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 Linda 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. 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 GRANTS Plaintiff's Motion to Remand (ECF No.16) as to claims against Defendant Jones.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
From about 1999 to 2009 or 2010, Plaintiff alleges Defendant Jones sexually assaulted her during medical appointments at Low Country Health Care System, Inc.'s ("LCHCS") facility. (ECF No. 1-1 at 4 ¶ 4, 5 ¶ 8.) Defendant Jones was an employee of LCHCS during this time. (Id. at 4 ¶ 5.) On October 13, 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' aid, and outrage against Defendant Jones. (Id. at 1, 5 ¶ 14, 6 ¶ 16, 7 ¶ 21.) For jurisdictional purposes, Plaintiff alleged she is a citizen of Georgia,  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. 16-1 at 2.) 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 2-3.) The United States filed a Response to Plaintiff's Motion to Remand on January 5, 2015. (ECF No. 19 at 1.)
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 removed, 28 U.S.C. § 1441(c)(2) provides that the court may sever and remand to the state court from which it was removed any claim that is not within the original or supplemental jurisdiction of the court. 28 U.S.C. § 1441(c)(2).
Plaintiff moves for remand of this action or, alternatively, for claims against Defendant Jones to be severed and remanded. (ECF No. 16-1 at 3.) The United States does not oppose severance of the claims against itself and Defendant Jones. (See ECF No. 19.) Defendant Jones did not respond to Plaintiff's Motion to Remand.
It is appropriate to sever the claims against the United States and Defendant Jones. While the claims do involve the same facts, Plaintiff would be unduly prejudiced if the claims against both the United States and Defendant Jones were dismissed because the statute of limitations as to claims against Defendant Jones has expired. (ECF No. 16-1 at 2.) See Grayson, 2014 WL 1512029, at *2. In light of the potential prejudice to Plaintiff ...