “no party shares common citizenship with any party on the other side.”
Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). A civil action that is removable only on
the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) “may not be removed if any of
the parties in interest properly joined and served as defendants is a citizen of the [s]tate in which
such action is brought.” 28 U.S.C. § 1441(b)(2).
Plaintiff’s claims against Defendant Jones cannot be removed pursuant to 28 U.S.C. §
An entity, officer, governing board member, employee, or contractor of an entity may be deemed
an employee of the Public Health Service pursuant to 42 U.S.C. § 233(g)–(i). See 42 U.S.C. §
1331 because Defendant Jones was not certified as acting within the scope of his employment at
LCHCS during the incidents giving rise to this action. (ECF No. 1-3 at 2.) Therefore, claims
against Defendant Jones may not be removed under 42 U.S.C. § 233(c), as it requires
certification that the defendant was acting within the scope of his or her employment during the
events leading to the action in order for that action to be removed. See 42 U.S.C. § 233(c).
Since Defendant Jones was not certified as acting in the scope of his employment here, this
action may not be removed pursuant to federal question jurisdiction. See Metcalf, 912 F. Supp.
Further, Defendant Jones cannot remove Plaintiff’s claims against him under 28 U.S.C. §
1332, because Defendant Jones is a citizen of South Carolina and Plaintiff brought her suit in a
South Carolina court. (ECF No. 1-1 at 1, 4 ¶ 2.) Therefore, even if complete diversity does exist
here, Defendant Jones may not successfully remove this suit to this court.6 See 28 U.S.C. §
1441(b)(2). As the court does not have original jurisdiction over Plaintiff’s claims against
Defendant Jones, the court remands these claims to state court.
For the foregoing reasons, the court hereby SEVERS Plaintiff’s claims against the
United States and Defendant Jones. The court GRANTS the United States’ Motion to Dismiss
(ECF No. 6) as to claims against the United States. The court GRANTS Plaintiff’s Motion to
Remand (ECF No. 16) as to claims against Defendant Jones and REMANDS Plaintiff’s action
against Defendant Jones to the Court of Common Pleas of Allendale County, South Carolina for
There is some confusion as to whether Plaintiff is a citizen of Georgia or South Carolina. (See
ECF No. 1-1 at 4 ¶ 1; ECF No. 16-1 at 1.)
IT IS SO ORDERED.
June 23, 2015
Columbia, South Carolina
United States District Judge
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