Soto Gonzalez v. University Medical Center of Southern Nevada, et al, No. 2:2021cv02238 - Document 39 (D. Nev. 2022)
Court Description: ORDER denying 21 Motion to Remand to State Court. ORDER granting 27 Motion to Dismiss; Plaintiff's claims against the United States are DISMISSED without prejudice. Because the court lacks jurisdiction over the remaining claims and defe ndants, the Clerk of Court is directed to REMAND this case back to the Eighth Judicial District Court, Department 11, Case No. A-21-837197-C, and CLOSE THIS CASE. ORDER denying 10 Motion to Dismiss without prejudice. Signed by Judge Jennifer A. Dorsey on 6/30/2022.; Case terminated. (Copies have been distributed pursuant to the NEF - certified copy of order and docket mailed to state court - HAM)
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Soto Gonzalez v. University Medical Center of Southern Nevada, et al Doc. 39 Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 1 of 7 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Asusena Soto Gonzalez, 4 Plaintiff Order Granting the Government’s Motion to Dismiss and Remanding Case Back to State Court 5 v. 6 University Medical Center of Southern Nevada, et al., 7 Defendants 8 9 Case No.: 2:21-cv-02238-JAD-BNW [ECF Nos. 10, 21, 27] Plaintiff Asusena Soto Gonzalez first filed this state-law medical-malpractice action in 10 state court against the University Medical Center of Southern Nevada and several doctors for 11 medical complications she suffered after childbirth. The United States intervened, removed the 12 case to this court, and substituted itself as a defendant for Dr. Carter Kaminski, who was a 13 member of the United States Air Force when he treated Gonzalez. The United States now moves 14 to dismiss the claims against it because Gonzalez did not exhaust her remedies under the Federal 15 Tort Claims Act. Gonzalez moves to remand, arguing that the United States has not sufficiently 16 shown that Dr. Kaminski was acting within the scope of his federal employment when he treated 17 her. The hospital moves to dismiss because Gonzalez did not satisfy the state notice 18 requirements for a professional-negligence action. 19 Because Gonzalez hasn’t rebutted the government’s certification of Kaminski’s federal 20 employment and hasn’t exhausted her remedies under the Federal Tort Claims Act, I dismiss the 21 claims against the United States without prejudice. And because only state-law claims remain, I 22 decline to exercise supplemental jurisdiction over them, remand the case back to state court, and 23 deny the hospital’s motion to dismiss without prejudice to its refiling there. Dockets.Justia.com Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 2 of 7 1 Background 2 Gonzalez filed this lawsuit in state court in October 2021, alleging that doctors at the 3 University Medical Center of Southern Nevada hospital (UMC) were negligent when they 4 treated her for complications arising from childbirth.1 Gonzalez alleges that her doctors failed to 5 meet the relevant standard of care when they gave her calcium chloride through a peripheral IV, 6 while the standard of care is to provide that medication through a central line.2 Dispersing the 7 drug through the peripheral IV caused blistering on Gonzalez’s right hand, requiring “multiple 8 treatments, surgeries, skin grafts, and occupational therapy” to repair the damage.3 She sued 9 UMC and several doctors involved in her care, including Dr. Kaminski.4 10 In December 2021, Dr. Kaminski removed this case to federal court under the Federal 11 Employees Liability Reform and Tort Compensation Act—commonly referred to as the Westfall 12 Act.5 As contemplated by the Act, the United States Attorney for the District of Nevada certified 13 that Dr. Kaminski was acting within the scope of his federal employment when he treated 14 Gonzalez at UMC.6 Kaminski then moved to substitute the United States as a party under the 15 same provision.7 Gonzalez did not oppose that motion and the magistrate judge granted it.8 16 Gonzalez now moves to remand, arguing that the United States Attorney’s certification is 17 1 See ECF No. 15-2 (state-court complaint). 2 Id. at ¶¶ 34–45. 3 ECF No. 36 at 2. 4 ECF No. 15-2 at ¶¶ 2–14. 5 ECF No. 15; 28 U.S.C. § 2679. 6 ECF 15-3. 18 19 20 21 ECF No. 6; see 28 U.S.C. § 2679(d)(1) (“Such [negligence] action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of 23 this title . . . and the United States shall be substituted as the party defendant.”). 22 7 8 ECF No. 13. 2 Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 3 of 7 1 insufficient to support federal jurisdiction over her claims.9 The government moves to dismiss, 2 reasserting its position that the United States was properly substituted for Dr. Kaminski and 3 arguing that the Federal Tort Claims Act (FTCA) is the exclusive vehicle for Gonzalez to hold 4 the United States liable for Dr. Kaminski’s alleged negligence.10 And because Gonzalez failed to 5 exhaust her administrative remedies under the FTCA, the United States contends that any such 6 claim against it must be dismissed.11 7 Discussion 8 I. Gonzalez has not met her burden to contest the U.S. Attorney’s certification. 9 The Westfall Act “immunizes United States employees from liability for their ‘negligent 10 or wrongful acts or omissions . . . while acting within the scope of their office or 11 employment.’”12 The Act authorizes the Attorney General to certify that a federal employee was 12 acting within the scope of his employment during the relevant events.13 After such certification, 13 the Westfall Act “requires the substitution of the United States as the defendant[] and, if the 14 action was originally filed in state court, the removal of the action to federal court.”14 The 15 16 17 9 18 ECF No. 21. 10 19 11 22 13 ECF No. 27. Id. UMC separately moves to dismiss the claims against it. ECF No. 10. Because I decline to retain jurisdiction over this action after the claims against the United States have been dismissed, 20 I decline to rule on the merits of UMC’s motion and simply deny that motion without prejudice in light of the remand. 21 12 Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (quoting 28 U.S.C. § 2679(b)(1) (cleaned up)). 28 U.S.C. § 2679(d)(1). The Attorney General has delegated certification authority to the United States Attorney “for the district where the civil action or proceeding is brought.” 28 23 C.F.R. § 15.4. 14 Green, 8 F.3d at 698. 3 Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 4 of 7 1 Westfall Act “leaves the plaintiff with a single avenue of recovery” against the United States: the 2 FTCA.15 The United States Attorney’s certification constitutes prima facie evidence that the 3 4 employee was acting within the scope of his federal employment during the relevant period and 5 is conclusive unless challenged.16 A plaintiff challenging certification “bears the burden of 6 presenting evidence and disproving the . . . certification by a preponderance of the evidence.”17 7 Gonzalez has not met that burden. She protests that the certification contains no evidence to 8 prove that Dr. Kaminski was acting as a federal employee while treating her at UMC.18 But to 9 successfully challenge certification, it is Gonzalez who must show that Dr. Kaminski was not 10 acting within the scope of his employment with the Air Force when he treated her; the United 11 States Attorney’s certification, even if conclusory and sparse, is presumptive proof unless and 12 until the plaintiff disproves it.19 Because Gonzalez presents no evidence to challenge 13 certification, I find that she has failed to meet her burden, and I deny her motion to remand.20 14 15 15 Id. 16 Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). Technically, certification is 16 conclusive as to removal regardless of challenge. A plaintiff challenging certification cannot undo removal through that mechanism; she may challenge only the substitution of the United 17 States. Even if a court finds that the certification is invalid and reinserts the employeedefendant, federal-court jurisdiction does not disappear. Osborn v. Haley, 549 U.S. 225, 244–45 18 (2007). Because Gonzalez’s challenge fails by all accounts, I don’t address this distinction. 19 20 17 Id. 18 ECF No. 21; ECF No. 36. 19 See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 421 (1995) (noting that the certification in that case, “as is customary, stated no reasons for the U.S. Attorney’s scope-of-employment 21 determination” and finding that such a certification can be challenged, but not requiring any further explanation from the U.S. Attorney at the outset). 22 20 Even if I were to consider whether whether Dr. Kaminski was indeed acting within the scope 23 of his federal employment when he treated Gonzalez, I would find that he was. The Ninth Circuit in Ward v. Gordon, 999 F.2d 1399 (9th Cir. 1993), was presented with a largely identical fact pattern to that presented here. It determined that a military employee performing a medical 4 Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 5 of 7 1 II. Gonzalez did not exhaust her administrative remedies against the United States. 2 The FTCA provides the exclusive avenue through which a plaintiff can hold the United 3 States liable for the negligence of its employees.21 But before a plaintiff may bring an FTCA 4 claim, she must first “present[] the claim to the appropriate [f]ederal agency and [her] claim 5 [must] have been finally denied by the agency in writing . . . .”22 The FTCA’s exhaustion 6 requirement “is a jurisdictional limitation”: if a plaintiff fails to exhaust her administrative 7 remedies, the district court lacks subject-matter jurisdiction over the claim.23 8 Gonzalez concedes that she did not file any such claim with the proper federal agency 9 because she did not know Dr. Kaminksi was a federal employee until the United States removed 10 this case.24 She asks that I “dismiss the United States[] without prejudice[] and remand the case 11 back to state court [to] allow [her] the opportunity to exhaust her administrative remedies.”25 12 13 residency at a private hospital on the military’s behalf was a federal employee for the purposes of removal under § 2679, reasoning that the employee was acting in a manner that furthered the 14 interests of the United States military, even if he also furthered the interests of the private hospital. Id. at 1404. Soo too here. The United States has presented evidence that Dr. Kaminski 15 was assigned to a UMC residency through a reciprocal agreement between UMC and the Air Force, the purpose of which was to train military doctors. See ECF No. 25 at 2–3. Gonzalez 16 does not acknowledge or respond to this evidence. But following the analysis in Ward, it appears certain that Dr. Kaminski was acting as a federal employee when serving as a UMC 17 resident on the Air Force’s behalf. 21 28 U.S.C. § 2679(b)(1). 18 22 Id. at § 2675(a). 19 23 20 24 Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 743 (9th Cir. 1991) (citing Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977)). ECF No. 36 at 4. 25 Id. The Ninth Circuit has endorsed this approach in very similar circumstances. In D.L. by and through Junio v. Vassilev, 858 F.3d 1242, 1246 (9th Cir. 2017), the plaintiff’s case was 22 removed to federal court under a statute that mandates removal and substitution of the United States for cases brought against employees of the Public Health Service. The district court 23 dismissed the FTCA claim against the United States because the plaintiff failed to exhaust, and it remanded the case to state court. While that case was proceeding, the plaintiff exhausted his remedies and reinserted the federal employee as a defendant. The United States again removed 21 5 Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 6 of 7 1 The government’s three-paragraph reply does not address Gonzalez’s request.26 Because the 2 parties appear to agree that Gonzalez has not met the FTCA’s jurisdictional exhaustion 3 requirement, this court lacks subject-matter jurisdiction over the United States. I thus dismiss the 4 claims against the government. 5 And because this case was removed solely because the United States was substituted as a 6 defendant under the FTCA, this court is exercising supplemental jurisdiction over the remaining 7 state-law claims. Federal courts are courts of limited jurisdiction, and they maintain 8 supplemental jurisdiction over state-law claims that “are so related to the claims in the action” 9 that they form the same case or controversy with the claims over which the court has 10 jurisdiction.”27 But once a plaintiff’s federal claims are gone, the court may decline to exercise 11 supplemental jurisdiction over the remaining state-law claims.28 Because the United States has 12 been dismissed from this action and only state-law negligence claims remain against private 13 entities who may be sued in state court, I decline to exercise supplemental jurisdiction over those 14 remaining claims, and I remand this case back to state court where those claims originated. 15 Conclusion IT IS THEREFORE ORDERED that Asusena Soto Gonzalez’s motion for remand 16 17 [ECF No. 21] is DENIED. 18 19 and argued that reinserting the defendant, rather than filing a separate case against him, was improper. The Ninth Circuit disagreed, finding that the plaintiff’s course of action was permitted 20 under the FTCA, reasoning that merging the suits after exhausting furthered “the exhaustion requirement’s goal of reducing congestion in the courts.” Id. at 1248 (cleaned up). 21 26 ECF No. 37. 22 27 28 U.S.C. § 1367(a). 28 23 Id. at § 1367(c)(4); see Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) (“[I]t is generally preferable for a district court to remand remaining pendent claims to state court.”). 6 Case 2:21-cv-02238-JAD-BNW Document 39 Filed 06/30/22 Page 7 of 7 1 IT IS FURTHER ORDERED that the government’s motion to dismiss [ECF No. 27] is 2 GRANTED. Plaintiff’s claims against the United States are DISMISSED without prejudice. 3 Because the court lacks jurisdiction over the remaining claims and defendants, the Clerk of Court 4 is directed to REMAND this case back to the Eighth Judicial District Court, Department 11, 5 Case No. A-21-837197-C, and CLOSE THIS CASE. 6 IT IS FURTHER ORDERED that University Medical Center’s motion to dismiss [ECF 7 No. 10] is DENIED without prejudice. 8 _________________ ____________ U.S. District Judge Jennifer A. Dorsey June 30, 2022 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 7
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