United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Motion to Dismiss the Complaint for Lack of Subject Matter Jurisdiction filed by Defendant the United States of America. (ECF No. 4).
Plaintiff's action arises out of dental work performed at Logan Heights Family Health Center, a federally supported health center. On October 16, 2013, Plaintiff filed a Complaint in the Superior Court of California, County of San Diego, against Defendants Ibrahim Sawaya, D.D.S., Everett Williams, D.D.S., and Logan Heights Family Health Center.
On February 25, 2014, the United States of America, on behalf of Defendants Ibrahim Sawaya, Everett Williams, and Logan Heights Family Health Center, removed the case to this Court pursuant to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679(d). (ECF No. 1). In the Notice of Removal, the United States asserted that Defendants Sawaya and Williams acted within the scope of their employment at Family Health Center of San Diego ("FHCSD") with respect to the events that gave rise to the Complaint, which occurred on or after January 1, 2010, and that Logan Heights Family Health Center is a federal delivery site of FHCSD. Id. at 2. The United States concurrently filed a Notice of Substitution of the United States of America as Defendant (ECF No. 3) and a Certification of Scope of Employment pursuant to 28 U.S.C. § 2879(d) (ECF No. 2).
On February 26, 2014, the United States filed the Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The United States moves to dismiss Plaintiff's claim on grounds that this Court lacks subject matter jurisdiction due to Plaintiff's failure to exhaust his administrative remedies by filing an administrative claim with an appropriate federal agency prior to bringing his civil action, as required by the Federal Tort Compensation Act. (ECF No. 4).
On March 4, 2014, the Court ordered Plaintiff to file any response to the Notice of Substitution no later than March 14, 2014 and any opposition to the Motion to Dismiss no later than March 24, 2014. (ECF No. 5).
On March 13, 2014, Plaintiff filed a document entitled "Certificate of Service" which contained a response to the Notice of Substitution. (ECF No. 7). This document appears to contain an Opposition to the Motion to Dismiss. Id. Plaintiff states in this document, "I Domingo Ramirez oppose the Motion to Dismiss." Id. at 1.
On March 28, 2014, the Court ordered the United States be substituted as Defendant in place of Defendants Ibrahim Sawaya, D.D.S., Everett Williams, D.D.S., and Logan Heights Family Health Center. (ECF No. 8).
On April 11, 2014, Plaintiff filed a Rebuttal, requesting to be personally heard on his claim. (ECF No. 10).
The docket reflects that the United States did not file a reply to Plaintiff's filings.
II. Standard of Review
A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). The party asserting jurisdiction bears the burden of proving that the court has subject matter ...