The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER SUBSTITUTING UNITED STATES FOR DEFENDANT CAMPOS, AND GRANTING UNITED STATES' MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(B)(1)
This is an action for wrongful death by the survivors of decedent, Juan Olvera, ("Plaintiffs") against defendants Kaweah Delta District Hospital and Health Care District and individual defendants Jose Campos, M.D. and Wei-Tzuoh Chen, M.D. (Collectively, "Defendants"). The action was removed to this court by the United States pursuant to their determination that individual defendant Jose Campos, M.D. ("Campos") was at all times pertinent to this action an employee of a federally-funded healthcare facility within the meaning of the Federally Supported Health Centers Assistance Act. United States contends Campos, as an employee of a federally-funded healthcare facility, is personally immune from suit and that United States is the proper party defendant for purposes of claims against Campos pursuant to the terms of the Westfall Act and the Federal Tort Claims Act ("FTCA"). In the instant motion, United States seeks to dismiss the complaint in its entirety as to Campos on the ground United States is the proper party defendant, and also as to United States on the ground the court lacks subject matter jurisdiction because Plaintiffs failed to bring or exhaust an administrative tort claim as required by the FTCA. For the reasons that follow, the court will grant the substitution and will dismiss the complaint as to defendant United States with leave to amend.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The complaint in this action was filed originally in Tulare County Superior court on July 18, 2008. The action was removed to this court on November 24, 2008. Exhibit "B" to Defendants' notice of removal is a "Certificate of Scope of Employment" pursuant to the Westfall Act, 28 U.S.C. § 2679(d) (hereinafter, the "Certificate"). That Certificate provides, in pertinent part:
[o]n the basis of the information now available with respect to the incidents referred to in [P]laintiff's claims, defendant Jose L. Campos, M.D., was acting within the scope of his employment at Family Healthcare Network at all times relevant to them. Family Healthcare Network is a federally-funded healthcare facility, a grantee of the United States Department of Health & Human Services, and covered under the Federal Tort Claims Act by operation of the Federally Supported Health Centers Assistance Act.
Doc. # 1 at 13:4 - 13:12.
The complaint generally alleges negligent hiring, training, credentialing, and supervision of medical professional personnel and alleges negligent provision of care with regard to decedent, ultimately resulting in decedent's death. The complaint makes no distinctions as to the roles of the various defendants in the events leading up to Decedent's death. In other words, the complaint alleges that all defendants, including Campos, were responsible for negligent training, credentialing, and supervision, and alleges that the same defendants, again including Campos, provided negligent care proximately causing decedent's death.
The instant motion to dismiss was filed by United States on December 3, 2008. Plaintiffs filed their opposition on December 22, 2008. On December 23, 2008, Plaintiffs filed a motion to remand and subsequently filed a request to continue the motion to remand. The hearing date on United States' motion to dismiss Campos was vacated and the matter was taken under submission as of January 5, 2009. The court's docket does not currently reflect that United States has filed any reply to Plaintiffs' opposition or any response to the motion to remand. The court's docket indicates Plaintiffs' motion to remand is currently pending before the Magistrate Judge.
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal.1989), rev'd on other grounds, 963 F. 2d 229 (9th Cir.1992).
A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F. 2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F. 2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
The legal regime that underpins United States' motion to dismiss is well settled and not disputed by the parties. Pursuant to 42 U.S.C. § 254(b), actions for medical malpractice against federally-funded healthcare clinics and the employees and officers of such clinics are limited by the terms of 42 U.S.C. § 233(a). Pursuant to section 233(a), the sole remedy against an officer or employee of the federally-funded healthcare clinic for ...