Quick v. Acaylar et al
Filing
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ORDER: The United States' [ECF # 4 ] motion to substitute is GRANTED. The United States of America is hereby substituted as the proper party defendant in the place of Francis Acaylar, M.D. and CareSouth Carolina, Inc. Th e United States' [ECF # 5 ] motion to dismiss is GRANTED and the claims against the United States are DISMISSED without prejudice for failure to exhaust administrative remedies. Plaintiff's [ECF # 7 ] motion to remand is GRANTED in part and DENIED in part. The remaining claims against Roy Parnell and Marlboro Drug Co., Inc. are hereby REMANDED to the South Carolina Court of Common Pleas for Marlboro County, South Carolina. Signed by the Honorable R. Bryan Harwell on 4/30/2015. (hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Caroline Quick, individually and as Personal
Representative of the Estate of A.M.Q., a minor
estate of A.M.Q.,
)
)
)
)
Plaintiff,
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)
v.
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Francis Acaylar, M.D., individually and as an
)
employee/agent of CareSouth Carolina, Inc.;
)
CareSouth Carolina, Inc.; Roy Parnell, individually )
and as an employee/agent of Marlboro Drug Co., )
Inc.; Marlboro Drug Co., Inc.;
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)
Defendants.
)
_________________________________________ )
Civil Action No.: 4:14-cv-04712-RBH
ORDER
This matter is before the Court on the United States of America’s [ECF #4] motion to
substitute a party and [ECF #5] motion to dismiss. Also before the Court is Plaintiff’s [ECF #7]
motion to remand.
This medical malpractice case was originally filed in the Marlboro County Court of
Common Pleas on June 16, 2014. Plaintiff alleged medical negligence claims against Francis
Acaylar, M.D., CareSouth Carolina, Inc., Roy Parnell, and Marlboro Drug Co., Inc. arising out the
death of A.M.Q.
On December 12, 2014, the United States removed this case to federal court contending that
CareSouth and Acaylar are both covered under the Federal Tort Claims Act (“FTCA”). The notice
of removal indicated that Defendant CareSouth Carolina, Inc. (“CareSouth”) is an entity covered by
the Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233, and that
Defendant Francis Acaylar, M.D. (“Acaylar”) was an agent and/or employee of CareSouth.
On December 15, 2014, the United States filed a motion to substitute the United States for
Defendants CareSouth and Acaylar pursuant to 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233. As an
attachment to the motion, the United States filed a certification of scope of employment certifying
that CareSouth and Acaylar are deemed to be employees of the United States and were acting within
the scope of their employment at the time of the incident alleged in the Complaint.
On December 16, 2014, the United States filed a motion to dismiss arguing that Plaintiff’s
claims related to CareSouth and Acaylar should be dismissed because Plaintiff failed to first submit
her claim to the appropriate federal agency as required by 28 U.S.C. § 2675(a).
On January 5, 2015, Plaintiff filed a motion to remand and memorandum in response to the
United States’ motion to substitute and motion to dismiss. Plaintiff argues that substitution of the
United States for Defendants Acaylar and CareSouth is improper because CareSouth and Acaylar
failed to cooperate in the defense of the suit. Plaintiff further argues that because substitution is
improper, the case does not fall under the FTCA and should be remanded to the Marlboro County
Court of Common Pleas. Plaintiff does not challenge the certification, which states that Acaylar and
CareSouth are deemed employees of the United States acting within the scope of their employment
at the time of the incident alleged in the Complaint.
Plaintiff argues that under 42 U.S.C. § 233(p)(5), as a consequence for CareSouth and
Acaylar’s failure to cooperate, the Court should not substitute the United States and should remand
the case to the Marlboro County Court of Common Pleas. Title 42 U.S.C. § 233(p)(5) states that
“[a] covered person shall cooperate with the United States in the processing and defense of a claim
or action under this subsection based upon alleged acts or omissions of such person.” 42 U.S.C. §
233(p)(5) (emphasis added). Section 233(p)(5)(B) provides that upon a finding that a covered
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person has failed to cooperate with the United States, the court shall substitute such person as the
party defendant and, upon motion, shall remand any such suit to the court in which it was instituted.
42 U.S.C. § 233(p)(5)B). Plaintiff’s reliance on this passage as a basis to defeat the application of
the FTCA is misplaced. First, it is questionable whether this section even applies to the instant case
as it appears under the heading “Administration of smallpox countermeasures by health
professionals.” See 42 U.S.C. § 233(p)(5). Second, regardless of the reference to “smallpox” above,
and more importantly, the section requires cooperation with the United States, not cooperation with
the opposing party. Section 233(p)(5) provides no consequences for any alleged failures to
“cooperate” with the Plaintiff.
As stated above, Plaintiff does not challenge the certification stating that CareSouth and
Acaylar are covered under the FTCA. Because the United States Attorney has certified that
CareSouth and Acaylar were employees of the United States and were acting within the scope of
their employment at the time of the incident giving rise to the Complaint, the United States is the
proper party defendant pursuant to 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233. Accordingly, the
United States of America is hereby substituted as the party defendant in the place of CareSouth and
Acaylar.
With regard to the motion to dismiss, the United States argues that Plaintiff’s claims related
to Acaylar and CareSouth should be dismissed because Plaintiff failed to submit her claim to the
appropriate administrative agency prior to filing this lawsuit.1 Plaintiff does not dispute that she has
1
The United States also argues that Plaintiff’s claim should be dismissed as time barred because
Plaintiff did not file an administrative claim within the two year statute of limitations found in 28 U.S.C. §
2401. The Court declines to make any findings with regard to the statute of limitations because it is without
jurisdiction to do so. W ith that said, the Court notes that A.M.Q. appears to have passed away on or about
June 9, 2013.
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not filed an administrative claim with the appropriate federal agency.
The FTCA provides that plaintiffs must submit an administrative claim before filing suit in
court. Title 28 U.S.C. § 2675(a) states
An action shall not be instituted upon a claim against
the United States for money damages for injury or loss
of 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. The provisions of this subsection shall not
apply to such claims as may be asserted under the
Federal Rules of Civil Procedure by third party
complaint, cross-claim, or counterclaim.
28 U.S.C. § 2675(a). The Fourth Circuit Court of Appeals has held that the requirement of filing an
administrative claim is jurisdictional and may not be waived; dismissal is mandatory if the plaintiff
fails to file a claim with the proper agency. Henderson v. United States, 785 F.2d 121, 123-24 (4th
Cir. 1986). Because it is clear that Plaintiff did not file an administrative claim with the appropriate
federal agency before filing this lawsuit, this Court lacks jurisdiction and the claims against the
United States (Acaylar and CareSouth) are due to be dismissed without prejudice for failure to
exhaust administrative remedies. Again, as noted in footnote one, the Court declines to dismiss the
claim with prejudice as time barred.
Having dismissed the only claims giving rise to federal jurisdiction, this Court declines to
exercise supplemental jurisdiction over the state law claims alleged against Roy Parnell and
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Marlboro Drug Co., Inc. pursuant to 28 U.S.C. § 1367(c). Accordingly, this case is due to be
remanded to the Marlboro County Court of Common Pleas.
CONCLUSION
For the reasons stated above, the United States’ [ECF #4] motion to substitute is
GRANTED. The United States of America is hereby substituted as the proper party defendant in
the place of Francis Acaylar, M.D. and CareSouth Carolina, Inc.
The United States’ [ECF #5] motion to dismiss is GRANTED and the claims against the
United States are DISMISSED without prejudice for failure to exhaust administrative remedies.
Plaintiff’s [ECF #7] motion to remand is GRANTED in part and DENIED in part. The
remaining claims against Roy Parnell and Marlboro Drug Co., Inc. are hereby REMANDED to the
South Carolina Court of Common Pleas for Marlboro County, South Carolina. A certified copy of
this Order of Remand shall be mailed by the Clerk of this Court to the Clerk of the Court of
Common Pleas, Marlboro County, South Carolina.
April 30, 2015
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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