United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
J. MICHELLE CHILDS, District Judge.
This matter is before the court pursuant to Plaintiff Deidra Lee's ("Plaintiff") Motion to Remand the case to the Court of Common Pleas for Allendale County, South Carolina. (ECF No. 16.) Defendant United States ("United States") submits that its Motion to Dismiss (ECF No. 6) the action for lack of subject matter jurisdiction should be granted, but does not oppose Plaintiff's Motion to Remand once Plaintiff's action against the United States has been dismissed. (ECF No. 19.) Defendant Dr. Robert Jones ("Defendant Jones") did not respond to Plaintiff's Motion to Remand, but makes a Motion to Alter or Amend Order, or in the alternative, Petition for Certification of Scope of Employment Status. (ECF No. 22). For the reasons set forth herein, the court SEVERS Plaintiff's claims against the United States and Defendant Jones, GRANTS the United States' Motion to Dismiss (ECF No. 6) as to claims against the United States and DENIES Defendant Jones' Motion to Alter or Amend Order, or in the alternative, Petition for Certification of Scope of Employment Status. (ECF No. 22; ECF No. 26.) The court GRANTS Plaintiff's Motion to Remand (ECF No. 16) as to claims against Defendant Jones.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On or around November 4, 2011, Plaintiff alleges Defendant Jones sexually assaulted her during a medical appointment at Low Country Health Care System, Inc.'s ("LCHCS") facility. (ECF No. 1-1 at 4 ¶ 4, 5 ¶¶ 8-11.) Defendant Jones was an employee of LCHCS during this time. (Id. at 4.) On October 31, 2013, Plaintiff filed a Complaint in the Court of Common Pleas for Allendale County, South Carolina, alleging negligence against LCHCS, intentional infliction of emotional distress against Defendant Jones with LCHCS's assistance, outrage against Defendant Jones, and false imprisonment against Defendant Jones with LCHCS's assistance. (Id. at 6, ¶ 20, 7¶ 23, 8 ¶ 27, 8-9 ¶ 31.) For jurisdictional purposes, Plaintiff alleged she is a citizen of South Carolina, Defendant Jones operates as a physician in South Carolina, and LCHCS operates as a healthcare provider in South Carolina. (Id. at 4 ¶¶ 1-3.)
The United States Attorney for the District of South Carolina certified that LCHCS, as an entity covered by the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n), was acting as an employee of the United States under the Federal Tort Claims Act ("FTCA") during the incidents involved here. (ECF No. 1-3 at 1-2.) Defendant Jones, however, was not certified as acting within the scope of his employment and cannot be deemed an employee of the federal government. (ECF 1-3 at 2.)
On October 24, 2014, the United States filed a Notice of Removal, as concerns LCHCS, asserting that the action should be removed pursuant to 42 U.S.C. § 233(c), which calls for any civil action or proceeding in a state court to be removed upon the Attorney General's certification that the defendant was acting within the scope of its employment at the time of the incident at issue and the action be treated as a tort action against the United States under Title 28. (ECF No. 1 at 2-3 ¶ 6.) The United States cited that any civil suit brought in a state court against the United States is removable to the United States district court "for the district and division embracing the place wherein it is pending." (ECF No. 1 at 3 ¶ 7 (citing 28 U.S.C. § 1442(a)(1)).)
On October 31, 2014, the United States filed a Motion to Dismiss the action pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, arguing that Plaintiff failed to exhaust her administrative remedies before filing suit pursuant to the FTCA. (ECF No. 6 at 1; ECF No. 6-1 at 4.) On December 12, 2014, Plaintiff filed a Motion to Remand, asserting that no basis of removal exists as to claims against Defendant Jones. (ECF No. 16 at 1.) Plaintiff urges the court to remand the entire matter or sever and remand the claims against Defendant Jones pursuant to 28 U.S.C. § 1441(c)(2). (Id. at 3.) The United States filed a Response to Plaintiff's Motion to Remand on January 5, 2015. (ECF No. 19.)
On May 14, 2015, Defendant Jones filed a Motion to Alter or Amend Order, or in the alternative, Petition for Certification of Scope of Employment Status. (ECF No. 22-1 at 2.) Defendant Jones argues that the Text Order issued by this court on December 2, 2014 substituting the United States for LCHCS (ECF No. 12) should be amended to extend that substitution to Defendant Jones or, alternatively, that the court should grant his Petition for Certification of Scope of Employment in light of the U.S. Attorney's Certification of LCHCS and this court's Text Order. (ECF No. 22-1 at 8.) If his Petition is denied, Defendant Jones requests he be allowed to enter an answer out of time in the instant case and related cases and that this court decertify LCHCS. (Id. at 9.) Defendant Jones makes no representation as to why he failed to file an answer. (Id. at 2.)
In Plaintiff's Response to Defendant Jones' Petition for Certification of Scope of Employment Status, Plaintiff argued: (1) Defendant Jones, having failed to respond to Plaintiff's Complaint, should not now be permitted to make a substantive challenge to these proceedings, and (2) Defendant Jones' Motion to Alter or Amend the December 2, 2014 Text Order is untimely under Federal Rule of Civil Procedure 59(e). (Id.) In the United States' Response in Opposition to Dr. Robert Jones' Petition for Certification of Scope of Employment Status, the United States argued: (1) Defendant Jones' Petition is untimely; (2) Defendant Jones is not entitled to use 28 U.S.C. § 2679(d)(3) to challenge the U.S. Attorney's refusal to grant certification; and (3) even if Defendant Jones is permitted to challenge the refusal to certify, he has not met his burden of proof. (ECF No. 27 at 4-5, 8.)
The court has jurisdiction over Plaintiff's claims against the United States pursuant to 28 U.S.C. § 1331 because these claims were removed to this court under 42 U.S.C. § 233(c) once LCHCS was certified by the U.S. Attorney for the District of South Carolina as acting in the scope of its employment during the incidents giving rise to this suit. (See ECF No. 1 at 2-3.)
III. LEGAL STANDARD AND ANALYSIS
A. Severance of Plaintiff's Claims Against the United States and Defendant Jones
Rule 21 of the Federal Rules of Civil Procedure provides that the court may "sever any claim against a party." Fed.R.Civ.P. 21. A court severing claims against parties to a suit under Rule 21 has "virtually unfettered discretion in determining whether or not severance is appropriate." Grayson Consulting, Inc. v. Cathcart, No. 2:07-cv-02992-DCN, 2014 WL 1512029, at *2 (D.S.C. Apr. 8, 2014) (internal citation and quotations omitted). Four factors are considered in evaluating severance under Rule 21: (1) whether the issues sought to be severed are "significantly different from one another;" (2) whether the issues require different witnesses and evidence; (3) whether the "party opposing severance will be prejudiced; and (4) whether the party requesting severance will be prejudiced if the claims are not severed." Id . (citation omitted). Additionally, when a civil action is ...