Hernandez v. County of Kern et al

Filing 6

STIPULATION and ORDER Regarding United States of America's Motion to Dismiss ; ORDER GRANTING 4 Motion to Dismiss; REMANDING CASE to Superior Court of California, County of Kern, signed by District Judge Lawrence J. O'Neill on 12/2/2015. Copy of remand order sent to other court. CASE CLOSED (Martin-Gill, S)

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BENJAMIN B. WAGNER
United States Attorney
BENJAMIN E. HALL
Assistant United States Attorney
United States Attorney’s Office
Eastern District of California
2500 Tulare Street, Suite 4401
Fresno, California 93721
[phone] (telephone)
[phone] (facsimile)

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Attorneys for the United States
Attorneys for Plaintiff UNITED STATES OF AMERICA

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IN THE UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CINTHIA HERNANDEZ,

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Case No. 1:15-cv-01719-LJO-JLT
Plaintiff,

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v.

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STIPULATION AND ORDER REGARDING
UNITED STATES OF AMERICA’S
MOTION TO DISMISS

COUNTY OF KERN; KERN MEDICAL
CENTER; DOREEN TADOKORO, D.O.;
INEALFER ROSALES, and DOES 1 to 100
Inclusive,

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Defendants.

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The parties to this action, through their undersigned attorneys of record, hereby stipulate and
agree as follows:
RECITALS

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Date: December 22, 2015
Time: 8:30 a.m.
Ctrm: 4 (7th Floor, Hon. Lawrence J. O'Neill)

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On February 13, 2015, Plaintiff, Cinthia Hernandez, filed a Complaint for Damages

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(Wrongful Death) in the Superior Court of California, County of Kern, Case No. S-1500-CV-284153

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LHB, naming as defendants the County of Kern, Kern Medical Center, Doreen Tadokoro, D.O.,

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Inealfer Rosales and Does 1 to 100 and alleging medical negligence in connection with the labor and

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delivery of Anais Rosales at Kern Medical Center.

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2.

The United States of America removed the action to this Court and filed a Certificate of

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Scope of Employment certifying that Doreen Tadokoro, D.O., was at all relevant times acting within

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the scope of her employment with Clinica Sierra Vista, a federally funded healthcare facility covered

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STIPULATION AND ORDER
REGARDING UNITED STATES OF AMERICA’S MOTION TO DISMISS

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under the Federal Tort Claims Act (“FTCA”) by operation of the Federally Supported Health Centers

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Assistance Act, 42 U.S.C. § 233. See ECF Nos. 1, 1-1. The Certificate of Scope of Employment

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(ECF No. 1-1) effects the substitution of the United States as defendant in place of Doreen Tadokoro,

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D.O. 28 U.S.C. § 2679(d)(1).

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3.

The United States has filed a Motion to Dismiss (the “Motion,” ECF No. 4), asserting

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that the Court lacks jurisdiction because Plaintiff did not exhaust administrative remedies prior to

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bringing suit.

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4.

Plaintiff does not oppose the Motion and consents to the dismissal of her claims against

the United States without prejudice.
STIPULATION

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WHEREFORE, the parties request that the Court enter an Order granting the Motion;

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dismissing Plaintiff’s claims against the United States without prejudice; and remanding the action to

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the Superior Court of California, County of Kern.
Respectfully submitted,

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Dated: November ____, 2015

BENJAMIN B. WAGNER
United States Attorney

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/ /s/ Benjamin E. Hall
BENJAMIN E. HALL
Assistant U.S. Attorney
Attorneys for Defendant
United States of America

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Dated: November ____, 2015

SALDO LAW GROUP P.C.

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/

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TYLER B. SALDO
Attorneys for Plaintiff

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Dated: November ____, 2015

HALL HIEATT & CONNELY LLP

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/

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JAY A. HIEATT
Attorneys for Defendant
Kern Medical Center

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STIPULATION AND ORDER
REGARDING UNITED STATES OF AMERICA’S MOTION TO DISMISS

ORDER

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Pursuant to the foregoing Stipulation, and good cause appearing,

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IT IS HEREBY ORDERED as follows:

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The United States of America’s Motion to Dismiss (ECF No. 4) is GRANTED; the United States

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is dismissed from this action without prejudice, and the hearing set for December 22, 2015, is

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VACATED;

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The case is REMANDED to the Superior Court of California, County of Kern.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

December 2, 2015

UNITED STATES DISTRICT JUDGE

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STIPULATION AND ORDER
REGARDING UNITED STATES OF AMERICA’S MOTION TO DISMISS