Ponomarenko et al v. Galens et al
Filing
24
ORDER Granting Motion to Dismiss with Leave to Amend. Signed by Judge Vince Chhabria on 1/28/2025. (vclc2, COURT STAFF) (Filed on 1/28/2025)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
PAVEL PONOMARENKO, et al.,
Case No. 24-cv-07913-VC
Plaintiffs,
ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND
v.
JEFFREY GALENS, et al.,
Re: Dkt. No. 6
Defendants.
The motion to dismiss is granted with leave to amend. In its notice of removal, the
government certified that Galens was acting within the scope of his federal employment at the
time of the conduct alleged. Dkt. No. 1, Notice of Removal ¶ 4 (citing 28 U.S.C. § 2679(d)(2)).
So the United States, not Galens or the Department of Veterans Affairs, is the proper defendant
under the Federal Tort Claims Act (FTCA), which is the only means for the plaintiffs to get
around sovereign immunity on their negligence claim. 28 U.S.C. § 1346(b); see also Kennedy v.
U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (“The FTCA is the exclusive remedy
for tort actions against a federal agency. . .”). But the complaint does not speak to whether the
plaintiffs have complied with the FTCA’s exhaustion requirements, which is required for this
Court to exercise subject matter jurisdiction. 28 U.S.C. § 2675(a); see also Brady v. United
States, 211 F.3d 499, 502 (9th Cir. 2000). In addition, the complaint contains no factual
allegations that could lead to an inference that the plaintiffs have a viable negligence claim.
In their opposition to the motion to dismiss, the plaintiffs provided assurances that, given
leave to amend, they could satisfy the FTCA’s prerequisites and allege facts sufficient to
establish a cause of action. Any amended complaint is due with twenty-one days of this order.
The initial case management conference currently scheduled for February 14, 2025, is continued
to March 28, 2025.
IT IS SO ORDERED.
Dated: January 28, 2025
______________________________________
VINCE CHHABRIA
United States District Judge
2
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