United States District Court, E.D. California
ORDER ON DEFENDANT UNITED STATES OF AMERICA'S
MOTION TO DISMISS (Doc. No. 11)
a tort action involving medical care that Plaintiff Gonzalo
Arambula (“Plaintiff”) originally filed in Fresno
County Superior Court against Clinica Sierra
Vista and Alex Cervantes
(“Cervantes”). The United States of America
removed the action to this Court and substituted itself as
the defendant. Currently before the Court is a motion by the
United States to dismiss the action for lack of subject
matter jurisdiction, in which the United States asserts that
Plaintiff failed to satisfy the administrative claim
requirement set forth in Section 2675(a) of the Federal Tort
Claims Act (“FTCA”). For the reasons that follow,
the motion will be granted.
filed this action against Clinica Sierra Vista and Cervantes
in the Fresno County Superior Court on November 6, 2018,
seeking compensatory and punitive damages for negligence,
“medical cruelty” and “hate crimes”
in connection with unspecified medical care. Doc. No. 1-1.
The Complaint was set forth on Form PLD-PI-001 of the
Judicial Council of California. Id. Plaintiff
checked Box 9 on Form PLD-PI-001, stating that he was
required to comply with a claims statute, but did not check
either Box 9.a., stating that he had complied with such
statute, or Box 9.b., stating that he was excused from doing
Rule of Civil Procedure 12(b)(1) allows for a motion to
dismiss based on lack of subject matter jurisdiction.
See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental
precept that federal courts are courts of limited
jurisdiction. Vacek v. United States Postal Serv.,
447 F.3d 1248, 1250 (9th Cir. 2006). Limits upon federal
jurisdiction must not be disregarded or evaded. Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365,
374 (1978). “It is presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994); Vacek, 447 F.3d at 1250. Rule 12(b)(1)
motions may be either facial, where the inquiry is confined
to the allegations in the complaint, or factual, where the
court is permitted to look beyond the complaint to extrinsic
evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th
Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004); Savage v. Glendale Union High
School Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir.
2003). When a defendant makes a factual challenge “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.”
Meyer, 373 F.3d at 1039; Savage, 343 F.3d
at 1039 n.2. The court need not presume the truthfulness of
the plaintiff's allegations under a factual attack.
Wood v. City of San Diego, 678 F.3d 1075, 1083 n.2
(9th Cir. 2011).
United States contends that, since Clinica Sierra Vista has
been deemed an employee of the Public Health Service within
the United States Department of Health and Human Services,
tort actions against Clinica Sierra Vista and its employees
arising from medical and related functions must be brought
against the United States pursuant to the FTCA. ECF No. 11-1.
Further, the United States contends that this Court lacks
subject matter jurisdiction because Plaintiff did not submit
an administrative tort claim to the Department of Health and
Human Services prior to filing this lawsuit, as required by
Section 2675(a) of the FTCA. Id. In support of its
motion, the United States has filed a declaration, executed
by an attorney in the Office of the General Counsel for the
Department of Health and Human Services and corroborated by
relevant documentation, stating, inter alia, that:
(i) Clinica Sierra Vista was deemed a Public Health Services
employee by the Department of Health and Human Services; (ii)
Cervantes was an employee of Clinica Sierra Vista at the time
of the incidents giving rise to this suit; and (iii) the
Department of Health and Human Services has no record of an
administrative tort claim filed by or on behalf of Plaintiff
relating to Clinica Sierra Vista and Cervantes. Doc. No.
filed no opposition or response of any kind to the motion and
has not otherwise sought to be heard in this action since
filing the Complaint on November 6, 2018.
2675(a) of the FTCA sets forth an administrative exhaustion
requirement that states, in relevant part, as follows:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
unless the claimant shall have first presented the claim to
the appropriate Federal agency ….
28 U.S.C. § 2675(a). “The requirement of an
administrative claim is jurisdictional” and, thus,
“must be strictly adhered to.” Brady v.
United States, 211 F.3d 499, 502 (9th Cir. 2000)
(citations and internal quotations omitted). “The FTCA
bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies.”
McNeil v. United States, 508 U.S. 106, 113 (1993);
Wilson v. Horton's Towing, 906 F.3d 773, 783
(9th Cir. 2018), cert. denied, 139 S.Ct. 1603 (2019)
(“When a plaintiff fails to exhaust administrative
remedies against the United States, as required by the FTCA,
the proper route is dismissal.”) (citing
McNeil, 508 U.S. at 113).
United States has filed a sworn declaration stating that the
Department of Health and Human Services has no record of an
administrative tort claim relating to Clinica Sierra Vista
and Cervantes filed by or on behalf of Plaintiff. Doc. No.
11-2. Plaintiff does not dispute the declaration. Indeed,
Plaintiff alleges in the Complaint that a claims statute
applies to this action, but does not allege, ...