Ignacio Barboza v. United States of America

Filing 8

ORDER by Judge Christina A. Snyder: granting 4 Motion to Dismiss Case. The Court lacks jurisdiction overthis action, and therefore must dismiss this case. In accordance with the foregoing, plaintiffs claim is hereby DISMISSED for lackof subject matter jurisdiction. Refer to document for details of the Court's order. ( MD JS-6. Case Terminated ) (pso)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-129 CAS (VBKx)

Title

IGNACIO BARBOZA V. CLINICAS DEL CAMINO

Present: The Honorable

Date

February 26, 2013

CHRISTINA A. SNYDER

CATHERINE JEANG
Deputy Clerk

N/A
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

n/a

n/a

Proceedings:

(In Chambers:) DEFENDANT CLINICAS DEL CAMINO REAL
INC.’S MOTION TO DISMISS CASE (Docket #4, filed January
15, 2013)

The Court finds this motion appropriate for decision without oral argument. Fed.
R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing date of March 4, 2013 is
vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION AND BACKGROUND

On August 24, 2012, this case was filed in the Small Claims Court of the Ventura
County Superior Court against Clinicas Del Camino Real, Inc. (“Clinicas”), asserting a
single for medical malpractice. Specifically, plaintiff alleges that he was provided with
improper dental care, and suffered an infection as a result. Small Claims Compl., Dkt. #1
Ex. A. Plaintiff demands $10,000 in damages, covering the cost of a new dentist, the
money paid to Clinicas, and pain and suffering. Id. Clinicas removed the case to this
Court on January 8, 2013.
On January 9, 2013, the United States of America substituted in place of defendant
Clinicas pursuant to 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233(a). Dkt. # 3. The basis
of the substitution is that Clinicas receives federal funding, and was acting as a federal
employee within the scope of its employment at all times material to plaintiff’s
complaint. Dkt. #3. At the time plaintiff filed his complaint, he was unaware that
Clinicas was a public entity. See Small Claims Compl., Dkt. #1 Ex. A (checking “no” in
response to question asking whether the defendant is a public entity).
On January 15, 2013, defendant moved pursuant to Federal Rule of Civil
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-129 CAS (VBKx)

Date

Title

February 26, 2013

IGNACIO BARBOZA V. CLINICAS DEL CAMINO

Procedure 12(b)(1) to dismiss this case for lack of subject matter jurisdiction, arguing that
plaintiff has failed to exhaust required administrative remedies. Plaintiff, who is
proceeding pro se, has not filed a reply. After considering plaintiff’s complaint and
defendant’s motion, the Court finds and concludes as follows.
II.

LEGAL STANDARD

A motion to dismiss an action pursuant to Fed. R. Civ. P. 12(b)(1) raises the
question of the federal court’s subject matter jurisdiction over the action. The objection
presented by this motion is that the court has no authority to hear and decide the case.
This defect may exist despite the formal sufficiency of the allegations in the complaint.
See T.B. Harms Co. v. Eliscu, 226 F. Supp. 337, 338 (S.D. N.Y. 1964), aff'd 339 F.2d
823 (2d Cir. 1964) (the formal allegations must yield to the substance of the claim when a
motion is filed to dismiss the complaint for lack of subject matter jurisdiction). When
considering a Rule 12(b)(1) motion challenging the substance of jurisdictional
allegations, the Court is not restricted to the face of the pleadings, but may review any
evidence, such as declarations and testimony, to resolve any factual disputes concerning
the existence of jurisdiction. See McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.
1988).
The burden of proof in a Rule 12(b)(1) motion is on the party asserting jurisdiction.
See Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995); Ass’n of
Am. Med. Coll. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000). If jurisdiction is
based on a federal question, the pleader must show that he has alleged a claim under
federal law and that the claim is not frivolous. See 5B Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure, § 1350, pp. 211, 231 (3d ed. 2004).
III.

DISCUSSION

The United States argues that the Court lacks subject matter jurisdiction over this
case because plaintiff failed to exhaust administrative remedies as required by the Federal
Tort Claims Act, 28 U.S.C. §§ 1436(b), 2671 – 2680 (“FTCA”); Torres Decl. ¶ 4. The
United States argues that the administrative exhaustion requirement is jurisdictional in
nature, and therefore that this case should be dismissed without prejudice for lack of
jurisdiction.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-129 CAS (VBKx)

Date

February 26, 2013

Title

IGNACIO BARBOZA V. CLINICAS DEL CAMINO

The United States is correct that the Court may not exercise subject matter
jurisdiction over plaintiff’s medical malpractice claim against it until plaintiff has
exhausted administrative remedies. See, e.g., Jerves v. United States, 966 F.2d 517, 521
(9th Cir. 1992) (“A tort claimant may not commence proceedings in court against the
United States without first filing her claim with an appropriate federal agency and either
receiving a conclusive denial of the claim from the agency or waiting for six months to
elapse without a final disposition of the claim being made. . . .[w]e have repeatedly held
that this ‘claim requirement of section 2675 is jurisdictional in nature and may not be
waived.’”); see also 28 U.S.C. § 2675(a). Accordingly, the Court lacks jurisdiction over
this action, and therefore must dismiss this case.
IV.

CONCLUSION

In accordance with the foregoing, plaintiff’s claim is hereby DISMISSED for lack
of subject matter jurisdiction.
IT IS SO ORDERED.
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Initials of
Preparer

CV-13-129 CAS (VBKx)

CIVIL MINUTES - GENERAL

:

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MS

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