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Martinez v. United States

United States District Court, E.D. California

May 8, 2017

JOHANA MARTINEZ, Plaintiff,
v.
UNITED STATES OF AMERICA; and KAWEAH DELTA HEALTH CARE DISTRICT, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING DEEFENDANT UNITED STATES' MOTION TO DISMISS (ECF NO. 18.)

          LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         Defendant 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.)

         Now 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.

         II. STANDARD OF DECISION

         A. Rule 12(b)(1)

         A 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).

         “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. & 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.

         In 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).

         The 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.

         B. Sovereign Immunity

         Under 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 ...


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