ESTATE OF PEGGY CAMPBELL v. UNITED STATES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________ ____

Estate of Peggy Campbell by her :

Administrator Ad Prosequendum :

Anthony Campbell and Anthony : Hon. Joseph H. Rodriguez

Campbell, :

Plaintiffs, :

:

v. : Civil Action No. 18-17819

United States, et. al., :

: Opinion

Defendants. :

_______________________ :

These matters come before the Court upon the motion of the United

States of America (“Government”) to Dismiss the Complaint for Lack of

Subject Matter Jurisdiction and on Plaintiffs’ Cross Motion to Deem Tort

Claims Notice Timely Filed. The Court has considered the written

submissions of the parties, without oral argument pursuant to Fed. R. Civ.

P. 78. For the reasons set forth below, the Government’s motion is granted

and Plaintiffs’ motion is denied.

I. Background & Procedural History

This case has a long procedural history in both the state and federal

courts and the present dispute marks the second time the underlying facts

of this case have been before this Court. This case was originally filed in the

Superior Court of New Jersey on April 23, 2013. Then, it was removed to

this Court and assigned civil action number 15-7677, remanded, the remand

order was appealed and affirmed, then the matter was removed again to

this Court on December 31, 2018 and assigned the present civil action

number 18-17819. The Court reiterates relevant portions of its Opinion

granting remand in Estate of Campbell v. South Jersey Medical Ctr., No. 15-

7677, 2016 WL 7377101 (D.N.J. Dec. 20, 2016), aff’d 732 F. App’x 113 (3d

Cir. 2018) for the benefit of the reader.

This is a medical malpractice action. Former Defendant Hassan

Frinjari is a physician who practices obstetrics and gynecology. During the

relevant time period, he was employed by Community Health Care, Inc.

(“CompleteCare”), which is a community “health center” receiving grant

funds under Section 330 of the Public Health Service (PHS) Act (which is

codified at 42 U.S.C. § 254b) and is a deemed PHS employee. Pursuant to

the PHS Act, Dr. Frinjari was a federal employee at the time of the alleged

malpractice against Plaintiffs’ decedent and, therefore, alleged that he could

not be sued as a proper Defendant invoking immunity under the Federal

Tort Claims Act, 28 U.S.C. § 233; he alleged that the proper defendant in

the action must be the United States. United States v. Mitchell, 445 U.S.

535, 538 (1980) (“The United States, as sovereign, is immune from suit

save as it consents to be sued[.]”)

Plaintiffs are the Estate of Peggy Campbell, Administrator Ad

Prosequendum Anthony Campbell and Anthony. The Complaint alleges

medical and/or professional malpractice against numerous medical

professionals and a medical facility in the course of treatment and surgery

for Plaintiffs’ Decedent, Peggy Campbell.

After the original filing of this matter in the Superior Court of New

Jersey, for a number of reasons, Defendant Dr. Frinjari did not file an

answer and a default judgment was entered against him. After the entry of

the default judgment, Dr. Frinjari removed this matter to this Court on the

basis of his immunity as a PHS employee, pursuant to the Federally

Supported Health Centers Assistance Act of 1995 (“FSHCAA”), 42 U.S.C. §

233(c) and (g). The FSHCAA permits the Secretary of the U.S. Department

of Health and Human Services (HHS) to extend to federally-funded health

center employees, inter alia, Section 233(a) protection. Section 233 (a)

protection immunizes federal employees “for actions arising out of the

performance of medical or related functions within the scope of their

employment by barring all actions against them for such conduct.” Hui v.

Castaneda, 559 U.S. 799, 806 (2010) (emphasis added).

The issue, however, was that Defendant Dr. Frinjari untimely sought

and was therefore ultimately denied immunity. See 42 U.S.C. §§ 233(a) and

(g). Dr. Frinjari removed that matter- after the entry of a default money

judgment against him personally and without notice to the Attorney

General, pursuant to 42 U.S.C. §233 (b), and/or the substitution of the

United States as the party defendant. See 42 U.S.C. § 233(l)(2), and 28

U.S.C. § 2679(d)(3). Specifically, because Dr. Frinjari failed to provide

timely notice alerting the Attorney General of Plaintiffs’ lawsuit against

him, the United States never substituted itself as the proper defendant.1

This Court found, and the Third Circuit affirmed, that Dr. Frinjari’s

removal was imprudent and the case was remanded to the Superior Court

of New Jersey. Dr. Frinjari unsuccessfully appealed this Court’s Order.

On remand, the New Jersey Superior Court vacated the default

judgment against Dr. Frinjari. Defendants then filed a notice of removal on

December 31, 2018. On January 7, 2019, the Government certified that Dr.

Frinjari was acting in the scope of a federal employee at the time of the

alleged malpractice, pursuant to 42 U.S.C. 233(c) and 28 C.F.R. 15.4, and

1 Once notified, the Attorney General has a nondiscretionary duty to appear in court within 15 days of notice of the

lawsuit to report whether the “Secretary has determined under subsections (g) and (h) of [Section 233], that such

entity, officer, governing board member, employee, or contractor of the entity is deemed to be an employee of

the Public Health Service for purposes of this section with respect to the actions or omissions that are the subject

of such civil action or proceeding.” Id. at § 233(l)(1).

then substituted itself in place of Dr. Frinjari as the proper Defendant.

Plaintiffs filed an administrative claim under the FTCA on or about March

13, 2019. Now, the Government moves to dismiss this action pursuant to

Fed. R. Civ. P. 12 (b) (1) on the ground that Plaintiffs have failed to exhaust

their administrative remedies pursuant to the Federal Tort Claims Act

(FTCA) 42 U.S.C. §233.

II. Standard of Review

Federal Rule of Civil Procedure 12 governs a court’s decision to

dismiss a claim based on the pleadings. See Fed. R. Civ. P. 12. More

specifically, Federal Rule of Civil Procedure 12(b)(1) governs a court’s

decision to dismiss a claim for “lack of subject matter jurisdiction” and

Federal Rule of Civil Procedure 12(b)(6) governs a court’s decision to

dismiss a claim for failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6).

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

Federal Rule of Civil Procedure 12(b)(1) permits a court to dismiss a

case for lack of subject matter jurisdiction. A defendant may contest

subject matter jurisdiction by attacking the face of the complaint (i.e., a

facial attack) or by attacking “the existence of subject matter jurisdiction in

fact, quite apart from any pleadings” (i.e., a factual attack). Mortensen v.

First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); Schwartz v.

Medicare, 832 F. Supp. 782, 787 (D.N.J. 1993); Donio v. United States, 746

F. Supp. 500, 504 (D.N.J. 1990). A facial attack “contest[s] the sufficiency

of the pleadings.” Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257

(3d Cir. 2009) (citation omitted). On a facial attack, the court must read

the complaint in the light most favorable to the plaintiff and consider the

allegations of the complaint as true. Mortensen, 549 F.2d at 891.

Under a factual attack, a court is not confined to the pleadings but

may weigh and consider evidence outside the pleadings, including

affidavits, depositions, and exhibits to satisfy itself that it has jurisdiction.

Id.; Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000);

Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) (stating that court

can consider affidavits, depositions, and testimony to resolve factual

issues bearing on jurisdiction). This is because on a factual motion to

dismiss for lack of subject matter jurisdiction, the court’s very power to

hear the case is at issue. Mortensen, 549 F.2d at 891; Gotha, 115 F.3d at 179.

Moreover, on a factual attack, no presumptive truthfulness attaches to a

plaintiff’s allegations, and the existence of disputed material facts will not

preclude the trial court from evaluating for itself the merits of the

jurisdictional claim. Mortensen, 549 F.2d at 891.

Regardless of which approach is used, a plaintiff has the burden of

proving that jurisdiction exists. Lightfoot v. United States, 564 F.3d 625,

627 (3d Cir. 2009) (citing Carpet Grp. Int’l v. Oriental Rug Importers Ass’n,

227 F.3d 62, 69 (3d Cir. 2000)); Mortensen, 549 F.2d at 891. “The court

may dismiss the complaint only if it appears to a certainty that the plaintiff

will not be able to assert a colorable claim of subject matter jurisdiction.”

Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438 (D.N.J. 1999)

(citations omitted).

If the court finds that it lacks subject matter jurisdiction, it must

dismiss the action under Rule 12(h)(3). See Fed. R. Civ. P. 12(h)(3) (“If the

court determines at any time that it lacks subject-matter jurisdiction, the

court must dismiss the action.”).

2. Federal Tort Claims Act

The Government moves to dismiss the case for lack of subject matter

jurisdiction because Plaintiff failed to present an administrative tort claim

prior to filing this lawsuit. The FTCA is a limited waiver of the sovereign

immunity of the United States and confers District Courts with exclusive

jurisdiction over suits against the United States. 28 U.S.C. § 1346(b).

To make a claim under the FTCA, a claimant first must file her claim

with the administrative agency allegedly responsible for her injuries, here

United States Department of Health and Human Services (“HHS”). 28

U.S.C. § 2675(a

“[A]n action against the United States under the FTCA is the exclusive

remedy for persons alleging ‘personal injury, including death, resulting

from the performance of medical . . . or related functions’ by Public Health

Service employees acting within the scope of their employment. 42 U.S.C. §

233(a); see also 42 U.S.C. § 233(g)(1)(A) (reiterating subsection 233(a)’s

exclusivity clause).” Lomando v. United States, 667 F.3d 363, 371-72 (3d

Cir. 2011). The FTCA requires a claimant to exhaust administrative

remedies before bringing suit against the United States and provides, in

relevant part:

An action shall not be instituted upon a claim against the

United States for money damages for injury or loss or 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.

28 U.S.C. § 2675(a).

Section 2675(a) requires “complete exhaustion of Executive remedies

before invocation of the judicial process.” McNeil v. United States, 508 U.S.

106, 112 (1993); see also id. at 113 (holding “[t]he FTCA bars claimants from

bringing suit in federal court until they have exhausted their administrative

remedies”). “No claim can be brought under the FTCA unless the plaintiff

first presents the claims to the appropriate federal agency and the agency

renders a final decision on the claim.” Shelton v. Bledsoe, 775 F.3d 554,

569 (3d Cir. 2015).

Failure to file the predicate administrative claim divests the court of

subject matter jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994);

Calderon v. United States Dep’t of Agric., 756 F. Supp. 181, 183 (D.N.J.

1990). Thus, compliance with the FTCA statutory prerequisites is

mandatory because the requirements are jurisdictional and cannot be

waived. McNeil v. United States Postal Serv., 508 U.S. at 111-13; Roma v.

United States, 344 F.3d 352, 356 (3d Cir. 2003); see also 28 U.S.C. § 2675

(a).

III. Analysis

The parties agree that Plaintiffs failed to submit an administrative

claim to HHS prior to filing this lawsuit in 2013. The administrative claim

was filed on March 12, 2019, after this case was removed to this Court and

shortly after Dr. Frinjari was deemed a federal employee and the

Government substituted itself in place of Dr. Frinjari as the proper

defendant in this action. According to Plaintiffs, the Government’s

consistent refusal, until recently, to certify Dr. Frinjari as a federal

employee negated any obligation to file the administrative claim with HHS.

In addition, Plaintiffs claim that Dr. Frinjari waived his FTCA affirmative

defenses by failing to plead them. Finally, Plaintiffs argue that dismissal of

the Complaint on this basis would not serve the intent of the administrative

filing rule and result in an abject injustice to Plaintiffs’ claims. Plaintiffs

cross move to have the Tort Claims Notice deemed timely filed and invoke

the Order of the Superior Court of New Jersey which vacated the default

judgment against Dr. Frinjari and stated the following:

This court will condition vacation of the judgment with the

grant of extensions of the statute of limitations and affidavit of

merit as they pertain to Dr. Frinjari. Indeed, Dr. Frinjari should

have no entitlement to protection from time requirements

which were deemed tolled as of September 2013 in order to

allow the Plaintiff to proceed with its proofs as though the case

were in effect as of that date.

Ex. 1 at 7-8.

The Court agrees with Plaintiffs that dismissal of this action for

failure to timely file the administrative claim is a harsh result. The Court is,

however, constrained to dismiss the action for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12 (h) (3). Unfortunately, none of

Plaintiffs’ arguments can change that result and Plaintiffs fail to cite to any

compelling authority in support of the cross motion.

First, Dr. Frinjari’s alleged failure to affirmatively plead his immunity

does not remedy the failure to timely file the administrative claim. Subject

matter jurisdiction cannot be waived and can be raised at any point in a

litigation. Brown v. Philadelphia Hous. Auth., 350 F.3d 338, 346-47 (3d Cir.

2003). In addition, Dr. Frinjari is no longer a defendant in this action and

his alleged procedural pleading deficiency is not relevant to the Court’s

jurisdiction. Id. Second, Plaintiffs incorrectly characterize the

Government’s position with respect to Dr. Frinjari’s status as a federal

employee. At issue in the previous hearing, Civil Action No. 15-7677, was

whether Dr. Frinjari timely sought such immunity, because he did not seek

it until after a default judgment had been entered against him. The

Government did not disagree that Dr. Frinjari should be afforded such

protections; rather, the issue was that the Government could not bestow

them post-judgment. Once the default judgment was vacated, the

Government invoked the protections afforded to Dr. Frinjari under the

PHS. Plaintiffs’ attempt to argue underhandedness by the Government is

not compelling.

Finally, given that the Court lacks subject matter jurisdiction over this

matter, it cannot consider Plaintiffs’ cross motion to consider the

administrative claim as timely filed. Moreover, the Order of the Superior

Court of New Jersey vacating default judgment and placing conditions on

Dr. Frinjari does not bind the Government and does not, and cannot, cure

this Court’s lack of subject matter jurisdiction. The district court has

original jurisdiction over FTCA claims pursuant to 28 U.S.C. § 1346 (b). As

a result, the Superior Court lacks jurisdiction to order Plaintiffs’ late filing

of the Tort Claims Notice as timely. The Court must dismiss this action for

lack of subject matter jurisdiction for failure to exhaust the administrative

remedies under the FTCA, pursuant to 28 U.S.C. § 2675(a).

An appropriate Order shall issue.

Dated: March 25, 2020.

s/ Joseph H. Rodriguez

Hon. Joseph H. Rodriguez,

UNITED STATES DISTRICT JUDGE