The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Presently before the Court is a Motion to Dismiss brought by Defendant the United States of America ("United States" or "Government") for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).*fn1 While that motion, (made on grounds that Plaintiff's claim against the United States was not timely filed) was pending, Plaintiff filed a Motion to Decertify Thomas Watson M.D. as a federal employee.
Plaintiff claims that because Dr. Watson should not be considered a governmental employee for purposes of this action, the requirements for presenting claims against the government are irrelevant. Plaintiff also moved to remand the action to state court, where it originated, on grounds that no cognizable federal claim is present. In response to those two motions filed by Plaintiff, the Court continued the United States' motion to dismiss so that all three motions could be heard concurrently. As set forth below, Plaintiff's Motions for Decertification and for Remand will be denied. The United States' Motion to Dismiss will be granted.*fn2
In this medical malpractice action, Plaintiff Shannon Miller ("Plaintiff") seeks redress for a perforated colon she claims to have sustained while undergoing surgery on or about April 2, 2008 for a tubal ligation. Plaintiff further attributes a subsequent infection to improper treatment following the perforation she suffered. Plaintiff's lawsuit, initially filed in the Superior Court of the State of California for the County of Shasta, named Mayers Memorial Hospital ("Mayers" or "Hospital"), the facility where the tubal ligation was performed, Dr. Watson, the surgeon who performed the procedure, and Dr. Leo Devies (Dr. Watson's first assistant), as Defendants.
The United States subsequently substituted as a Defendant on Watson's behalf upon a certification from the United States Attorney's Office that Watson was acting within the scope of his employment with the United States when performing Plaintiff's surgery. Concurrently with that certification, the United States removed the action, pursuant to 28 U.S.C. § 2679(d), on June 15, 2009. The resulting case was assigned a case number of 2:09-cv-01687-MCE-KJM.
The United States moved to dismiss Plaintiff's lawsuit a week after it was removed for lack of subject matter jurisdiction under Rule 12(b)(1), claiming that Plaintiff had 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 that consequently Plaintiff could not maintain his action against the United States. By Memorandum and Order filed September 18, 2009, the Court granted the United States' motion and remanded the case back to Shasta County where it had originally been commenced.
On October 2, 2009, the United States Department of Health and Human Services ("HHS") denied Plaintiff's governmental tort claim, which she claims she filed "in an abundance of caution" on April 2, 2009, the day after her lawsuit was initially filed in state court. See Pl.'s Opp'n to Mot. to Dismiss, p. 2, n.1 Nonetheless, although this Court had previously dismissed the United States from the action on September 18, 2009 for failure to exhaust her administrative claims, it is undisputed that Plaintiff thereafter took no action to refile any action against the United States.
Instead, Plaintiff simply took the position that Dr. Watson remained a viable individual defendant despite his certification as a federal employee and the United States' corresponding party substitution in his place.
When Plaintiff continued to pursue Dr. Watson as a defendant in state court, and after she attempted to take his default, the United States re-removed the case to this Court on October 7, 2010. At that time the present case number, 2:10-cv-02723-MCEDAD, was assigned.
The United States' initial certification of Dr. Watson as a federal employee was made on grounds that he was employed by the Mountain Valleys Health Centers ("MVHC"), a federally supported health center. Pointing to a contract between MVHC and Mayers which provided for use of the Hospital for the provision of emergency services to MVHC patients, Plaintiff contends that because her tubal ligation was not an emergency procedure and because the emergency services agreement was the only contract that existed between Mayers and Mountain Valleys, Dr. Watson could not have been operating in his capacity as an MVHC employee when he performed an elective tubal ligation on Plaintiff at the Hospital. Plaintiff instead alleges that Watson was acting as an "independent contractor" for Mayers as opposed to MVHC's employee. Id. at 6:24-26.
The United States has pointed to a number of facts which, it contends, illuminate the unavailability of Plaintiff's argument in this regard. First, according to Dave Jones, the Chief Executive Officer for MVHC, emergency room treatment is not the only connection MVHC has with Mayers. As Jones explains:
"Separate and apart from the Emergency Services Agreement, MVHC doctors, including Dr. Watson, are granted general privileges at Mayers so they may provide medical services and perform procedures for MVHC patients using Mayers' physical facilities. Privileges are not granted to MVHC physicians by way of contract, but instead are granted by Mayers as part of a confidential review process. MVHC bills its patients for all services rendered and procedures performed by its physicians at Mayers pursuant to these privileges, including the April 3, 2008 tubal ligation surgery performed by Dr. Watson for [Plaintiff] at Mayers."
Decl. of Dave Jones, ¶ 8. Indeed, as Jones also points out, because Mayers is located in a very rural area, approximately 90 to 95 percent of the doctors who use its hospital facilities are in fact MVHC employees. Jones Decl., ¶ 4. Significantly, while Dr. Watson is employed by MVHC (which provides all his salary, compensation and benefits) he currently serves as ...