1:19-cv-02038-JMC Date Filed 02/28/20 Entry Number 14 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`AIKEN DIVISION
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`) Civil Action Number: 1:19-cv-02038-JMC
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`DONNA HOUCK,
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`Plaintiff,
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`vs.
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`LOW COUNTRY HEALTH CARE
`SYSTEM, INC.,
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`Defendant.
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`MOTION TO SUBSTITUTE THE UNITED STATES AS DEFENDANT,
`TO SET ASIDE DEFAULT JUDGMENT, AND TO DISMISS THIS ACTION
`AND MEMORANDUM IN SUPPORT THEREOF
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`The United States hereby moves this Court for an Order substituting the United States as
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`the only proper party in this FTCA action, setting aside the default judgment entered against an
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`improper party, and dismissing this action for insufficient process and insufficient service of
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`process. The grounds for this Motion are outlined below in this incorporated Memorandum.
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`STATEMENT OF FACTS AND THE CASE
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`Plaintiff alleges a sexual assault by a physician occurred on her visit to Low Country
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`Health Care System, Inc. (LCHCS), on September 19, 2011. She alleges in her Complaint that
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`LCHCS is “an entity receiving federal grant money from the United States Public Health Service
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`pursuant to 42 U.S.C. §§ 254b, 254c, 256, or 256a.” so that the United States Department of
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`Health and Human Services “has deemed Defendant LCHCS to be an employee of the federal
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`government only for purposes of coverage under the Federal Tort Claims Act, 28 U.S.C. §§
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`2671, et seq.” for acts or omissions effective January 1, 2011, through December 31, 2011.
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`Complaint, ¶¶ 3, 22 (ECF No. 1).
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`1:19-cv-02038-JMC Date Filed 02/28/20 Entry Number 14 Page 2 of 6
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`In paragraph 1 of the Complaint, Plaintiff alleges that this “action is brought pursuant to
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`the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq.. See also Complaint,
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`¶ 22 (case is brought pursuant to the FTCA). Plaintiff served LCHCS through the Department
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`of Health and Human Services in Washington, D.C. (ECF No. 5) on July 30, 2019. Plaintiff did
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`not have a summons issued for LCHCS individually or for the United States government.
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`Plaintiff moved for entry of default on December 16, 2019, and the Clerk entered default
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`judgment against LCHCS on that same date.
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`ARGUMENTS
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`As outlined in the Complaint, Plaintiff knew that LCHCS was deemed an employee of
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`the United States and that this action was one under the Federal Tort Claims Act. In a previous
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`action involving the same parties, the United States Attorney for the District of South Carolina
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`certified that LCHCS was at all times an entity receiving federal grant money from the United
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`States Public Service pursuant to 42 U.S.C. §§245b, 254c, or 256 and that LCHCS was deemed
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`by the Department of Health and Human Services, pursuant to 42 U.S.C. § 233(h) eligible for
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`coverage under the Federal Tort Claims Act. See Certification of Scope of Employment,
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`Pursuant to 42 U.S.C. § 233(c), Houck v. Jones and Low Country Health Care System, Inc., Civil
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`Action No. 1:14-4157-JMC (D.S.C.), attached hereto as Exhibit 1 (“I certify, therefore, that Low
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`Country Health Care System, Inc., was acting within the scope of its employment as a health
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`care center pursuant to the Federally Supported Health Care Centers Assistance Act.”) Notably,
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`the United States Attorney certified that Dr. Robert Jones was not acting within the scope of his
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`employment at the time of the alleged incidents so that he could not be deemed an employee of
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`the government pursuant to 42 U.S.C. § 233(c).
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`1:19-cv-02038-JMC Date Filed 02/28/20 Entry Number 14 Page 3 of 6
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`I. The United States Should be Substituted for the Defendant LCHCS.
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`Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2679, and the Federally Supported
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`Health Care Centers Assistance Act, 42 U.S.C. § 233(g), an action against the United States is
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`the exclusive remedy for this action against LCHCS so that the United States is the only proper
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`party. See also Robles v. Beaufort Memorial Hospital, 482 F. Supp. 2d 700 (D.S.C. 2007) (suit
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`against the United States is the exclusive remedy for specified actions against members of the
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`Public Health Services); Santiago Rosario v. Estado Libre Asociado de Puerto Rico, 52 F. Supp.
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`2d 301 (D.P.R. 1999) (United States was properly substituted as named defendant in medical
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`malpractice action brought against an entity which the United States Attorney certified was a
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`Public Health Service entity covered by the Federally Supported Health Centers Assistance Act).
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`Therefore, the United States should be substituted as the defendant in this action.
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`II.
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`The Default Judgment Against LCHCS Should be Set Aside.
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`Since LCHCS is not the proper defendant in this action, the default judgment against it
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`should be set aside pursuant to Rule 55 of the Federal Rules of Civil Procedure for good cause
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`shown. The United States is the only proper party, and the United States was not served with
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`the Summons and Complaint in this action.
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`III. This Action Should be Dismissed for Insufficient Process and Insufficient
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`Service of Process.
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`Rule 4(i) of the Federal Rules of Civil Procedure requires that, when serving the United
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`States, the party must (1) deliver a copy of the summons and the complaint to the United States
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`Attorney for the district where the action is brought and (2) send a copy of the summons and
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`complaint by registered or certified mail to the Attorney General of the United States at
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`Washington, D.C. Fed. R. Civ. P. 4(i). As the FTCA is referenced throughout the Complaint,
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`1:19-cv-02038-JMC Date Filed 02/28/20 Entry Number 14 Page 4 of 6
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`Plaintiff knew or should have known that the United States was the only proper party and must
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`be served pursuant to Rule 4(i) of the Federal Rules of Civil Procedure. As evidenced by the
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`affidavit of service, only LCHCS in care of the Department of Health and Human Services was
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`served. (ECF No. 5) A summons was not issued to the Department of Health and Human
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`Services, and LCHCS was not served individually at its business address. (ECF No. 4)
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`Moreover, a summons was not issued to the United States Attorney for the District of South
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`Carolina or for the Attorney General of the United States. Id. Therefore, pursuant to Rules
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`12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure, this action should be dismissed for
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`insufficient process and insufficient service of process.
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`The district court in Wasson v. Riverside County, 237 F.R.D. 423 (C.D. Cal. 2006)
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`explained the difference between Rules 12(b)(4) and 12(b)(5):
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`An objection under Rule 12(b)(4) concerns the form of the process rather than the
`manner or method of its service. Technically, therefore, a Rule 12(b)(4) motion
`is proper only to challenge noncompliance with the provisions of Rule 4(b) or any
`applicable provision incorporated by Rule 4(b) that deals specifically with the
`content of the summons. A Rule 12(b)(5) motion is the proper vehicle for
`challenging the mode of delivery or lack of delivery of the summons and
`complaint.
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`Id. at 424 (citing United States v. Hafner, 421 F. Supp. 2d 1220, 1223 n. 3 (D.N.D. 2006)).
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`Wright & Miller further explains as follows:
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`Although the distinction between Rule 12(b)(4) and 12(b)(5) is easy to state, the
`line between them becomes blurred when the alleged defect is that the defendant
`either is misnamed in the summons or has ceased to exist. In these cases, the
`form of the process could be challenged under Rule 12(b)(4) on the theory that the
`summons does not properly contain the names of the parties, or a motion under
`12(b)(5) could be made on the ground that the wrong party – that is, a party not
`named in the summons – has been served.
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`5A Wright & Miller, Federal Practice and Procedure, § 1353 at p. 335. In the present case, the
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`1:19-cv-02038-JMC Date Filed 02/28/20 Entry Number 14 Page 5 of 6
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`summons was improperly issued to the wrong party at an incorrect address. Further, a summons
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`was not issued for the only proper party under the FTCA. Moreover, the service was not
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`effectuated pursuant to Rule 4(i) of the Federal Rules of Civil Procedure in that the United States
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`Attorney for the District of South Carolina and the Attorney General of the United States were
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`not served so that the United States would have notice of this suit. Therefore, this action should
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`be dismissed pursuant to Rules 12(b)(4) and 12(b)(5).
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`Under Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f a defendant is not served
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`within 90 days after the complaint is filed, the court – on motion or on its own after notice to the
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`plaintiff – must dismiss the action without prejudice against that defendant or order that service
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`be made within a specified time.” Fed. R. Civ. P. 4(m). Therefore, this action must be
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`dismissed because the United States was not served within ninety days after the Complaint was
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`filed.
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`CONCLUSION
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`Based upon the foregoing, including Plaintiff’s failure to name the only proper party
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`under this FTCA action and Plaintiff’s failure to serve the United States government pursuant to
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`Rule 4(i) of the Federal Rules of Civil Procedure, the United States prays for an order
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`substituting the United States for LCHCS, setting aside the default judgment against LCHCS,
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`dismissing this action for failure of service of process and granting such other relief as deemed
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`just and proper.
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`1:19-cv-02038-JMC Date Filed 02/28/20 Entry Number 14 Page 6 of 6
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`Respectfully submitted,
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`A. LANCE CRICK
`ACTING UNITED STATES ATTORNEY
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`s/ Christie V. Newman
`Christie V. Newman (#5473)
`Assistant United States Attorney
`1441 Main Street, Suite 500
`Columbia, SC 29201
`Phone: (803) 929-3021
`Email: Christie.Newman@usdoj.gov
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`By:
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`February 28, 2020
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