Teplin v. The United States of America et al

Filing 43

ORDER SETTING STATUS CONFERENCE. Status Conference set for 3/20/2018 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S. Gilliam Jr. Signed by Judge Haywood S. Gilliam, Jr. on 3/13/2018. (ndrS, COURT STAFF) (Filed on 3/13/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KRIS TEPLIN,

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Plaintiff,

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ORDER SETTING STATUS
CONFERENCE

v.

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THE UNITED STATES OF AMERICA, et
al.,

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United States District Court
Northern District of California

Case No.17-cv-02445-HSG

Defendants.

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Pending before the Court are motions to dismiss by Defendants Wendi Joiner, Dkt. No.

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121, and the United States, Dkt. No. 17.

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On February 25, 2016, prior to bringing the instant action, Plaintiff Kris Teplin filed a

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lawsuit in state court that named, as relevant here, Joiner, Coastal Health Alliance, and Steven

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Siegel. See Teplin v. Joiner, No. 16-cv-4416-KAW, Dkt. No. 1 at 13-16. She alleged one cause

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of action for professional negligence/medical malpractice. Id. at 15. On August 5, 2016, the

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United States filed a notice of removal because Coastal Health Alliance was “deemed eligible for

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FTCA [Federal Tort Claims Act] malpractice coverage . . . and its employees [i.e., Joiner and

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Siegel] are covered under the FTCA.” Id. ¶ 3. In the notice, the United States represented that it

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“ha[d] certified that [Joiner and Siegel] were acting within the course and scope of their

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employment with Coastal Health Alliance.” Id. ¶ 4. Separately, the United States filed a

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certification “pursuant to 28 U.S.C. § 2679(d).” Teplin v. Joiner, No. 16-cv-4416-KAW, Dkt. No.

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2. While the certification does not so specify, the cited statute provides that, for an action filed in

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state court, “[t]his certification of the Attorney General shall conclusively establish scope of office

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All docket references are to this case unless otherwise indicated.

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or employment for purposes of removal.” See 28 U.S.C. § 2679(d)(2). Accordingly, upon

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certification, the “action or proceeding shall be deemed to be an action or proceeding brought

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against the United States,” paving the way for removal. See id. The parties subsequently

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stipulated that the United States would be “substituted as the party defendant in place of” Joiner,

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Siegel, and Coastal Health Alliance, and dismissed the case without prejudice on August 9, 2016.

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Teplin v. Joiner, No. 16-cv-4416-KAW, Dkt. No. 6 at 2.
On April 28, 2017, Plaintiff filed the instant action, bringing three causes of action against

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Joiner and the United States. She asserts the following claims: (1) wrongful death under the Drug

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Dealer Liability Act, Cal. Health & Safety Code §§ 11700 et seq. (“DDLA”), against the United

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States and Joiner; (2) wrongful death based on non-medical negligence against the United States;

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United States District Court
Northern District of California

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and (3) wrongful death based on medical negligence against the United States. See Dkt. No. 1.

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Additionally, within each cause of action, Plaintiff asserts a sub-claim against the United States of

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negligent hiring, supervision, employment, and retention. See id. Plaintiff appears to ground her

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claims against the United States in the FTCA. Here, however, unlike in Plaintiff’s first lawsuit,

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the United States has not filed a certification—notwithstanding its apparent belief that the

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certification from the previous case before Judge Westmore is still in effect. See Dkt. No. 22 at 6-

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7. Further complicating factors is Plaintiff’s assertion of two additional causes of action that were

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not present in her initial suit (i.e., the DDLA claim and the claim for wrongful death based on non-

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medical negligence), and therefore not part of the United States’ initial certification calculus.

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It seems unlikely that the United States’ certification from the case before Judge Westmore

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is binding in this case. Nor is it clear whether or how Plaintiff’s additional claims affect the scope

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of the certification. This issue potentially has ramifications for the substantive outcome of

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Plaintiff’s claims. Compare 28 U.S.C. § 2679(d)(1) (“Upon certification by the Attorney General

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that the defendant employee was acting within the scope of his office or employment at the time of

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the incident out of which the claim arose, any civil action or proceeding commenced upon such

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claim in a United States district court shall be deemed an action against the United States . . . and

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the United States shall be substituted as the party defendant.”), with id. § 2679(d)(3) (“In the event

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that the Attorney General has refused to certify scope of office or employment under this section,
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the employee may at any time before trial petition the court to find and certify that the employee

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was acting within the scope of his office or employment.”). None of the parties have meaningfully

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addressed the certification issue, which could bear on the question of whether Joiner’s conduct

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was within the scope of her employment, and thus on whether the United States could be liable

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under the FTCA.

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Accordingly, the Court SETS a status conference for March 20, 2018 at 10:00 a.m. The

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parties should be prepared to discuss the certification issue described above, and how it impacts

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the resolution of the pending motions to dismiss.

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IT IS SO ORDERED.
Dated: 3/13/2018

United States District Court
Northern District of California

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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