United States District Court, E.D. California
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION
L. NUNLEY UNITED STATES DISTRICT JUDGE.
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
Factual and Procedural Background
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.)
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.)
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).
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
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.)
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.)
Standard of Law
Motion to Dismiss
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).
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.
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 ...