ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
This matter comes before the Court on a Motion to Dismiss (Doc. #5) brought by Defendant Timothy Peters, M.D. ("Dr. Peters"). Plaintiff Jerry Fernandez ("Fernandez") opposes the motion.*fn1
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff is the surviving son of Ramona M. Fernandez ("Decedent" or "Ms. Fernandez"). On May 26, 2010, Ms. Fernandez was seen at Shasta Community Health Centers, Inc. ("SCHC"), a 2 federally funded health clinic. Dr. Peters examined Ms. Fernandez. 3
On June 7, 2010, when Ms. Fernandez's family members picked up her 4 prescriptions, they were informed by the pharmacist that Dr. Peters 5 had prescribed methotrexate. The next day, Ms. Fernandez began 6 taking this prescription medication. 7
On July 7, 2010, Ms. Fernandez had her blood analyzed after 8 taking methotrexate every day for one month. The next day she was 9 told to go to the emergency room because her white blood count was low. Shortly after entering the hospital, Dr. Peters allegedly called Ms. Fernandez's daughter-in-law and explained that he had not prescribed the methotrexate and that a nurse at SCHC had accidentally entered the wrong prescription for Ms. Fernandez. Ms. Fernandez died on July 23, 2010.
Plaintiff filed his Complaint (Doc. #1) on January 5, 2012 under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), against Dr. Peters, SCHC, and Does 1-10 (collectively, "Defendants"). Plaintiff alleges that Defendants breached their duty to provide competent care to the Decedent; breached their duty to assure the competence of the staff nurses; failed to exercise ordinary care under the doctrine of corporate medical liability; and breached their duty of selecting, reviewing, and periodically evaluating the competency of their staff. Plaintiff alleges he suffered injuries and damages based upon the wrongful death of his mother; loss of love, support, companionship, care, services, and society; hospital, medical and incidental expenses; mental anguish; and cremation, funeral, and burial expenses. Plaintiff prays for general and non-economic damages; hospital, medical and incidental expenses incurred; damages for wrongful death; prejudgment 2 interest; costs of suit; and other relief the Court deems proper. 3
Dr. Peters filed the instant Motion to Dismiss (Doc. #5). 4
Defendant United States of America filed an Answer (Doc. #8). 5 6
A. Legal Standard for Motion to Dismiss 8 1. 12(b)(1)
Dismissal is appropriate under Rule 12(b)(1) when the District Court lacks subject matter jurisdiction over the claim. Fed. R. Civ. P. 12(b)(1).
When a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of establishing subject matter jurisdiction. See Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095, 1102, n.1 (9th Cir. 2007) ("Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.").
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a 3 plaintiff needs to plead "enough facts to state a claim to relief 4 that is plausible on its face." Twombly, ...