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Young v. Temple University Hospital

United States District Court, E.D. Pennsylvania

October 28, 2019

SHANISHA YOUNG, individually and on behalf of her daughter, Z.K., a minor, et al. Plaintiff,
v.
TEMPLE UNIVERSITY HOSPITAL, et al., Defendants. SHANISHA YOUNG, individually and on behalf of her daughter, Z.K., a minor, et al. Plaintiff,
v.
TEMPLE UNIVERSITY HOSPITAL, et al., Defendants.

          MEMORANDUM

          Goldberg, J.

         These 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.

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Although this matter was commenced over a year and a half ago, it unfortunately remains in the pleading stages.

         According 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.)

         On 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.

         On 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.

         On 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. Id.

         On 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 I”).

         On 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.

         Subsequently, 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.

         Thereafter, 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' arguments.

         II. STANDARDS OF REVIEW

         A. Federal Rule of Civil Procedure 12(b)(1)

         A 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).

         There 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 891).

         B. Federal Rule of Civil Procedure 12(b)(6)

         Under 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.

         The 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. at 679).

         Finally, 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).

         III. DISCUSSION

         A. United States' Motion to Substitute

         The 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 in question.

         The 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).

         One 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 provides that:

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.”).

         Following 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 Cir. 1992)).

         The 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, however, ...


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