Brown, Sr. v. Thephavong, D.O. et al

Filing 16

ORDER signed by District Judge Dale A. Drozd on 8/18/17. Plaintiff's motion to remand 6 is denied and defendant's motion to dismiss 4 is granted. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANKLIN RAY BROWN SR.,

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No. 1:17-cv-00763-DAD-SAB

Plaintiff,
v.

ORDER

KHAMPHA THEPHAVONG, D.O.,

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(Doc. No. 4, 6)

Defendant.

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This matter is before the court on defendant’s motion to dismiss (Doc. No. 4) and

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plaintiff’s motion to remand. (Doc. No. 6.) A hearing on the motion was held on August 15,

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2017. Plaintiff appeared in pro se and attorney Benjamin E. Hall appeared on behalf of

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defendant. Having considered the parties’ briefs and oral arguments, and for the reasons set forth

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below, the court will deny plaintiff’s motion to remand and grant defendant’s motion to dismiss

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without prejudice.

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BACKGROUND
Plaintiff, Franklin Ray Brown Sr., alleges that on February 10, 2017, defendant, Khamoha

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Thephavong, D.O., entered false information into plaintiff’s medical file causing him harm.

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(Doc. No. 1-1 at 7–9, Ex. 1.) Plaintiff initially filed suit in Fresno County Superior Court alleging

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general negligence and professional negligence against the named defendant. (Id. at 5.) Plaintiff
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seeks compensatory damages and punitive damages in the amount of $4,500. Defendant removed

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this action to federal court on June 1, 2017. (Id.) Along with its notice of removal, defendant

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filed a Certificate of Scope of Employment through a designee of the United States Attorney

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certifying that Dr. Thephavong was acting within the scope of her employment with the United

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States Department of Veterans Affairs at the time of the alleged incidents giving rise to plaintiff’s

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claim. (Doc. No. 1-2 at 2, ¶ 2, Ex. 2.) Defendant maintains that certification effects the

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substitution of the United States as the proper defendant and that redress under the Federal Tort

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Claims Act (“FTCA”) is the exclusive remedy for plaintiff’s claims. (Id. at 2–3, ¶ 3.) Defendant

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filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil

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Procedure 12(b)(1) on June 6, 2017. (Doc. No. 4.) Plaintiff did not file an opposition to the

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motion to dismiss. Plaintiff did filed a motion to remand on July 5, 2017. (Doc. Nos. 6, 7, 8.)

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Defendant filed its opposition to plaintiff’s motion to remand on August 1, 2017. (Doc. No. 13.)

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Plaintiff did not file a reply. Below, the court will address the parties’ arguments.

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MOTION TO REMAND
A. Legal Standard
A defendant in state court may remove a civil action to federal court so long as that case

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could originally have been filed in federal court. 28 U.S.C. § 1441(a); City of Chicago v. Int’l

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Coll. of Surgeons, 522 U.S. 156, 163 (1997); Yocupico v. PAE Group, LLC, 795 F.3d 1057, 1059

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(9th Cir. 2015). Thus, removal of a state action may be based on either diversity jurisdiction or

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federal question jurisdiction. City of Chicago, 552 U.S. at 163; Caterpillar Inc. v. Williams, 482

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U.S. 386, 392 (1987); Jordan v. Nationstar Mortgage, LLC, 781 F.3d 1178, 1181 (9th Cir. 2015).

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Removal jurisdiction is based entirely on federal statutory authority. See 28 U.S.C. § 1141 et seq.

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These removal statutes are strictly construed, and removal jurisdiction is to be rejected in favor of

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remand to the state court if there are doubts as to the right of removal. Geographic Expeditions,

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Inc. v. Estate of Lhotka, 559 F.3d 1102, 1107 (9th Cir. 2010); Provincial Gov’t of Marinduque v.

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Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009); Gaus v. Miles, Inc., 980 F.2d 564, 566

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(9th Cir. 1992). The defendant seeing removal of an action from state court bears the burden of

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establishing grounds for federal jurisdiction. Geographic Expeditions, 599 F.3d at 1106–07;
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Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009); Gaus, 980 F.2d at 566–67.
B. Discussion
The FTCA waives the government’s sovereign immunity for tort claims arising out of

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negligent conduct of government employees acting within the scope of their employment.

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Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008); see also United States v.

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Sherwood, 312 U.S. 584, 586 (1941). Pursuant to the FTCA, the United States can thus be sued

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“under circumstances where the United States, if a private person, would be liable to the claimant

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in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.

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§ 1346(b)(1); Chadd, 494 F.3d at 1109. Additionally, the FTCA “‘vests the federal district courts

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with exclusive jurisdiction over suits arising from the negligence of Government employees.’”

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Valdez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (quoting Jerves v. United States, 966

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F.2d 517, 518 (9th Cir. 1992)); 28 U.S.C.A. § 1346(b)(1).

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Pursuant to 28 U.S.C. § 2679(d)(2), for any civil action commenced in state court,

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whereupon the Attorney General has certified that the defendant was acting within the scope of

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employment, such action may be removed to federal district court at any time before trial.

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Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 743–45 (9th Cir. 1991). Further, the

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United States is substituted as the party defendant. Id. “‘The Attorney General’s certification is

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conclusive for purposes of removal, i.e., once certification and removal are effected, exclusive

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competence to adjudicate the case resides in the federal court, and that court may not remand the

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suit to the state court.” Rodriguez v. Kwok, No. C 13-04976 SI, 2014 WL 889570, at *3 (N.D.

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Cal. Mar. 3, 2014) (quoting Osborn v. Haley, 549 U.S. 225, 231 (2007)). Certification may also

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be made by the United States Attorney’s Office for the district where the civil action is brought.

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28 C.F.R. § 15.4; see, e.g., D.V. v. Thompson, No. 14-CV-02155-RMW, 2015 WL 5188126, at *1

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(N.D. Cal. Sept. 4, 2015).

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Here, David T. Shelledy, the Chief of the Civil Division of the United States Attorney’s

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Office for the Eastern District of California filed a Certificate of Scope of Employment pursuant

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to 28 U.S.C. § 2679 and 28 C.F.R. § 15.4. (Doc. No. 1-2 at 2, Ex. 2.) Therein, he certifies that he

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read the complaint originally filed by plaintiff in superior court. He further certifies that the
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named defendant, Dr. Khampha Thephavong, D.O. “was acting within the scope of her

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employment with the U.S. Department of Veterans Affairs at the time of the alleged incidents

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giving rise to plaintiff’s claims.” (Id. at ¶ 2.) Plaintiff objects to the propriety of the certification

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on the grounds that because the information allegedly placed in his file by defendant involved a

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telephone call or communication that never took place, it could not be an act undertaken in the

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scope of Dr. Thephavong’s employment. However, “[b]ecause a section 2679(d) certification is

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conclusive for purposes of removal, the Court may not remand the action regardless of any

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challenges plaintiff raises to the propriety of certification.” Rodriguez, 2014 WL 889570, at *3

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(citing Osborn, 549 U.S. at 231, 241–44). Accordingly, the court concludes that the FTCA is the

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exclusive remedy for plaintiff’s claim and the certification filed by the United States Attorney’s

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Office serves to substitute the United States as the proper defendant in place of Dr. Khampha

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Thephavong. (Id. at 2–3, ¶ 3.) Accordingly, the court will deny plaintiff’s motion to remand.

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MOTION TO DISMISS
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) allows a defendant, by motion, to raise the

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defense that the court lacks jurisdiction over the subject matter of an entire action or of specific

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claims alleged in the action. Federal district courts generally have subject matter jurisdiction over

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civil cases through diversity jurisdiction, 28 U.S.C. § 1332, or federal question jurisdiction, 28

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U.S.C. § 1331. See Peralta v. Hispanic Bus., Inc., 419 F.3d 1068 (9th Cir. 2005). In a motion to

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dismiss for lack of subject matter jurisdiction, a defendant may either attack the allegations of the

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complaint or may attack the existence of subject matter jurisdiction in fact. Thornhill Publ’g Co.

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v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

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“A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the

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challenger asserts that the allegations contained in a complaint are insufficient on their face to

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invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 383 F.3d 1035, 1039 (9th Cir. 2004)

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(citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “The district court resolves a facial

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attack as it would a motion to dismiss under Rule 12(b)(6): [a]ccepting the plaintiff’s allegations

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as true and drawing all reasonable inferences in the plaintiff’s favor, the court determines whether
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the allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane

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Co., 797 F.3d 1117, 1121 (9th Cir. 2014). “By contrast, in a factual attack, the challenger

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disputes the truth of the allegations that, by themselves, would otherwise invoke federal

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jurisdiction.” SafeAir for Everyone, 373 F.3d at 1039.
Here, defendant brings a factual attack to the court’s subject matter jurisdiction in that it

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argues plaintiff has not exhausted his administrative remedies.

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B. Discussion
“The FTCA bars claimants from bringing suit in federal court until they have exhausted

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their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). The Supreme

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Court has noted, “Congress intended to require complete exhaustion of executive remedies before

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invocation of the judicial process . . .” and that while the burden imposed on the judicial system

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“may be slight in an individual case, the statute governs the processing of a vast multitude of

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claims.” Id. at 112; see also Brady v. United States, 211 F.3d 499, 502–03 (9th Cir. 2000) (“The

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purpose of the FTCA’s administrative claim procedure is ‘to encourage administrative settlement

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of claims against the United States and thereby to prevent an unnecessary burdening of courts.’”

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(quoting Jerves, 966 F.2d at 520)). Pursuant to 28 U.S.C. § 2675(a), suit against the United

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States for money damages alleging personal injury, death, or loss of property caused by negligent

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or wrongful acts or omissions of government employees acting in the scope of employment, shall

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not be made until the claimant has exhausted administrative remedies by “first present[ing] the

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claim to the appropriate federal agency.” The claim must be “denied by the agency in writing and

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sent by certified or registered mail.” Id.

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The exhaustion of administrative remedies is a jurisdictional requirement that must be

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strictly adhered to. Valdez-Lopez, 656 F.3d at 855; Brady, 211 F.3d at 502–03 (9th Cir. 2000).

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“[T]he Supreme Court has described the FTCA’s exhaustion requirement as a ‘clear statutory

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command.’” Valdez-Lopez, 656 F.3d at 855 (quoting McNeil, 508 U.S. at 113). Administrative

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tort claims can be filed with the federal agency up to two years after they accrue. Id. at 857.

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Claims are deemed denied after six months of agency inaction. Id.; Jerves, 966 F.2d at 519.

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Defendant here provides the declaration of Vera Ivanova, the Risk Manager for Quality

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Management Services for the Veterans Affairs Central California Health Care System in Fresno.

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(Doc. No. 4-2 at 1, ¶ 1.) Therein, she ascertains that the Department of Veterans Affairs

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maintains a computerized database of administrative tort claims filed with the agency as part of

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its ordinary course of operations. (Id. at ¶ 2.) In this capacity, Ms. Ivanova is familiar with the

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system of records and has access to the database. (Id.) Upon conducting a computerized search

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of the tort claim database, Ms. Ivanova was unable to find any records filed by Mr. Brown Sr. or

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any representative of Mr. Brown Sr. (Id. at 2, ¶ 3.) As noted, plaintiff did not file an opposition

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to defendant’s motion to dismiss. Moreover, at the hearing on the motion plaintiff conceded that

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he did not file an administrative claim with the Department of Veterans Affairs because he did

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not believe it was necessary. Accordingly, because plaintiff failed to exhaust his administrative

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remedies prior to filing suit, the court will grant defendant’s motion to dismiss without prejudice

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to plaintiff’s filing of a new action following administrative exhaustion.

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CONCLUSION
For the reasons stated above, plaintiff’s motion to remand (Doc. No. 6) is denied and

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defendant’s motion to dismiss (Doc. No. 4) is granted without prejudice to plaintiff’s filing of a

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new action following proper administrative exhaustion.

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IT IS SO ORDERED.

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Dated:

August 18, 2017
UNITED STATES DISTRICT JUDGE

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