The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: DEFENDANT STANFORD UNIVERSITY MEDICAL CENTER'S MOTION TO REMAND
On August 16, 2010, Stanford University Medical Center ("Stanford University") filed the instant Motion to Remand. (Doc. 19). Non-oppositions to the motion were filed by defendants, Ajit S. Nijjar M.D., Warren David Clift, M.D., and Modesto Radiological Medical Group Inc.*fn1 (Docs. 21 and 22). No other party responded to the motion. The Court reviewed the pleadings and determined that this matter is suitable for decision without oral argument pursuant to Local Rule 230 (c) and (g). The hearing set for September 10, 2010 at 9:30 am was vacated. (Doc. 23). Having considered all written materials submitted, it is recommended that Defendant Stanford University's Motion to Remand be GRANTED.
II. Procedural Background
Tammy and Sergio Pineda ("Plaintiffs"), filed this case on September 22, 2008, in the Stanislaus County Superior Court (Case no. 631980). The complaint alleged state law claims including medical malpractice and loss of consortium arising from defendants alleged failure to diagnose and treat Ms. Pineda's broken neck. (Doc. 1) The United States removed this action on May 13, 2010. (Doc. 1).
There were a total of twenty two defendants in this action including: Golden Valley Health Centers; James Kraus, M.D.; Susan Kraus, M.D.; Enrique Talamantes, PA-C; Burnell Vassar, M.D.; Trong Tringh, M.D.; Natalie Mattos, PA-C; T. Wilson, M.D.; Silvia Diego, M.D.; M. Cody, P.A.; Vikram Khanna, M.D.; Modesto Radiological Medical Group, Inc.; Modesto Radiology Imaging; Ajit Njjar, M.D.; Joseph Fluence, M.D.; Michael Zeppa, M.D.; Dr. Nguyen, M.D.; Warren David Clift, M.D.; Stanford University; Stephen I. Ryu, M.D.; Leslie Dorfman, M.D.; and the United States for America.
The majority of the defendants were employed by the federal government or were federal agencies. On May 25, 2010, the United States filed a Motion to Dismiss the federal defendants because Plaintiffs had not exhausted their administrative remedies under the Federal Tort Claims Act ("FTCA"). (Doc. 5). Plaintiffs did not oppose the Motion to Dismiss. (Doc. 8). On June 28, 2010, Golden Valley Health Centers; James Kraus, M.D.; Susan Kraus M.D.; Enrique Talamantes, PA-C, Silva Diego, M.D.; and Vikram Khanna, M.D. were dismissed pursuant to the United States' Motion. (Doc. 11). Plaintiffs also voluntarily dismissed the other federal defendants.*fn2 Currently, there are six remaining defendants including: Modesto Radiological Medical Group, Inc.; Modesto Radiology Imaging; Ajit Nijjar, M.D.; Joseph Fluence, M.D.; Warren Clift, M.D.; and Stanford University Medical Center.*fn3 None of the remaining defendants are employed by the federal government or are federal agencies.
Stanford University filed the instant Motion to Remand on the basis that federal jurisdiction no longer exists because all of the federal defendants have been dismissed from this action. As previously noted, Plaintiffs have not filed an opposition to the Motion to Remand.
This case was removed pursuant to 28 U.S.C. §§ 1441, 1442(a) and 2679(d) since Plaintiffs sought damages from federal defendants for alleged torts. The federal defendants had defenses they are entitled to assert and adjudicate in federal court, including defenses under the FTCA. The state law claims were removed pursuant to supplemental jurisdiction. 28 U.S.C. § 1367.
Since all of the federal defendants have been dismissed from this action, all that remains active in the complaint are state law claims.*fn4 "If at any time prior to judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded..." 28 U.S.C. 1447(c); Gibson v. Chrysler Corp., 261 F. 3d 927, 932 (9th Cir. 2001). "Subject matter jurisdiction cannot be established by the parties' consent, and a lack of subject matter jurisdiction is a non-waivable defect." Gibson v. Chrysler Corp., 261 F. 3d at 948, see also, Lengyel v. Sheboygan County, 882 F. Supp. 137, 138 (E.D. Wis 1995) ("When a district court determines there is a lack of subject matter jurisdiction, the case shall be remanded, even if the parties prefer to remain in federal court.").
Moreover, when state law claims are removed based on supplemental jurisdiction in conjunction with a federal question claim and the federal question claim is dismissed, the district court retains discretion to exercise supplemental jurisdiction over the remaining state law claims. When the federal claim is dropped from the suit in the early stages of litigation, as it was in this case, federal courts should decline to exercise jurisdiction over the remaining state law claims. Carnegie-Mellon Univ., 484 U.S. 343, 350 (1988) 484 U.S. at 350, 108 S.Ct. at 619 (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130,1139 (1966)).
Here, the Court lacks subject matter jurisdiction and the case should be remanded to the state court pursuant ...