Filed: Mar. 10, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 3-10-2003 Maye-El v. USA Precedential or Non-Precedential: Non-Precedential Docket 00-3541 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Maye-El v. USA" (2003). 2003 Decisions. Paper 753. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/753 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 3-10-2003 Maye-El v. USA Precedential or Non-Precedential: Non-Precedential Docket 00-3541 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Maye-El v. USA" (2003). 2003 Decisions. Paper 753. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/753 This decision is brought to you for free and open access by the Opinions of the United States Co..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-10-2003
Maye-El v. USA
Precedential or Non-Precedential: Non-Precedential
Docket 00-3541
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Maye-El v. USA" (2003). 2003 Decisions. Paper 753.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/753
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3541
DANA S. MAYE-EL,
Appellant
v.
USA
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY
(Dist. Court No. 00-CV-1051)
District Court Judge: Joseph E. Irenas
Argued on February 11, 2003
Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, Senior District Judge*
(Opinion Filed: March 10, 2003)
Judith E. Harris
Jeremy P. Blumenfeld (argued)
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
*
The Honorable William W Schwarzer, Senior District Judge for the Northern
District of California, sitting by designation.
Attorneys for Plaintiff-Appellant
Christopher J. Christie
United States Attorney
Louis J. Bizzarri (argued)
Assistant U.S. Attorney
U.S. Attorney’s Office
401 Market Street, 4th Floor
Camden, New Jersey 08101
Attorneys for Defendant-Appellee
OPINION OF THE COURT
PER CURIAM:
Plaintiff, Dana S. Maye-El, filed suit against the United States under the Federal
Torts Claims Act (FTCA), 28 U.S.C. §2674 et seq. The plaintiff filed a motion to compel
discovery as well as multiple motions for appointment of counsel. The District Court
granted the defendant’s motion for summary judgment, holding that the plaintiff’s New
Jersey and Missouri claims were precluded because he failed to submit the prerequisite
affidavit of merit, or suitable substitute, as required under the laws of those states. See
N.J.S.A. §2A:53A-27 (affidavit of merit); N.J.S.A. §2A:53A-28 (alternate sworn statement);
MO. REV. STAT . §538.225. In addition, the District Court granted summary judgment sua
sponte as to claims based on alleged acts occurring in Pennsylvania, holding that the
plaintiff had failed to exhaust available administrative remedies as to those claims. Upon
dismissing all of the plaintiff’s claims, the District Court denied as “moot” the plaintiff’s
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motion for the appointment of counsel and his motion to compel discovery.
The plaintiff appeals to this Court on several grounds, claiming that the District Court
erred by: (1) failing to exercise its discretion by denying the plaintiff’s repeated requests
for appointed counsel without considering the merits of his request, (2) applying the New
Jersey and Missouri affidavit of merit statutes in spite of an alleged impermissible conflict
with the Federal Rules of Civil Procedure, (3) failing to find that the plaintiff had
substantially complied with the New Jersey affidavit of merit statute where he had allegedly
satisfied the alternative requirements of N.J.S.A. §2A:53A-28, which relieves a plaintiff of
the obligation to submit an affidavit, (4) dismissing the New Jersey claim with prejudice
because the plaintiff allegedly demonstrated extraordinary circumstances for failure to
comply, (5) dismissing the plaintiff’s Missouri claim because the Court should have found
“good cause” to extend the deadline for filing the affidavit, and (6) dismissing the
Pennsylvania Claim for failure to exhaust available administrative remedies in spite of the
defendants’ concession of exhaustion. As we will remand to allow the District Court to
engage in a necessary choice of law analysis, we need not address the arguments numbered
two through five above.
During argument before this Court, counsel for the defendants conceded that
the District Court had erred in several regards. First, defendants’ counsel conceded that, in
spite of the District Court’s sua sponte determination to the contrary, the plaintiff has
exhausted his administrative remedies as to each of his claims, including claims arising out
of negligent acts occurring in Pennsylvania. Second, the defendant’s counsel conceded that
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a District Court considering a Federal Torts Claims Act claim involving alleged acts or
omissions in multiple states must undertake an initial choice of law analysis to decide
jurisdictional questions and that the District Court in this case failed to engage in any such
analysis. See Gould Electronics, Inc. v. United States, 220 F.3d 169 (3d Cir. 2000). Third,
counsel for the defendants conceded that the District Court did not properly exercise its
discretion when the Court dismissed the plaintiff’s motion for appointment of counsel as
moot without considering the merits of the motion.
As the defendants stated in their brief, “[w]hen a case involves multiple alleged acts
or omissions occurring in more than one state, the Federal Torts Claims Act, 28 U.S.C.
§§1346(b), 2671 et seq. requires a [D]istrict [C]ourt to engage in a complex conflict of law
analysis to determine which state law governs the jurisdictional claims.” Appellee’s Br. at
17 (citing Gould v. Electronics, Inc. V. United States, 220 F.3d 169, 180 (3d Cir. 2000);
See also Richards v. United States,
369 U.S. 1 (1962). In the instant case, the plaintiff has
alleged negligent acts or omissions occurring in Missouri, New Jersey, and Pennsylvania.
While this Court need not review a District Court’s failure to engage in a choice of law
analysis where the legal mistake did not affect the challenged decision, Lincoln v. Board of
Regents,
697 F.2d 928, 939 (11th Cir. 1983), counsel for the defendants conceded in oral
argument, and we agree, that the relevant state affidavit of merit, or equivalent, statutes at
issue in this case (New Jersey, Missouri, and Pennsylvania) are sufficiently distinct that they
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may produce differing results when applied to the facts of this case.1
Considering the foregoing, we reverse the District Court’s order granting summary
judgment and dismissal of the New Jersey, Missouri and Pennsylvania claims. We remand
so that the District Court can engage in a complete conflict of law analysis, in accordance
with Gould, 220 F.3d at 180, and can apply the appropriate state’s affidavit of merit, or
equivalent, statute to the claims at issue.
We also reverse the District Court’s order dismissing the plaintiff’s motion for
production of documents, pursuant to Fed. R. Civ. P. 37, and for appointment of counsel,
pursuant to 28 U.S.C. §1915(e). Counsel for the defendants conceded at oral argument that,
while appointment of counsel is discretionary under the FTCA, the District Court failed to
1
The state statutes at issue differ significantly. The New Jersey statute generally
requires the filing of an affidavit within 60 days of the defendant’s answer to the complaint.
N.J. Stat. Ann. §2A:53 A-27. The sanction under New Jersey law for failure to submit such
an affidavit is generally dismissal with prejudice, as the New Jersey Supreme Court has
deemed such noncompliance a failure to state a cause of action. N.J.S.A. §2A:53A-27;
Cornblatt v. Barrow, 708 A.2d 401, 413 (N.J. 1998). The Missouri statute requires the
filing of an affidavit within 90 day of the filing of the complaint. Mo. Ann. St. §538.225.
The sanction under Missouri law for failure to submit such affidavit is generally dismissal
without prejudice.
Id. The Pennsylvania statute requires the submission of an expert report
within 60 days of the completion of discovery, Pa. Stat. Ann. tit. 40, §1301.823(a), which,
incidentally, was not completed in the instant case. The sanction under Pennsylvania law for
failing to submit an expert report is not dismissal of the action but, rather, exclusion of the
expert’s testimony, see Pa. Stat. Ann. tit. 40, §§1301.823(a) and 1301.821(a), a sanction
which is excusable for “good cause,”
id. More importantly, on January 17, 1997, prior to
the time of the plaintiff’s filing of claims, the Pennsylvania Supreme Court had suspended
the enforcement of Pa. Stat. Ann. tit. 40, §§1301.823(a) and 1301.821(a), along with
various other provisions of the Health Care Services Malpractice Act. See Order of January
17, 1997, Suspension of Certain Provisions of Act No. 1975-11 added by Act No. 1996-
135; No. 269; Doc. No. 5.
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exercise its discretion when it dismissed the motion on the ground of mootness. See Ray v.
Robinson, 640 F.2d 474, 478 (3d Cir. 1981) (stating that “[i]f a [D]istrict [C]ourt fails to
exercise its discretion to appoint counsel, that is itself an abuse of discretion”). We thus
remand so that the District Court can evaluate the merits of the plaintiff’s request for
appointment of counsel in this case. By so remanding, we do not express an opinion as to
the appropriateness of appointing counsel in this case.
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