Barbara J Riede et al v. Rosa Olmos, ASW et al

Filing 23

ORDER by Judge Hamilton granting 8 Motion to Dismiss and remanding case (pjhlc2, COURT STAFF) (Filed on 6/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BARBARA J. RIEDE, et al.,

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United States District Court
Northern District of California

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Case No. 15-cv-1874-PJH

Plaintiffs,

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v.

ORDER GRANTING MOTION TO
DISMISS AND REMANDING CASE

ROSA OLMOS, et al.,
Defendants.

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Defendants’ motion to dismiss came on for hearing before this court on June 24,

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2015. Plaintiffs Barbara Reide and Mike Reide (“plaintiffs”) appeared through their

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counsel, William Paynter. Defendants Community Health Clinic Olé, Rosa Olmos, Evelyn

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Cazares, Laura Paoletti, Charlene Reilly, Pamela Higgins, Jennifer Despres, Rebecca

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Levy-Gantt, and Jerome Solomon (“the moving defendants”) appeared through their

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counsel, Rebecca Falk. Defendants Napa Obstetrics and Gynecologists/Queen of the

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Valley Medical Center and St. Joseph Health/Queen of the Valley Medical Center (“the

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non-moving defendants”) appeared through their counsel, Lauren Tate. Having read the

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papers filed in conjunction with the motion and carefully considered the arguments and

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the relevant legal authority, and good cause appearing, the court hereby GRANTS the

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motion to dismiss as stated at the hearing, and as follows.

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The moving defendants have filed a certification asserting that Community Health

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Clinic Olé is covered by the Federal Tort Claims Act (“FTCA”), as are its employees

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(specifically, Olmos, Cazares, Paoletti, Reilly, Higgins, Despres, Levy-Gantt, and

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Solomon), who were acting within the scope of their employment at the time of the

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incidents alleged in this suit. See Dkt. 2, ¶ 2. Based on the certification, the moving

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defendants argue that the claims against them should be dismissed, and that the United

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States should be substituted in their place.

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Plaintiffs do not challenge the substitution as to Community Health Clinic Olé, but

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argue that there are factual disputes as to whether the individual defendants were acting

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within the scope of their employment, and thus, request that dismissal and substitution be

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denied at this time.

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The government’s certification constitutes prima facie evidence that the employees
were acting in the scope of their employment. Billings v. U.S., 57 F.3d 797, 800 (9th Cir.
1995); Pauly v. Dept. of Agriculture, 348 F.3d 1143, 1151 (9th Cir. 2003). The

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United States District Court
Northern District of California

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certification is conclusive unless challenged, and may be overcome only by “presenting

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evidence and disproving the Attorney General’s certification by a preponderance of the

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evidence.” Billings, 57 F.3d at 800. Plaintiffs admit that they cannot meet this standard,

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and instead request the opportunity to take the deposition of at least one of the

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employees. Based on plaintiffs’ failure to meet the preponderance of the evidence

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standard, the moving defendants’ request that they be dismissed and that the United

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States be substituted is GRANTED.

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The moving defendants then request that the claims against the United States be

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dismissed for failure to exhaust under the FTCA. Indeed, the Supreme Court has held

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that “the FTCA bars claimants from bringing suit in federal court until they have

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exhausted their administrative remedies,” and specifically rejected the argument that

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exhaustion need not necessarily occur before the filing of a lawsuit, and need only occur

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before “substantial progress” is made in the suit. McNeil v. U.S., 508 U.S. 106 (1993).

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As a result, the claims against the United States are DISMISSED for failure to exhaust,

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though the dismissal is without prejudice to re-filing the claims after exhaustion.

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Finally, the court finds that it lacks subject matter jurisdiction over the remaining

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claims, asserted against Napa Obstetrics and Gynecologists/Queen of the Valley Medical

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Center, St. Joseph Health/Queen of the Valley Medical Center, Julio Espinosa, Richard
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Wa
aters, and Francine Morisette. Though the c
F
court may a
address the issue of s
e
subject

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ma
atter jurisdic
ction sua sp
ponte, the non-moving defendant raised th issue at t hearing
n
g
ts
he
the
g

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by requesting remand, and plaintiffs did not op
g
a
s
ppose the r
request. Ac
ccordingly, as to the

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portion of the case that has not bee dismisse (i.e., the claims brought agains Napa
h
en
ed
st

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Ob
bstetrics and Gynecolo
ogists/Quee of the Va
en
alley Medic Center, S Joseph
cal
St.

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He
ealth/Queen of the Valley Medical Center, Ju Espinos Richard Waters, a
n
ulio
sa,
d
and

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Fra
ancine Morisette), the case is RE
EMANDED to the Napa County S
a
Superior Court.
USION
CONCLU

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For the foregoing reasons, defendants Community Health Clinic Olé, Ro Olmos,
e
d
y
osa
,
Ev
velyn Cazar
res, Laura Paoletti, Ch
P
harlene Reillly, Pamela Higgins, Jennifer Des
a
spres,

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United States District Court
Northern District of California

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Re
ebecca Levy
y-Gantt, an Jerome Solomon ar DISMISS
nd
S
re
SED from th case and the
he
d

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Un
nited States is substituted in their place; the claims aga
s
ainst the Un
nited States are
s

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DIS
SMISSED without prej
w
judice pend
ding adminiistrative exhaustion; a the claim against
and
ms

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Na Obstetr and Gynecologists
apa
rics
s/Queen of the Valley Medical Ce
enter, St. Jo
oseph

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He
ealth/Queen of the Valley Medical Center, Ju Espinos Richard Waters, a
n
ulio
sa,
d
and

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Fra
ancine Morisette are REMANDED to the Na County Superior C
R
D
apa
Court.

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IT IS SO ORDER
S
RED.
ated: June 24, 2015
Da
__
__________
__________
__________
_______
PH
HYLLIS J. H
HAMILTON
Un
nited States District Ju
s
udge

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