The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Christina Lynn Callahan ("Callahan"), the administratrix of the estate of Laura Woolsey ("Woolsey"), filed a wrongful death action against defendants in the Supreme Court of Schenectady, State of New York. Defendant Schenectady Family Health Services ("SFHS"), a federally funded entity, removed the action to federal court. Callahan has filed a motion to remand the case to state court claiming, among other things, a deficiency in the removal procedure. SFHS opposes the motion to remand. Following review of Callahan's motion, briefs in support thereof, SFHS' response, and the record on the matter, the court denies Callahan's motion to remand.
On July 28, 2005, while incarcerated in the Schenectady County Correctional Facility, Woolsey was transported to a local hospital where she underwent surgery for an aortic valve replacement. (See Amended Verified Complaint at ¶¶ 35 and 36; Dkt. No. 1.) On August 2, 2005, Woolsey was released from the hospital and returned to the correctional facility. Id. at ¶ 37. On August 3, 2005, Woolsey died. Id. at ¶ 43.
Callahan filed a wrongful death action against defendants alleging, among other things, that SFHS, a federally funded entity, failed to provide adequate medical care. Id. at ¶ 41. Callahan specifically indicated SFHS "was deemed a federally supported community health center pursuant to the Federally Supported Health Center Assistance Act . . . 42 U.S.C. 233(g) . . ." Id. at ¶ 20. Callahan likewise asserted SFHS "was deemed eligible for coverage under the Federal Tort Claims Act . . ." Id. at ¶ 21.
SFHS removed the action to federal court, and now Callahan has filed a motion to remand asserting deficiencies in the removal procedure. Specifically, Callahan contends that: (1) removal was untimely and there has not been a proper substitution to name the United States as a party, and (2) all other defendants have not joined in the removal and at least one other defendant has filed a cross-claim which now acts as a waiver of removal. SFHS opposes Callahan's motion to remand.
The Second Circuit has indicated the Federal Torts Claim Act (FTCA):
[W]aives the United States's sovereign immunity for certain classes of torts claims and provides that the federal district courts shall have exclusive jurisdiction over damages claims against the United Sates for injury or loss of property, or for personal injury or death "caused by the negligent or wrongful acts or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). The FTCA's purpose is both to allow recovery by people injured by federal employees or by agents of the Federal Government, and, at the same time, to immunize such employees and agents from liability for negligent or wrongful acts done in the scope of their employment. See 28 U.S.C. § 2679(b)(1); 42 U.S.C. § 233(a); see also Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) ("[42 U.S.C. § ] 233(A) makes the Federal Tort Claim Act the exclusive remedy for specified action against members fo the Public Health Service. . . . .").
See Celestine v. Mount Vernon Neighborhood Health Ctr, 403 F.3d 76, 80-81 (2d Cir. 2005). In Celestine, the Second Circuit explained:
In instances where a tort action is brought against a federally funded public health center (construed as an employee of the United States under the Public Health Service Act of 1944 and Federally Supported Health Centers Assistance Act of 1995) for conduct within the scope of its federal employment, the Attorney General (or, once again, one of his designees) may certify that the health center was indeed acting as a federal employee at the time of the incident. See 28 U.S.C. § 2679(d).
Upon certification, the action may then be removed to federal court. See 28 U.S.C. § 2679(d)(2). Once such case is removed, the United States can replace the named defendant as the allegedly liable party-and the case proceeds as a FTCA suit. See 42 U.S.C. § 233(b). Id. (footnote omitted) (emphasis added). In terms of the time frame in which a case may be removed to federal court, the Second Circuit stated:
[u]pon a certification by the Attorney Generalthat 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 . . . at any time before trial by the Attorney General.  If a civil action or proceeding is filed in State court against any entity described in subsection (g)(4) of this section . . . the Attorney General, within 15 days after being notified of such filing, shall make an appearance in such court and advise such court as to whether the Secretary has determined . . . that such entity . . . is deemed to be an employee of the Public Health Service for purposes of this section with respect to the action or omissions that are the subject of such civil action or proceeding. Such advice shall be deemed to satisfy the provisions of subsection (c) of this section that the Attorney General certify that entity . . . was acting within the scope of [its] employment or responsibility.  If the Attorney General fails to appear in State court within the time period prescribed under [the previous paragraph], upon petition of any ...