United States District Court, E.D. California
EMELIN BRAVO, a minor by and through her Guardian ad Litem BLANCA RIVERA, BLANCA RIVERA, and ROGELIO BRAVO, Plaintiffs,
COUNTY OF KERN, et al., Defendants.
ORDER ON MOTION TO DISMISS INTRODUCTION (Doc. 4)
LAWRENCE J. O'NEILL, District Judge.
Plaintiffs Emelin Bravo, by and through her guardian ad litem Blanca Rivera, Blanca Rivera, and Rogelio Bravo (collectively, "Plaintiffs") bring this action for medical negligence and negligent infliction of emotional distress against Defendants the County of Kern, Kern Medical Center, Chibuike Enyereibe Anucha, M.D., and Antonio L. Garcia, M.D. (collectively, "Defendants"). The United States ("government") was substituted as party defendant in place of Anucha. Before the Court is the government's motion to dismiss Plaintiffs' claims against it for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons discussed below, the Court GRANTS WITHOUT PREJUDICE the government's motion to dismiss and REMANDS this case to Kern County Superior Court.
Plaintiffs allege that, on or around July 2, 2012, they were injured by Defendants' provision of medically negligent and unskillful prenatal and obstetric care to Blanca Rivera and Emelin Bravo.
Plaintiffs submitted administrative tort claims to the United States Department of Health and Human Services ("HHS") on June 19, 2013. To date, no final determinations have been made by HHS.
Plaintiffs filed their complaint in Kern County Superior Court on September 18, 2013.
The United States was substituted as party defendant in place of Anucha and removed this action to this Court on March 10, 2014.
On March 13, 2014, the government filed the instant motion to dismiss Plaintiff's claims against it for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiffs did not file an opposition, and the government did not file a reply.
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)
A. Legal Standard
A motion to dismiss for lack of subject matter jurisdiction determines whether the plaintiff has a right to be in the particular federal court, whereas a motion to dismiss for failure to state a claim is an adjudication as to whether a cognizable legal claim has been stated. Trustees of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., 572 F.3d 771, 775 (9th Cir. 2009) (quoting 5B Wright & Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)). A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981).
"A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Pub. Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979) (citing Land v. Dollar, 330 U.S. 731, 735 & n. 4 (1947); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 890-892 (3rd Cir. 1977); Exchange Nat'l Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-1131 (2nd Cir. 1976)). "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 for Everyone v. Meyer, 373 F.3d ...