United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER GRANTING DEEFENDANT
UNITED STATES' MOTION TO DISMISS (ECF NO. 18.)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Johana Martinez (“Plaintiff” or
“Martinez”) filed a first amended complaint
(“FAC”) in this action on March 28, 2017 against
Defendants United States of America (“United
States” or “Defendant”) and Kaweah Delta
Health Care District (“KDHCD”). This action
arises out of injuries Plaintiff sustained during a
robotic-assisted total laparoscopic hysterectomy with
bilateral salpingectomy and cystoscopy performed by Dr.
Elizabeth Enderton (“Dr. Enderton”), a physician
employed by Family HealthCare Network (“FHCN”) at
the Kaweah Delta Medical Center.
brings four causes of action: 1) professional negligence; 2)
negligence - vicarious liability/respondeat superior; 3)
negligent hiring, retention, and supervision; and 4)
negligence. (ECF No. 16.) The United States is named as a
defendant in Counts One through Three. (Id.) KDHCD
is named as the defendant in Count Four. (Id.)
Plaintiff alleges federal question jurisdiction pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671-2680 and 42 U.S.C. §
233(g)-(n) with respect to Counts One through Three and
supplemental jurisdiction over Count Four pursuant to 28
U.S.C. § 1367.
United States acknowledged in a certification that Dr.
Enderton is deemed an employee of the Public Health Service
pursuant to the Federally Supported Health Centers Assistance
Act of 1992 (“FSHCAA”), 42 U.S.C. § 233, and
was acting in the scope of her employment at the time of the
events alleged in the FAC. (ECF No. 13-1.) Defendant United
States further certified that FHCN, a federally funded
healthcare facility and a grantee of the United States
Department of Health & Human Services, is covered by the
FTCA by operation of the FSHCAA, 28 U.S.C. § 2697and 28
C.F.R. § 15.3. (Id.)
before the Court is Defendant United States' motion to
dismiss Counts Two and Three, filed April 11, 2017. (ECF No.
18.) Defendant argues that Count Two of the FAC should be
dismissed as unnecessary, because the United States is the
only proper party under the FTCA. (Id.); see
also 28 U.S.C. § 2679. Defendant also argues that
Count Three of the FAC should be dismissed for lack of
subject matter jurisdiction. Plaintiff stipulated to
dismissal of Count Two without prejudice, but opposed
Defendant's motion to dismiss Count Three. (ECF No. 20.)
Defendant submitted a reply. (ECF No. 21.) The Court accepts
the parties' stipulation to dismiss Count Two of the FAC
without prejudice and will not address it further in this
Order. Defendant's motion to dismiss Count Three is ripe
for review, and this matter is suitable for disposition
without oral argument. See Local Rule 230(g). Venue
is proper in this Court.
STANDARD OF DECISION
motion to dismiss for lack of subject matter jurisdiction
determines whether the plaintiff has a right to be in federal
court, whereas a motion to dismiss for failure to state a
claim questions whether a cognizable legal claim has been
stated. Tr. 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).
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. & Elec. Corp., 594 F.2d
730, 733 (9th Cir. 1979) (internal citations omitted);
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 890-92 (3rd Cir. 1977); Exchange Nat'l
Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-31
(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 1035, 1039 (9th Cir. 2004). “By contrast, in a
factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke
federal jurisdiction.” Id.
resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint. Savage v.
Glendale Union High School, 343 F.3d 1036, 1039 n.2 (9th
Cir. 2003); McCarthy v. United States, 850 F.2d 558,
560 (9th Cir. 1988). A proper speaking motion allows the
court to consider evidence outside the complaint without
converting the motion into a summary judgment motion. See
Safe Air, 373 F.3d at 1039. “Once the moving party
has converted the motion to dismiss into a factual motion by
presenting affidavits or other evidence properly brought
before the court, the party opposing the motion must furnish
affidavits or other evidence necessary to satisfy its burden
of establishing subject matter jurisdiction.”
Savage, 343 F.3d at 1039-40, n.2. In a speaking
motion, “[t]he court need not presume the truthfulness
of the plaintiff's allegations.” Safe Air,
373 F.3d at 1039. Few procedural limitations exist in a
factual challenge to a complaint's jurisdictional
allegations. St. Clair v. City of Chico, 880 F.2d
199, 200-02 (9th Cir. 1989).
court may permit discovery before allowing the plaintiff to
demonstrate the requisite jurisdictional facts. Id.
A court may hear evidence and make findings of fact necessary
to rule on the subject matter jurisdiction question prior to
trial, if the jurisdictional facts are separable from the
merits. Rosales v. United States, 824 F.2d 799,
802-03 (9th Cir. 1987). However, if the jurisdictional issue
and substantive claims are so intertwined that resolution of
the jurisdictional question is dependent on factual issues
going to the merits, the court should dismiss for lack of
jurisdiction only if the material facts are not in dispute
and the moving party is entitled to prevail as a matter of
law. Otherwise, the intertwined facts must be resolved by the
trier of fact. Id.
the doctrine of sovereign immunity, “the United states
. . . is immune from suit save as it consents to be sued,
” and “the terms of its consent to be sued in any
court define that court's jurisdiction[.]”
United States v. Sherwood, 312 U.S. 584, 586 (1941).
A waiver of traditional sovereign immunity is not implied but
must be unequivocally expressed. See United States v.
Testan, 424 U.S. 392, 399 (1983). “[S]tatutes
which are claimed to be waivers of sovereign immunity are to
be strictly ...