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McGuire v. Beckmann

United States District Court, E.D. California

September 5, 2019

JAMIE McGUIRE, an individual, Plaintiff,
ANDREW BECKMANN, M.D., an individual, and SPECTRUM HEALTHCARE, INC., Defendants.



         This matter is before the Court on Defendant United States of America's (“Defendant”) Motion to Dismiss for lack of subject matter jurisdiction. (ECF No. 6.) Plaintiff Jamie McGuire (“Plaintiff”) filed an opposition. (ECF No. 7.) Defendant filed a reply. (ECF No. 8.) For the reasons set forth in this Order, Defendant's motion is GRANTED.

         I. Factual and Procedural Background

         On April 19, 2017, Plaintiff filed a personal injury lawsuit in the Superior Court of the State of California, County of Solano, alleging that she was injured by the negligent actions of Andrew Beckmann, M.D. (ECF No. 1-1.) At the time of the events alleged in the Complaint, Plaintiff was on active duty in the United States Air Force and was stationed at Travis Air Force Base. (ECF No. 7 at 1.) In April 2016, Plaintiff visited the emergency room at the David Grant Medical Center on Travis Air Force Base for the purpose of receiving medical treatment. (ECF No. 7 at 2.) During Plaintiff's visit to the emergency room, Beckmann allegedly prescribed her opioid-based medication to which she had a severe allergic reaction. (ECF No. 1-1 ¶¶ 5-7.) Plaintiff alleges that she suffered severe and disabling injuries when Beckmann prescribed medication that he allegedly had reason to know might cause her harm. (ECF No. 1-1 ¶¶ 7, 9.)

         In addition to Beckmann himself, Plaintiff also named Spectrum Healthcare, Inc. (hereafter, “Spectrum”) as a defendant under a respondeat superior theory of liability. (ECF No. 1-1 ¶ 3.) The Complaint alleges that Beckmann acted in the course and scope of his employment with Spectrum when he made the decision to prescribe opioid-based medication to Plaintiff. (ECF No. 1-1 ¶¶ 3-4.) The Complaint further alleges that Spectrum “was a healthcare services provider contracting with the United States Air Force to provide emergency room staffing at David Grant Medical Center.” (ECF No. 1-1 ¶ 4.)

         On August 11, 2017, Defendant removed the case to this Court. (ECF No. 1.) Pursuant to 28 U.S.C. § 2679(d)(1), Defendant also certified that Beckmann was a federal employee acting within the course and scope of his federal employment at the time of the actions set forth in the Complaint. (ECF No. 2-1.) This certification substituted the United States as Defendant in this action, thereby dismissing Beckmann (see ECF No. 2 at 2), and Plaintiff voluntarily dismissed Spectrum from the case at a later date (see ECF No. 10).

         Defendant's motion advances two main arguments. First, Defendant argues that the underlying action should be dismissed because Beckmann was employed at all relevant times under a personal services contract with the Air Force. (ECF No. 6-1 at 2.) Defendant asserts that pursuant to the Gonzalez Act, 10 U.S.C. § 1089, the Federal Tort Claims Act (“FTCA”) is the only viable avenue for the lawsuit to proceed. (ECF No. 6-1 at 2 (citing 10 U.S.C. § 1089(a)).) However, according to Defendant, Plaintiff cannot utilize the FTCA's waiver of sovereign immunity to maintain her suit because she failed to exhaust administrative prerequisites. (ECF No. 6-1 at 2-3.) Second, Defendant argues that this Court should dismiss the suit without leave to amend because the doctrine set forth by the Supreme Court in Feres v. United States, 340 U.S. 135, 146 (1950), holds that federal district courts have no jurisdiction over cases like this one that seek tort damages for injuries sustained while a plaintiff is on active military duty.

         Plaintiff opposes Defendant's motion to dismiss on the ground that - despite Defendant's certification that Beckmann was acting in the course and scope of his federal employment when he treated Plaintiff in 2016 - Beckmann was not actually a federal employee and so Defendant is not entitled to the protection of the Gonzalez Act or the FTCA. (ECF No. 7 at 3.) Specifically, Plaintiff argues that at the time he negligently prescribed opioid-based medication to Plaintiff, Beckmann was employed by Spectrum, not by the United States. (ECF No. 7 at 3.) As evidence in support of this argument, Plaintiff points to Beckmann's LinkedIn profile. (See ECF No. 7 at 3 (“Social media confirms that Beckmann was not working for the United States but was, in fact, working for Spectrum Healthcare, Inc.”).) Plaintiff further argues that even if the Court dismisses the Complaint, “the motion should be granted without prejudice to allow for a timely filing of a claim under” the FTCA. (ECF No. 7 at 3.)

         Defendant's reply expands on its original argument by incorporating the actual contract documents that Defendant asserts prove that Beckmann had “an employer-employee like relationship with the government.” (ECF No. 8 at 3.) The reply also notes that Plaintiff's opposition does not address the application of the Feres doctrine. (ECF No. 8 at 4.)

         II. Standard of Law

         A. Motion to Dismiss

         Federal courts are courts of limited jurisdiction and are presumptively without jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of establishing the contrary rests upon the party asserting jurisdiction. Id. Because subject matter jurisdiction involves a court's power to hear a case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at any point during the litigation, through a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Int'l Union of Operating Eng'rs v. Cnty. of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009).

         There are two types of motions to dismiss for lack of subject matter jurisdiction: a facial attack, and a factual attack. Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Put differently, a party may either make an attack on the allegations of jurisdiction contained in the nonmoving party's complaint or may challenge the existence of subject matter jurisdiction in fact, despite the formal sufficiency of the pleadings. Id.

         When a party makes a facial attack on a complaint, the attack is unaccompanied by supporting evidence and it challenges jurisdiction based solely on the pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). However, in the case of a factual attack, “no presumptive truthfulness attaches to plaintiff's allegations.” Thornill, 594 F.2d at 733 (internal citation omitted). Rather, the party opposing the motion has the burden of proving that subject matter jurisdiction does exist and must present any necessary evidence to satisfy this burden. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). To that end, the district court may review any evidence necessary, including affidavits and testimony, in order to determine whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d ...

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