Watson v. Molchan et al

Filing 25

ORDER Granting 5 Motion to Dismiss as to the United States. The remaining claims against Defendants Kirmani, Nevada Retina Associates, Eisenberg, and Shepherd Eye Center, brought under Nevada state law, are remanded to state court. Signed by Judge Richard F. Boulware, II on 7/6/17. (Copies have been distributed pursuant to the NEF - cc: Certified Copy of Order and Docket Sheet Sent to State Court - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 FRANCIS G. WATSON, 8 Plaintiff, 9 10 v. Case No. 2:16-cv-00608-RFB-CWH ORDER Defendant’s Motions to Dismiss (ECF No. 5) UNITED STATES, et al. 11 Defendants. 12 13 I. This case is before the Court on a Motion to Dismiss for Lack of Jurisdiction by Defendant 14 15 INTRODUCTION United States (ECF No. 5). 16 For the reasons stated below, the Motion to Dismiss is GRANTED as to the United States. 17 The remaining claims against Defendants Kirmani, Nevada Retina Associates, Eisenberg, and 18 Shepherd Eye Center, brought under Nevada state law, are remanded to state court. 19 20 II. BACKGROUND 21 A. Factual Background 22 Plaintiff’s Complaint asserts medical malpractice and professional negligence causes of 23 action against Defendants. The Court finds the following summary of factual allegations relevant 24 to the federal Defendant in this case: 25 On or about November 5, 2013, Mr. Watson presented to Dr. Molchan of the Ophalmology 26 Department at Nellis Air Force Base, for an operation on his left eye. During the surgery, Dr. 27 Molchan placed an interior chamber lens that was oversized, which caused Mr. Watson to have 28 stretching of the iris and significant bleeding issues. On or about November 15, 2013, Dr. Molchan 1 performed an anterior chamber irrigation on Mr. Watson’s left eye to remove dried blood, which 2 provided partial vision. After Mr. Watson saw Dr. Molchan for multiple appointments, the parties 3 decided that Mr. Watson should seek consultation from a retina specialist. 4 Watson’s Complaint also contains various allegations related to other subsequent 5 operations with different doctors, who are the non-federal Defendants in this case. As a result of 6 Defendants’ actions, Mr. Watson is blind in his left eye and has permanent glaucoma. 7 8 B. Procedural Background 9 Plaintiff filed his Complaint against federal employee Defendant Ryan P. Molchan, and 10 remaining non-federal Defendants, on April 30, 2015, in Clark County District Court. Defendant 11 Molchan was served on January 5, 2016. The case was removed to federal court on March 18, 12 2016. (ECF No. 1). On March 18, 2016, the United States filed a motion to substitute itself for 13 individual Defendant Ryan P. Molchan, in the matter. (ECF No. 2). The Court granted this motion, 14 pursuant to the Westfall Act, since the United States Attorney’s office provided a certification that, 15 at all times relevant to the allegations in the Complaint, Dr. Molchan was acting within the course 16 and scope of federal employment or office with the United States. The Court granted this 17 substitution on January 29, 2017. 18 Defendant United States filed a Motion to Dismiss for Lack of Jurisdiction on March 25, 19 2016. (ECF No. 5). Plaintiff filed a Response on April 15, 2016. (ECF No. 10), and Defendant 20 filed a Reply on April 28, 2016. (ECF No. 15). A hearing was held on February 9, 2017, and the 21 Court incorporates the discussion from that hearing by reference. 22 23 24 III. LEGAL STANDARD A. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) 25 Rule 12(b)(1) authorizes a challenge based on lack of subject matter jurisdiction. A Rule 26 12(b)(1) jurisdictional attack may be facial or factual. See White v. Lee, 227 F.3d 1214, 1242 (9th 27 Cir. 2000). In a facial attack, the challenger asserts that the allegations contained in a complaint 28 are insufficient on their face to invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, -2- 1 373 F.3d 1035, 1038 (9th Cir. 2004). In a factual attack, the challenger disputes the truth of the 2 allegations that, by themselves, would otherwise invoke federal jurisdiction. Id. The burden of 3 establishing the subject matter jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. 4 Guardian Life Ins., 511 U.S. 375, 377 (1994). 5 6 B. Jurisdiction under the Federal Tort Claims Act 7 Absent a waiver, sovereign immunity shields the Federal Government and its agencies 8 from lawsuits against them. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity is 9 jurisdictional in nature. “Indeed the terms of [the United States’] consent to be sued in any court 10 define that court’s jurisdiction to entertain the suit.” Id. at 475. The Federal Tort Claims Act 11 contains a limited waiver of sovereign immunity, rendering the United States liable to the same 12 extent as a private party for certain torts committed by federal employees. 28 U.S.C. 1346(b). The 13 Act gives federal courts exclusive jurisdiction over claims against the United States for “injury or 14 loss of property, or personal injury or death caused by the negligent or wrongful act or omission” 15 of federal employees acting within the scope of their employment. 28 U.S.C. 1346(b)(1). An 16 exception to the FTCA lies for intentional torts. 28 U.S.C. 2680(h). 17 18 C. Gonzalez Act 19 The Gonzalez Act, also known as the Medical Malpractice Immunity Act, makes claims 20 against the United States under the FTCA the exclusive remedy for injuries resulting from 21 malpractice committed by medical personnel of the armed forces and other specified agencies. 10 22 U.S.C. 1089(a). A subsection of the Gonzalez Act provides that 2680(h)’s intentional torts 23 exception “shall not apply to any cause of action arising out of a negligent or wrongful act or 24 omission in the performance of medical, dental, or related health care functions.” 10 U.S.C. 25 1089(e). The Supreme Court has interpreted this to abrogate the FTCA’s intentional tort exception 26 in this context. Levin v. U.S., 133 S.Ct. 1224, 1235 (2013). 27 28 -3- D. Westfall Act 1 2 The Westfall Act makes the remedy against the United States under the FTCA exclusive 3 for torts committed by federal employees acting within the scope of their employment. Id. at 1229. 4 5 IV. DISCUSSION 6 Defendant United States argues that Plaintiff’s Complaint does not cite or otherwise 7 reference either a statute conferring jurisdiction on this Court, or a statute waiving the United 8 States’ immunity from suit. The face of Plaintiff’s Complaint contains only “medical malpractice” 9 and “professional negligence” causes of action. Plaintiff has not specifically pled a violation of the 10 FTCA. However, Plaintiff has clearly made out factual allegations regarding a negligent or 11 wrongful act or omission in the performance of medical, dental, or related health care functions. 12 Since federal employee Defendant was certified to have been acting in the scope of his 13 employment, the United States was properly substituted as Defendant. The only remedy against 14 the United States for torts is through the FTCA. Defendant has clearly been on notice of an FTCA 15 claim, and the Complaint could easily be amended to list the FTCA as the vehicle through which 16 Plaintiff is bringing his claims against the United States. Therefore, the Court rejects this argument 17 for dismissal. 18 However, Defendant further argues that Plaintiff had not exhausted his claim 19 administratively with the Air Force before initiating his lawsuit, and that therefore, the Court 20 would not have jurisdiction over any FTCA claim. Plaintiff’s claim was initially presented to the 21 Department of Veteran’s Affairs on April 28, 2015. (ECF No. 5-2). The VA subsequently informed 22 Mr. Watson that his claim should be presented to Nellis Air Force Base, as Dr. Molchan was 23 employed by the Air Force. (ECF No. 5-3). On May 18, 2015, the claim was received by the Air 24 Force. Plaintiff filed his Complaint in Clark County District Court on April 30, 2015. This was 25 eighteen days before the claim was received by the Air Force. 26 The FTCA provides that “an action shall not be instituted upon a claim against the United 27 States for money damages unless the claimant shall have first presented the claim to the appropriate 28 Federal agency and his claim shall have been finally denied by the agency in writing and sent by -4- 1 certified or registered mail.” 28 U.S.C. 2675(a). If the agency does not make a disposition of the 2 claim within six months, the claimant may deem the failure to act as a denial, and he may file suit. 3 Id. “A tort claim against the United States shall be forever barred unless it is presented in writing 4 to the appropriate Federal agency within two years after such claim accrues or unless action is 5 begun within six months after the date of mailing, by certified or registered mail, or notice of final 6 denial of the claim by the agency to which it was presented.” 28 U.S.C. 2401(b). The Supreme 7 Court has determined that this statute “indicates that Congress intended to require complete 8 exhaustion of Executive remedies before invocation of the judicial process. Every premature filing 9 of an action under the FTCA imposes some burden on the judicial system and on the Department 10 of Justice which must assume the defense of such actions. Although the burden may be slight in 11 an individual case, the statute governs the processing of a vast multitude of claims. The interest in 12 orderly administration of this body of litigation is best served by adherence to the straightforward 13 statutory command.” McNeil v. U.S., 508 U.S. 106, 111-12 (1993). “Given the clarity of the 14 statutory text, it is certainly not ‘a trap for the unwary.’ It is no doubt true that there are cases in 15 which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a 16 lawyer will be unable to understand the exhaustion requirement is virtually nonexistent.” Id. 17 Plaintiff argues that due to Nevada’s medical malpractice statutes, he was required to file 18 his Complaint within one year of the surgery at issue, on or before early May 2015, and that this 19 is why he initiated his state claim prior to mailing his administrative claim to the Air Force. 20 However, in federal court, where he was required to bring his claims against federal Defendant, 21 the Nevada state statute of limitations is inapposite. The FTCA is the only vehicle through which 22 Plaintiff could bring his claim against the federal Defendant, who was clearly acting within the 23 scope of his federal employment. The FTCA statute of limitations is specified in 28 U.S.C. 24 2401(b), requiring that the tort claim must be presented to the appropriate federal agency within 25 two years after it accrues. See Landreth By and Through Ore v. U.S., 850 F.2d 532, 533-34 (9th 26 Cir. 1988). State law statutes of limitation would not have been relevant to the FTCA claim. 27 Plaintiff also argues that Defendants actions were so intertwined that the action could not 28 be severed, as to the federal and non-federal Defendants. Therefore, Plaintiff states that he filed -5- 1 his Complaint against all the named Defendants together in state court, but did not serve the 2 Complaint, so that the action would not “commence”, pending a determination of the claim by the 3 federal agency. Plaintiff requested that the state court extend the time for service by six months, 4 to allow the federal agency’s six-month period in which to conclude an investigation, to occur. 5 Although bringing separate cases against the non-federal Defendants, within the requisite 6 Nevada statute of limitations, may have been inconvenient or may not have been preferable to 7 Plaintiff, Plaintiff has raised no law, and the Court is not aware of any, that grants him an exception 8 to the clear requirement of 28 U.S.C. 2675(a) for reason of inconvenience. Plaintiff could have 9 instituted his action in state court against the non-federal Defendants, and waited to bring his FTCA 10 claim separately as against the United States, pending the resolution of his administrative 11 complaint. The Ninth Circuit has stated that the case law on exhaustion “ought not to be read as 12 preventing a plaintiff who wishes to state a number of federal and state law claims against an array 13 of defendants from filing a complaint alleging common facts and amending it after exhaustion to 14 state an additional claim under the FTCA.” Valadez-Lopez v. Chertoff, 656 F.3d 841, 857 (9th 15 Cir. 2011). The Supreme Court was clear in McNeil that “the normal interpretation of the word 16 ‘institute’ is synonymous with the words ‘begin’ and ‘commence’” and that the statute requires 17 “complete exhaustion of executive remedies before invocation of the judicial process”, not merely 18 before a party is served. McNeil, 508 U.S. at 1984 (emphasis added). Plaintiff invoked the judicial 19 process when he filed his Complaint in state court on April 30, 2015. The Air Force received his 20 administrative claim on May 18, 2015, 18 days after he filed suit in state court. Therefore, he had 21 not exhausted his administrative remedies, and this Court does not have jurisdiction over any 22 FTCA claim. 23 24 25 26 27 28 -6- 1 2 V. CONCLUSION Accordingly, the Motion to Dismiss is GRANTED as to the United States. The remaining 3 claims against Defendants Kirmani, Nevada Retina Associates, Eisenberg, and Shepherd Eye 4 Center, brought under Nevada state law, are remanded to state court. 5 6 7 DATED this 6th day of July, 2017. __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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