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Ross v. United States

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

November 17, 2017

DOUGLAS WAYNE ROSS, et al., Plaintiffs,
v.
THE UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS RE: DKT. NO. 15

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

         Plaintiffs bring claims for wrongful death and elder abuse resulting from the death of their father while he was receiving care from the Veterans Administration (“VA”) hospital in Palo Alto, California. The government moves to dismiss the majority of Plaintiffs' claims under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The government's motion will be granted in part and denied in part.

         I. BACKGROUND

         Ross was admitted to the Palo Alto VA in February 2016 for revascularization surgery. Compl. ¶ 23, Dkt. No. 1. After his surgery, Ross suffered a heart attack and cardiac arrest, and his doctors prescribed the maximum dose of blood thinners to prevent another heart attack and to treat his blood clots. Id. His file noted that he was at “high risk for falls.” Id.

         On April 28, 2016, Ross was left in a chair, unattended and unrestrained, for approximately 40 minutes. Id. ¶ 28. During that time, Ross fell from his chair and hit his head. Id. ¶ 24. He died from his injuries on May 5, 2016. Id. ¶ 21. His death certificate states that the cause of death was “a closed head injury” caused by a “fall, unwitnessed.” Id.

         Doug Jr., Nicole, and Neville are Ross's biological children. On July 27, 2016, Doug Jr. filed an administrative tort claim with the VA. Id. Ex. 1. The VA denied the claim on March 8, 2017, because it concluded that “there was no negligent or wrongful act on the part of an employee of the Department of Veterans Affairs acting within the scope of employment that caused compensable harm.” Id. Nicole and Neville did not file administrative claims.

         In this action, Plaintiffs assert claims against the government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), and 2671-80. Id. ¶ 5. Doug Jr., Nicole, and Neville each bring claims for wrongful death in their individual capacities as Ross's heirs. Id. ¶¶ 8-10, 36-42. Doug Jr. also brings a claim for elder abuse under California Welfare and Institutions Code § 15610 on Ross's behalf. Id. ¶¶ 8, 30-35.

         The government now moves to dismiss all claims-with the exception of Doug Jr.'s wrongful death claim-under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Def.'s Mot. to Dismiss (“MTD”), Dkt. No. 15.

         II. LEGAL STANDARD

         A. Rule 12(b)(1)

         Dismissal under Fed.R.Civ.P. 12(b)(1) is appropriate if the complaint fails to allege facts sufficient to establish subject-matter jurisdiction. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). The Court “is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The nonmoving party bears the burden of establishing jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

         B. Rule 12(b)(6)

         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of claims alleged in the complaint. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal “is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         III. ...


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