Woodbeck v. USA, No. 2:2007cv01235 - Document 14 (D. Ariz. 2008)
Court Description: ORDER granting without prejudice Defendant United States' 4 Motion to Dismiss for Lack of Jurisdiction; Plaintiffs' claims against the fictitious defendants are sua sponte dismissed without prejudice. Signed by Judge Robert C Broomfield on 1/31/08.(REW, )
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Woodbeck v. USA 1 Doc. 14 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) ) vs. ) United States of America; ABC) Corporations I-X; Black and) White Partnerships I-X; and) ) John Does I-X, ) Defendants. ) ) Virginia Woodbeck, No. 07-1235-PHX-RCB O R D E R 19 20 21 Currently pending before the court is a motion by defendant, 22 the United States of America, for dismissal of this medical 23 malpractice action. 24 grants this motion. For the reasons set forth below, the court 25 Background 26 Plaintiff filed this action in the Superior Court of the 27 State of Arizona, Maricopa County, on September 11, 2006, naming 28 as defendants Lydia G. Ehlenberger, M.D., and John Doe Dockets.Justia.com 1 Ehlenberger, wife and husband, as well as Mountain Park Health 2 Center and “ABC Corporations I-X[.]” 3 exh. A thereto (doc. 1-4) at 3. 4 “deemed to be employees of the Public Health Service [(“PHS”)],” 5 United States Department of Health and Human Services, during the 6 relevant time frame. 7 Notice of Removal (doc. 1), The named defendants were Id. at 3, ¶ 3. PHS employees are covered under the Federal Tort Claims Act 8 (“FTCA”) pursuant to the Federally Supported Health Centers 9 Assistance Act of 1995 (“FSHCAA”). See McLaurin v. U.S., 392 10 F.3d 774, 777 (5th Cir. 2004). “[T]he FSHCAA makes the FTCA the 11 exclusive remedy for action against employees of the PHS 12 resulting from the performance of medical . . or related 13 functions and protects commissioned officers or employees of the 14 [PHS] from being subject to suit while performing medical and 15 similar functions by requiring that such lawsuits be brought 16 against the United States instead.” 17 marks and citations omitted). 18 certified that the defendants originally named in this action 19 were PHS employees,1 and thus under the protection of the FTCA, 20 in accordance with 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233, it 21 removed this action on June 22, 2007.2 Id. (internal quotation Because the United States At the same time, the 22 23 24 25 26 27 28 1 Not. of Removal (doc. 1) at 2, ¶ 3; see also Memo. in Supp. of U.S. Mot. to Dismiss (doc. 5), attachment 1 thereto (doc. 5-2) at 2, ¶¶ 5 and 6; and exh. 1 thereto. 2 Removal was timely despite the more than eight month gap between the filing of the state court action and removal. That is so because “[t]he unambiguous language of Section 2679(d)(2) requires only that the government remove ‘before trial’ a suit in which the PHS has deemed a qualified health care center employee as a federal employee.” McLaurin, 392 F.3d at 778-79 (quoting 28 U.S.C. § 2679(d)(2)). In the present case, the Government removed this action “before trial” in the state court. Thus, removal was timely. -2- 1 United States moved for substitution as the defendant herein -- a 2 motion which the court granted. 3 Thereafter the United States brought the present motion 4 arguing for dismissal on the ground that, inter alia, plaintiff 5 failed to exhaust her administrative remedies as section 2675(a) 6 of the FTCA requires. 7 Discussion 8 The United States is moving for dismissal pursuant to 9 Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. 10 It is also seeking dismissal pursuant to Fed. R. Civ. P. 12(b)(6) 11 for failure to state a claim upon which relief may be granted. 12 “Customarily, a federal court must first resolve doubts about its 13 jurisdiction over the subject matter,” and so, too, will this 14 court. See Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, 578 15 (1999). The court will first address the United States’ 16 jurisdiction argument because if the court lacks subject matter 17 jurisdiction, it must dismiss the complaint in its entirety. 18 Arbaugh v. Y & H Corp., 126 S.Ct. 1235, 1244 (2006) (citation 19 omitted). 20 the court could not, address the United States’ motion to dismiss 21 for failure to state a claim. 22 I. 23 Obviously then, there would be no need to, and indeed Governing Legal Standard - Fed. R. Civ. P. 12(b)(1) Before turning to the merits, the court notes that the 24 United States filed a “speaking motion,” rather than a facial 25 attack, “in that it is attacking jurisdiction with extrinsic 26 evidence.” 27 WL 2696716, at *1, n.1 (S.D.Cal. Sept. 11, 2007) (citing 28 Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d See American Economy Insurance Co. v. Herrera, 2007 -3- 1 1553, 1558 (9th Cir. 1987)). 2 lack of jurisdiction argument, the United States is relying upon 3 the sworn declaration of Richard G. Bergeron, a Senior Attorney 4 in the General Law Division, Office of the General Counsel, 5 Department of Health and Human Services. See Mot. (doc. 5), 6 attachment thereto (doc. 5-2) at 1, ¶ 1. Because that 7 declaration is properly before the court, “‘the party opposing 8 the motion [i.e. plaintiff Woodbeck] must furnish affidavits or 9 other evidence to satisfy [her] burden of establishing subject More specifically, to support its 10 matter jurisdiction.’” See Quezada v. Bogle, 2007 WL 3335011, at 11 *2 (E.D.Cal. 2007) (quoting Safe Air For Everyone v. Meyer, 373 12 F.3d 1035, 1039 (9th Cir. 2004) (other citation omitted). 13 given the procedural posture of this motion, “[t]he court may 14 . . . look beyond the allegations of the complaint to decide 15 [this] factual attack on jurisdiction.” 16 alia, Meyer, 373 F.3d at 1039). 17 II. 18 Thus, See id. (citing, inter Administrative Claim Requirement The FTCA bars claimants from seeking damages against the 19 United States until they first file an administrative claim. 20 U.S.C. § 2675(a)(West 2006).3 The purpose of this “procedure is 21 22 23 24 25 26 27 28 3 28 That statute reads 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 and his claims shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of any agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the -4- 1 to encourage administrative settlement of claims against the 2 United States and thereby prevent an unnecessary burdening of the 3 courts.” 4 (D.Idaho 2005) (citing Brady v. United States, 211 F.3d 499, 503 5 (9th Cir. 2000)). 6 McNeil v. United States, 508 U.S. 106 (1993): 7 Wright v. United States, 2005 WL 1353869, at *1 As the Supreme Court explained more fully in Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes some burden on the judicial system and on the Department of Justice which must assume the defense of such actions. Although the burden may be slight in an individual case, the statute governs the processing of a vast multitude of claims. 8 9 10 11 12 13 Id. at 503 (footnote omitted). 14 requirement is “jurisdictional[]” and as such, according to the 15 Ninth Circuit, “must be strictly adhered to[]” by FTCA claimants. 16 Brady, 211 F.3d at 502 (internal quotation marks and citations 17 omitted). 18 because the FTCA “waives sovereign immunity[;]” and “[a]ny such 19 waiver must be strictly construed in favor of the United States.” 20 Id. (internal quotation marks and citation omitted). 21 This administrative claim Strict adherence to this requirement is necessary According to attorney Bergeron, a “search of the Claims 22 Branch’s database” showed “no record of an administrative tort 23 claim filed by [plaintiff] Virginia Woodbeck or an authorized 24 representative relating to Mountain Park Health Center or Lydia 25 Ehlenberger, M.D.” Id. at 2, ¶ 4. Evidently plaintiff 26 27 28 claim for purposes of this section. 28 U.S.C. § 2675(a) (West 2006). -5- 1 recognizes her failure to comply with the FTCA’s administrative 2 prerequisites and, in turn, her failure to meet her burden on 3 this motion because she rightly concedes that dismissal “is 4 appropriate[.]” See Resp. (doc. 11) at 1. 5 court, as it must, grants the United States’ motion to dismiss 6 for lack of subject matter pursuant to Fed. R. Civ. P. 12(b)(1). 7 See Jost v. United States Post Office, 2007 WL 1517695, at *1 8 (E.D.Cal. 2007) (where plaintiff “concede[d] he ha[d] not 9 complied with the FTCA[,] . . . court ha[]d no choice but to Consequently the 10 dismiss th[e] action as against the United States Post 11 Office[]”); see also Wright v. United States, 2007 WL 1353869, at 12 *4 (D.Idaho 2005) (dismissing claims against United States 13 pursuant to Rule 12(b)(1) where plaintiffs did not timely present 14 their claims under the FTCA, and thus “they . . . failed to 15 exhaust their administrative remedies and [could] not establish 16 that subject matter jurisdiction [wa]s proper[]”). 17 Aware that this failure by plaintiff “can be remedied[,]”4 18 plaintiff “requests that the Court grant [her] leave . . . to 19 refile her claim pursuant to the [FTCA], 28 U.S.C. § 2679(B).” 20 Resp. (doc. 11) at 1. 21 first is plaintiff’s failure to accurately cite to the relevant 22 statute. 23 that plaintiff intended to rely upon 28 U.S.C. § 2678(5)(B). 24 That statute provides as follows: 25 There are two flaws in this request. The FTCA does not include a “§ 2679(B).” The It appears Whenever an action or proceeding in which the United States is substituted as the party defendant under this subsection 26 27 28 4 See Le v United States, 2007 WL 1541752, at *3 n.1 (D.Or. 2007). -6- 1 is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if - . . . 2 3 4 (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. 5 6 28 U.S.C. § 2679(5)(B) (West 2006). 7 Even assuming that plaintiff had relied upon the correct 8 statute, there is nothing on the face of that statute which gives 9 the court authority to grant her discretion to “refile.” Rather 10 it is incumbent upon plaintiff to proceed as she deems 11 appropriate and necessary to protect her interests under the FTCA 12 in light of this dismissal. 13 dismisses this action without prejudice. 14 States, 2007 WL 3087157, at *1 (W.D.Wash. 2007) (dismissing FTCA 15 claims without prejudice where plaintiff had not properly 16 exhausted his administrative remedies under 28 U.S.C. § 2675(a)); 17 see also Oeser v. Ashford, 2007 WL 1280584, at *1 (N.D.Cal. 2007) 18 (dismissing FTCA complaint without prejudice to renew, and 19 allowing plaintiff to timely refile in accordance with the 20 requirements of that Act). 21 22 23 24 III. In light of the foregoing, the court See Marks v. United Fictitious Defendants In her complaint plaintiff names several fictitious defendants in the caption: “ABC Corporations I-X; Black and White Partnerships I-X; [and] John Does I-X[.]” Co. (doc. 1-4) at 3. 25 The complaint is completely void, however, of any allegations as 26 to the fictitious partnerships. 27 dismisses this action as against those entities. Thus, the court sua sponte 28 -7- 1 Likewise, the court sua sponte dismisses this action as 2 against the remaining fictitious defendants, although it does so 3 for a different reason. 4 [fictitious] defendants were served either before or after 5 removal.” 6 (D.Ariz. 2006). 7 Defendants because of their anonymity.” 8 marks and citation omitted). 9 explained: “Not surprisingly, none of the[se] See Dugay v. JPMorgan Chase, 2006 WL 3792043, at *5 “Indeed it is virtually impossible to serve Doe Id. (internal quotation As this court has previously Generally, the use of anonymous type appellations to identify defendants is not favored . . . In fact, Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to include the names of the parties in the action. . . . By the same token though, the Ninth Circuit has [long] held that where identity is unknown prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendant, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds. 10 11 12 13 14 15 16 17 18 Id. (internal quotation marks and citations omitted). 19 dismissal is appropriate, as discussed above. 20 futile to give [plaintiff] the opportunity to identify and serve 21 the unnamed Doe defendants [and fictitious corporations].” 22 id. 23 against the John Doe defendants, as well as against the ABC 24 Corporations. 25 Here, Thus, “it would be Accordingly, the court sua sponte dismisses this action as Conclusion 26 For the reasons set forth above, 27 IT IS ORDERED that defendant United States’ motion for 28 See dismissal pursuant to Fed. R. Civ. P. 12(b)(1) for lack of -8- 1 subject matter jurisdiction is GRANTED without prejudice (doc. 2 4); and 3 4 5 IT IS FURTHER ORDERED that plaintiffs’ claims against the fictitious defendants are sua sponte dismissed without prejudice. DATED this 31st day of January, 2008. 6 7 8 9 10 11 12 13 14 15 16 17 18 copies to all counsel of record 19 20 21 22 23 24 25 26 27 28 -9-
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