United States District Court, E.D. Pennsylvania
SHANISHA YOUNG, individually and on behalf of her daughter, Z.K., a minor, et al. Plaintiff,
TEMPLE UNIVERSITY HOSPITAL, et al., Defendants. SHANISHA YOUNG, individually and on behalf of her daughter, Z.K., a minor, et al. Plaintiff,
TEMPLE UNIVERSITY HOSPITAL, et al., Defendants.
consolidated cases involve a claim of medical malpractice by
Plaintiffs Shanisha Young and Atiba Kenyatta, individually
and on behalf of their daughter Z.K. (collectively,
“Plaintiffs”), against Defendant Shwetha
Shrivatsa, M.D. (“Dr. Shrivatsa”), and Defendants
Temple University Hospital, Inc., Temple University of the
Commonwealth System of Higher Education, Temple University
Health System, Inc., Erin Cavanaugh, M.D., and Scott E.
Jordan, M.D. (collectively, the “Temple
Defendants”). The Temple Defendants have filed
cross-claims for contribution, common law indemnity, and
contractual indemnity against Dr. Shrivatsa.
lengthy procedural history in this case, resulting from Dr.
Shrivatsa's status as a deemed federal employee, has led
to the three motions now pending before me. In two of the
motions, the United States seeks to substitute itself for Dr.
Shrivatsa and to dismiss all claims and cross-claims against
it. In the third motion, the Temple Defendants move to
dismiss the second action-Civil Action No. 19-1714-as
duplicative of the first or, alternatively, to dismiss the
claims of Plaintiffs Shanisha Young and Atiba Kenyatta as
time-barred. For the reasons set forth in detail below, these
motions will be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
this matter was commenced over a year and a half ago, it
unfortunately remains in the pleading stages.
to the Complaints, Plaintiff Shanisha Young was admitted to
Temple University Hospital (“Temple”) on February
27, 2016 for the birth of her child. Defendant Dr. Shrivatsa
was the attending physician. Plaintiffs allege that Dr.
Shrivatsa's failure to perform a timely c-section
resulted in severe brain damage to the child and scarring on
Ms. Young's bladder. (Civ. A. No. 19-1174, Compl.
¶¶ 12-87; Civ. A. No. 19-1714, Compl. at
“Pertinent Facts” ¶¶ 1-76.)
February 27, 2018, Plaintiffs sued Dr. Shrivatsa and the
Temple Defendants in state court. The Temple Defendants
removed the matter to federal court, on July 2, 2018,
alleging that Dr. Shrivatsa was a federal employee of a
federally-funded health care clinic and, thus, was subject to
the exclusive jurisdiction of the federal courts under the
Federal Tort Claims Act (“FTCA”), 42 U.S.C.
§ 233. The removed case was captioned as Young v.
Temple Univ., Civ. A. No. 18-2803. The Temple Defendants
filed an Answer to the Complaint, as well as cross-claims
against Dr. Shrivatsa for contribution, common law indemnity,
and contractual indemnity.
August 9, 2018-after the action had already been removed-the
United States Attorney issued a Certification, pursuant to 28
U.S.C. § 2679(d)(1), officially deeming Dr. Shrivatsa a
employee of the Public Health Service acting within the scope
of her federal employment with respect to the acts or
omissions at issue in the present action.
January 3, 2019, I remanded the case to state court for
failure to follow the proper removal procedure under 42
U.S.C. § 233(a). See Young v. Temple, No.
18-2803, 2019 WL 109388 (E.D. Pa. Jan. 3, 2019). I determined
that, under § 233(a), the United States, not the Temple
Defendants, had to remove the matter to federal court, but
only after issuing the requisite certification.
March 20, 2019, this case was again removed to federal court,
this time by the United States proceeding under the
Certification by the U.S. Attorney that Dr. Shrivatsa was
acting within the scope of her federal employment with
Greater Philadelphia Health Act (“GPHA”), a
federally-funded health care clinic. This matter was
captioned under Civil Action No. 19-1174 (“Young
April 18, 2019, Plaintiffs filed a new complaint in federal
court, under Civil Action No. 19-1714, setting forth the same
claims against the same Defendants (“Young
II”). This action also included a claim against
the United States as the employer of Dr. Shrivatsa, and
alleged that administrative remedies had been exhausted. On
May 7, 2019, I administratively consolidated Young I
and Young II.
on May 17, 2019, the United States in Young I-acting
pursuant to the FTCA, 42 U.S.C. § 233(a)- moved to
substitute itself as a defendant for Dr. Shrivatsa, and to
dismiss any claims against the United States for failure to
exhaust administrative remedies. Plaintiffs opposed this
substitution claiming that Dr. Shrivatsa was not acting
within the scope of her employment with GPHA during the
events in question. The Temple Defendants did not oppose the
substitution of the United States for Dr. Shrivatsa or the
dismissal of the claims against the United States for failure
to exhaust administrative remedies, but argued that their
cross-claims against the United States remained valid and
formed an independent basis for federal jurisdiction.
on July 1, 2019, the United States in Young II,
moved to substitute itself in place of Dr. Shrivatsa and to
dismiss all claims against it as time-barred under the
Federal Tort Claims Act's statute of limitations. The
Temple Defendants also moved to dismiss Young II as
duplicative of Young I, and as time-barred under the
state statute of limitations. On August 27, 2019, I held an
on-the-record phone conference to consider the parties'
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(1)
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) challenges the power of a federal court to hear a
claim or a case. Petruska v. Gannon Univ., 462 F.3d
294, 302 (3d Cir. 2006). When presented with a Rule 12(b)(1)
motion, the plaintiff “will have the burden of proof
that jurisdiction does in fact exist.” Id. at
302 n.3 (quotation omitted).
are two types of Rule 12(b)(1) motions. A
“facial” attack assumes that the allegations of
the complaint are true, but contends that the pleadings fail
to present an action within the court's jurisdiction.
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). A “factual”
attack, on the other hand, argues that, while the pleadings
themselves facially establish jurisdiction, one or more of
the factual allegations is untrue, causing the case to fall
outside the court's jurisdiction. Mortensen, 549
F.2d at 891. In such a case, “no presumptive
truthfulness attaches to plaintiff's allegations”
and the court must evaluate the merits of the disputed
allegations because “the trial court's . . . very
power to hear the case” is at issue. Id. With
a factual attack, the Court is free to consider evidence
outside the pleadings and weigh that evidence.
Petruska, 462 F.3d at 302 n.3; see also Gould
Elecs., Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000).
“[T]he existence of disputed material facts will not
preclude the trial court from evaluating for itself the
merits of jurisdictional claims.” Petruska,
462 F.3d at 302 n.3 (quoting Mortenson, 549 F.2d at
Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6), a defendant bears
the burden of demonstrating that the plaintiff has not stated
a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); see also Hedges v. United States, 404 F.3d
744, 750 (3d Cir. 2005). The United States Supreme Court has
recognized that “a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and
conclusions.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotations omitted).
“[T]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice” and “only a complaint that states a
plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678. A
complaint does not show an entitlement to relief when the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct. Id. at 679.
United States Court of Appeals for the Third Circuit has
detailed a three-step process to determine whether a
complaint meets the pleadings standard. Bistrian v.
Levi, 696 F.3d 352 (3d Cir. 2014). First, the court
outlines the elements a plaintiff must plead to state a claim
for relief. Id. at 365. Next, the court must
“peel away those allegations that are no more than
conclusions and thus not entitled to the assumption of
truth.” Id. Finally, the court “look[s]
for well-pled factual allegations, assume[s] their veracity,
and then ‘determine[s] whether they plausibly give rise
to an entitlement to relief.'” Id.
(quoting Iqbal, 556 U.S. at 679). The last step is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. (quoting Iqbal, 556 U.S.
in deciding a motion to dismiss under the Federal Rules of
Civil Procedure, the court must accept all factual
allegations in the complaint as true, construe the complaint
in the light most favorable to the plaintiff, and determine
whether under any reasonable reading, the plaintiff may be
entitled to relief. Atiyeh v. Nat'l Fire Ins. Co. of
Hartford, 742 F.Supp.2d 591, 596 (E.D. Pa. 2010).
United States' Motion to Substitute
United States first argues that it should be substituted in
place of Dr. Shrivatsa in both Young I and Young
II. It posits that the Certification from the United
States Attorney conclusively proves that, at the time of the
delivery of Plaintiff Young's baby, Dr. Shrivatsa was
working for GPHA, a federally-funded health care clinic, thus
making the United States the proper defendant. Plaintiffs
challenge the veracity of the United States'
Certification that Dr. Shrivatsa was actually working within
the scope of her federal employment at the time of the events
Federal Employees Liability Reform and Tort Compensation Act
of 1988 “accords federal employees absolute immunity
from common-law tort claims arising out of acts they
undertake in the course of their official duties.”
Osborn v. Haley, 549 U.S. 225, 229 (2007) (citing 28
U.S.C. § 2679(b)(1)); see also McNiff v. Asset Mgmt.
Specialists, Inc., 337 F.Supp.2d 685, 691 (E.D. Pa.
2004) (“The only proper defendant in an action brought
pursuant to the Federal Tort Claims Act is the United States
of America.”). Therefore, where an action is brought
against an employee of the United States that arose from the
employee's actions or omissions within the scope of his
office or employment, the United States should be substituted
as the defendant against whom the plaintiff may proceed.
See generally 28 U.S.C. § 2679(d).
means by which this substitution of parties may occur is
certification by the United States Attorney that the
individual defendant was an employee of the United States
acting within the scope of his or her employment. The Act
Upon certification by the Attorney General that the defendant
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
United States district court shall be deemed an action
against the United States under the provisions of this title
and all reference thereto, and the United States shall be
substituted as the party defendant.
28 U.S.C. § 2679(d)(1); see 28 C.F.R. §
15.4(a) (“The United States Attorney for the district
where the civil action or proceeding is brought . . . is
authorized to make the statutory certification that the
Federal employee was acting within the scope of his office or
employment with the Federal Government at the time of the
incident out of which the suit arose.”).
certification that a federal employee sued for a common law
tort was acting within the scope of his employment,
“the employee is dismissed from the action, and the
United States is substituted as defendant in place of the
employee. The litigation is thereafter governed by the
Federal Tort Claims Act.” Osborn, 549 U.S. at
230; see also Lackaro v. Kao, 748 F.Supp.2d 445, 449
(E.D. Pa. 2010). Certification by the United States Attorney
General or United States Attorney “is prima
facie evidence that the employee's challenged
conduct occurred within the scope of employment.”
Melo v. Hafer, 13 F.3d 736, 742 (3d Cir. 1994)
(quoting Schrob v. Catterson, 967 F.2d 929, 936 (3d
scope certification, however, is rebuttable and subject to
judicial review. Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 435-36 (1995); see also Schrob, 967
F.2d at 936. If a plaintiff disputes the veracity of a
certification, “the burden then shifts to the
plaintiff, who must come forward with specific facts
rebutting the certification.” Schrob, 967 F.2d
at 936. If there is a genuine issue of fact material to the
scope of the employment question, “a limited amount of
fact finding is necessary, ” which in turn necessitates
“an opportunity for limited discovery, and, if
necessary, an evidentiary hearing.” Id. at
936; see also Lackro v. Kao, 748 F.Supp.2d 445, 449-
50 (E.D. Pa. 2010) (“The need for discovery following a
certification of employment turns on whether the plaintiff
challenging the U.S. Attorney's certification can proffer
specific facts to rebut the certification.”). If,