G.H. v. Sutter Davis Hospital et al

Filing 14

ORDER signed by Chief Judge Morrison C. England, Jr on 7/1/15 GRANTING 4 Motion to Dismiss. The United States is DISMISSED from this action without prejudice and this case is REMANDED to the Yolo County Superior Court. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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G.H. by and through his Guardian Ad
Litem ALEJANDRO HERNANDEZ,
Plaintiff,

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v.

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No. 2:15-cv-00813-MCE-KJN

MEMORANDUM AND ORDER

SUTTER DAVIS HOSPITAL;
BETHELEN JOHNSON, M.D.; UNITED
STATES, and DOES 1 through 100,
inclusive,

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Defendants.

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Presently before the Court is Defendant United States’ Motion to Dismiss the

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Complaint for lack of subject matter jurisdiction. ECF No. 4. For the reasons discussed

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below, the Motion is GRANTED.1

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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. See E.D. Cal. Local R. 230(g).

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BACKGROUND

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Plaintiff G.H. (“Plaintiff”) was born on April 27, 2013 at Sutter Davis Hospital.

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Dr. Bethelen Johnson and Christi Stone, C.N.M. assisted with Plaintiff’s delivery.

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Compl., ECF No. 1-1, ¶ 7. Plaintiff remained in the hospital until May 1, 2013. Id. ¶ 8.

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Plaintiff received follow-up care from Dr. Betsy Meux and Nidia Ochoa, P.A. on May 2

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and again on May 6, 2013 at Davis Community Clinic. Id. ¶¶ 9-10. From May 2 to May

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5, 2013, Plaintiff was readmitted to Sutter Davis Hospital and treated by Dr. Janice Kim.2

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Id. On May 7, 2013, Plaintiff was once again readmitted to Sutter Davis Hospital, this

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time with recognized seizure activity and a diagnosis of intracerebral hemorrhage. Id.

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¶ 11.

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Plaintiff, through his Guardian Ad Litem, brought the present action in Yolo

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County Superior Court on January 29, 2014. Plaintiff’s Complaint alleges medical

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malpractice against Sutter Davis Hospital, Davis Community Clinic, and the various

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medical staff involved in his birth and follow-up care. Pursuant to the Federally

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Supported Health Centers Assistance Act (“FSHCAA”), Davis Community Clinic is a

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supported health center and, thus, its employees are deemed federal employees for the

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purpose of liability protection under the Federal Tort Claims Act (“FTCA”). ECF No. 1-3;

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42 U.S.C. § 233(g)-(n). Defense counsel notified Plaintiff on or about March 18, 2014,

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that defense of the Clinic and its employees had been tendered to the United States

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government.

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On July 17, 2014, Plaintiff filed an administrative claim with the United States

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Department of Health and Human Services. The administrative claim was denied in

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March 2015.3 On April 15, 2015, the United States substituted in for Davis Community

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Clinic and its employees and removed the action to this Court. On April 22, 2015,

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The Attorney General later determined that Dr. Kim was in fact an employee of Davis Community
Hospital. See ECF No. 1-3.
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Plaintiff states that the claim has yet to be decided, but the United States has submitted evidence
showing the claim was indeed denied via a letter dated March 19, 2015. See Reply, ECF No. 11-1, at 4.

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Defendant filed the instant Motion to Dismiss on the grounds that this Court lacks subject

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matter jurisdiction because Plaintiff failed to exhaust his administrative remedies as

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required by the FTCA.

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STANDARD

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Federal courts are courts of limited jurisdiction, and are presumptively without

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jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

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377 (1994). The burden of establishing the contrary rests upon the party asserting

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jurisdiction. Id. Because subject matter jurisdiction involves a court’s power to hear a

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case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630

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(2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at

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any point during the litigation, through a motion to dismiss pursuant to Federal Rule of

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Civil Procedure 12(b)(1).1 Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also

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Int’l Union of Operating Eng’rs v. Cnty. of Plumas, 559 F.3d 1041, 1043-44 (9th Cir.

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2009). Lack of subject matter jurisdiction may also be raised by the district court sua

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sponte. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Indeed, “courts

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have an independent obligation to determine whether subject matter jurisdiction exists,

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even in the absence of a challenge from any party.” Id.; see Fed. R. Civ. P. 12(h)(3)

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(requiring the court to dismiss the action if subject matter jurisdiction is lacking).

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There are two types of motions to dismiss for lack of subject matter jurisdiction: a

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facial attack, and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp.,

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594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the

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allegations of jurisdiction contained in the nonmoving party’s complaint, or may

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challenge the existence of subject matter jurisdiction in fact, despite the formal

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sufficiency of the pleadings. Id.

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.

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When a party makes a facial attack on a complaint, the attack is unaccompanied

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by supporting evidence, and it challenges jurisdiction based solely on the pleadings.

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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If the motion to

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dismiss constitutes a facial attack, the Court must consider the factual allegations of the

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complaint to be true, and determine whether they establish subject matter jurisdiction.

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Savage v. Glendale High Union Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir.

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2003). In the case of a facial attack, the motion to dismiss is granted only if the

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nonmoving party fails to allege an element necessary for subject matter jurisdiction. Id.

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However, in the case of a facial attack, district courts “may review evidence beyond the

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complaint without converting the motion to dismiss into a motion for summary judgment.”

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Safe Air for Everyone, 373 F.3d at 1039.

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In the case of a factual attack, “no presumptive truthfulness attaches to plaintiff’s

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allegations.” Thornill, 594 F.2d at 733 (internal citation omitted). The party opposing the

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motion has the burden of proving that subject matter jurisdiction does exist and must

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present any necessary evidence to satisfy this burden. St. Clair v. City of Chico,

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880 F.2d 199, 201 (9th Cir. 1989). If the plaintiff’s allegations of jurisdictional facts are

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challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the

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mere assertion that factual issues may exist. Trentacosta v. Frontier Pac. Aircraft Ind.,

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Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting Exch. Nat’l Bank of Chi. v. Touche

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Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the district court may

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review any evidence necessary, including affidavits and testimony, in order to determine

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whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d 558, 560

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(9th Cir. 1988); Thornhill, 594 F.2d at 733. If the nonmoving party fails to meet its

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burden and the court determines that it lacks subject matter jurisdiction, the court must

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dismiss the action. Fed. R. Civ. P. 12(h)(3).

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ANALYSIS

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The government contends that Plaintiff’s claims against the United States should

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be dismissed for lack of subject matter jurisdiction because Plaintiff filed his Complaint

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before exhausting his administrative remedies under the FTCA.

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Under the FSHCAA, “[u]pon a certification by the Attorney General that the

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defendant was acting in the scope of his employment at the time of the incident out of

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which the suit arose, any such civil action . . . shall be [removed] and deemed a tort

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action brought against the United States . . . .” 42 U.S.C. § 233(c). Here, the Attorney

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General certified that Defendants Betsy Meux, M.D., Nidia Ochoa, P.A., Janice Kim,

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M.D., and Christi Stone, C.N.M., were at all relevant times employees of Davis

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Community Clinic, a deemed and supported health center and grantee of the United

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States Department of Health & Human Services. ECF No 1–3. Accordingly, the instant

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action is a tort action brought against the United States, along with Sutter Davis Hospital

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and Dr. Johnson. As a result, the FTCA is the exclusive remedy available to Plaintiff for

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his claims against the United States. 28 U.S.C. § 2679(b)(1).

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The FTCA requires “that before [a party] can file an action against the United

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States in district court, [it] must seek an administrative resolution of [its] claim.” Jerves v.

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United States, 966 F.2d 517, 518 (9th Cir. 1992). Administrative resolution is satisfied

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when the claim is officially denied or has been pending for six months with the agency.

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28 U.S.C. § 2675(a). The Ninth Circuit “[has] repeatedly held that the exhaustion

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requirement is jurisdictional in nature and must be interpreted strictly.” Vacek v. U.S.

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Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006).

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Here, Plaintiff filed his lawsuit on January 29, 2014, but did not submit his

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administrative claim to the United States Department of Health and Human Services until

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July 17, 2014. The United States argues that under McNeil v. United States, 508 U.S.

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106 (1993), this action must be dismissed. In McNeil, the Supreme Court affirmed

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dismissal of a FTCA lawsuit filed by a pro se inmate prior to the exhaustion of his
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administrative remedies. Some circuit courts had previously held that a plaintiff did not

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need to meet the exhaustion requirements prior to filing if “no substantial progress” had

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been made in the case when exhaustion occurred. The Supreme Court disagreed,

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finding that it was clear “Congress intended to require complete exhaustion of Executive

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remedies before invocation of the judicial process.” Id. at 112.

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Plaintiff counters that unlike the situation in McNeil, this case did not originally

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contain an FTCA claim; rather, the action was based only on state malpractice law.

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Further, Plaintiffs note that by the time the United States substituted into the action on

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April 15, 2015, it had been more than six months since the administrative claim was

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filed, thus satisfying the exhaustion requirements. Plaintiff cites to two cases in support

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of his argument, but neither compels the Court to deny the pending Motion.

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In Valadez-Lopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011), an immigration

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detainee filed suit against federal and local officials and simultaneously filed an

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administrative claim. Six months later, Valadez-Lopez amended his complaint to add a

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claim against the United States under the FTCA. The Ninth Circuit found that Valadez-

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Lopez had properly exhausted his administrative remedies under the FTCA because his

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“original complaint neither named the United States as a defendant nor stated a claim

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under the Act. He only amended his complaint to name the United States and include

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an FTCA cause of action after the government had failed to respond to his administrative

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claims within six months.” Id. at 855.

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In Walters v. Mercy Hospital Grayling, No. 13-cv-13282, 2013 WL 5775367 (E.D.

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Mich. Oct. 25, 2013), the district court relied on the Valadez-Lopez decision to decide a

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case similar to the case now before the Court. There, the plaintiff filed an administrative

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law claim with the Department of Health and Human Services but did not wait the

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requisite time before filing a state law action against a Federally Qualified Health Center

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and its physicians. However, one month prior to the substitution by the United States

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and the addition of a FTCA claim by plaintiff, plaintiff’s administrative claim was denied,

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thereby exhausting the administrative remedies. The district court held that this
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sequence of events satisfied McNeil because the original complaint did not name the

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United States or include an FTCA claim. Additionally, the district court held that

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dismissing the case only to have the plaintiff refile “would undermine the objectives of

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the exhaustion requirement recognized in McNeil: saving judicial resources and

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promoting settlement.” Id. at *3 (quoting Valadez-Lopez, 656 F.3d at 857).

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What distinguishes this case from the binding precedent in Valadez-Lopez, is that

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Plaintiff is not seeking to add an FTCA claim by amendment. Rather, this case was

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deemed an FTCA action once the Attorney General certified that the Davis Community

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Clinic Defendants were acting within the scope of their employment during all relevant

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times. See J.H. ex rel. Gallegos v. Cnty. of Kern, No. 1:13-CV-00500-LJO, 2014 WL

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1116985, at *3 (E.D. Cal. Mar. 19, 2014) (“Although plaintiffs do not explicitly state a

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FTCA claim against the United States; pursuant to the FSHCAA, their claims against

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Dr. Garcia are ‘deemed a tort action brought against the United States.’”) (quoting

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42 U.S.C. § 233(c)). It was only Plaintiff’s lack of due diligence in researching the Davis

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Community Clinic Defendants that caused this case to be brought under state law claims

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and not the FTCA.

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The Court is tempted to follow the reasoning in Walters and extend the leniency

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displayed by the Ninth Circuit in Valadez-Lopez to the current case.4 Certainly there is

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little to be gained from dismissing the United States only to have Plaintiff quickly amend

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the Complaint to add the United States under the precedent set in Valadez-Lopez. But

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ultimately, in its attempt to avoid a perceived inequitable result, the court in Walters

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draws too fine of a distinction with McNeil. In McNeil, the Supreme Court made clear

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that the “FTCA bars claimants from bringing suit . . . until they have exhausted their

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administrative remedies.” 508 U.S. at 113. The Supreme Court even acknowledged

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that such strict adherence to the statutory language would often lead to inequitable

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The holding in Walters is not binding on this Court. See Camreta v. Greene, 131 S. Ct. 2020,
2033 n.7 (“A decision of a federal district court judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge in a different case.”).

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results, but held that “in the long run, experience teaches that strict adherence to the

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procedural requirements specified by the legislature is the best guarantee of even-

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handed administration of the law.” Id. at 113. Thus, while the Court is sympathetic to

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Plaintiff’s predicament, Courts may not “proceed in the absence of fulfillment of the

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conditions merely because dismissal would visit a harsh result upon the plaintiff.” Vacek,

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447 F.3d at 1250. Accordingly, the United States is dismissed from this action without

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prejudice. See Frigard v. United States, 862 F.2d 201, 204 (9th Cir.1988) (per curiam)

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(“a case dismissed for lack of subject matter jurisdiction should be dismissed without

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prejudice so that a plaintiff may reassert his claims in a competent court”).

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With respect to the state-law negligence claims that are alleged against

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Defendants Sutter Davis Hospital and Dr. Johnson, this Court does not appear to have

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original jurisdiction under 28 U.S.C. § 1332 because complete diversity of citizenship is

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lacking. The Plaintiff is a California resident and the two Defendants are a California

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hospital with its principal place of business in Yolo County and a California resident,

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respectively. Compl., ECF No. 1-1, ¶¶ 1-2. Additionally, the remaining claims against

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these Defendants are based on state malpractice law. See Compl. (alleging two causes

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of action: one for medical negligence and one under Elam v. College Park Hospital,

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132 Cal. App. 3d 332 (1982)).5 Therefore, the Court must remand this case to Yolo

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County Superior Court.

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To the extent the Court has supplemental jurisdiction over these additional state-law claims
pursuant to 28 U.S.C. § 1367(a), exercise of such jurisdiction is declined. See 28 U .S.C. § 1367(c)(3)
(“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if
. . . the district court has dismissed all claims over which it has original jurisdiction.”).

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CONCLUSION

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For the foregoing reasons, Defendant United States’ Motion to Dismiss (ECF

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No. 4) is GRANTED. The United States is DISMISSED from this action without

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prejudice. The case is REMANDED to Yolo County Superior Court. The Clerk of the

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Court is directed to close this case.

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IT S SO ORDERED.

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Dated: July 1, 2015

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