ORDER GRANTING DEFENDANT UNITED STATES' MOTION TO DISMISS (Doc. No. 23)
This action arises from an alleged wrongful birth occurring on September 29, 2010, at the Doctors MedicalCenter-Modesto facility in Modesto, California. Plaintiffs Agueda Galvan ("Galvan") and her minor daughter, Sophia Arce ("Arce"), originally brought claims for professional negligence against defendants Rebecca J. Brock, M.D. ("Dr. Brock"), Doctors Medical Center of Modesto Advanced Imaging Center, Golden Valley Health Center ("Golden Valley"), and Does 1 to 50 (collectively, "Defendants").On May 8, 2012, the parties stipulated to the substitution of the United States as a defendant in place of defendants Rebecca J. Brock, M.D. and Golden Valley Health Center.*fn1 See Court's Docket, Doc. No. 16. On June 11, 2012, the government filed the instant motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Id., Doc. No. 23. Plaintiffs filed an opposition, and the government has filed a reply. Id., Doc. Nos. 24, 26. For the reasons stated herein, the government's motion shall be granted.
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 Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
"In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air, 373 F.3d at 1039. When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979).
Rule 12(b)(1) attacks on jurisdiction can be factual, permitting the court to look beyond the complaint. 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. However, in the absence of a full-fledged evidentiary hearing, disputed facts should be resolved in favor of the non-moving party. Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1156 (9th Cir. 2007); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996); Greene v. United States, 207 F.Supp.2d 1113, 1119 (E.D.Cal. 2002).
Plaintiff Arce was delivered on September 29, 2010, by Dr. Brock at Defendant Doctors Medical Center.Plaintiffs allege Defendants committed professional negligence causing Galvan to be induced into premature labor resulting in birth injuries to Arce and reproductive system injuries to Galvan. Plaintiffs contend they delivered a pre-litigation notice of intent to sue letter to the United States Department of Health and Human Services ("HHS") on May 18, 2011. See Court's Docket, Doc. No. 25 at ¶ 2, Ex. A. On May 24, 2011, HHS received an administrative claim from counsel for Galvan alleging negligent examination, treatment, and diagnosis of Galvan leading to the premature birth of her daughter, Arce. See Court's Docket, Doc. No. 23-3, Ex. A. On June 6, 2011, HHS received a claim filed by counsel for Galvan on behalf of Arce claiming a premature birth with complications. See id., Doc. No. 23-3, Ex. B. On June 10, 2011, Plaintiffs' counsel received a letter from HHS requesting further information in support of the claim forms delivered on May 18, 2011. See id. Doc. No. 25 at ¶ 25, Ex. B. On June 24, 2011, Plaintiffs' counsel responded to the agency's letter with evidence in support of Plaintiffs' claims, as requested. As of June 20, 2012, Plaintiffs' counsel has received no further correspondence or response from HHS regarding Planitiffs' claims.
On September 13, 2011, Plaintiffs filed a lawsuit in Stanislaus County Superior Court against, among others, Golden Valley and Dr. Brockfor alleged medical malpractice. On December 16, 2011, Golden Valley and Dr. Brock removed the action to this court pursuant to the FTCA. See id., Doc. No. 1. The United States simultaneously filed a notice of substitution, and then filed an answer on December 22, 2011. See id., Doc. No. 5. The United States now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
The government argues that Plaintiffs' tort claims must be dismissed for failure to exhaust administrative remedies as required by the Federal Tort Claims Act ("FTCA"). The FTCA "vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of Government employees." Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992).Claims of medical malpractice against federally-funded health care facilities and their employees acting in the scope of their employment must be pursued against the United States under the FTCA. See 42 U.S.C. § 233(g).The FTCA "provides that 'an action shall not be instituted upon a claim against United States for money damages' unless the claimant has first exhausted his administrative remedies." McNeil v. United States, 508 U.S. 106, 107 (1993) (quoting 28 U.S.C. § 2675(a)). A claimant has six months from the denial of their claim by the administrative agency to file an action in federal court, or, if the agency fails to make a final disposition, six months from the time the claim is filed. See 28 U.S.C. § 2675(a); 28 U.S.C. § 2401(b). The requirement of administrative exhaustion is jurisdictional and cannot be waived. See Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000); Caldwater Jerves, 966 F.2d at 519.
In this case, the government contends the court has no jurisdiction because Plaintiffs failed to wait six months after submitting their administrative tort claim to HHS to file suit against Golden Valley and Dr. Brock. Galvan's administrative claims on behalf of herself and Arce were received by the HHS claims office on May 24, 2011, and June 6, 2011, respectively. Plaintiffs filed the instant suit on September 13, 2011, less than four months after submitting the administrative claims. The government alleges that as of November 18, 2011, six months after Plaintiffs first notified HHS of their administrative claims, no final determination had been made.*fn2 In McNeil v. United States, the Supreme Court reasoned that "[t]he most natural reading of [28 U.S.C. § 2675(a)] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Even premature filing of an action under the FTCA imposes some burden on the judicial system, and on the Department of Justice which must assume the defense of such actions." 508 U.S. at 112. Thus, the Supreme Court held that courts lack subject matter jurisdiction and must dismiss FTCA actions which are instituted before the administrative exhaustion occurs, even in cases where no substantial progress has taken place in the litigation before the administrative claim is denied. Id.
The government therefore argues that this court lacks subject matter jurisdiction over Plaintiffs' claims because they failed to exhaust their administrative remedies before filing suit.
In opposition, Plaintiffs argue that six months have now passed since the filing of their administrative claims, without any response from HHS. Plaintiffs have proffered a proposed Amended Complaint seeking to cure the alleged jurisdictional defect relating to the six-month exhaustion period. See Court's Docket, Doc. No. 24, Ex. A. Plaintiffs contend that the liberal standard for amendment set forth in Federal Rule of Civil Procedure 15(a) and adhered to by the Ninth Circuit militates in favor of granting their request to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (noting that Rule 15 is "to be applied with extreme liberality"). Plaintiffs argue there is no evidence of undue delay, bad faith or dilatory motive, repeated failures to cure ...