Hipps et al v. Virginia Mason Medical Center et al, No. 2:2014cv01198 - Document 39 (W.D. Wash. 2014)

Court Description: ORDER denying 32 Plaintiffs' Motion to Vacate deadline to join additional parties; denying 11 Plaintiffs' Motion to Remand; granting 13 Defendants' Motion to Dismiss by Judge Robert S. Lasnik.(MD)

Download PDF

Hipps et al v. Virginia Mason Medical Center et al Doc. 39 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 MATTHEW HIPPS, et al., 9 Plaintiffs, 10 Case No. C14-1198RSL v. 11 VIRGINIA MASON MEDICAL CENTER, et al., 12 13 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS Defendants. 14 15 I. INTRODUCTION 16 This matter comes before the Court on “Plaintiffs’ Motion To Amend Complaint And 17 18 Remand,” Dkt. # 11, and “Defendants’ Motion To Dismiss Pursuant To F.R.C.P. 12(b)(1),” Dkt. 19 # 13. Having reviewed the memoranda,1 declarations, and exhibits submitted by the parties, and 20 the arguments presented at the December 17, 2014 hearing on these motions, the Court finds as 21 follows: 22 23 24 1 25 26 On September 26, 2014, the same day that defendants filed a joint reply in support of their motion to dismiss, Dkt. # 24, defendants filed a praecipe replacing this reply with two separate replies, Dkt. ## 25 (Praecipe); 25-1 (Virginia Mason Reply MTD); 25-2 (United States Reply MTD). The Court considered the latter replies filed with the praecipe. 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 1 Dockets.Justia.com 1 II. BACKGROUND 2 On February 11, 2013, plaintiff Matthew Hipps was allegedly injured during a urological 3 surgical procedure performed at Virginia Mason Medical Center by Dr. Chong Choe, Dkt. # 4 at 4 3 (Compl. ¶¶ 3.4, 7-3.8), who at the time was employed by the United States Navy, Dkt. # 2 at 3 5 (Certification), and was working at Virginia Mason as part of a fellowship program, Dkt. # 16-1 6 at 6 (Mem. Of Understanding). Plaintiffs claim that Mr. Hipps had only consented to a different 7 doctor performing the operation in question and that Mrs. Hipps had confirmed verbally that Dr. 8 Choe would not be performing the operation. Dkt. # 4 at 3 (Compl. ¶¶ 3.5-3.6). Plaintiffs 9 brought suit against Virginia Mason and Dr. Choe in King County Superior Court on July 18, 10 2014, accusing both of “medical negligence” and Dr. Choe of “medical battery.” Dkt. # 4 at 9- 11 10 (Compl. ¶¶ 4.1-5.2). Invoking 28 U.S.C. § 2679(d)(1), (2) and 28 C.F.R. § 15.3(a), the 12 United States removed the case to this Court and substituted itself for Dr. Choe as a defendant, 13 on the grounds that Dr. Choe was employed by the Navy and was acting within the scope of his 14 employment when he performed surgery on Mr. Hipps. Dkt. ## 1 at 1-4 (Notice of Removal); 2 15 (Notice of Substitution and Certification); 6 (Order Reforming Caption). At the time that they 16 filed their Complaint, plaintiffs had no idea that Dr. Choe was a Navy doctor. Dkt. # 11 at 1. 17 On August 28, 2014, plaintiffs moved to amend the Complaint in order to drop Dr. Choe 18 (and thus the United States) as a defendant and to modify their allegations against Virginia 19 Mason; plaintiffs’ motion further sought to have the case remanded to state court. Dkt. # 11. 20 Plaintiffs sought to drop the United States from the action in recognition of the fact that they had 21 not exhausted their administrative remedies as to this defendant under the Federal Tort Claims 22 Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671 et seq. (“FTCA”). Dkt. # 11 at 5. Nevertheless, 23 plaintiffs argued that their claims against Virginia Mason remained viable and properly belonged 24 in state court. Id. at 4-5. In the alternative, if the Court declined to remand, plaintiffs requested 25 that this case be voluntarily dismissed without prejudice under Fed. R. Civ. P. 41(a)(2), so that 26 plaintiffs could refile their action in state court. Id. at 6. 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 2 1 On September 4, 2014, defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1). Dkt. 2 # 13. Defendants argued that this Court lacked subject matter jurisdiction over plaintiffs’ action 3 against the United States due to plaintiffs’ failure to exhaust their administrative remedies under 4 the FTCA, id. at 4-7, and further argued that plaintiffs’ action against Virginia Mason failed 5 because its liability was solely based on the actions of Dr. Choe (who was immune from suit and 6 had been replaced by another immune party), id. at 8. 7 8 9 III. APPLICABLE STATUTES Absent a Congressional waiver of sovereign immunity, a claim against the United States must be dismissed for lack of subject matter jurisdiction. See Jachetta v. United States, 653 F.3d 10 898, 903 (9th Cir. 2011) (citations omitted). The FTCA creates a limited waiver of sovereign 11 immunity under which the United States may be found liable for torts committed by its 12 employees while acting within the scope of their federal employment. 28 U.S.C. §§ 1346(b), 13 2674; Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). To bring suit against the 14 United States in federal court under the FTCA, a plaintiff must first exhaust his administrative 15 remedies, presenting his claim in writing to the appropriate federal agency within two years of 16 the accrual of his claim. 28 U.S.C. §§ 2401(b), 2675(a). Where a plaintiff has failed to exhaust 17 his administrative remedies pursuant to 28 U.S.C. § 2675(a) prior to bringing an action in federal 18 court falling under the FTCA, his action will be dismissed for lack of subject matter jurisdiction. 19 Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). 20 Under the Medical Malpractice Immunity Act, or the “Gonzalez Act,” 10 U.S.C. § 1089, 21 “a suit against the United States under the FTCA is the exclusive remedy for torts committed by 22 military medical personnel acting within the scope of their government employment.” Ward v. 23 Gordon, 999 F.2d 1399, 1041 (9th Cir. 1993) (interpreting 10 U.S.C. § 1089(a)). The Act “does 24 not create rights in favor of malpractice claimants; rather, it serves solely to protect military 25 medical personnel from malpractice liability.” Id. at 1041-42. 26 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 3 Under the Federal Employees Liability Reform and Tort Compensation Act, or the 1 2 “Westfall Act,” 28 U.S.C. § 2679, the United States may remove a state court action against a 3 government employee to federal court and substitute itself for the employee as the defendant, 4 upon the certification of the Attorney General or his designee that the employee was acting 5 within the scope of his employment at the time of the allegedly tortious act. 28 U.S.C. 6 § 2679(d)(2); 28 C.F.R. § 15.3 (certification by designee is sufficient); Osborn v. Haley, 549 7 U.S. 225, 229-30 (2007). After removal and substitution, the suit becomes an action against the 8 United States under the FTCA. 28 U.S.C. § 2679(d)(2); Osborn, 549 U.S. at 230. The Westfall 9 Act thus accords federal employees “absolute immunity” from common-law tort claims arising 10 out of acts that they undertook in the course of their official duties. Osborn, 549 U.S. at 229. IV. DISCUSSION 11 12 A. Motion to Amend Complaint and Remand 13 Plaintiffs seek to amend the Complaint (to drop Dr. Choe and therefore the United States 14 as a defendant and to modify their allegations against Virginia Mason) and to then have the case 15 remanded. Dkt. # 11. Fed. R. Civ. P. 15(a) allows a party to amend its pleading once as a matter 16 of course within 21 days after service of a responsive pleading. Defendants do not oppose the 17 proposed amendments to the Complaint, Dkt. ## 15 at 6 (Virginia Mason Resp. Amend); 17 at 1 18 (United States Resp. Amend); however, Virginia Mason argues that this action still may not be 19 remanded, Dkt. # 15 at 6-22. The Court grants the unopposed motion to amend,2 but declines to 20 remand plaintiffs’ action against Virginia Mason. 21 22 23 24 25 26 2 Ninth Circuit precedent indicates that this Court would have to dismiss the original Complaint without considering plaintiffs’ motion to amend if the Court lacked subject matter jurisdiction over entire case as it was filed. See Morongo Band of Mission Indians v. Cal. State Bd. Of Equalization, 858 F.2d 1376, 1380-81 (9th Cir. 1988) (because district court lacked subject matter jurisdiction over the case presented by the original complaint, it was obliged to dismiss the case, and its order granting plaintiff leave to amend the Complaint was a nullity). However, the original Complaint sufficiently alleged that Virginia Mason was vicariously liable for Dr. Choe’s negligence, Dkt. # 1 at 9 (Compl. ¶¶ 4.1-4.3) (“The defendants and/or their respective employees or agents were negligent[.]”); and as explained infra, the Court does not lack subject matter jurisdiction over this claim. 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 4 Plaintiffs do not dispute that there were grounds for removing the case under the Westfall 1 2 Act, nor do they challenge the validity of the certification provided by the United States. Dkt. 3 # 2 at 3. Furthermore, even setting-aside the general rule that a plaintiff may not compel remand 4 of a removed case by amending the complaint, see Williams v. Costco Wholesale Corp., 471 5 F.3d 975, 977 (9th Cir. 2006) (citing Sparta Surgical Corp. v. National Ass’n of Sec. Dealers, 6 Inc. 159 F.3d 1209, 1213 (9th Cir. 1998)), there is compelling authority for declining to remand 7 this case given that it was removed under the Westfall Act. 8 In Osborn, 549 U.S. at 241, the Supreme Court held that a district court could not remand 9 a case that was removed under the Westfall Act even if the Attorney General’s certification as to 10 the replaced defendant was later found to be unwarranted. In Dayton v. Alaska, 2014 WL 11 4242963, at *1 (9th Cir. Aug. 28, 2014), the Ninth Circuit broadly interpreted Osborn to prohibit 12 remand in cases removed under the Westfall Act even where the United States had been 13 dismissed as a party; the court reasoned that remanding such a case would circumvent the 14 Supreme Court’s objective of preventing the “needless shuttling” of cases from one court to 15 another, id. (quoting Osborn, 549 U.S. at 242).3 Although Dayton is not precedent, this Court 16 finds that it reflects the direction of this Circuit and adopts its holding. The Court will not 17 remand this case. However, the Court notes that Dayton and Osborn did not address district 18 courts’ authority to grant plaintiffs’ motions for voluntary dismissal, which the Ninth Circuit 19 permits even where the dismissed case may be refiled in state court. See Smith v. Lenches, 263 20 F.3d 972, 976 (9th Cir. 2001). 21 B. Motions To Dismiss 22 Plaintiffs have requested that this case be voluntarily dismissed without prejudice under 23 Rule 41(a)(2) if the Court will not remand it, so that it may be refiled in state court. Dkt. # 11 at 24 25 26 3 Although it is not entirely clear from the Ninth Circuit’s opinion, the lower court had remanded the case due to the dismissal of the United States and plaintiff’s federal claims. Dayton v. Alaska, 2013 WL 3712408, at *2, 4 (D. Alaska July 12, 2013), rev’d, 2014 WL 4242963 (9th Cir. Aug. 28, 2014). 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 5 1 6. Defendants seek dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).4 Dkt. 2 # 13 at 1. The question arises which motion to dismiss takes priority. Other courts have 3 persuasively reasoned, and this Court concurs, that a district court may not grant a motion to 4 voluntarily dismiss a case over which it lacks subject matter jurisdiction. Mission Essential 5 Pers., LLC v. United States, 104 Fed. Cl. 170, 176-77 (2012) (collecting cases). Thus, the Court 6 must first determine whether defendants’ challenge to its subject matter jurisdiction applies to 7 plaintiffs’ claims against Virginia Mason. Virginia Mason contends that the only claims that plaintiffs have brought against it are 8 9 based on a theory of vicarious liability, and argues that plaintiffs may not recover under this 10 theory because it is governed by the FTCA (which plaintiffs have not satisfied) and because the 11 agent at issue (either Dr. Choe or the United States) is protected by sovereign immunity. Dkt. # 12 13 at 8; Dkt. # 15 at 2; Dkt. # 25-1 at 6. Virginia Mason argues that plaintiffs may not sue over 13 its vicarious liability without first complying with the FTCA because this Act provides the only 14 avenue to bring any action based on the medical malpractice of federal employees like Dr. Choe. 15 See Dkt. # 15 at 2, 7-8. Virginia Mason further argues that permitting this action would allow 16 parties to “indirectly” litigate claims against the United States outside of the process envisioned 17 by the FTCA and thereby expose the United States to liability (in subsequent actions for 18 indemnification or contribution by principals such as Virginia Mason), contrary to Congressional 19 intent.5 Dkt. # 15 at 2, 9-10, 20; Dkt. # 25-1 at 12. Notably, while plaintiffs insist that the 20 amended Complaint allows Virginia Mason to be found liable under three different legal 21 theories, Dkt. # 21 at 5-11 (Pl. Resp. MTD), one of them is “apparent agency” theory (the theory 22 23 24 25 26 4 Dismissal for lack of subject matter jurisdiction would be without prejudice to plaintiffs refiling after exhausting their administrative remedies. E.g., Murphy v. United States Postal Serv., 2014 WL 4437731, at *4 (N.D. Cal. Sept. 9, 2014). 5 Virginia Mason’s Memorandum of Understanding with the United States obliges the former to obtain professional malpractice insurance. Dkt. # 16-1 at 12. However, Virginia Mason notes that a verdict against it in excess of that insurance could invite an indemnification or contribution action against the United States for the excess amount. Dkt. # 15 at 10. 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 6 1 that Virginia Mason “held out” Dr. Choe as its agent), which can be a basis for finding a 2 defendant vicariously liable for the actions of its apparent agent. Mohr v. Grantham, 172 Wn.2d 3 844, 861 (2011). Virginia Mason argues that plaintiffs’ alternative theories fail as a matter of 4 law and were improperly pled. Dkt. # 25-1 at 7-11. The Court finds that plaintiffs’ failure to exhaust their administrative remedies does not 5 6 deprive the Court of subject matter jurisdiction over their claims against Virginia Mason, even to 7 the extent that their underlying theory is vicarious liability; thus, the Court may consider 8 plaintiffs’ motion for voluntary dismissal. The exhaustion requirement of 28 U.S.C. § 2675 is a 9 precondition for bringing an action “against the United States.” Having reviewed the FTCA, the 10 Gonzalez Act, the Westfall Act, and cases interpreting these statutes, the Court sees no 11 indication that an action against a non-federal defendant may be subject to this requirement even 12 where this action is premised on the medical malpractice of a military physician. Instead, these 13 Acts only clearly contemplate the immunity of federal parties, and therefore only affect the 14 Court’s jurisdiction over actions against such parties. See, e.g., Ward, 999 F.2d at 1402 (noting 15 that the purpose of the Gonzalez Act was to protect “military medical personnel” from liability). 16 The Court notes that, during oral argument, defendants did not dispute that the Court had the 17 authority to grant plaintiffs’ motion to voluntarily dismiss this action.6 Rather than raising the question of whether this Court has jurisdiction over plaintiffs’ 18 19 claims against Virginia Mason, defendants’ arguments raise a question on the merits, namely 20 6 21 22 23 24 25 26 Virginia Mason additionally argues that it is entitled to the FTCA’s protections and is shielded from this litigation under the doctrine of “derivative sovereign immunity,” under which an independent government contractor may enjoy sovereign immunity when it commits torts while complying with the terms of its contract with the government. Dkt. # 15 at 19-20. See Myers v. United States, 323 F.2d 580, 583 (9th Cir. 1963) (citing Yearsley v. Ross Construction Co., 309 U.S. 18 (1940)). However, even if this defense could deprive the Court of subject matter jurisdiction, it fails to apply here because defendants have not shown that the harm alleged resulted from Virginia Mason following the government’s specific instructions regarding how it should manage Dr. Choe. See Cabalce v. VSE Corp., 922 F. Supp. 2d 1113, 1126-27 (D. Haw. 2013) (finding the defense did not apply where the alleged injuries resulted from an independent contractor’s decision to perform a task in an unsafe manner and the government did not specify the manner in which that task was to be performed). 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 7 1 whether the immunity of either Dr. Choe or the United States shields Virginia Mason from being 2 found vicariously liable for Dr. Choe’s actions under Washington state law. The Court need not 3 reach this question, nor must the Court reach whether plaintiffs’ other theories of liability were 4 properly pled or fail as a matter of law. Instead, the Court finds granting voluntary dismissal 5 proper. A district court should grant a motion for voluntary dismissal unless the defendant can 6 show that it will suffer “some plain legal prejudice” as a result. Smith, 263 F.3d at 975 (9th Cir. 7 2001). The Court finds no such prejudice, here. Legal prejudice does not result merely because 8 a defendant will be inconvenienced by potentially having to defend an action in a different 9 forum or because a dispute will remain unresolved. Id. at 976. The only loss to Virginia Mason 10 is that it will not receive a ruling from this Court on whether plaintiffs’ claims fail under state 11 law or were improperly pled. The Court finds it unnecessary to make such a ruling now, given 12 that plaintiffs seek to withdraw their Complaint to refile it in state court, where it may take yet 13 another form and would be subject to a different pleading standard. See McCurry v. Chevy 14 Chase Bank, FSB, 169 Wn.2d 96, 102 (2010) (declining to incorporate federal standards into 15 Washington pleading rules). 16 C. Removal After Refiling 17 During the December 17, 2014 oral argument on the instant motions, defendants argued 18 that should this Court permit plaintiffs to voluntarily dismiss their action against Virginia Mason 19 and refile it in state court, defendants would inevitably remove the action again. Defendants 20 emphasized that Dr. Choe’s conduct “permeates” this lawsuit, and that his alleged malpractice is 21 so integral to plaintiffs’ theory of the case that at some point in a subsequent action removal 22 would become proper. Plaintiffs in turn urged the Court to rule on whether their refiled case 23 could again be removed. 24 This Court will not issue advisory opinions. See Thomas v. Anchorage Equal Rights 25 Com’n, 220 F.3d 1134, 1138 (9th Cir. 1999) (“Our role is neither to issue advisory opinions nor 26 declare rights in hypothetical cases, but to adjudicate live cases or controversies[.]”). Given that 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 8 1 the Court will dismiss plaintiffs’ action, which at this point does not involve federal parties and 2 only involves state law claims, the issue of what will happen after a new (and possibly very 3 different) complaint is filed is not before the Court. That said, if plaintiffs again bring an action 4 in state court against Virginia Mason relating to Mr. Hipps’ February 2013 surgery, and this 5 action is again removed, the removed action should be heard by the undersigned. The parties are 6 directed to notify the District Judge to whom the removed case is assigned that the case may be 7 transferred to the undersigned. 8 9 V. CONCLUSION For all of the foregoing reasons, the Court GRANTS plaintiffs’ motion to amend, 10 DENIES plaintiffs’ motion to remand, and GRANTS plaintiffs’ motion to voluntarily dismiss 11 this action without prejudice. Dkt. # 11. Defendants’ motion to dismiss is DENIED as moot. 12 Dkt. # 13. As the Court is dismissing this case, plaintiffs’ “Motion To Vacate Deadline To Join 13 Additional Parties” is also DENIED as moot. Dkt. # 32. 14 15 16 17 DATED this 22nd day of December, 2014. 18 A 19 Robert S. Lasnik United States District Judge 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFFS’ MOTIONS TO AMEND AND VOLUNTARILY DISMISS - 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.