The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion to Dismiss, Or in the Alternative, Motion for Summary Judgment ("Motion to Dismiss") filed by Defendant United States of America ("United States"). (Doc. # 7).
On April 3, 2009, Plaintiffs initiated this action by filing a Complaint in San Diego County Superior Court, where it was assigned case number 37-2009-86857-CU-MM-CTL. (Doc. # 1, Ex. 1). The Complaint alleges medical malpractice claims against Defendants Neighborhood Healthcare, Daniel C. Harrison, M.D., Maribeth Chong, M.D., Amy Y. Carney, FNP (collectively, "Federal Defendants"), and Aeron Wickes, M.D., Michele Grad, M.D., and Palomar Pomerado Health.
On December 23, 2009, the United States, on behalf of the Federal Defendants, removed the action to this Court. (Doc. # 1).
On December 23, 2009, the United States filed a Notice of Certification on behalf of the Federal Defendants. (Doc. # 2). The Notice of Certification, which is signed by an Assistant United States Attorney, states:
Pursuant to the provisions of 42 U.S.C. § 233(c), and pursuant to the authority vested in the United States Attorney to make scope of employment certifications under 28 C.F.R. 15.3(a),... I hereby find and certify that... Defendant Neighborhood Healthcare... was deemed a federal employee and eligible for Federal Tort Claims Act malpractice during the period at issue in this action. I further certify that Defendants Daniel C. Harrison, M.D., Maribeth Chong, M.D. and Amy Y. Carney, FNP, were acting within the scope of their employment as persons who are deemed... employees of the United States, pursuant to 42 U.S.C. § 233, at the time of such actions. (Doc. # 2 at 1-2).
On December 23, 2009, the United States filed a Notice of Substitution of United States of America for Defendants: Neighborhood Healthcare, Daniel C. Harrison, M.D., Maribeth Chong, M.D., and Amy Y. Carney, FNP. (Doc. # 3).
On January 27, 2010, this Court entered an Order which stated:
Upon review and consideration of the Notice of Substitution, and it appearing to the Court that this is a tort action against Defendants Neighborhood Healthcare, Harrison, Chong, and Carney arising out of their actions certified by the appropriate official to have been taken within the scope of their employment as deemed federal employees,
IT IS ORDERED, pursuant to 28 U.S.C. § 2679(d), as amended by Public Law 100-694, that the United States of America shall be substituted as a defendant herein, in place of Defendants Neighborhood Healthcare, Harrison, Chong, and Carney and that the title of the action be amended accordingly.
IT IS FURTHER ORDERED that as to Defendants Neighborhood Healthcare, Harrison, Chong, and Carney this action is dismissed, with prejudice, pursuant to 42 U.S.C. 233 (a) and (g). (Doc. # 6 at 2).
On February 4, 2010, the United States filed the Motion to Dismiss. (Doc. # 7). The United States contends that Plaintiffs' action as to the United States must be dismissed without prejudice pursuant to the Federal Tort Claims Act because Plaintiffs failed to file an ...