United States District Court, D. Colorado
J.Z.A., a minor, by and through his Mother and next friend, LUZ ARREDONDO FIERRO, Plaintiff,
CENTURA HEALTH CORPORATION D/B/A AVISTA ADVENTIST HOSPITAL, BESSIE MCLAUGHLIN O'DEA, M.D., CELIA TRYON, R.N., MICHELE J. SEVCIK, R.N., and, MICHELE N. LEWIS, R.N., Defendants.
ORDER RE: MOTION TO STAY [#20], MOTION TO EXTEND
[#19], AND MOTION TO SUBSTITUTE [#2]
KATO CREWS U.S. MAGISTRATE JUDGE
order addresses three motions: (1) United States' Motion
to Stay Discovery as to the United States (“Motion to
Stay”) [#20]; (2) United States' Motion to Extend
Deadline to Answer (“Motion to Extend”) [#19];
and (3) United States' Motion to Substitute as Defendant
(“Motion to Substitute”) [#2] (collectively
“Motions”). The Motions were referred to this
Court and are fully briefed. No. hearing is necessary to
resolve them. For the reasons explained below, the Court
PARTIALLY GRANTS the Motion to Stay, PARTIALLY GRANTS the
Motion to Extend, and GRANTS the Motion to Substitute.
matter arises from the alleged professional negligence of the
Defendant hospital and medical professionals who rendered
care and services to Luz Arredondo Fierro while giving birth
to J.Z.A. (collectively “Plaintiff”). J.Z.A.
suffered a brain injury from oxygen deprivation over the
course of his delivery. Plaintiff originally filed this case
in state court with the Boulder County Combined Court. The
United States, who is not a named defendant, filed a Notice
of Removal under 42 U.S.C. § 233(c) of the Federally
Supported Health Centers Assistance Act
(“FSHCAA”) based on the claims asserted against
Defendant Bessie McLaughlin O'Dea, M.D.
(“O'Dea”). Section 233(c) of the FSHCAA
Upon a certification by the Attorney General that the
defendant was acting in the scope of his employment at the
time of the incident out of which the suit arose, any such
civil action or proceeding commenced in a State court shall
be removed without bond at any time before trial by the
Attorney General to the district court of the United States
of the district and division embracing the place wherein it
is pending and the proceeding deemed a tort action brought
against the United States under the provisions of Title 28
and all references thereto.
removing the case to federal court, the United States filed a
Motion to Substitute, seeking to substitute it as a defendant
in place of O'Dea under § 233(c) of the FSHCAA.
[#2.] The Motion to Substitute attached a Certification
Deeming Defendant O'Dea to Be an Employee of the Public
Health Service for All Times Relevant to Complaint
(“Certification”). [#2-1.] In the Certification,
the U.S. Attorney for the District of Colorado, exercising
power delegated by the Attorney General (see 42
U.S.C. § 233(c); 28 C.F.R. § 15.4(a)), certified
that O'Dea was deemed an employee of the Public Health
Service eligible for Federal Tort Claims Act
("FTCA") coverage under the FSHCAA with respect to
all acts or omissions that are the subject of this case, and
that by virtue of the Certification, O'Dea is deemed as
“acting within the scope of [her] employment"
required to remove a case to federal court. See 42
U.S.C. § 233(c) & (1)(1). [#2-1.]
opposes the Motion to Substitute. More recently, she filed a
Motion to Remand [#33], which is fully briefed and pending
before this Court on referral. The United States also filed a
Motion for Summary Judgment on the claim against O'Dea
[#18], which is fully briefed and pending before the
presiding District Judge. The Motion to Substitute, Motion to
Remand, and Motion for Summary Judgment all generally
implicate the issue of whether O'Dea was acting within
her scope of employment for the Federal Government during her
acts or omissions giving rise to Plaintiff's negligence
claim against O'Dea. The scope-of-employment question is
pivotal because it potentially affects whether this case
remains in the U.S. District Court or is remanded to state
the Motion to Stay, the United States seeks a stay of
discovery pending resolution of the Motion to Substitute and
Motion for Summary Judgment. With the Motion to Extend, the
United States seeks to extend the deadline for answering or
otherwise responding to the Complaint until after a ruling on
the Motion for Summary Judgment.
Court has weighed the String Cheese factors in the
context of the Motion to Stay and Motion to Extend, which
are: (1) the plaintiff's interests in proceeding
expeditiously with the civil action and the potential
prejudice to plaintiff of a delay; (2) the burden on the
defendant; (3) the convenience to the court; (4) the
interests of persons not parties to the civil litigation; and
(5) the public interest. String Cheese Incident, LLC v.
Stylus Shows, Inc., No. 02-cv-01934-LTB-PA, 2006 WL
894955, at *2 (D. Colo. Mar. 30, 2006). Weighing these
factors, the Court concludes that a stay is warranted at
least pending resolution of the Motion to Remand.
pending Motion to Remand raises a jurisdictional issue. The
United States removed this case under the FSHCAA, which it
argues is self-effectuating in terms of removal and
substitution of the United States as a defendant for
O'Dea based on the Certification. Plaintiff challenges
removal and substitution of the United States for O'Dea
as a defendant. Thus, there is unresolved turmoil over
whether the case will be heard in U.S. District Court or
Boulder County Combined Court, and over who among O'Dea
or the United States will be the defendant for the alleged
negligent acts and omissions attributed to O'Dea. Courts
in this district “have routinely recognized that a stay
of discovery may be appropriate where the court's
jurisdiction is at issue.” Stienmier v.
Donley, No. 09-cv-01260-KMT-BNB, 2010 WL 1576714, at *2
(D. Colo. Apr. 20, 2010); see also, e.g., Morrill v.
Stefani, No. 17-cv-00123-WJM-KMT, 2017 WL 1134767, at *1
(D. Colo. Mar. 13, 2017) (staying discovery pending
resolution of jurisdictional motion); Mitcham v.
Nationstar Mortgage, LLC, No. 09-cv-03038-PAB-KLM, 2010
WL 582140, at *1 (D. Colo. Feb. 11, 2010) (same); String
Cheese Incident, LLC v. Stylus Shows, Inc., No.
1:02-cv-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. Mar.
30, 2006) (same).
these circumstances, the Court finds that the burden on
O'Dea, the convenience to the court of proceeding only
after jurisdiction is determined based on the Motion to
Remand, the interests of the United States who is not
currently acknowledged as a party, and the public interest
embodied by the FSHCAA, all weigh in favor of staying these
proceedings pending resolution of the Motion to Remand. These
factors also support good cause for partially granting the
Motion to Extend.
Court also grants the Motion to Substitute. Plaintiff's
opposition to the Motion to Substitute conflates removal
under the Westfall Act, 28 U.S.C. § 2679, with removal
under the FSHCAA. See Dawson v. United States, No.
16-827-DRH-SCW, 2018 WL 2440516, at *2 (S.D. Ill. May 31,
2018) (“While both the Westfall and FSCHCA (sic) Acts
behave similarly in their allowance for the substitution of
the United States as a defendant and providing remedies
against the United States for certain wrongful conduct, they
are not one in the same; particularly, when it comes to their
removal/remand provisions.”) The United States only
cites § 233 of the FSHCAA as its grounds for removal.
[#1 (“This [Notice of Removal] provides notice that
pursuant to 42 U.S.C. 233(c), the above-captioned action has
been removed to United States District Court for the District
of Colorado.”).] Thus, the Court is governed by §
233, which “provides the sole and exclusive means for
bringing claims for personal injury against the United States
when, as here, the offending physician was employed by a
deemed employee of the Public Health Service and was
certified acting within the scope of [her] employment at the
time of the incident.” Dawson, 2018 WL
2440516, at *2.
Court agrees with the United States that the plain language
of § 233(c) suggests that its substitution is
self-effectuating. That provision states that once an action
is removed from state court based “[u]pon a
certification by the Attorney General that the defendant was
acting in the scope of his employment at the time of the
incident out of which the suit arose, ” the proceeding
is then “deemed a tort action brought against the
United States . . . .” 42 U.S.C. § 233(c).
“Deemed” is a verb which Black's Law
Dictionary defines as, “[t]o treat (something) as if
(1) it were really something else, or (2) it had qualities
that it does not have . . . .” Black's Law
Dictionary 446 (8th ed. 2004) (parenthesis in original);
see also Alexander v. Mount Sinai Hosp. Med. Ctr.,484 F.3d 889, 891 (7th Cir. 2007) (“Once a physician
has been deemed to be a federal employee acting within the
scope of his or her employment duties, the United States is
substituted.”); Lee v. Jones, No.