ORDER GRANTING UNITED STATES' MOTION TO DISMISS
On April 2, 2010, Plaintiff Tylynne B. Henry ("Plaintiff") filed a complaint in the Superior Court of the State of California, County of Stanislaus. The complaint names as Defendants Doctor's Medical Center of Modesto, Inc., Memorial Hospitals Foundation of Stanislaus County, Golden Valley Health Centers, Dr. Edward Chan, and Does 1 through 50. The complaint alleges that Defendants negligently cared for, diagnosed, and treated Plaintiff, and failed to exercise the standard of care and skill ordinarily and reasonably required to properly diagnose and treat Plaintiff.
On October 14, 2010, the United States removed the action to this court pursuant to 42 U.S.C. § 233(c) because the complaint alleges injury resulting from the performance of medical functions by an employee and agency of the Public Health Service authorized by the Federally Supported Health Centers Assistance Act ("FSHCAA"). Jurisdiction is appropriate under 28 U.S.C. § 1346 because the United States is a Defendant.
On October 14, 2010, the United States substituted into this action as Defendant in place of Golden Valley Health Centers, its employees, and Defendant Dr. Edward Chan. The United States provided a certification that these Defendants were employees of Public Health Service pursuant to FSHCAA and were acting in the scope of such employment at the time of the incident. As such, substitution is appropriate pursuant to 28 U.S.C. § 2679(d)(1).
On October 19, 2010, the United States filed a motion to dismiss for lack of jurisdiction. The United States contends that Plaintiff failed to comply with the Federal Tort Claims Act ("FTCA") prior to filing this action.
Plaintiff did not file an opposition or non-opposition to the United States' motion to dismiss.
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); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). 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).
A defendant may attack the existence of subject matter jurisdiction based on facts outside pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air, 373 F.3d at 1039. Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air, 373 F.3d at 1039; Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Safe Air, 373 F.3d at 1039. "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.
Defendant United States has filed a Certificate of Scope of Federal Employment that states Dr. Chan and Golden Valley Health Centers, a federally supported health center, were acting in the scope of their federal employment at the time of the incidents alleged in the complaint. As such, the United States was substituted as a proper party in place of Dr. Chan and Golden Valley Health Centers.
Defendant United States has provided evidence that Plaintiff has not filed an administrative claim with the United States Department of Health & Human Services ("HHS"). Plaintiff has neither opposed Defendant United States' motion nor ...