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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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K.P. by and through her Guardian Ad
Litem, KERI PARNOW,
Plaintiff,

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ORDER GRANTING DEFENDANT
UNITED STATES OF AMERICA’S
MOTION TO DISMISS

v.

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No. 2:17-cv-02130-TLN-EFB

UNITED STATES OF AMERICA,
PEACH TREE LINDA, and KENNETH
FORSYTHE, M.D.,
Defendants.

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This case involves a claim under the Federal Tort Claims Act and is before the Court on

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Defendant United States of America’s (“Defendant”) Motion to Dismiss. (ECF No. 8.)

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Defendant seeks to dismiss the action for lack of subject matter jurisdiction because Plaintiff K.P.

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(“Plaintiff”) did not exhaust her administrative remedies by filing a claim with the United States

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Department of Health and Human Services before filing this action. (ECF No. 8-1 at 1.)

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Plaintiff filed a statement of non-opposition agreeing to a dismissal without prejudice of

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Defendant and remanding the action to state court to proceed against Defendant Kenneth

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Forsythe.1 (ECF No. 9.) Having carefully considered the motion and non-opposition, the Court

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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.)

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finds it lacks jurisdiction in light of Plaintiff’s failure to exhaust her administrative remedies and

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hereby DISMISSES without prejudice Defendant United States of America. This matter is

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REMANDED to the Superior Court of California, County of Yuba to continue against the sole

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remaining Defendant, Kenneth Forsythe.

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IT IS SO ORDERED.

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Dated: December 5, 2017

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Troy L. Nunley
United States District Judge

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