Taylor v. Gilliam

• Decision Date: 04 December 2013
• Docket Number: Civil No. 13-2947 (KMW/NLH)
• Parties: IRENE TAYLOR, Plaintiff, v. TERRI GILLIAM, D.D.S., Defendant.
• Court: U.S. District Court — District of New Jersey

IRENE TAYLOR, Plaintiff,
v.
TERRI GILLIAM, D.D.S., Defendant.

Civil No. 13-2947 (KMW/NLH)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: December 4, 2013

OPINION

APPEARANCES:

Irene Taylor
Pro Se Plaintiff

Paul J. Fishman, Esquire, United States Attorney
Elizabeth A. Pascal, Esquire, Assistant United States Attorney
Camden Federal Building & U.S. Courthouse
Attorneys for Defendant United States of America

HILLMAN, District Judge

This matter comes before the Court by way of Defendant's motion [Doc. No. 3] to vacate the entry of default against Terri Gilliam, D.D.S., pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) for improper service. Defendant also moves to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) based on her failure to exhaust her administrative

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remedies under the Federal Tort Claims Act ("FTCA"). Plaintiff has not filed opposition to Defendant's motion and the time within which to do so has now expired. The Court has considered Defendant's submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Defendant's motion will be granted.

I. BACKGROUND

This suit arises from injuries Plaintiff Irene Taylor allegedly sustained to her teeth and mouth as a result of dental care provided by Terri Gilliam, D.D.S., an employee of CAMcare Health Corporation ("CAMcare"). (Compl. [Doc. No. 1-1], 1.) Plaintiff originally filed this action against Gilliam on December 24, 2012 in the Superior Court of New Jersey, Law Division, Special Civil Part for Camden County seeking $15,000 in damages and $15,000 for the costs of bringing the suit. (Id. 1-2.) On February 11, 2013, the Clerk of the Special Part entered a default against Gilliam for failure to respond to the complaint in a timely manner. (Ex. 1 to Def.'s Br. in Supp. of Mot. to Vacate and Dismiss [Doc. No. 3-2], 3.) The matter was subsequently removed to this Court on May 8, 2013 by the United States of America ("the United States") pursuant to 28 U.S.C. §

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2679(d)¹ and 42 U.S.C. § 233(c)² on the basis that Plaintiff's complaint asserts claims under the FTCA since Gilliam was, by statute, a federal employee.

The FTCA constitutes a limited waiver of the United States' sovereign immunity for the negligent acts of federal employees committed while acting within the scope of their federal employment. See 28 U.S.C. § 2674. The FTCA specifically provides that the United States shall be liable, to the same extent as a private individual, "for injury or loss of property, or personal injury or death caused by the negligent or wrongful

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act of omission of any employee of the Government while acting within the scope of his office or employment[.]" 28 U.S.C. § 1346(b)(1). In these cases, "the federal employee is immune from suit and the plaintiff's exclusive right of action lies against the United States. ... The FTCA protects federal employees by paying judgments out of the United States Treasury." Dais v. United States, No. 2:11-cv-03986, 2012 WL 5200043, at *1 (Oct. 22, 2012) (citing 28 U.S.C. § 2679(b)).

Pursuant to the Public Health Service Act, "private, nongovernmental health centers that supply medical care to underserved populations may apply for federal grant moneys." Dais, 2012 WL 5200043, at *1 (citing 42 U.S.C. § 254b(e)). The Public Health Service Act was subsequently amended by the Federally Supported Health Centers Assistance Act ("FSHCAA") in order to permit "these private health centers to apply to the Department of Health and Human Services ... to be 'deemed a federal employee' of the Public Health Service." Dais, 2012 WL 5200043, at *1 (citations omitted). Once a health center is deemed "to be a federal employee ... that entity is immune from suit and receives protection under the FTCA." Dais, 2012 WL 5200043, at *1 (citing 42 U.S.C. § 233(a)).³

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The FSHCAA also provides that the employees of eligible health centers may also be deemed to be federal employees qualified for protection under the FTCA. 42 U.S.C. § 233(g)(1)(A) ("... any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner ..., shall be deemed to be an employee of the Public Health Service[.]"). The FSHCAA thus "extends FTCA [medical malpractice] coverage to employees of the Public Health Service." Lacey-Echols ex rel. Lacey v. Murphy, No. 02-2281, 2003 WL 23571269, at *4 (D.N.J. Dec. 17, 2003).

As set forth in the Notice of Removal and the documents filed in support thereof, CAMcare is a federally supported health center, and CAMcare and Gilliam have been deemed Public Health Service employees of the United States pursuant to 42 U.S.C. § 233(g). (See generally Notice of Deeming Action - Federal Tort Claims Act Authorization for CAMcare Health Corporation, Ex. 1 to Declaration of Meredith Torres [Doc. No.

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1-2]; Declaration of Meredith Torres,⁴ Ex. B to Notice of Removal [Doc. No. 1-2] ¶¶ 5-6.) The United States has also certified that Gilliam was acting within the scope of her employment as an employee of the United States at the time of the conduct alleged in the complaint.⁵ Thus, under the FTCA, Plaintiff's claim must

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be pursued as an action against the United States. 28 U.S.C. § 1346(b)(1); see also Lackro v. Kao, 748 F. Supp. 2d 445, 449 (E.D. Pa. 2010) ("The FTCA permits plaintiffs to recover against the United States in medical malpractice actions, but it prohibits suits against the employee of the United States whose acts or omissions may have led to the suit.")

Accordingly, upon removal to this Court, the United States was substituted as the proper Defendant in place of Gilliam pursuant to 28 U.S.C. § 2679(d)(2). The United States now moves to vacate the default previously entered by the state court pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) and further moves to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

II. JURISDICTION

"District courts have exclusive jurisdiction over suits against the United States brought under the FTCA." Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (citing 28 U.S.C. § 1346(b)). Accordingly, the Court exercises

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jurisdiction over Plaintiff's FTCA claims pursuant to 28 U.S.C. § 1346(b)(1).⁶

III. DISCUSSION

A. Authority to Vacate State Court Entry of Default

As an initial matter, the United States asks this Court to set aside the default entered against Gilliam in the Superior Court of New Jersey. In considering the United States' request, the Court notes that pursuant to 28 U.S.C. § 1450, "[w]henever any action is removed from a State court to a district court of the United States ... [a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450.⁷

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Once removed to federal court, "it is settled that federal rather than state law governs the future course of proceedings, notwithstanding state court orders issued prior to removal." Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, 415 U.S. 423, 436 (1974). As the Supreme Court of the United States has explained, Section 1450 impliedly recognizes a "district court's authority to dissolve or modify injunctions, orders, and all other proceedings had in state court prior to removal." Id.; see also First Atl. Leasing Corp. v. Tracey, 128 F.R.D. 51, 54 (D.N.J. 1989).

Essentially this is because after removal, "'interlocutory state court orders are transformed by operation of 28 U.S.C. § 1450 into orders of the federal district court to which the action is removed'" and "'[t]he district court is thereupon free to treat the order as it would any such interlocutory order it might itself have entered.'" In re Diet Drugs, 282 F.3d 220, 232 n.7 (3d Cir. 2002) (citing Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1304 (5th Cir. 1988)); see also Munsey v. Testworth Labs., 227 F.2d 902, 903 (6th Cir. 1955) ("Prior to

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removal the state court judgment was concededly subject to being set aside in the state court. It was subject to the same hazard in the federal court after removal. 28 U.S.C.A., § 1450.").

B. Standard for Setting Aside the Entry of Default

Federal Rule of Civil Procedure 55(c) provides that the Court "may set aside an entry of default for good cause, and ... may set aside a default judgment under Rule 60(b)." FED. R. CIV. P. 55(c). Generally, entries of default and default judgments are disfavored by the courts, and when a defendant moves to set aside the entry of default or a default judgment the law "require[s] [that] doubtful cases to be resolved in favor of the party moving to set aside the default judgment 'so that cases may be decided on their merits.'" United States v. $55,518.55 in U.S. Currency, 728 F.2d 192, 194-95 (3d Cir....