Neaman et al v. The United States of America

Filing 18

ORDER Granting 11 Motion to Dismiss Counts Two and Four of the Complaint. Signed by Judge James C. Mahan on 5/23/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SPENCER NEAMAN, et al.,

Case No. 2:16-CV-217 JCM (PAL)

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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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James C. Mahan
U.S. District Judge

Presently before the court is the government’s motion to dismiss counts two and four of
the complaint. (ECF No. 11). Plaintiffs did not file a response, and the deadline to respond has
now passed.
This is a medical malpractice action arising out of the care and treatment of F.N., a minor,
in March 2013. (ECF No. 1). Wendover Community Health Center is a division of Nevada Health
Centers, Inc. (“NHC”). NHC is a federally supported health center pursuant to the Public Health
Service Act. 42 U.S.C. §§ 254(b), 224 (g)-(n). Consequently, Wendover Community Health Center
and its employees are considered employees of the federal government. (ECF No. 11). As federal
employees, any civil tort action against these individuals or entities is subject to the provisions of
the Federal Tort Claims Act (“FTCA”).
Plaintiffs allege that physician assistant Emilse Peraza, an employee of NHC, failed to
diagnose F.N. with appendicitis on March 4, 2013. (ECF No. 1). Counts two and four of the
complaint allege theories of negligent supervision, training, and hiring. (Id.). The government

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moves to dismiss counts two and four because they set forth claims expressly barred by the FTCA.
(ECF. No. 11).
Pursuant to District of Nevada Local Rule 7-2(d), “the failure of an opposing party to file
points and authorities in response to any motion shall constitute a consent to the granting of the
motion.” LR 7-2(d). However, the court will not automatically grant every unopposed motion.
Instead, the court must weigh the following factors before dismissing the action: (1) the
public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases of
their merits; and (5) the availability of less drastic sanctions. Ghazali v. Moran, 46 F.3d 52, 53
(9th Cir. 1995).
Having considered the motion and plaintiff’s complaint in light of the Ghazali factors, the
court will grant the motion to dismiss counts two and four. The court finds that the first three
factors—the public’s interest in expeditiously resolving this litigation, the court’s interest in
managing the docket, and the risk of prejudice to defendants—all weigh in favor of dismissal. See
Ghazali, 46 F.3d at 53; Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976) (holding that a
presumption of injury arises from the occurrence of unreasonable delay). The remaining factors
are outweighed by the arguments supporting dismissal. Plaintiffs had ample opportunity to respond
to the instant motion to dismiss and failed to do so. Based on the foregoing, the court will grant
the government’s motion to dismiss counts two and four of the complaint.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the government’s
motion to dismiss (ECF No. 11), be, and the same hereby is, GRANTED.
DATED May 23, 2016.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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