Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

B.M. v. Lim

United States District Court, N.D. California, San Francisco Division

February 9, 2015

B.M., a minor by and through his guardian ad litem DAVID MONES, Plaintiff,
v.
ANTHONY LIM, et al., Defendants.

ORDER GRANTING THE UNITED STATES'S MOTION TO DISMISS AND REMANDING THE ACTION TO SONOMA COUNTY SUPERIOR COURT [Re: ECF No. 8]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

On May 30, 2013, Plaintiff filed a complaint for medical negligence in Sonoma County Superior Court against five Defendants: (1) Anthony Lim, M.D.; (2) Douglas Jimenez, M.D.; (3) Sutter Medical Center; (4) University of California, San Francisco; and (5) the Regents of the University of California. (Complaint, ECF No. 1 at 6-8.[1]) Plaintiff dismissed the University of California, San Francisco and the Regents of the University of California from this action while it was still in state court. (Plaintiff's 1/23/2015 Status Report, ECF No. 19 at 1.) On December 1, 2014, the United States, acting on Dr. Jimenez's behalf, removed the action to this court. (Notice of Removal, ECF No. 1.) It now asks the court to substitute it in place of Dr. Jimenez and to dismiss Plaintiff's claims against it. (Motion, ECF No. 8.) Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument and vacates the March 5, 2015 hearing. Upon consideration of the papers submitted and the applicable legal authority, the court grants the United States's motion and remands he action to Sonoma County Superior Court.

STATEMENT

On May 30, 2013, Plaintiff sued, among other Defendants, Dr. Jimenez in California state court for medical malpractice. (Complaint, ECF No. 1 at 6-8). On September 25, 2014, Plaintiff filed an administrative tort claim with the Department of Health and Human Services ("HHS") regarding the alleged incident. (Torres Decl., ¶ 4, ECF No. 9.) As of November 13, 2014, no final determination on that claim had been issued, and there is no indication that one has been issued since then. ( Id. ) On December 1, 2014, the United States Attorney for the Northern District of California, through the Chief of the Civil Division of her Office, certified that Dr. Jimenez was acting within the course and scope of his employment with reference to the matters alleged in the suit. Specifically, the Civil Chief certified as follows:

I have reviewed the summons and complaint in the above-captioned action. On the basis of those documents and certain other information provided to me, pursuant to the provisions of 28 U.S.C. § 2679(d) and by virtue of the authority vested in me as set forth above, I hereby certify that pursuant to the Federal Tort Claims Act ("FTCA") and the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n), Santa Rosa Community Health Centers, formerly known as Southwest Community Health Center, were deemed eligible for FTCA malpractice coverage and its employees were covered under the FTCA effective January 1, 2012, through December 31, 2013. Further, Douglas Jimenez, M.D., is or was an employee of the health centers and was acting within the scope of his employment at all times material to such alleged incidents.

(Certification, ECF No. 2.) That same day, the United States removed the action to this court. (Notice of Removal, ECF No. 1.)

The United States now asks the court to substitute it in place of Dr. Jimenez and to dismiss Plaintiff's claims against it. (Motion, ECF No. 8.) Plaintiff did not file an opposition to the United States's motion. All live parties to the action have consented to the undersigned's jurisdiction. (Consent (United States), ECF No. 7; Consent (Plaintiff), ECF No. 17; Consent (Dr. Lim and Sutter Medical Center), ECF No. 23.)

ANALYSIS

I. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) permits defendants to move for dismissal of a complaint for lack of subject-matter jurisdiction. A plaintiff who seeks to invoke federal jurisdiction by filing a complaint in federal court bears the burden of establishing that jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). The plaintiff must therefore plead sufficient facts in the complaint to establish the court's jurisdiction. Fed.R.Civ.P. 8(a)(1).

A defendant may mount either a facial or a factual challenge to the court's jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "A facial' attack asserts that a complaint's allegations are themselves insufficient to invoke jurisdiction, while a factual' attack asserts that the complaint's allegations, though adequate on their face to invoke jurisdiction, are untrue." Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n. 3 (9th Cir. 2014) (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). When defendant mounts a facial attack, the court must "accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In contrast, when presented with a factual challenge to subject matter jurisdiction, the court may evaluate extrinsic evidence and resolve factual disputes when necessary. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). In a factual challenge, Plaintiff "bears the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Harris v. Rand, 682 F.3d 846, 850-51 (9th Cir. 2012)). Dismissal of a complaint without leave to amend should be granted only where the jurisdictional defect cannot be cured by amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

II. APPLICATION

A. The United States Is the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.