K.P. v. Peach Tree Healthcare et al

Filing 12

ORDER signed by District Judge Troy L. Nunley on 12/05/17 GRANTING 8 Motion to Dismiss for Lack of Jurisdiction and DISMISSES without prejudice Defendant USA; REMANDING CASE to Yuba County Superior Court to continue against the sole remaining Defendant, Kenneth Forsythe. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 K.P. by and through her Guardian Ad Litem, KERI PARNOW, Plaintiff, 13 16 ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA’S MOTION TO DISMISS v. 14 15 No. 2:17-cv-02130-TLN-EFB UNITED STATES OF AMERICA, PEACH TREE LINDA, and KENNETH FORSYTHE, M.D., Defendants. 17 18 This case involves a claim under the Federal Tort Claims Act and is before the Court on 19 20 Defendant United States of America’s (“Defendant”) Motion to Dismiss. (ECF No. 8.) 21 Defendant seeks to dismiss the action for lack of subject matter jurisdiction because Plaintiff K.P. 22 (“Plaintiff”) did not exhaust her administrative remedies by filing a claim with the United States 23 Department of Health and Human Services before filing this action. (ECF No. 8-1 at 1.) 24 Plaintiff filed a statement of non-opposition agreeing to a dismissal without prejudice of 25 Defendant and remanding the action to state court to proceed against Defendant Kenneth 26 Forsythe.1 (ECF No. 9.) Having carefully considered the motion and non-opposition, the Court 27 1 28 The United States determined Kenneth Forsythe was not an employee for the purposes of the Federal Tort Claims Act and Forsythe is represented by separate counsel. (ECF No. 8-1 at 2 n.2.) 1 1 finds it lacks jurisdiction in light of Plaintiff’s failure to exhaust her administrative remedies and 2 hereby DISMISSES without prejudice Defendant United States of America. This matter is 3 REMANDED to the Superior Court of California, County of Yuba to continue against the sole 4 remaining Defendant, Kenneth Forsythe. 5 IT IS SO ORDERED. 6 7 Dated: December 5, 2017 8 9 10 Troy L. Nunley United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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