E.R. v. Sutter Davis Hospital et al

Filing 21

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 12/15/2014 ORDERING 5 that the United States' motion to dismiss for lack of subject matter jurisdiction be, and the same hereby is, DENIED. (Reader, L)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 E.R., a minor, by and through his Guardian ad Litem, CAROLYN YOUNG, Plaintiffs, 14 15 16 17 18 19 20 21 CIV. NO. 2:14-2053 WBS CKD MEMORANDUM AND ORDER RE: MOTION TO DISMISS v. SUTTER DAVIS HOSPITAL, SUTTER WEST WOMEN’S HEALTH, SUSAN MAAYAH, M.D., and DOES 1 through 100, inclusive, Defendants, AND RELATED THIRD-PARTY CLAIMS. 22 ----oo0oo---- 23 24 The case before the court is the second in a series of 25 actions based on alleged medical malpractice that occurred when 26 Jennifer Lara gave birth via caesarian section to her minor son, 27 plaintiff E.R. 28 Rule of Civil Procedure 12(b)(1) to dismiss defendant Sutter The United States now moves pursuant to Federal 1 1 Davis Hospital’s (“Sutter Davis”) third-party complaint for lack 2 of subject matter jurisdiction. 3 I. Factual and Procedural Background 4 E.R. was born on February 3, 2010 at Sutter Davis and 5 defendant Dr. Susan Maayah performed the cesarean section. 6 (Compl. ¶ 7.) 7 from defendant Sutter West Women’s Health. 8 ultimately suffered perinatal anoxia and brain damage as a result 9 of allegedly inadequate monitoring of his fetal heart rate during 10 labor and delivery and the failure to timely perform an emergency 11 cesarean section. 12 received prenatal care from Salud Clinic, and certified nurse 13 midwives Amelia Bauermann and Tamara Johnson monitored her labor 14 and delivery. 15 Lara allegedly received inadequate prenatal care (Id.) (Id. ¶ 14.) E.R. According to Sutter Davis, Lara also (Sutter Davis’s Opp’n at 3:12-18.) Lara initiated a medical malpractice action in 16 California Superior Court against Sutter Davis Hospital, Salud 17 Clinic, Sutter West Women’s Health, Dr. Maayah, and Bauermann. 18 Sutter Davis then filed a cross-complaint for indemnity and/or 19 contribution against Salud Clinic, Bauermann, and Johnson. 20 No. 2:12-2407 WBS CKD, Docket No. 14-1.) 21 claims against Salud Clinic and Bauermann with prejudice. 22 No. 2:12-2407 WBS CKD, Docket Nos. 14-1 at Ex. A, 51 at 2, n.1.) 23 On September 20, 2012, the United States removed the case to 24 federal court and substituted as cross-defendant in place of 25 Salud Clinic, Bauermann, and Johnson under the Federally 26 Supported Health Centers Assistance Act, 42 U.S.C. § 233(c) (“§ 27 233(c)”). 28 doing so, the United States certified under § 233(c) that Salud 2 (Civ. Lara then dismissed her (Civ. No. 2:12-2407 WBS CKD, Docket Nos. 1, 2.) (Civ. In 1 Clinic and the midwives were “deemed employees of the Public 2 Health Service” and “were acting within the scope of such 3 employment at the time of the incident out of which this suit 4 arose.” 5 (Civ. No. 2:12-2407 WBS CKD, Docket No. 1-5.) Eight months after the deadline set by this court to 6 join new parties had expired, Lara sought leave to amend her 7 complaint to add her son, E.R., as a plaintiff. 8 court found that Lara did not exercise diligence in seeking 9 amendment, it nonetheless granted Lara leave to join E.R. because Although the 10 denying her motion to amend would conflict with Rule 1 of the 11 Federal Rules of Civil Procedure and “the court’s independent 12 obligation to efficiently manage its calendar.” 13 Davis Hosp., Civ. No. 2:12-2407 WBS CKD, 2014 WL 28817, at *3 14 (E.D. Cal. Jan. 2, 2014). 15 justified in opposing Lara’s motion to amend, the court 16 conditioned Lara’s joinder of E.R. on her reimbursing defendants 17 for the attorney’s fees and costs incurred in opposing her motion 18 to amend. 19 Lara v. Sutter Recognizing that defendants were Id. at *4. Instead of joining E.R. as a plaintiff in that action, 20 however, the parties entered a private settlement and agreed to 21 waive all fees and costs, including the fees and costs the court 22 imposed as a condition of granting Lara leave to amend. 23 February 28, 2014, Lara voluntarily dismissed her claims against 24 Sutter Davis, Sutter West, and Dr. Maayah without prejudice, and 25 Sutter Davis voluntarily dismissed its claims against the United 26 States with prejudice. 27 51.) 28 On (Civ. No. 2:12-2407 WBS CKD, Docket No. About two months later, plaintiff E.R. initiated a 3 1 medical malpractice action in California Superior Court against 2 Sutter Davis, Sutter West Women’s Health, and Dr. Maayah. 3 (Docket No. 1-1.) 4 complaint1 for indemnity and/or contribution against Salud 5 Clinic, Bauermann, and Johnson. 6 States then substituted as third-party defendant in place of 7 Salud Clinic, and the midwives under the Federally Supported 8 Health Centers Assistance Act, § 233(c), and removed the case to 9 this court. Sutter Davis subsequently filed a third-party (Docket No. 1.) (Docket No. 1-2.) The United In addition to attaching the § 10 233(c) scope of employment certification it had issued in Lara’s 11 case, the United States issued a new certification under § 233(c) 12 establishing that Salud Clinic and the midwives were “deemed 13 employees of the Public Health Service” and “were acting within 14 the scope of such employment at the time of the incident out of 15 which this suit arose.” 16 alternatively sought removal under 28 U.S.C. § 1442(a)(1) (“§ 17 1442(a)(1)”), indicating that, because of the § 233(c) 18 certification it had filed in Lara’s case, the third-party 19 complaint against Salud Clinic, Bauermann, and Johnson was in 20 fact against the United States. 21 No. 1).) 22 (Docket No. 1-5.) (Notice of Removal ¶ 7 (Docket Although Sutter Davis labels and the parties refer to its claims against Salud Clinic, Bauermann, and Johnson as crossclaims, E.R. did not name Salud Clinic, Bauermann, and Johnson as defendants and thus they were not coparties subject to crossclaims under Rule 13(g). See Fed. R. Civ. P. 13(g) (“A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence . . . .”). Sutter Davis’s complaint against Salud Clinic, Bauermann, and Johnson is a third-party complaint under Rule 14(a)(1). 1 23 24 25 26 27 28 The United States 4 1 Relying on the derivative jurisdiction doctrine, the 2 United States now moves to dismiss Sutter Davis’s third-party 3 complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) 4 for lack of jurisdiction. 5 States’ motion. 6 II. Minor plaintiff E.R. joins the United Analysis 7 On a motion to dismiss under Rule 12(b)(1), the 8 plaintiff bears the burden of establishing a jurisdictional basis 9 for his action. Kokkonen v. Guardian Life Ins. Co. of Am., 511 10 U.S. 375, 377 (1994). 11 limited jurisdiction” that “possess only that power authorized by 12 Constitution and statute,” id., a court must dismiss an action 13 over which it has no jurisdiction. 14 Because “[f]ederal courts are courts of Fed. R. Civ. P. 12(h)(3). The Federally Supported Health Centers Assistance Act 15 provides that a “public or non-profit private entity receiving 16 Federal funds” shall be “deemed to be an employee of the Public 17 Health Service” and that the exclusive remedy for personal injury 18 against that entity or its employees is a claim under the Federal 19 Tort Claims Act (“FTCA”). 20 Pursuant to § 233, if an entity is deemed an employee of the 21 Public Health Service and the Attorney General certifies that the 22 entity or its employee was “acting in the scope of his employment 23 at the time of the incident out of which the suit arose,” the 24 action “shall be removed without bond at any time before trial by 25 the Attorney General to the district court . . . and the 26 proceeding deemed a tort action brought against the United States 27 . . . .” 28 action against “[t]he United States or any agency thereof or any 5 Id. 42 U.S.C. § 233(a), (g)(1)(A), (g)(4). Subsection 1442(a)(1) provides for removal of any 1 officer (or any person acting under that officer) of the United 2 States . . . .” 3 28 U.S.C. § 1442(a)(1). “The jurisdiction of the federal court on removal is, 4 in a limited sense, a derivative jurisdiction.” 5 Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1992). 6 derivative jurisdiction doctrine, “[i]f the state court lacks 7 jurisdiction of the subject-matter or of the parties, the federal 8 court acquires none, although it might in a like suit originally 9 brought there have had jurisdiction.” Id. Lambert Run Coal Under the “Derivative 10 jurisdiction thus requires a federal court to dismiss for lack of 11 subject matter jurisdiction if it determines that the state 12 court, prior to removal, lacked jurisdiction.” 13 Ctr., Civ. No. 09–00220 JMS/KSC, 2010 WL 931926, at *3 (D. Haw. 14 Mar. 11, 2010). 15 Nye v. Hilo Med. Congress, however, has limited the application of the 16 derivative jurisdiction doctrine. In 1986, it “abolishe[d]” the 17 doctrine with enactment of 28 U.S.C. § 1441(e). 18 Harbor House Rest., 861 F.2d 1389, 1392 n.3 (9th Cir. 1988); see 19 28 U.S.C. § 1441(e) (1986) (“The court to which such civil action 20 is removed is not precluded from hearing and determining any 21 claim in such civil action because the State court from which 22 such civil action is removed did not have jurisdiction over that 23 claim.”). 24 “became effective with respect to all civil actions commenced in 25 state courts on or after June 19, 1986,” Ethridge, 861 F.2d at 26 1392 n.3, other circuits “disagreed about whether Congress 27 intended the abrogation of the derivative jurisdiction doctrine 28 to extend to removals under other provisions, such as 28 U.S.C. § 6 Ethridge v. While the Ninth Circuit indicated that § 1441(e) 1 1442.” Lopez v. Sentrillon Corp., 749 F.3d 347, 350 (5th Cir. 2 2014). Sixteen years later, Congress limited the scope of its 3 statutory ban of derivative jurisdiction by replacing § 1441(e) 4 with a new § 1441(f), which provides, “The court to which a civil 5 action is removed under this section is not precluded from 6 hearing and determining any claim in such civil action because 7 the State court from which such civil action is removed did not 8 have jurisdiction over that claim.” 9 (emphasis added). 28 U.S.C. § 1441(f) 10 After Congress enacted the limiting language in § 11 1441(f), courts routinely apply the derivative jurisdiction 12 doctrine to cases removed under § 1442. 13 F.3d at 350 (“[A]ny ambiguity about the endurance of the 14 derivative jurisdiction doctrine as applied to removals under § 15 1442 was eliminated when Congress amended § 1441 in 2002 to add 16 the words ‘removed under this section.’”); Palmer v. City Nat’l 17 Bank, of W. Va., 498 F.3d 236, 246 (4th Cir. 2007) (“Whatever the 18 intent of the 2002 amendment, its result was that § 1441(f) is 19 more clear than former § 1441(e) in abrogating derivative 20 jurisdiction only with respect to removals effectuated under § 21 1441.”); Glass v. Nat’l R.R. Passenger Corp., 570 F. Supp. 2d 22 1180, 1183 (C.D. Cal. 2008). 23 See, e.g., Lopez, 749 Application of the derivative jurisdiction doctrine to 24 cases removed pursuant to § 233(c) or the analogous removal 25 provision of the Westfall Act, 28 U.S.C. § 2679(d)(2) (“§ 26 2679(d)(1)”)2 is more questionable. 27 28 2 Subsection 233(c) Because the exclusive FTCA remedy and procedure for scope of employment certification and removal in § 233(c) and § 2679(d)(2) are substantively similar, the court discusses cases 7 1 unequivocally provides that, upon certification under that 2 section, the action “shall be removed . . . to the district court 3 . . . and the proceeding deemed a tort action brought against the 4 United States . . . .” 5 derivative jurisdiction doctrine to cases removed under § 233(c) 6 “would render this provision nonsensical if all actions so 7 removed were dismissed for lack of subject matter jurisdiction.” 8 Nye, 2010 WL 931926, at *5; accord Anselmo v. Mull, Civ. No. 9 2:12–1422 WBS EFB, 2012 WL 3233274, at *2 (E.D. Cal. Aug. 6, 42 U.S.C. § 233(c). Applying the 10 2012) (“The position taken by the United States Attorney is 11 inconsistent with whole purpose and history of the Westfall Act. 12 . . . If every action removed pursuant to § 1442(a) and § 13 2697(d)(2) were subject to dismissal because it was not properly 14 brought in the state court, no case removed under the Westfall 15 Act could ever survive in federal court. 16 what Congress intended in passing the Act.” (internal citations 17 omitted)). 18 That clearly was not Recognizing that “Congress anticipated that suits 19 [subject to removal under § 2679(d)(2)] initially would be 20 brought in state court,” the Third Circuit has held that “federal 21 jurisdiction lies only after the Attorney General certifies that 22 the federal [employee] was acting within the scope of his 23 employment.” 24 1990); accord Stokley v. United States, No. 10–CV–01383–LTB–MEH, 25 2011 WL 1043344, at *3 (D. Colo. Mar. 17, 2011). 26 addressing § 2679(d)(2) in this Order. See, e.g., Nye, 2010 WL 931926, at *4 & n.2 (noting the similarities between the wording and removal of FTCA claims in § 233(c) and § 2679(d)(2) and the persuasiveness of a decision interpreting § 2679(d)(2) when analyzing § 233(c)). 8 27 28 Thompson v. Wheeler, 898 F.2d 406, 409 n.2 (3d Cir. The Third 1 Circuit further explained that the “possibility that such 2 certification might issue does not automatically divest a state 3 court of subject matter jurisdiction.” 4 n.2. 5 that the state court was not divested of jurisdiction even though 6 the defendant was treated as a federal employee under the 7 Westfall Act in a prior case by a different plaintiff based on 8 the same accident. Thompson, 898 F.2d at 409 In applying these principles, the Thompson court concluded 9 Id. at 409 n.2. Here, the United States sought removal under § 233(c) 10 and § 1442(a)(1).3 11 doctrine mandates dismissal under § 233(c) and § 1442(a)(1), the 12 government relies on the scope of employment certification issued 13 in Lara’s case. 14 doctrine applies, the state court lacked jurisdiction over Sutter 15 Davis’s third-party complaint only if the § 233(c) scope of 16 employment certification issued in Lara’s case had legal 17 significance in E.R.’s subsequent case. 18 States, Barnaby v. Quintos, 410 F. Supp. 2d 142 (S.D.N.Y. 2005) In arguing that the derivative jurisdiction Assuming that the derivative jurisdiction According to the United 19 3 20 21 22 23 24 25 26 27 28 The court questions, but need not resolve, the propriety of removal of the instant case under § 1442(a)(1). Absent an operative scope of employment certification under § 233(c), the United States does not suggest that removal would have been possible under § 1442(a)(1). Because reliance on the § 233(c) scope of employment certification was necessary to seek removal, it would seem that removal would be proper only under § 233(c). Accord Nye, 2010 WL 931926, at *3 (“[T]he actions of Hilo Bay Clinic and its employees were precisely within the removal jurisdiction of § 233. In fact, but for § 233 and Hilo Bay Clinic’s designation as a federal entity under that law, Hilo Bay Clinic could not have removed the action to this court. Given that § 233 specifically applied to this action, removal under the more general § 1442 was improper.” (citing Gozlon– Peretz v. United States, 498 U.S. 395, 396 (1991) (noting that “a specific [statutory] provision controls one of a more general application”))). 9 1 and A.Q.C. ex rel. Castillo v. Bronx-Lebanon Hosp., Civ. No. 11- 2 2656(NRB), 2012 WL 170902 (S.D.N.Y. Jan. 20, 2012), show that the 3 § 233(c) scope of employment certification from Lara’s case was 4 controlling in E.R.’s case. 5 In Barnaby, the patient plaintiff brought a medical 6 malpractice claim in state court against a physician and the 7 Mount Vernon Neighborhood Health Center (collectively, “clinic 8 defendants”) and a physician, lab employee, and Universal 9 Diagnostic Laboratories, Inc. (collectively, “lab defendants”). 10 The clinic defendants removed the action to federal court under § 11 1442(a)(1), § 2679(d)(2), and § 233(c). 12 at 142-44. 13 clinic defendants after certifying that they were federal 14 employees acting in the scope of their employment. 15 The district court dismissed the claims against the United States 16 for failure to comply with the FTCA and remanded the claims 17 against the lab defendants to state court. 18 Barnaby, 410 F. Supp. 2d The United States subsequently substituted for the Id. at 143. Id. Once the case was back in state court, the lab 19 defendants filed a third-party complaint against the clinic 20 defendants. 21 federal court under § 1442(a)(1), § 2679(d)(2), and § 233(c) and 22 sought dismissal based on the derivative jurisdiction doctrine. 23 Id. 24 jurisdiction doctrine applied and mandated dismissal of the 25 third-party complaint against the clinic defendants. 26 47. 27 Attorney General had already certified that the clinic defendants 28 were acting in the scope of their employment when the clinic 10 Id. The clinic defendants again removed the case to The Southern District of New York held that the derivative Id. at 145- The court distinguished Thompson on the ground that the 1 defendants first removed the case to federal court. 2 Unlike in Thompson, where the certification “was in a separate 3 lawsuit that had been settled,” the Barnaby court emphasized that 4 “the chain of the litigation [wa]s unbroken.” 5 Id. at 147. Id. at 147 n.9.4 In A.Q.C., a minor plaintiff brought suit in state 6 court alleging medical negligence in her mother’s prenatal care 7 and her delivery against her mother’s obstetrician, Dr. Paquita 8 Castillo, and Bronx-Lebanon Hospital Center. 9 *1. 2012 WL 170902, at After the Attorney General certified that Dr. Castillo was 10 an employee of the United States and acting within the scope of 11 her employment, Dr. Castillo removed the action to federal court 12 pursuant to § 233(c) and § 2679(d)(2). 13 dismissed plaintiff’s claim against Dr. Castillo for failure to 14 timely file an administrative complaint as required by the FTCA 15 and dismissed plaintiff’s claim against Bronx-Lebanon without 16 prejudice to plaintiff refilling it in state court. 17 18 Id. The federal court Id. Plaintiff filed a new action against Bronx-Lebanon in state court,5 alleging the same claims as she had in the first 19 20 21 22 23 24 25 26 27 28 4 The Barnaby court also noted that “Thompson was a case where the notice of removal was not based on Section 2679(d).” Id. at 146-47. Although it is true that the notice of removal in Thompson relied on § 1442(a)(1), the Third Circuit questioned the viability of removal under § 1442(a)(1) and amended the potentially “defective allegation of jurisdiction” under 28 U.S.C. § 1653 in order to “treat[] the petition for removal as including section 2679(d) as a basis for district court jurisdiction.” Thompson, 898 F.2d. at 410. Thompson thus cannot be distinguished as having been removed under § 1442(a)(1). 5 The A.Q.C. court noted that the dismissal of the first case and subsequent re-filing in state court did not result in a “meaningful difference” from the remand of the action in Barnaby. Id. at *5 n.3. 11 1 case. 2 complaint against Dr. Castillo for indemnification and 3 contribution. 4 Castillo was a United States employee acting within the scope of 5 her employment and removed the action to federal court under § 6 1442(a)(1), § 233(c), and § 2679(d)(2). 7 recognized that application of the derivative jurisdiction 8 doctrine as to removal under § 233(c) and § 2679(d)(2) was 9 questionable, but held that the doctrine governed the case and 10 therefore mandated dismissal because the case was also removed 11 under § 1442(a)(1).6 12 Id. at *2. Bronx-Lebanon then filed a third-party Id. The Attorney General again certified that Dr. Id. The district court Id. at *4-5. Assuming that the Barnaby and A.C.Q. courts 13 are correct in relying on a prior employment certification to 14 determine the propriety of a subsequent removal, those cases are 15 distinguishable from the case at hand. 16 the employment certifications at issue involved the same claims 17 by the same plaintiffs for the same conduct by the same federal 18 employee defendants. 19 certification for Salud Clinic and the midwives was issued with 20 respect to the alleged malpractice claims Lara asserted. 21 case at hand, Lara is no longer a plaintiff and E.R. asserts his 22 own claims for alleged malpractice. In Barnaby and A.C.Q., Here, however, the first employment In the The United States has not 23 6 24 25 26 27 28 In determining that Dr. Castillo was an officer of the United States as required for removal under § 1442(a)(1), the district court appears to have relied exclusively on the Attorney General’s certification under § 233(c) and § 2679(d)(2) from the first case. See id. at *5. As previously mentioned, the court questions the appropriateness of assessing removal under § 1442(a)(1) when it is dependent on a certification issued under a separate, more specific removal statute. 12 1 cited any authority holding that an employment certification 2 under § 233(c) issued as to conduct in one case is controlling in 3 a subsequent related case by a different plaintiff. 4 Moreover, Sutter Davis dismissed its claims against the 5 United States in Lara’s case with prejudice, and the United 6 States does not suggest that the dismissal of those claims has 7 any effect on Sutter Davis’s third-party claims in E.R.’s case. 8 Unlike in Barnaby and A.C.Q., Lara’s litigation concluded. 9 United States has not cited any authority establishing that the The 10 legal significance of the scope of employment certification 11 issued in Lara’s case survived the dismissal with prejudice of 12 the claims giving rise to the certification. 13 The procedural history of this case is more similar to 14 Thompson than Barnaby and A.C.Q. In Thompson, a Deputy United 15 States Marshal (the “deputy”) was involved in a vehicle accident 16 with Daphne Wheeler when the deputy was transporting a federal 17 prisoner. 18 against the deputy in federal court and “the action was defended 19 by the United States Attorney as it was effectively against the 20 United States” under the Westfall Act. 21 concluded, the prisoner brought an action in state court against 22 Wheeler and Wheeler filed a third-party complaint against the 23 deputy. 24 the Third Circuit treated it as removed under § 2679(d)(2). 25 at 407-08, 410. 26 federal employee in the first action by Wheeler, the Third 27 Circuit did not treat the deputy as a federal employee for the 28 purposes of the second action by the prisoner until issuance of 13 Thompson, 898 F.2d at 407. Id. Wheeler brought suit Id. After Wheeler’s case The deputy removed the case to federal court, and Id. Despite the deputy having been treated as a 1 the employment certification in that action. 2 Id. at 409 n.2. The court is also not persuaded that the prior 3 certification in Lara’s case somehow gained legal significance 4 because the connection between Salud Clinic’s and the midwives’ 5 treatment of Lara and E.R. made it highly probable that the 6 United States would issue an employment certification in E.R.’s 7 case. 8 because they relate to Lara’s prenatal care and the delivery of 9 E.R., it is hard to imagine how the certification in the second 10 case in Thompson was any less of a certainty than certification 11 in E.R.’s case. 12 carrying the prisoner (the plaintiff in the second case) at the 13 time of the accident between the deputy and Wheeler (the 14 plaintiff in the first case). 15 connection between the two actions, the Third Circuit recognized 16 that the employment certification in the second case was only a 17 “possibility” and concluded that the mere possibility could not 18 divest the state court of jurisdiction. 19 While it may be easy to conflate Lara’s and E.R.’s claims In Thompson, the deputy was driving the vehicle Despite the inescapable factual Id. Albeit in dicta, some cases could be read as suggesting 20 that the court should assess whether the state court had 21 jurisdiction in light of how probable it was that the Attorney 22 General would issue a scope of employment certification, A.Q.C., 23 2012 WL 170902, at *5, or whether the plaintiff “had a reasonable 24 basis to question” whether the state court had jurisdiction, 25 Stokley, 2011 WL 1043344, at *3. 26 not grounded in the text of the removal statutes. Such case-by-case inquiries are 27 Absent a statute or binding precedent establishing that 28 an employment certification under § 233(c) is controlling for all 14 1 subsequent cases arising from the same or related conduct by the 2 federal employee, the court will not extend the effect of an 3 employment certification beyond the claims for which it was 4 issued. 5 complaint, Salud Clinic and the midwives had not been certified 6 under § 233(c) as employees of the Public Health Service acting 7 within the scope of such employment with respect to E.R.’s 8 claims, and the state court had jurisdiction over Sutter Davis’s 9 third-party claims. At the time Sutter Davis filed its third-party Accordingly, even assuming the derivative 10 jurisdiction doctrine applies to cases removed under § 233(c) or 11 that the United States could properly remove this case under § 12 1442(a)(1), the derivative jurisdiction doctrine does not mandate 13 dismissal. 14 motion to dismiss for lack of subject matter jurisdiction. 15 The court must therefore deny the United States’ With the exception of delay and added expense to the 16 parties, the court notes that this result is precisely what would 17 have occurred if Lara had added E.R. as a plaintiff in the first 18 action as she originally sought leave to do. 19 third-party complaints, crossclaims, and counterclaims are exempt 20 from the FTCA administrative exhaustion requirements. 21 U.S.C. § 2675(a). 22 derivative jurisdiction doctrine, Sutter Davis’s only remedy 23 would be to file a direct action against the United States in 24 federal court for indemnity or contribution, which would be 25 subject to the FTCA administrative exhaustion requirements. 26 Although maintaining jurisdiction over this case may appear to 27 give Sutter Davis some advantage, Sutter Davis would have been 28 exempt from the administrative exhaustion requirements in Lara’s 15 Under the FTCA, See 28 If the court dismissed this action under the 1 action if it had filed the same claims against Salud Clinic and 2 the midwives after Lara joined E.R. as a plaintiff. 3 IT IS THEREFORE ORDERED that the United States’ motion 4 to dismiss for lack of subject matter jurisdiction be, and the 5 same hereby is, DENIED. 6 Dated: December 15, 2014 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?