Besson v. Sethi et al

Filing 13

ORDER GRANTING 10 Motion to Dismiss signed by Magistrate Judge Helena M. Barch-Kuchta on 3/26/2024. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRENDA BESSON,

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Plaintiff,

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v.

Case No. 1:23-cv-01701-HBK
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS WITH PREJUDICE1
(Doc. No. 10)

UNITED STATES OF AMERICA,

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Defendant.

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Pending before the Court is Defendant United States of America’s Motion to Dismiss filed

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on February 8, 2024. (Doc. No. 10, “Motion”). The Court deemed the Motion suitable for

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decision without argument. (Doc. No. 12). Plaintiff did not file any opposition and the time to do

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so has expired. Local Rule 230(c). The Court grants Defendant’s Motion.
BACKGROUND

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Plaintiff initiated this action by filing a pro se Complaint in Tulare County Superior Court

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on March 23, 2023. (Doc. No. 1-2). Plaintiff is proceeding on her First Amended Complaint

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filed on January 31, 2024, which alleges a claim under the Federal Tort Claims Act stemming

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from alleged dental malpractice committed at Family Healthcare Network, a non-profit entity

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employed by the United States Public Health Service pursuant to 42 U.S.C. § 233(g). (See Doc.

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Both parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c)(1). (Doc.
No. 9).

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No. 8, “FAC”).
Defendant’s pending Motion seeks dismissal of Plaintiff’s FAC under Rule 12(b)(1) on

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the grounds that Plaintiff failed to file an administrative tort claim with the Department of Health

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and Human Services (“HHS”) prior to filing suit, as required by 28 U.S.C. § 2675(a). (Doc. No.

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10-1 at 3-4). Defendant’s Motion includes a declaration by Meredith Torres, Senior Attorney for

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the HHS Office of the General Counsel, stating that a search of the HHS database containing

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records of all administrative tort claims filed with HHS contained no such filing from Plaintiff

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regarding the claims giving rise to this suit. (See Doc. No. 10-2). As noted above, Plaintiff did

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not file any response to Defendant’s Motion and the time to do so has expired.2

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APPLICABLE LAW AND ANALYSIS

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A. Rule 12(b)(1)

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Rule 12 of the Federal Rule of Civil Procedure allows for a motion to dismiss based on

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lack of subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental precept

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that federal courts are courts of limited jurisdiction. Vacek v. United States Postal Serv., 447 F.3d

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1248, 1250 (9th Cir. 2006). “It is presumed that a cause lies outside this limited jurisdiction, and

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the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.

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Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Vacek, 447 F.3d at 1250. Rule 12(b)(1)

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motions may be either facial, where the inquiry is confined to the allegations in the complaint, or

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factual, where the court is permitted to look beyond the complaint to extrinsic evidence. See

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Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Safe Air for Everyone v. Meyer, 373

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F.3d 1035, 1039 (9th Cir. 2004).
When a defendant makes a factual challenge “by presenting affidavits or other evidence

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properly brought before the court, the party opposing the motion must furnish affidavits or other

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evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe Air, 373

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F.3d at 1039; see Leite, 749 F.3d at 1121.

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The Court previously advised pro se Plaintiff of the requirement to file any opposition within fourteen (14) days.
See Doc. No. 5 at 2; see also Doc. No. 2-3 at ¶11, advising that failure to timely oppose a motion to dismiss, inter
alia, may be deemed a waiver of any opposition).

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B. Exhaustion Under the FTCA

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The timely filing of an administrative claim is a jurisdictional prerequisite to bringing

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a suit under the FTCA, and it must be affirmatively alleged in the complaint. See McNeil v.

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United States, 508 U.S. 106, 111 (1993). A plaintiff has the burden to plead and prove

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compliance with the FTCA administrative claim requirements. Gillespie v. Civiletti, 629 F. 2d

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637, 640 (9th Cir. 1980) (timely filing and denial of an administrative claim is jurisdictional to

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bring suit under the FTCA and must be alleged in the complaint). See also Munns v. Kerry, 782

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F.3d 402, 413 (9th Cir. 2015) (“The FTCA requires, as a prerequisite for federal court

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jurisdiction, that a claimant first provide written notification of the incident giving rise to the

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injury, accompanied by a claim for money damages to the federal agency responsible for the

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injury.”).

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C. Discussion

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Plaintiff’s FAC, the operative complaint, does not affirmatively plead the timely filing of

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an administrative claim. (See generally Doc. No. 8). Thus, Plaintiff has facially failed to make

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the showing necessary to establish federal subject matter jurisdiction under 28 U.S.C § 2675.

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Further, the United States has submitted a sworn declaration stating that the Department of Health

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and Human Services has no record of an administrative tort claim relating to Family Healthcare

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Network filed by or on behalf of Plaintiff. (Doc. No. 10-2). Plaintiff has not filed any opposition

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to Defendant’s Motion; thus, the Court deems the Government’s declaration undisputed. See, e.g.,

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Robertson v. California Dep’t of State Hosps.-Sacramento, 2023 WL 8190856, at *1 (E.D. Cal.

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Nov. 27, 2023) (noting that “a Court may dismiss an action for a plaintiff's failure to oppose a

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motion to dismiss, where the applicable local rule determines that failure to oppose a motion will

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be deemed a waiver of opposition.”).

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Plaintiff was on notice that her initial Complaint failed to plead exhaustion and

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nevertheless failed to cure this deficiency in her FAC. Specifically, on December 15, 2023,

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Defendant filed a motion to dismiss pursuant to Rule 12(b)(1), arguing that Plaintiff’s Complaint

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should be dismissed because the Complaint failed to allege Plaintiff had exhausted her

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administrative remedies. (Doc. No. 3). After Plaintiff did not file any response within the
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deadlines prescribed by the Local Rules, the Court issued an Order directing Plaintiff to either file

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(1) a response to the motion, (2) an amended complaint, or (3) a notice to voluntarily dismiss the

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Complaint. (Doc. No. 5 at 2 ¶ 1). Thereafter, Plaintiff filed her First Amended Complaint,

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which again fails to allege that Plaintiff had exhausted her administrative remedies. (See Doc.

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No. 8). Because Plaintiff has again failed to carry her burden of demonstrating exhaustion of her

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administrative remedies as a prerequisite to suing the United States, the Court will grant

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Defendant’s Motion to Dismiss. See 28 U.S.C. § 2675(a); see, e.g., Kumar v. United States, 2020

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WL 2556798 (E.D. Cal. May 20, 2020) (granting motion to dismiss FTCA claim for failure to

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exhaust administrative remedies under Rule 12(b)(1)). Because Plaintiff had an opportunity to

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amend her Complaint, but nevertheless again failed to allege facts demonstrating compliance with

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28 U.S.C § 2675, the Court finds further leave to amend is not warranted. See Allen v. City of

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Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

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Accordingly, it is ORDERED:

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1. Defendant’s Motion to Dismiss (Doc. No. 10) is GRANTED and Plaintiff’s First

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Amended Complaint (Doc. No. 8) is dismissed with prejudice.

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2. The Clerk of Court shall issue judgment and close this case.

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Dated:

March 26, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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