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Debra Ponds v. United States of America; and Does 1-40

February 15, 2013

DEBRA PONDS,
PLAINTIFF,
v.
UNITED STATES OF AMERICA; AND DOES 1-40, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

ORDER GRANTING UNITED STATES' MOTION TO SUBSTITUTE; GRANTING MOTION TO DISMISS CLAIMS 1, 2, AND 3; AND DENYING PLAINTIFF'S MOTION TO REMAND VETERANS MEDICAL RESEARCH FOUNDATION aka MEDICAL [Dkt. Nos. 2, 3, and 6] RESEARCH FOUNDATION OF SAN DIEGO ;

Currently before the Court is the United States' Motion to Substitute and Motion to Dismiss, and Plaintiff's Motion to Remand. For the reasons stated below, the United States is substituted for Defendant Dr. Martina Buck; Claims 1, 2, and 3 against the United States are dismissed; and Plaintiff's Motion to Remand is denied.

I. BACKGROUND

Plaintiff Debra Ponds has a Ph.D in molecular biology and alleges she was hired to conduct laboratory research by Dr. Martina Buck for the Veterans Medical Research Foundation ("VMRF") in San Diego, California. Plaintiff alleges that Buck offered Plaintiff a position as a laboratory technician in January 2011, and promised to promote her to a post-doctoral position following grant funding.

Plaintiff alleges that based on Buck's representations, Plaintiff forwent other postgraduate opportunities and moved from New Mexico to San Diego to join VMRF. Plaintiff alleges that when grant funding was received in May 2011, Buck did not promote Plaintiff to the post-doctoral position that was promised. Plaintiff alleges that Buck's misrepresentations cost her other opportunities, job advancement, and a higher salary. Plaintiff alleges that the action of Buck and the Defendants also caused her emotional and physical distress.

On March 2, 2012, Plaintiff filed suit in the California Superior Court seeking relief against Buck and VMRF and asserting six claims for relief under state law: (1) Violation of California Labor Code § 970; (2) Intentional Misrepresentation; (3) Negligent Misrepresentation; (4) Breach of Contract; (5) California Tort Cause of Action for Wrongful Adverse Action in Violation of Public Policies; and (6) Violation of the California Labor Code, Including § 201.

On July 16, 2012, the United States Attorney General's designee certified that Buck was an employee of the Department of Veterans Affairs ("VA") and was acting within the scope of her employment with respect to the incidents alleged in Plaintiff's Complaint. Following the certification, the United States moved to substitute itself for Dr. Buck as a defendant and removed the case from state court. Claims 1, 2, and 3 of the Complaint were directed at Dr. Buck and VMRF and are now directed at the United States and VMRF. The United States asserts that it has not waived its sovereign immunity as to these three claims and there is no subject matter jurisdiction. Consequently, the United States moves to dismiss Claims 1, 2, and 3, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

In her Opposition to the Motion to Dismiss, Plaintiff argues that the certification by the Attorney General is invalid because it fails to clearly state how the alleged torts were committed within the scope of Buck's employment and that intentional torts are usually deemed to be outside of the scope of employment. Plaintiff also argues that the certification is invalid because it is silent on the issue of Buck's precise position with the federal government. Plaintiff surmises that there are questions of fact as to whether or not Buck was acting within the scope of her employment with the federal government when she committed the alleged torts.

II. DISCUSSION

The United States makes three arguments in support of its motions to substitute and dismiss. First, it contends that the Federal Tort Claims Act ("FTCA") governs this action and the United States is a properly substituted party since Buck was acting within the scope of her employment when the alleged torts occurred. Second, the United States contends that the court lacks subject matter jurisdiction because plaintiff did not exhaust her administrative remedies before instituting this action. Finally, the United States asserts a lack of subject matter jurisdiction on the separate ground that plaintiff alleges torts barred under sovereign immunity and the United States has not waived its immunity for misrepresentation claims.

In response, Plaintiff contends that the United States was not properly substituted for defendant Buck and that the FTCA does not govern this action. Plaintiff claims the certification by the United States Attorney fails to address how the Court lacks subject matter jurisdiction over VMRF and only focuses on Buck, not the nature of Buck's employment at VMRF. Plaintiff also claims the FTCA does not apply because Buck was not acting within the scope of her federal employment at the time of the alleged incident. Accordingly, Plaintiff argues that the dismissal of Buck for lack of subject matter jurisdiction would be improper.

A. Review of Scope of Employment Certification

A certification by the United States is not conclusive for the purpose of substitution. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). But a certification is prima facie evidence that a federal employee is acting in the scope of her employment. Pauly v. U.S. Dept. of Agri., 348 F.3d 1143, 1151 (9th Cir. 2003). A district court may review the certification of the United States that a federal employee was acting within the scope of his employment. Lamagno, 515 U.S. at 420; Meridian v. Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991). The party seeking review of the certification "bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993). "The United States remains the named federal defendant 'unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment.'" Jackson v. Tate, 648 F.3d 729, 736 (9th Cir. 2011) (quoting Osborn v. Haley, 549 U.S. ...


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