O'Conner v. Shingletown Medical Center et al

Filing 20

ORDER signed by Judge Garland E. Burrell, Jr. on 10/14/2011 GRANTING 5 Motion to Dismiss for Lack of Jurisdiction. CASE CLOSED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CYNTHIA O’CONNOR,

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Plaintiff,

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v.

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THE UNITED STATES,*

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Defendant.
________________________________

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2:11-cv-00818-GEB-CMK
ORDER**

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On

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April

4,

2011,

Defendant

filed

a

motion

to

dismiss

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Plaintiff’s medical negligence complaint under Federal Rule of Civil

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Procedure 12(b)(1), for lack of subject matter jurisdiction. Defendant

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argues “the Court lacks jurisdiction over any tort claims against the

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United States because plaintiff did not present an administrative claim

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to the U.S. Department of Health & Human Services before filing her

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lawsuit.” (Def.’s Mot. 1:27-2:1.) Plaintiff opposes the motion, arguing

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*

The caption has been amended according to Defendant’s
certification of scope of federal employment issued under 28 U.S.C. §
2679(d)(1) of the Federal Tort Claims (“FTCA”), which was filed on April
4, 2011. This statute prescribes: “Upon certification by the Attorney
General that the defendant employee was acting within the scope of his
office or employment at the time of the incident out of which the claim
arose, . . . the United States shall be substituted as the party
defendant.” 28 U.S.C. § 2679(d)(1) (2010).
**

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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“[t]here

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requirements . . . where Plaintiff files a state court action against an

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individual without knowing that the individual was a government employee

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acting within the course and scope of his employment at the time of the

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injury causing event.” (Pl.’s Opp’n 2:26-3:1.)

is

an

exception

to

the

statutory

administrative

filing

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However, under the FTCA a claimant is required to exhaust

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administrative remedies before a tort lawsuit is commenced against the

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United States. Specifically, 28 U.S.C. § 2675(a) of the FTCA prescribes:

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“An action shall not be instituted upon a claim against the United

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States unless the claimant shall have first presented the claim to the

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appropriate Federal agency and [her] claim shall have been finally

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denied by the agency . . . .” 28 U.S.C. § 2675(a) (2010). “Because the

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requirement is jurisdictional, it ‘must be strictly adhered to.’” Brady

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v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (internal citations

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omitted); see also Valadez-Lopez v. Chertoff, ---F.3d ----, 2011 WL

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3805890, at *3 (9th Cir. Aug. 26, 2011) (“Congress intended to require

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complete exhaustion of [administrative] remedies before invocation of

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the judicial process because every premature filing of an action under

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the

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quotation marks and citations omitted).

FTCA

imposes

some

burden

on

the

judicial

system.”)

(internal

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Plaintiff filed her medical negligence complaint against the

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previous defendants, Albert Gordon Lui, Dolly Brooks, and Shingletown

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Medical Center, in state court on January 20, 2011. (ECF No. 1.) The

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United States removed this state case to federal court on March 25,

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2011, and certified that the previous defendants were acting within the

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scope of federal employment on April 4, 2011. (ECF Nos. 1, 4.) Plaintiff

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states in her opposition brief that she “filed a Claim for Damage,

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2

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Injury or Death with the Department of Health and Human Services” on May

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24, 2011. (Pl.’s Opp’n 2:9-11; Altemus Decl., Ex. 1.) Since Plaintiff’s

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administrative claim submitted to the Department of Health & Human

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Services was not finally denied prior to when Plaintiff commenced the

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instant

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requirements of [§] 2675(a).” Jerves v. United States, 966 F.2d 517, 519

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(9th Cir. 1992). Therefore, Defendant’s motion to dismiss this action

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for lack of subject matter jurisdiction is granted.

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Dated:

tort

case,

Plaintiff

“has

not

met

the

jurisdictional

October 14, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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