United States District Court, E.D. California
JERIAH BACKER, and Z.B. a minor by and through his guardian ad litem Jeriah Backer, Plaintiffs,
UNITED STATES OF AMERICA, and DOES 1 through 10, inclusive, Defendant
(DOC. NO. 18)
ANTHONY W. ISHII, District Judge.
This is a wrongful death case that stems from the death of Craig Backer ("Decedent"). Plaintiffs are the surviving wife and minor son of decedent. The operative complaint is the Original Complaint, which contains a single claim for wrongful death based on medical negligence by the United States Department of Veteran's Affairs. Before the Court is the United States' Rule 12(b)(7) motion to dismiss. For the reasons that follow, the motion will be denied.
From the Complaint, Decedent died on April 2, 2010 from complications associated with a brain tumor that was not timely diagnosed and not appropriately treated. Decedent had various conditions and complaints that were ignored, not properly diagnosed, or not properly treated by either the West Los Angeles Department of Veterans of Affairs Medical Center or the Bakersfield VA Community Clinic (collectively "VA Clinics"). Plaintiffs alleges various acts of negligence by the VA including failure to train healthcare providers, failure to prescribe appropriate mediations, failure to consult with physicians, failure to schedule examinations, failing to follow appropriate procedures, failure to adopt rules/procedures, failure to diagnose and treat, and failure to conduct diagnostic tests.
On September 20, 2010, Plaintiffs filed a claim for damages with the Department of Veterans Affairs ("DVA"). On October 23, 2012, the DVA informed Plaintiffs' then counsel, Phillip Levy ("Levy"), that their claim was denied. Once the claim was denied, Plaintiffs hired current counsel, Douglas Smith ("Smith"), and filed this case on April 22, 2013.
The Decedent had two other minor children, C.B. and T.B., when he died on April 2, 2010. See Backer Dec. ¶ 1; Bradshaw Dec. Exs. A, B. C.B., T.B., and their mother, Karen Farin ("Farin") were notified of the Decedent's death in April 2010. See Backer Dec. ¶ 4. Smith has attempted to contact Farin regarding C.B. and T.B. and this lawsuit, but those efforts have been unsuccessful. See Smith Dec. ¶¶ 7, 8, 9. Further, Levy informed Smith about C.B. and T.B., and also gave Farin Smith's contact information. See id. at ¶ 4. C.B. and T.B. are not parties to this lawsuit. While Plaintiffs have exhausted the necessary administrative remedies as required by 28 U.S.C. § 2675, C.B. and T.B. have filed no claims pursuant to the Federal Tort Claims Act. See Atkinson Dec. ¶¶ 3, 4; Smith Dec. ¶ 3, 6, 10, 11.
The United States argues that California law requires all heirs be joined as parties to a wrongful death cause of action. C.B. and T.B. are heirs of the Decedent, but they are not parties to the case. Since C.B. and T.B. are necessary parties who have not been joined, dismissal is proper.
Plaintiffs argue that neither joinder nor dismissal is required. T.B. and C.B. cannot recover against the United States because they failed to exhaust administrative remedies under the Federal Tort Claims Act, and the time to exhaust has now passed. Any claims that T.B. and C.B. may have had are now time-barred. As a result, T.B. and C.B. have no legitimate interest in this suit, and the United States is not subject to incurring multiple liabilities. The Court should either find T.B. and C.B.'s claims time barred, or join them as involuntary plaintiffs.
In reply, the United States responds that it does not oppose either an order finding T.B. and C.B.'s claims to be time barred and thus they are not indispensable, or add C.B. and T.B. as involuntary plaintiffs. If the former course is taken, the United States would file a motion to dismiss based on the failure to timely exhaust mandatory administrative procedures.
1. Rule 12(b)(7)
Federal Rule of Civil Procedure 12(b)(7) permits a party to move for dismissal due to the failure to join a necessary party under Federal Rule of Civil Procedure 19. See Fed. R. Civ. Pro. 12(b)(7); Paiute-Shoshone Indians of the Bishop Cmty v. City of Los Angeles , 637 F.3d 993, 1002 (9th Cir. 2011). In deciding a Rule 12(b)(7) motion, courts may consider evidence outside of the pleadings. See McShan v. Sherrill , 283 F.2d 462, 464 (9th Cir. 1960); Camacho v. Major League Baseball, 297 F.R.D. 457, 461 (S.D. Cal. 2013); Behrens v. Donnelly , 236 F.R.D. 509, 512 (D. Haw. 2006).
Rule 19 imposes a three-step inquiry: "(1) Is the absent party necessary (i.e., required to be joined if feasible) under Rule 19(a)? (2) If so, is it feasible to order that the absent party be joined? (3) If joinder is not feasible, can the case proceed without the absent party, or is the absent party indispensable such that the action must be dismissed?" Salt River Project Agric. Improvement & Power Dist. v. Lee , 672 F.3d 1176, 1179 (9th Cir. 2012). Under the first step, a party may be "necessary" if: (1) in the party's absence, the court cannot accord complete relief among existing parties; (2) the absent party has an interest in the action and resolving the action without him may impair or impede his ability to protect that interest; and (3) the absent party has an interest in the action and resolving the action in his absence may leave an existing party subject to multiple or inconsistent obligations. See Fed.R.Civ.P. 19(a)(1); Salt River , 672 F.3d at 1179. The third step of the Rule 19 inquiry is one of "equity and good conscience" that requires a "practical examination of the circumstances" and consideration of at least four interests: (1) the plaintiff's interest in having a forum; (2) the defendant's interest in not proceeding without the required party; (3) ...