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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KRIS TEPLIN, 7 Plaintiff, 8 ORDER SETTING STATUS CONFERENCE v. 9 THE UNITED STATES OF AMERICA, et al., 10 11 United States District Court Northern District of California Case No.17-cv-02445-HSG Defendants. 12 Pending before the Court are motions to dismiss by Defendants Wendi Joiner, Dkt. No. 13 14 121, and the United States, Dkt. No. 17. 15 On February 25, 2016, prior to bringing the instant action, Plaintiff Kris Teplin filed a 16 lawsuit in state court that named, as relevant here, Joiner, Coastal Health Alliance, and Steven 17 Siegel. See Teplin v. Joiner, No. 16-cv-4416-KAW, Dkt. No. 1 at 13-16. She alleged one cause 18 of action for professional negligence/medical malpractice. Id. at 15. On August 5, 2016, the 19 United States filed a notice of removal because Coastal Health Alliance was “deemed eligible for 20 FTCA [Federal Tort Claims Act] malpractice coverage . . . and its employees [i.e., Joiner and 21 Siegel] are covered under the FTCA.” Id. ¶ 3. In the notice, the United States represented that it 22 “ha[d] certified that [Joiner and Siegel] were acting within the course and scope of their 23 employment with Coastal Health Alliance.” Id. ¶ 4. Separately, the United States filed a 24 certification “pursuant to 28 U.S.C. § 2679(d).” Teplin v. Joiner, No. 16-cv-4416-KAW, Dkt. No. 25 2. While the certification does not so specify, the cited statute provides that, for an action filed in 26 state court, “[t]his certification of the Attorney General shall conclusively establish scope of office 27 28 1 All docket references are to this case unless otherwise indicated. 1 or employment for purposes of removal.” See 28 U.S.C. § 2679(d)(2). Accordingly, upon 2 certification, the “action or proceeding shall be deemed to be an action or proceeding brought 3 against the United States,” paving the way for removal. See id. The parties subsequently 4 stipulated that the United States would be “substituted as the party defendant in place of” Joiner, 5 Siegel, and Coastal Health Alliance, and dismissed the case without prejudice on August 9, 2016. 6 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 8 Joiner and the United States. She asserts the following claims: (1) wrongful death under the Drug 9 Dealer Liability Act, Cal. Health & Safety Code §§ 11700 et seq. (“DDLA”), against the United 10 States and Joiner; (2) wrongful death based on non-medical negligence against the United States; 11 United States District Court Northern District of California 7 and (3) wrongful death based on medical negligence against the United States. See Dkt. No. 1. 12 Additionally, within each cause of action, Plaintiff asserts a sub-claim against the United States of 13 negligent hiring, supervision, employment, and retention. See id. Plaintiff appears to ground her 14 claims against the United States in the FTCA. Here, however, unlike in Plaintiff’s first lawsuit, 15 the United States has not filed a certification—notwithstanding its apparent belief that the 16 certification from the previous case before Judge Westmore is still in effect. See Dkt. No. 22 at 6- 17 7. Further complicating factors is Plaintiff’s assertion of two additional causes of action that were 18 not present in her initial suit (i.e., the DDLA claim and the claim for wrongful death based on non- 19 medical negligence), and therefore not part of the United States’ initial certification calculus. 20 It seems unlikely that the United States’ certification from the case before Judge Westmore 21 is binding in this case. Nor is it clear whether or how Plaintiff’s additional claims affect the scope 22 of the certification. This issue potentially has ramifications for the substantive outcome of 23 Plaintiff’s claims. Compare 28 U.S.C. § 2679(d)(1) (“Upon certification by the Attorney General 24 that the defendant employee was acting within the scope of his office or employment at the time of 25 the incident out of which the claim arose, any civil action or proceeding commenced upon such 26 claim in a United States district court shall be deemed an action against the United States . . . and 27 the United States shall be substituted as the party defendant.”), with id. § 2679(d)(3) (“In the event 28 that the Attorney General has refused to certify scope of office or employment under this section, 2 1 the employee may at any time before trial petition the court to find and certify that the employee 2 was acting within the scope of his office or employment.”). None of the parties have meaningfully 3 addressed the certification issue, which could bear on the question of whether Joiner’s conduct 4 was within the scope of her employment, and thus on whether the United States could be liable 5 under the FTCA. 6 Accordingly, the Court SETS a status conference for March 20, 2018 at 10:00 a.m. The 7 parties should be prepared to discuss the certification issue described above, and how it impacts 8 the resolution of the pending motions to dismiss. 9 10 IT IS SO ORDERED. Dated: 3/13/2018 United States District Court Northern District of California 11 12 HAYWOOD S. GILLIAM, JR. United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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