Pennsylvania Record

Wednesday, February 19, 2020

Medical care facility didn't follow legal procedure, appellate court says


By Nicholas Malfitano | Aug 13, 2018


PHILADELPHIA – A federal appellate court judge has said a medical care facility’s untimely notice of appeal led to its dismissal, explaining many months and opportunities were extended to the facility to comply with judicial rules and they did not do so.

On Aug. 3, U.S. Court of Appeals for the Third Circuit judges Joseph A. Greenaway Jr., L. Felipe Restrepo and Stephanos Bibas dismissed an appeal from Advanced Urgent Care of City Line, LLC and Dr. Medhi Nikparvar, in their case against Nafisah Williams.

Subsequent to an evidentiary hearing, the U.S. District Court for the Eastern District of Pennsylvania arrived at these findings of fact:

• Nikparvar flagrantly discriminated against black patients and employees, including [Nafisah] Williams, his medical assistant.

• He required that doctors and nurses see all white patients before any black ones.

• Once, Williams sent a black patient for treatment ahead of a white one. When Nikparvar discovered this “violation,” he threatened to fire her if she did not follow his whites-first policy. Eventually, he did fire her. When she asked why, he told her that she was “nothing but a n—r just wasting his time.”

In response, Williams sued Advanced for race discrimination, a hostile work environment, and wrongful termination.

“About a year later, Advanced’s lawyer moved to withdraw from the case. The District Court granted the motion and gave Advanced 30 days to hire counsel. Then, at Advanced’s request, it gave Advanced 45 more days. And then, of its own accord, the court gave Advanced another 20 days. The court also warned Advanced that, if it did not hire counsel, the court would enter default judgment. Even so, no lawyer entered an appearance,” Bibas explained.

Williams eventually moved for default judgment and one week later, Donald Moser entered an appearance as counsel for Advanced. The court once again gave Advanced extra time, extending the deadline to respond to Williams’s motion for default judgment on two occasions.

However, Advanced never responded, the court entered default judgment and held a damages hearing. Neither Nikparvar, nor a lawyer, appeared on Advanced’s behalf. The District Court awarded Williams damages, including punitive damages for Nikparvar’s “egregious and outrageous racial animus.”

“Four months later, Advanced moved to vacate the default judgment. On Feb. 9, 2017, the District Court denied the motion, largely because Advanced ‘continued to ignore the Orders of the Court and notice of the subsequent court proceedings.’ 29 days later, on March 10, Nikparvar filed a notice of appeal, ostensibly on his own behalf as well as for Advanced,” Bibas said.

“Before Nikparvar filed his notice of appeal, he moved to reconsider the denial of Advanced’s motion to vacate and in his reply brief quoted the Rule of Civil Procedure governing intervention. But Nikparvar cannot act as Advanced’s lawyer. So the District Court charitably construed his reply as a motion to intervene and denied both the motion to reconsider and the motion to intervene on April 11.”

On April 28, a lawyer for Advanced filed an “amended” notice of appeal from all the default judgment orders, the denial of Advanced’s motion to vacate and the denial of Nikparvar’s motions to intervene and reconsider.

“Advanced did not timely appeal any of the orders it has standing to appeal. First, Advanced did not perfect its appeal. The ‘amended’ notice of appeal was filed well beyond the mandatory thirty-day deadline for appealing all but one of the orders. Advanced’s only timely appeal is from the April 11 order. But Advanced’s rights are unaffected by the denial of Nikparvar’s motions to intervene and to reconsider. So it lacks standing to appeal that order,” Bibas said.

“Second, Nikparvar’s notice of appeal is timely but a nullity. He cannot act as Advanced’s lawyer. He knows that: The District Court told him so in person. And then it repeatedly reminded him that it would enter default if no lawyer entered an appearance for Advanced. The procedural defect in Nikparvar’s notice of appeal is not jurisdictional. We will dismiss the appeal because, by filing without an attorney, Nikparvar persisted in his pattern of ignoring procedural rules.”

Bibas stated even if the Third Circuit considered the appeal on the merits, it would hold that the District Court did not abuse its discretion by declining to vacate the default judgment, since Advanced refused to secure legal representation or defend itself from the litigation.

Bibas added that the company “disregarded repeated warnings that a corporation may not appear pro se” and that the District Court gave “considerable weight” to this “culpable conduct.” Bibas said litigants “may not flout our rules and then seek our protection.”

Finally, Nikparvar never appealed the denial of his motions to reconsider and to intervene. We cannot construe his notice of appeal as appealing a decision that had yet to be announced. And the ‘amended’ notice of appeal was filed only for Advanced. So we will also dismiss Nikparvar’s “appeal,” Bibas said.

“We commend the District Court’s patience. It gave Advanced plenty of chances to get a lawyer and defend this suit. But Advanced has used up its second, third, fourth, and fifth chances. We will dismiss this appeal.”

The plaintiffs were represented by Emily A. Cathcart and Matthew A. Lipman of McElroy Deutsch Mulvaney & Carpenter in Philadelphia, plus Richard S. Swartz and Daniel Horowitz of Swartz Swidler in Cherry Hill, N.J.

The defendants were represented by Medhi Nikparvar of Advanced Urgent Care of City Line, William J. Weiss in Elkins Park, and Donald M. Moser in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 17-1560

U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-00778

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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