BAUTISTA v. TEMPLE UNIVERSITY HOSPITAL, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CAROLINA NINA BAUTISTA, CIVIL ACTION

Individually and as Parent and Natural

Guardian of F.M., a Minor,

Plaintiff,

v.

TEMPLE UNIVERSITY HOSPITAL,

INC., and TEMPLE UNIVERSITY NO. 25-3101

HOSPIAL SYSTEM INC.,

Defendants and

Third-Party Plaintiffs,

v.

CLINTON A. TURNER, M.D.,

Third-Party Defendant.

MEMORANDUM OPINION

Plaintiff Carolina Nina Bautista (“Bautista”) gave birth to her son (“F.M.”) at Temple

University Hospital. He was born premature—she was 28 weeks pregnant when she began

experiencing intermittent contractions and went to the hospital. Tests showed an abnormal fetal

heart rate and other signs of pre-term labor, but critical medical intervention was delayed for

hours. The delay, according to a Complaint she filed against Defendants Temple University

Hospital, Inc. and Temple University Health System, Inc. (together, the “Temple Defendants”),

meant that F.M. was born with catastrophic brain injuries that will impair him for the rest of his

life.

Bautista, proceeding individually and as the parent and natural guardian to F.M., sued the

Temple Defendants in state court for professional negligence, corporate negligence, and

negligent infliction of emotional distress (“NIED”). The Temple Defendants filed a Joinder

Complaint seeking indemnity and contribution against Third-Party Defendant Clinton A. Turner

(“Turner”), the attending obstetrician who allegedly was responsible for Bautista’s care during

her time at Temple University Hospital.

The United States of America (the “United States” or the “Government”) intervened and

removed the matter to federal court, asserting that because Turner was employed by Delaware

Valley Community Health, Inc. (“DVCH”), a covered employer under a federal public health

service program, any claim against him arising from his care of Bautista belongs in federal court.

The Government now moves, pursuant to Federal Rule of Civil Procedure 21,1 to dismiss

Turner from the above-captioned action and substitute itself in his place as the sole Third-Party

Defendant. Separately, Bautista moves to sever and remand her claims against the Temple

Defendants from the Temple Defendants’ third-party claims. For the reasons that follow, the

Government’s Motion shall be granted and Bautista’s Motion shall be denied.

I. BACKGROUND

On the morning of August 16, 2023, Bautista, then 20 years-old and 28 weeks into her

first pregnancy, went to the emergency room at Temple University Hospital in Philadelphia after

experiencing contractions which were approximately ten minutes apart. Nurses performed an

initial exam and connected her to a fetal heart rate monitor. Over the next several hours, she

continued to have contractions and demonstrated signs of pre-term labor. Meanwhile, her fetal

heart tracings “reflected concerning findings, including fetal tachycardia and decelerations.”

Despite those symptoms, the nurses attending to Bautista did not promptly call an

1 In addition to Rule 21, the Government also purports to bring its Motion for Substitution pursuant to Rule 12(b)(1),

which provides that a claim may be dismissed for “lack of subject matter jurisdiction.” See Fed. R. Civ. P. 12(b)(1).

However, aside from a passing argument that “the Court lacks subject-matter jurisdiction to adjudicate Temple’s

third-party claims as asserted against [Turner],” the Government does not explain why dismissal is appropriate

under that Rule. For the reasons set forth more fulsomely below, Rule 21 provides complete and adequate relief in

deciding the Government’s Motion for Substitution, so the Court need not address the grounds for dismissal, if any,

under Rule 12(b)(1).

obstetrician or maternal fetal medicine specialist to evaluate her. Only after an approximately

three hour wait in the emergency room was she finally admitted and transferred to the labor and

delivery floor of the hospital. About an hour and a half later, she was seen by two resident

physicians and given an initial course of steroids and antibiotics. She was also examined by an

attending maternal fetal medicine physician. Shortly thereafter, however, a nurse documented

that Bautista’s “membranes spontaneously ruptured.” Notwithstanding that observation, roughly

three hours passed before a resident physician “returned to [her] bedside to evaluate her cervix.”

During that evaluation, the physician began to suspect that Bautista was suffering from

“chorioamnionitis”—a bacterial infection of the fetal membranes and amniotic fluid—and, as a

result, recommended immediate delivery.

At 4:14pm—approximately nine hours after arriving at Temple University Hospital—

Bautista delivered F.M., who suffered “catastrophic brain injuries” at birth. Due to the

“prolonged intrauterine hypoxia,” he was “profoundly acidotic” upon delivery, and was

eventually diagnosed with hydrocephalus. Bautista avers that F.M.’s neurological injuries are

permanent and “will disable him in every aspect of his life, for the rest of his life.” She

maintains that “[h]ad F.M. been timely delivered, as the standard of care required, he would not

have suffered the brain injuries he did, and he would not be in the neurologically devastated

condition []he is today.” Further, as described in her Complaint, the entire ordeal put Bautista

herself through “significant mental anguish” and “severe emotional distress.”

II. MOTION TO SUBSTITUTE

A. Legal Standards

i. Rule 21

Turning first to the Government’s Motion to Substitute: Rule 21 “empowers courts to

police the litigation’s cast of characters.” Avenatti v. Fox News Network LLC, 41 F.4th 125, 130

(3d Cir. 2022) (citations omitted). It provides: “Misjoinder of parties is not a ground for

dismissing an action. On motion or on its own, the court may at any time, on just terms, add or

drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21. Rule 21

can be exercised, among other reasons, to “preserve subject matter jurisdiction.” Avenatti, 41

F.4th at 130 (citations omitted). “Significantly, because Rule 21 does not contain explicit

standards governing the propriety of joinder or severance—that is, what constitutes ‘just

terms’—courts sometimes must incorporate standards to be found elsewhere in exercising their

Rule 21 discretion.” Id. at 131 (citations and internal quotation marks omitted). That said, Rule

21 authority, while discretionary, is not unlimited. Id. For instance, a district court “cannot drop

indispensable parties, and it must assure itself that its actions will not prejudice any party.” Id.

(citations omitted).

ii. Federally Supported Health Centers Assistance Act

Here, the Government’s Rule 21 argument is that Turner was, at all relevant times,

employed by DVCH—an entity the Government certifies has been “deemed” a federal employer

under the Federally Supported Health Centers Assistance Act (the “FSHCAA”), 42 U.S.C. §

233—and thus, pursuant to that statute, “just terms” exist to substitute the United States in his

stead as the proper party to defend against the Temple Defendants’ third-party indemnity and

contribution claims against him.

To understand the application of the FSHCAA, a brief foray into the relevant provisions

of the Public Health Service Act (the “PHSA”), 42 U.S.C. § 233(a), and the Federal Tort Claims

Act (the “FTCA”), see 28 U.S.C. §§ 1346, 2671-80, is necessary. The PHSA protects officers

and employees of the Public Health Service (the “PHS”) from personal liability “for damage for

personal injury, including death, resulting from the performance of medical, surgical, dental, or

related functions” while acting within the scope of their employment. 42 U.S.C. § 233(a); see

Hui v. Castaneda, 559 U.S. 799, 806 (2010) (holding that PHS officers and employees are

“absolute[ly] immun[e] . . . for actions arising out of the performance of medical or related

functions within the scope of their employment”). In lieu of personal liability, the PHSA makes

available a tort action against the United States under the FTCA as the “exclusive” remedy for

certain “act[s] or omission[s]” on the part of PHS employees resulting in personal injury or

death. 42 U.S.C. § 233(a).

Under the FSHCAA, meanwhile, “public or non-profit private health centers receiving

federal funds under 42 U.S.C. § 254b— as well as officers, board members, employees, and

certain contractors of such entities—are eligible for the same PHSA and FTCA protections as are

enjoyed by PHS employees.” O’Brien v. United States, 56 F.4th 139, 147 (1st Cir. 2022) (citing

42 U.S.C. § 233(g)(1)(A)). Like the PHSA, “[t]he FSHCAA makes the FTCA the exclusive

remedy for specified actions against members of the [PHS] . . . .” Kelley v. Richford Health Ctr.,

Inc., 115 F.4th 132, 136 (2d Cir. 2024) (cleaned up); see also 42 U.S.C. §§ 233(a), (g)(1)(A). To

gain this prophylaxis, a federally funded health center, or any employee associated with it, must

be “deemed to be an employee” of the PHS by the Secretary of the United States Department of

Health and Human Services (“HHS”). 42 U.S.C. § 233(g)(1)(A).

“[I]f an action is brought in state court against a ‘deemed’ PHS employee, the FSHCAA

provides mechanisms both for removing the case to the federal district court and for substituting

the United States as the named defendant in the ‘deemed’ employee’s stead.” O’Brien, 56 F.4th

at 147. Of relevance here, one such mechanism directs that within fifteen days of being notified

of such a case, the Government may appear in state court and “advise such court as to whether

the [HHS] Secretary has determined” that the defendant “is deemed to be an employee of the

[PHS] . . . with respect to the actions or omissions that are the subject of [the] civil action or

proceeding.” 42 U.S.C. § 233(l)(1). If the Government does so, removal is required “at any

time before trial . . . to the district court of the United States of the district and division

embracing the place wherein it is pending . . . .” Id. § 233(c). At that point, the proceeding shall

be considered “a tort action brought against the United States under the provisions of Title 28,”

meaning that the United States may move for substitution so that the case will proceed under the

FTCA. See id. §§ 233(a), (c); see also Thomas v. Phoebe Putney Health Sys., Inc., 972 F.3d

1195, 1198 (11th Cir. 2020) (outlining framework).

B. Discussion

In support of its Motion to Substitute, the Government has certified that “Third-Party

Defendant Clinton A. Turner, M.D. is a deemed and covered employee of the [PHS] who acted

within the scope of that federal employment with respect to the actions and omissions that are the

subject of the-above captioned action.” It also appended a declaration from Frances M. Recio, a

senior HHS attorney, who similarly certified that Dr. Turner, as a DVCH employee, was a

“deemed” employee of the PHS who acted within the scope of his federal employment at the

time of, and in any connection with, the incidents giving rise to Bautista’s state law claims.2

Critically, though, health centers and their employees that are covered under the

FSHCAA are only protected from suit under the FTCA (by operation of the FSHCAA) when

they are “acting within the scope of [their] office or employment.” 42 U.S.C. § 233(a); see also

Kelley, 115 F.4th at 136; Thomas, 972 F.3d at 1197-98. “To determine whether the government

employee was acting within the scope of his employment when he partook in the challenged

conduct,” the FTCA looks to the “relevant state law of respondeat superior.” Sharratt v.

2 Specifically, Recio explained that he “reviewed official [HHS] records and determined that [DVCH] was deemed

eligible for [FTCA] malpractice coverage effective January 1, 2023, and its coverage has continued without

interruption since that time.” He also “reviewed the employment records submitted by [DVCH] on behalf of

[Turner] and . . . determined that [he] was an employee of [DVCH] at all times relevant to the Plaintiff’s complaint

in this case.”

Murtha, 437 F. App’x 167, 171-72 (3d Cir. 2011) (citing Brumfield v. Sanders, 232 F.3d 376,

380 (3d Cir. 2000)). To that end, Pennsylvania has adopted the Restatement (Second) of

Agency, which considers conduct to be within the scope of employment if it (a) is the kind the

employee is employed to perform; (b) occurs substantially within the time and space limits, and

(c) is actuated, at least in part, by a purpose to serve the master. Id. (citing Restatement (Second)

Agency § 228).

“Initially, when the Government or the defendant moves for substitution, the Attorney

General’s certification, although subject to judicial review, is prima facie evidence that the

employee’s challenged conduct was within the scope of employment.” Schrob v. Catterson, 967

F.2d 929, 936 (3d Cir. 1992); see also Young v. Temple Univ. Hosp., 2019 WL 5569510, at *4

(E.D. Pa. Oct. 28, 2019) (“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.’” (quoting Melo v. Hafer, 13 F.3d 736, 742 (3d Cir. 1994))). But that

certification is rebuttable and subject to judicial review. See Gutierrez de Martinez v. Lamagno,

515 U.S. 417, 435-36 (1995); Schrob, 967 F.2d at 936. To that end, “a plaintiff seeking to

challenge [a] certification has the burden of coming forward with specific facts rebutting it.”

Brown v. Mercadante, 687 F. App’x 220, 222 n.6 (3d Cir. 2017) (citing Schrob, 967 F.2d at

936). In so doing, if a plaintiff demonstrates that there is a genuine issue of fact material to the

scope of the employment question, the district court should permit limited discovery and conduct

an evidentiary hearing. See Schrob, 967 F.2d at 936; see also id. (cautioning that, in such cases,

“the district court should ensure that both the discovery and the hearing are circumscribed as

narrowly as possible,” while also recognizing that “these are matters within [the district court’s]

discretion”). Nevertheless, “[i]f the facts can be determined without an evidentiary hearing, the

court can rule on a pretrial motion to substitute or to set aside the substitution based on the

certification, pleadings, documentary evidence, and affidavits.” Id.; 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.”).

Against that backdrop, the Government’s certifications, while not “conclusively

resolv[ing] the question of substitution . . . constitute prima facie evidence” that the challenged

conduct implicating Turner occurred within the scope of his federal employment. Lackro, 748 F.

Supp.2d at 449-50 (citing Schrob, 967 F.2d at 936). In response, Bautista, who opposes the

Government’s Motion, points to four documents, which she claims rebut the Government’s

certification regarding the scope of Turner’s employment. First, she notes that Turner has a

profile on the Temple Defendants’ website, where he is listed as one of its doctors. Second, she

highlights Turner’s application for staff privileges at Temple University Hospital, which notes

his “primary affiliation” as Temple University Hospital. Attached to that application is a copy of

Turner’s resume, which, in her estimation, does not list or otherwise refer to DVCH. Next, she

draws attention to the billing records associated with her care, which records purportedly identify

the Temple Defendants as the billed provider and Turner as the attending physician. And finally,

she notes that the consent form, which she was asked to sign at the time of her treatment, did not

warn her that her care would be overseen by any DVCH providers.

As counterpoise, the Government attached two additional declarations in their Reply

Brief. The first is from Turner himself, in which he attests, in relevant part, that: (1) his sole

employer since October 2004 has been DVCH; (2) consistent with common obstetric practice

around the nation, non-hospital-employee obstetricians are able to care for their patients at any

hospital after obtaining privileges; (3) in August 2023, he delivered babies of DVCH (and non-

DVCH) patients at Temple University Hospital as an on-call DVCH “laborist/hospitalist”; and,

(4) the Temple Defendants have never employed him or paid his salary. The second declaration

is from Brenda Robles Cooke, DVCH’s Senior Vice President and Chief Administrative Officer,

in which she similarly attests that: (1) Turner was a DVCH employee in 2023, and held the

DVCH position of laborist/hospitalist; (2) in that role, he was responsible for providing “on-call”

obstetrics coverage at Temple University Hospital for DVCH patients as well as other patients;

(3) he was on-call at Temple University Hospital on August 16, 2023 when Bautista arrived at

the emergency room; (4) DVCH billing records for Bautista include an entry for “obstetrical

care” services that Dr. Turner provided to her at Temple University Hospital on August 16,

2023; (5) that entry is consistent with DVCH’s practice of billing its patients for the “physician

delivery fee” associated with delivering their babies at Temple University Hospital; and, (6) Dr.

Turner’s only compensation for the delivery services that he provided to DVCH patients at

Temple University Hospital in 2023 was his DVCH salary. Appended to Cooke’s declaration

was a notice from DVCH to Turner describing, in essence, that although he would be “rendering

professional medical services” at certain hospitals in the Temple Health System in his role as a

hospitalist, he would be nonetheless employed by DVCH. That notice referenced a

Memorandum of Understanding between the Temple Defendants and DVCH, which was also

attached to Cooke’s declaration, outlining a patient referral agreement between the entities.3

3 The Temple Defendants, who do not oppose the Government’s Motion, nevertheless enter the fray: Their view is

that Bautista “selectively represented the facts” in her Response Brief in an attempt to manufacture various disputed

issues of fact. For instance, they point out that Bautista’s reference to Turner’s profile on Temple’s website is

“misleading,” in that the screenshot she included in her Response Brief “conveniently omits” the bottom half of the

webpage. And critically, that portion of the webpage lists “Fairmount Primary Care Center”—a facility which the

Temple Defendants submit is operated by DVCH—as Turner’s office location. Moreover, they assert that Bautista’s

argument regarding Turner’s application for medical privileges similarly hides the ball in that her Response Brief

fails to include the lines immediately below the “primary affiliation” section of the form where Turner lists his

employer as DVCH and his primary office address as a DVCH facility.

In view of those facts, Bautista has failed to rebut the Government’s certification that, at

the time of the events giving rise to her lawsuit, Turner was a “deemed” employee under the

FSCHAA who acted within the scope of his federal employment. As the declarations from

Recio, Turner, and Cooke indicate, Turner has never received a paycheck from the Temple

Defendants; his sole employer since October 2004 has been DVCH—an entity which the HHS

Secretary has “deemed” a federal employer under the FSHCAA. Further, because Cooke avers

that it is “common obstetric practice” for non-hospital-employee obstetricians (like Turner), to

attend to patients at other local hospitals (such as Temple University Hospital) after obtaining

privileges, it makes sense why Bautista’s billing records included entries for obstetrical care

provided to her by Turner at Temple University Hospital. Cooke further bolstered that

conclusion by explaining that it was DVCH’s practice to bill its patients for care provided by its

doctors at Temple University Hospital.

Thus, under Pennsylvania law, which the FTCA consults to determine whether a

government employee working in Pennsylvania was acting within the scope of his federal

employment when he engaged in the challenged conduct, see Sharratt, 437 F. App’x at 171-72,

the Court finds that Turner’s treatment of Bautista was: (a) of the kind Turner was employed to

perform for DVCH; (b) occurred substantially within the time and space limits of his

employment with DVCH; and (c) was actuated, at least in part, by a purpose to serve DVCH.

To be sure, Bautista gestured at other documents—namely, Turner’s profile on Temple’s

website and his application for medical privileges—to cast doubt on the scope of his employment

and argue that Turner was affiliated with and treated patients at Temple University Hospital.

However, those documents, when examined in context, indeed identify DVCH as his employer

and office location.

In short, Bautista has failed to carry her burden of “coming forward with specific facts”

to rebut the Government’s certification by demonstrating the existence of a genuine issue of fact

material to the scope of Turner’s employment. Brown, 687 F. App’x at 222 n.6; see also Schrob,

967 F.2d at 936. In the absence of such facts, the Court concludes that “just terms” exist under

Rule 21 to dismiss Turner from the action and substitute the United States in his place as the sole

third-party defendant. Cf. Avenatti, 41 F.4th at 130-31. Accordingly, the Government’s Motion

shall be granted without the need for any limited discovery or an evidentiary hearing. See

Schrob, 967 F.2d at 936 (“If the facts can be determined without an evidentiary hearing, the

court can rule on a pretrial motion to substitute or to set aside the substitution based on the

certification, pleadings, documentary evidence, and affidavits.”); Lackro, 748 F. Supp.2d at 449-

50.

III. MOTION TO SEVER & REMAND

Turning next to Bautista’s Motion, she contends that the Court should, pursuant to 28

U.S.C. § 1367(2), decline to exercise supplemental jurisdiction over her state law claims for

negligence and NIED because they “substantially predominate” over the Temple Defendants’

third-party claims for indemnity and contribution against the United States. And without

supplemental jurisdiction, she asks the Court to sever her claims and remand them to the

Philadelphia County Court of Common Pleas.

Under 28 U.S.C. § 1441(a), a defendant may remove “any civil action brought in a state

court of which the district courts of the United States have original jurisdiction . . . to the district

court of the United States for the district and division embracing the place where such action is

pending.” 28 U.S.C. § 1441(c)(2), meanwhile, allows courts to sever and remand any “claim not

within the original or supplemental jurisdiction of the district court or a claim that has been made

nonremovable by statute.” In considering a motion to sever and remand claims, the burden of

demonstrating federal jurisdiction exists rests with the party asserting jurisdiction. See Boyer v.

Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). Further, Section 1441 “is to be strictly

construed against removal and all doubts should be resolved in favor of remand.” Id.

Here, all parties agree that the Court has jurisdiction to entertain the Temple Defendants’

third-party claims against the United States because “the FTCA confers federal jurisdiction over

cases in which the United States is a party,” meaning that any claims brought against the United

States under that statute “find an independent basis of federal jurisdiction.” Young, 2019 WL

5569510, at *12 (citing 28 U.S.C. § 1346(b)); see also Da Silva v. Temple Univ. Hosp., Inc., 506

F. Supp.3d 318, 327 (E.D. Pa. 2020) (“The Court has subject matter jurisdiction in the instant

action because the Temple Defendants’ [FTCA] claim against the United States provides an

independent basis for the exercise of such jurisdiction.”); M.D.R. by Rivera v. Temple Univ.

Hosp., 2022 WL 15173903, at *5 (E.D. Pa. Oct. 26, 2022) (“Delaware Valley Community

Health, Inc. employed Dr. Turner who is deemed a United States Public Health Service

employee for purposes of the Federally Supported Health Centers Assistance Act. Dr. Turner is

covered by the Federal Tort Claims Act as a public health service employee affording us subject

matter jurisdiction.” (cleaned up)).

The parties disagree, however, as to whether the Court should exercise supplemental

jurisdiction over Bautista’s negligence and NIED claims. 28 U.S.C. § 1367(a) provides, in

relevant part: “[I]n any civil action of which the district courts have original jurisdiction, the

district courts shall have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.” As the Supreme Court recently

explained:

[28 U.S.C. § 1367(a)] . . . takes as its starting point claims within a federal district

court’s original jurisdiction—because, say, they turn on federal law. It then confers

authority on the court to decide certain “other” claims in the same suit, involving

only state law. That added authority—the court’s supplemental jurisdiction—

extends to claims “so related to” the claims supporting original jurisdiction as to

form “part of the same [constitutional] case.” And that needed relationship, Gibbs

explains, is one of fact: The federal court has supplemental jurisdiction over state-

law claims sharing a “common nucleus of operative fact” with the federal-law ones.

Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 31 (2025) (quoting 28 U.S.C. § 1331;

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725-27 (1966); 28 U.S.C. § 1367)

(alterations in original). Put differently, state law claims are part of the same “case or

controversy,” such that courts have supplemental jurisdiction to entertain them under § 1367(a),

if those claims “derive from a common nucleus of operative fact” as the federal claims.

Pennsylvania by Shapiro v. Mariner Fin., LLC, 711 F. Supp.3d 463, 487 (E.D. Pa. 2024)

(citations omitted).

Applying that standard here, Bautista’s negligence and NIED claims against the Temple

Defendants indeed “shar[e] a common nucleus of operative fact” with the Temple Defendants’

third-party claims against the United States in that all claims fundamentally stem from the care

provided to Bautista by several physicians and nurses at Temple University Hospital on August

16, 2023. Therefore, the Court has supplemental jurisdiction to consider Bautista’s state law

claims.

Nonetheless, Bautista urges the Court to use its discretion and decline to entertain her

state law claims since those claims, in her view, “substantially predominate” over the Temple

Defendants’ third-party claims. It is well-settled that the exercise of supplemental jurisdiction is

“committed to the sound discretion of the District Court.” De Asencio v. Tyson Foods, Inc., 342

F.3d 301, 312 n.18 (3d Cir. 2003). To that end, 28 U.S.C. § 1367(c), in pertinent part, states that:

“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim under

subsection (a) if: . . . (2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction . . . .” Id. “Generally, a district court will find

substantial predomination ‘where a state claim constitutes the real body of a case, to which the

federal claim is only an appendage’—only where permitting litigation of all claims in the district

court can accurately be described as allowing a federal tail to wag what is in substance a state

dog.” De Asencio, 342 F.3d at 309 (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780,

789 (3d Cir. 1995)). That inquiry focuses on the “terms of proof,” the “scope of the issues

raised,” and the “comprehensiveness of the remedy sought.” Gibbs, 383 U.S. at 726-27; see also

De Asencio, 342 F.3d at 309-12 (“Our inquiry here centers on the terms of proof and the scope of

the issues raised . . . .”).

However, as the plain text of the supplemental jurisdiction statute indicates, even if a

claim substantially predominates, a court is not required to dismiss or remand the claims. See 28

U.S.C. § 1367(c) (“[D]istrict courts may decline to exercise supplemental jurisdiction over a

claim under subsection (a) if: . . . (2) the claim substantially predominates over the claim or

claims over which the district court has original jurisdiction, . . . .” (emphasis added)). Rather, it

is only “where the claim over which the district court has original jurisdiction is dismissed before

trial” must the district court “decline to decide the pendent state claims.” Hedges v. Musco, 204

F.3d 109, 123 (3d Cir. 2000) (citing Borough of W. Mifflin, 45 F.3d at 788). And even in such

cases, “considerations of judicial economy, convenience, and fairness to the parties provide an

affirmative justification” for retaining jurisdiction. Id.; cf. Royal Canin, 604 U.S. at 40

(explaining that, historically, the exercise of jurisdiction over pendant state law claims was

focused on the values of judicial economy, convenience, fairness, and comity); Gibbs, 383 U.S.

at 726 (same).

Here, assuming without deciding that Bautista’s state law claims substantially

predominate over the Temple Defendants’ third-party federal claims, “considerations of judicial

economy, convenience, and fairness to the parties” nevertheless provide an “affirmative

justification” for exercising supplemental jurisdiction. Hedges, 204 F.3d at 123; see also Gibbs,

383 U.S. at 726. Indeed, it makes little sense to require the Temple Defendants to engage in

discovery and litigate common issues of fact and law across two separate fora when all such

issues can be addressed efficiently (and consistently) in one action under this Court’s

supervision. Further, keeping Bautista’s state law claims in federal court more adequately

protects the Government’s interests in this case—namely: (1) ensuring that it has the opportunity,

where appropriate, to participate in discovery and pretrial proceedings, and; (2) minimizing any

prejudice to Turner, who, although no longer a party to this case, may be deposed or called to

testify at some point in the proceedings.

For the reasons set forth above the Motion to Sever and Remand shall be denied.

***

An appropriate order follows.

BY THE COURT:

S/ WENDY BEETLESTONE

_______________________________

WENDY BEETLESTONE, C.J.