Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge
For the reasons stated below, the government's renewed motion to dismiss [21-1] is granted. The court declines to exercise supplemental jurisdiction over the plaintiff's remaining state law claims against Resurrection Health Care Corporation and remands the case to the Circuit Court of Cook County, Illinois. The case is terminated and the clerk is directed to remove the case from the court's docket.
O[ For further details see text below.]
The plaintiff brought this suit against Yam Tong, M.D., Resurrection Health Care Corporation and PCC Community Wellness Center for an alleged assault and battery that occurred during a medical examination. PCC is a private entity that receives grant money from the Public Health Service pursuant to 42 U.S.C. § 233. In addition to assault and battery, the plaintiff alleges negligence, negligent supervision, and intentional infliction of emotional distress.
The case was originally filed in state court. The United States, upon certification by the Attorney General's delegate that Dr. Tong was acting within the scope of his federal employment at PCC, removed the case to this court on March 31, 2010, pursuant to the Westfall Act, 28 U.S.C. § 2679. The Westfall Act "accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 225 (2007). Title 28 U.S.C. § 2679(d)(2) states that:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim 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 for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.
At the same time, and again pursuant to § 2679(d)(2), the United States was substituted as the defendant in place of Dr. Tong and PCC. "[S]ubstitution of the United States as the exclusive defendant under the Westfall Act confers immunity on the defendant employee." Taboas v. Mlynczak, 149 F.3d 576, 580 (7th Cir. 1998). If the United States' substitution was proper, then the plaintiff has no individual claims against Dr. Tong and the plaintiff must proceed against the United States under the Federal Tort Claims Act ("FTCA").
The government filed a motion to dismiss asserting that the plaintiff had failed to exhaust her administrative remedies under the FTCA. In response, the plaintiff challenged the government's assertion that Dr. Tong was acting within the scope of his employment such that certification and substitution by the United States was proper. The court denied the government's original motion to dismiss and allowed the plaintiff to conduct limited discovery regarding whether Dr. Tong was acting within the scope of his employment. The government renews its motion to dismiss "[b]ecause the limited discovery date has now ...