The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
In this medical malpractice action, Plaintiff Shannon Miller ("Plaintiff") seeks redress for a perforated colon she suffered while undergoing surgery in April of 2008 for a tubal ligation. Plaintiff's lawsuit, initially filed in the Superior Court of the State of California for the County of Shasta, named Mayer Memorial Hospital ("Hospital"), Dr. Les Devies ("Devies"), and Dr. Thomas Watson ("Watson") as Defendants.
The United States ("Government") subsequently substituted as a Defendant on Watson's behalf upon certifying that Watson was acting within the scope of his employment with the Government when performing Plaintiff's surgery. Concurrently with that certification, the Government removed the action, pursuant to 28 U.S.C. § 2679(d), on June 15, 2009.
Presently before the Court is the Government's Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).*fn1 The Government's Motion is predicated on the argument that Plaintiff has not exhausted administrative remedies under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. ("FTCA") against Watson, as a government employee, and consequently cannot maintain this action. For the following reasons, the Government's Motion will be granted.
On or about April 2, 2008 Plaintiff underwent tubal ligation surgery at Mayer Memorial Hospital. Watson performed the surgery and Devies served as first assistant surgeon. Compl., ¶ 11. Plaintiff alleges that during the surgery, Watson perforated her colon, and that the perforation resulted in a post-operative infection. Id. at ¶ 15.
Watson is an employee of the Mountain Valleys Health Center, which is a federally supported health center. Although Plaintiff's counsel appears to assert he did not know that Watson was a federal employee until after he filed the state court medical malpractice action on April 1, 2009, evidence submitted by the Government in support of its Motion shows that the day before Plaintiff filed suit she signed an Administrative Claim with the Department of Health and Human Services, which was subsequently filed on April 2, 2009. (See Exs. "B" and "C" in Support of the Government's Motion).*fn2 It is undisputed that no action has been taken to date on Plaintiff's Administrative Claim.
On June 15, 2009, upon the Government's formal certification that Watson was acting in his capacity as a federal employee, the instant action was removed here.
Federal Courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed. 2d 391 (1994). Lack of subject matter jurisdiction is never waived and may be raised by either party or the court at any time.
Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d. 593, 594-95 (9th Cir. 1996). Lack of subject matter jurisdiction may be raised by the district court sua sponte: "Nothing is to be more jealously guarded by a court than its jurisdiction." In re Mooney, 841 F.2d. 1003, 1006 (9th Cir. 1988).
In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 (b)(1), the challenging party may either make a facial attack on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis. Thornhill Publ'g Co. v. Gen. Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977).
If the motion constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "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, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891). The court may ...