Neaman et al v. Peraza et al

Filing 28

ORDER denying as moot 12 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge James C. Mahan on 2/4/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SPENCER NEAMAN, et al.,

Case No. 2:14-CV-1307 JCM (NJK)

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Plaintiff(s),

ORDER

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v.
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UNITED STATES OF AMERICA EX REL
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.

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Defendant(s).
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Presently before the court is defendant United States of America’s (hereinafter “United

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States”) motion to dismiss. (Doc. # 12). Plaintiffs Spencer and Jacqueline Neaman (hereinafter
“plaintiffs”) filed a response. (Doc. # 19). The United States did not file a reply, and the deadline
to reply has now passed.
I.

This is a personal injury medical malpractice case. Plaintiffs are suing in their individual

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capacities and as representatives of their now 11-year-old daughter, Fawn Neaman (“Fawn”).
(Doc. # 26).
On March 4, 2013, plaintiffs took Fawn to the Wendover Community Health Center

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James C. Mahan
U.S. District Judge

Background

(“WCHC”) for evaluation and treatment of acute abdominal pain. WCHC is owned by Nevada
Health Centers, Inc. (“NHC”), a federally-subsidized network of health clinics in Nevada. (Doc.
# 26).
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Fawn was treated by a physician’s assistant named Emilse Peraza (“Peraza”). Plaintiffs

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allege that there are no medical doctors practicing at WCHC despite Nevada law’s requirement

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that a physician’s assistant must be supervised by a board certified physician. (Doc. # 26).

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Peraza diagnosed Fawn with gastroenteritis and an upper respiratory infection. She was
treated with a prescription for Bactrim DS. After returning home, Fawn’s symptoms persisted.
Plaintiffs called the clinic and were told that the clinic could not accommodate them at that time.
Plaintiffs set an appointment for a few days later.

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Plaintiffs eventually decided to take Fawn to Primary Children’s Medical Center

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(“PCMC”) in Salt Lake City, Utah, on March 10, 2013. Upon arrival at PCMC, physicians noted

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that Fawn had a variety of serious medical problems. She was diagnosed with a ruptured appendix.
She had contracted bacteremia and peritonitis. (Doc. # 26).

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Fawn’s bacteremia and peritonitis were so advanced by the time she reached PCMC that
her care providers could not prevent the onset of meningitis and other serious infectious diseases.
Fawn’s nervous system was severely damaged, and she was permanently rendered quadriplegic.
(Doc. # 26).

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On February 28, 2014, plaintiffs filed a complaint in Nevada state court alleging negligence
and medical malpractice against Peraza; Nevada Health Centers, Inc. dba Wendover Community
Health Center; and several Doe defendants. (Doc. # 1-1). Peraza and NHC then removed the
action to federal court under the Federal Tort Claims Act (“FTCA”). (Doc. # 1).

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On September 17, 2014, plaintiffs filed an amended complaint against the United States of
America, ex rel United States Department of Health and Human Services; and various Doe
defendants. (Doc. # 6).

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On November 19, 2014, the United States filed a motion to dismiss for lack of jurisdiction.
(Doc. # 12). On January 21, 2015, plaintiffs filed a second amended complaint removing all Doe
defendants. (Doc. # 26).
II.

Legal Standard

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James C. Mahan
U.S. District Judge

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A court may dismiss a plaintiff’s complaint for lack of subject matter jurisdiction. Fed. R.
Civ. P. 12(b)(1). Federal Rule of Civil Procedure 12(b)(1) permits a party to assert this defense
by motion. Id. When presented as a factual challenge, a rule 12(b)(1) motion can be supported by
affidavits or other evidence outside of the pleadings. United States v. LSL Biotechs., 379 F.3d 672,
700 n.14 (9th Cir. 2004) (citing St. Clair v. City of Chicago, 880 F.2d 199, 201 (9th Cir. 1989)).

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“A plaintiff suing in federal court must show in his pleading, affirmatively and distinctly,
the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on
having the defect called to its attention or on discovering the same, must dismiss the case.” Tosco
Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001).
III.

Discussion

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In its motion, the United States moves to dismiss plaintiffs’ claims against the Department

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of Health and Human Services (“DHHS”) and all Doe defendants. The United States claims that

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it is the only proper party to an action under the Federal Tort Claims Act. Accordingly, it argues
that plaintiffs improperly reference DHHS as a defendant throughout their complaint, and that all
Doe defendants should be removed as parties. (Doc. # 12).
Plaintiffs’ second amended complaint removed the Doe defendants, and does not list

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DHHS as a defendant. The caption lists only “United States of America ex rel United States

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Department of Health and Human Services.” Plaintiffs further indicate in their complaint that “the

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James C. Mahan
U.S. District Judge

United States is substituted as the sole FTCA defendant in this action . . . .” All references to
DHHS as a defendant have been removed. (Doc. # 26).
For this reason, the court will deny the instant motion to dismiss as moot. Notably, the
United States additionally argues that plaintiffs’ claims for respondeat superior should be
dismissed. The United States contends that respondeat superior is not an independent cause of
action in Nevada and thus is an improper basis for plaintiffs’ FTCA claims. (Doc. # 12).
Plaintiffs respond that their amended complaint does not contain an independent claim for
respondeat superior. As a result, plaintiffs argue that dismissal is not appropriate as to any of their
causes of action. (Doc. # 19).
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Plaintiffs’ second amended complaint references the doctrine of respondeat superior only
in the context of plaintiffs’ negligence claims. (Doc. # 26). While respondeat superior is not a
separate cause of action, plaintiffs do not attempt to state any such claim. Further, foreclosure of
any particular theory of liability is inappropriate at this time. Therefore, the motion to dismiss is
appropriately denied as moot on the grounds stated above.
IV.

Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion to

dismiss, (doc. # 12), be, and the same hereby is, DENIED as moot.
DATED February 4, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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