Derrith Watchman-Moore, et al. v. United States of America, et al.

• Court: District Court, D. Arizona
• Decided: April 13, 2018
• Docket: 3:17-cv-08187
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Derrith Watchman-Moore, et al., No. CV-17-08187-PCT-BSB

10 Plaintiffs, REPORT AND RECOMMENDATION 11 v.

12 United States of America, et al.,

13 Defendants. 14 15 The United States of America (“Defendant” or “the government”) has filed a 16 partial motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil 17 Procedure. (Doc. 11.) Plaintiffs have filed a response to the motion and a motion for 18 leave to amend. (Doc. 17.) As set forth below, the Court recommends that the partial 19 motion to dismiss be granted and that the motion for leave to amend be denied without 20 prejudice.1 21 I Background 22 Plaintiffs bring this wrongful death action under the Federal Tort Claim Act 23 (“FTCA”). (Doc. 1.) In the Complaint, Plaintiffs allege that on February 7, 2014, 24 Chantal Moore (the decedent) was admitted to Fort Defiance Indian Hospital with a 25 1 Because not all of the named defendants have been served or consented to 26 magistrate judge jurisdiction, the assigned magistrate judge lacks jurisdiction to dismiss the Complaint and therefore issues this Report and Recommendation to a United States 27 District Judge. See Williams v. King, ___ F.3d ___, 2017 WL 5180205, at *3 (9th Cir. Nov. 9, 2017) (holding that the absence of consent from unserved defendants deprived 28 the magistrate judge of jurisdiction to dismiss the complaint); see also 28 U.S.C. § 636(c). 1 diagnosis of pneumonia. (Doc. 1 at ¶ 31.) On February 12, 2014, the decedent fell in the 2 hospital bathroom, hit her head, and was found actively seizing on the floor. (Id. at ¶ 37.) 3 The decedent suffered another seizure later that day. (Id. at ¶ 38.) A CT-scan showed 4 hemorrhages, and the decedent showed signs of brain damage. (Id. at ¶¶ 38-39.) The 5 decedent was transferred to Flagstaff Medical Center where, after surgery, she died on 6 February 15, 2014. (Id. at ¶¶ 40, 42, 44.) After filing an administrative claim, which was 7 denied, Plaintiffs filed a Complaint in this Court. (Id. at ¶¶ 10-11.) 8 In addition to the United States of America, Plaintiffs bring suit against three 9 additional categories of defendants: (1) the hospital: Fort Defiance Indian Hospital Board, 10 Inc., d.b.a. Fort Defiance Indian Hospital, a.k.a. Tsehootsooi Nahata’dzil Health and 11 Medical Center (“Fort Defiance Indian Hospital”); (2) individual hospital employees: 12 Curtis Olson, MD, Alithea Gabrellas, MD, Roger V. Begay, MD, and Cammie Oster, 13 RN; and (3) several fictional persons and entities: Jane Doe Olsen, John Doe Gabrellas, 14 Jane Doe Begay, John Doe Oster, John and Jane Does I-V, Black and White Corps. I-V, 15 and Grey Partnerships I-V. (Doc. 1.) 16 II. Standards for Motions to Dismiss Under Rules 12(b)(1) and 12(b)(6) 17 Rule 12(b)(1) “allows litigants to seek the dismissal of an action from federal 18 court for lack of subject matter jurisdiction.” Tosco Corp. v. Cmtys. for a Better Env’t, 19 236 F.3d 495, 499 (9th Cir. 2001). The court should address arguments raised under 20 Rule 12(b)(1) before addressing other arguments for dismissal because if the complaint is 21 dismissed for lack of subject matter jurisdiction, other defenses become moot. Kinlichee 22 v. United States, 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (citing Wright and Miller, 23 Federal Practice and Procedure: Civil 2d § 1350, 209-10 (1990)). Furthermore, “[t]he 24 party asserting jurisdiction has the burden of proving all jurisdictional facts.” Indus. 25 Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. 26 Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). The court presumes lack of 27 jurisdiction until the plaintiff proves otherwise. Stock West, Inc. v. Confederated Tribes, 28 873 F.2d 1221, 1225 (9th Cir. 1989). 1 In determining whether it has subject matter jurisdiction, a court is not limited to 2 the allegations in the complaint. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). 3 Rather, the court may look beyond the complaint to extrinsic evidence, without 4 converting the motion to dismiss to a motion for summary judgment, and it need not 5 assume the truth of the complaint’s allegations. Id. “With a 12(b)(1) motion, a court 6 may weigh the evidence to determine whether it has jurisdiction.” Autery v. United 7 States, 424 F.3d 944, 956 (9th Cir. 2005.) However, when the jurisdictional issue and 8 substantive claims are so intertwined that resolution of the jurisdictional question is 9 dependent on factual issues going to the merits, the court should employ the standard for 10 summary judgment. Id. 11 Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim 12 upon which relief can be granted. When a claim is challenged under this rule, the court 13 construes the complaint liberally in the plaintiff’s favor. Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 555 & 570 (2007). The court presumes that all well-pleaded allegations 15 are true, resolves all reasonable doubts and inferences in the plaintiff’s favor, and views 16 the complaint in the light most favorable to the plaintiff. Id. at 555. Although “detailed 17 factual allegations” are not necessary to meet this pleading requirement, the plaintiff 18 must, at a minimum, set forth factual allegations sufficient “to raise a right to relief above 19 the speculative level.” Twombly, 550 U.S. at 570. To avoid dismissal, a plaintiff must 20 plead facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009). 22 III. Motion to Dismiss 23 The government has filed a partial motion to dismiss on several grounds. 24 (Doc. 11.) The government first argues that Derrith Watchman-Moore, as personal 25 representative of the decedent’s estate, and the decedents’ siblings, Callan David Moore, 26 Cheyenne Sumner Moore, Cerra Dawn Moore and Chael Skye Moore, should be 27 dismissed as plaintiffs from this action because they are not the proper parties to bring a 28 wrongful death action under Arizona law. (Id. at 2.) The government also argues that 1 because the United States is the only proper defendant in a claim brought under the 2 FTCA, all other defendants should be dismissed. Finally, the government argues that the 3 Court should dismiss Plaintiffs’ claims for negligent supervision, hiring, and retention in 4 paragraphs 50-51 and 61 of the Complaint pursuant to Rule 12(b)(6) for failure to state a 5 claim because the FTCA does not provide for suits against institutional defendants. The 6 parties dispute whether Arizona or Navajo law applies to Plaintiffs’ FTCA claim. 7 (Doc. 11 at 3-4, Doc. 17 at 11-14; Doc. 22 at 3-5.) The Court first addresses the 8 applicable law and then addresses the issues raised in the motion to dismiss. 9 A. Arizona or Navajo Law as the “Law of the Place” 10 The United States can be sued only to the extent that it has waived its sovereign 11 immunity. Conrad v. United States, 447 F.3d 760, 764 (9th Cir. 2006); see also United 12 States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may 13 not be sued without its consent and that the existence of consent is a prerequisite for 14 jurisdiction.”). The FTCA, 28 U.S.C. §§ 1346(b), §§ 2671-2680, “provides a limited 15 waiver of the sovereign immunity of the United States for torts committed by federal 16 employees acting within the scope of their employment.” Nurse v. United States, 226 17 F.3d 996, 1000 (9th Cir. 2000). The government accepts liability “under circumstances 18 where the United States, if a private person, would be liable to the claimant in accordance 19 with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); 20 see also 28 U.S.C. § 2674 (“The United States shall be liable . . . relating to tort claims, in 21 the same manner and to the same extent as a private individual under like 22 circumstances. . . .”); United States v. Olson, 546 U.S 43, 46 (2005) (the FTCA waives 23 the federal government’s sovereign immunity where local law would make private person 24 liable in tort, even when uniquely governmental functions are at issue). 25 The government argues that in this matter Arizona law applies as the “law of the 26 place” for purposes of the FTCA. (Doc. 11 at 3-4.) Plaintiffs assert that the Court should 27 apply Navajo law as the “law of the place.” (Doc. 17 at 11-12.) As the government 28 correctly notes, the Ninth Circuit has not explicitly addressed whether state or tribal law 1 applies in a case brought under the FTCA. However, in the context of FTCA claims, the 2 Ninth Circuit has applied without discussion the law of the state in question, not tribal 3 law. See Seyler v. United States, 832 F.2d 120, 122 (9th Cir. 1987); Marlys Bear Med. v. 4 U.S. ex rel. Sec. of Dep’t. of Interior, 241 F.3d 1208, 1217-18 (9th Cir. 2001); Bennion v. 5 United States, 288 Fed. App’x 443, 444 (9th Cir. 2008) (applying Idaho law to a 6 malpractice claim arising out of a wellness center within the Coeur d’Alene Tribe 7 reservation). 8 Additionally, courts in the District of Arizona have applied Arizona law rather 9 than tribal law to FTCA claims. See Ben v. United States, 2007 WL 1461626, at *2-3 10 (D. Ariz. May 16, 2007) (applying Arizona law to FTCA claim arising out of car accident 11 on Navajo Route 41); Bryant v. United States, 147 F. Supp. 2d 953, 957-960 (D. Ariz. 12 2000) (concluding that New Mexico law, not Navajo law, was the law of the place); 13 Dupris v. McDonald, 2012 WL 210722, at *11 (D. Ariz. Jan. 24, 2012), aff’d on other 14 grounds, 554 F. App’x 570 (9th Cir. 2014) (holding Arizona law to be the law of the 15 place concerning alleged tortious conduct committed by employees—tribal officers—on 16 the White Mountain Apache Reservation); Gatling v. United States, 2016 WL 147920, at 17 *4 (D. Ariz. Jan. 13, 2016) (applying Arizona negligence law); Andrade ex rel. Goodman 18 v. United States, 2008 WL 4183011, at *7 (D. Ariz. Sept. 8, 2008) (applying Arizona law 19 to a scope of employment question). 20 The parties recognize that one district court within the Ninth Circuit has applied 21 tribal law in an FTCA case. See Quechan Indian Tribe v. United States, 535 F. Supp. 2d 22 1072, 1102 (S.D. Cal. 2008). (Doc. 11 at 4; Doc. 17 at 11.) In that case, the court relied 23 heavily on the reasoning of Cheromiah v. United States, 55 F.Supp.2d 1295 (D.N.M. 24 1999). However, a court in this district has analyzed Cheromiah, found it “unpersuasive 25 in light of Ninth Circuit precedent,” and found “compelling reasons for adhering to the 26 traditional rule that when negligent acts or omissions occur within the boundaries of a 27 state, the law of that state constitutes law of the place.” Bryant, 147 F. Supp. 2d at 959. 28 The government urges the Court to consider the reasoning in Bryant and to follow 1 Arizona law, not tribal law. (Doc. 11 at 4.) In response, Plaintiffs argue that court should 2 defer to tribal law based on Salt River Pima-Maricopa Indian Cmty. v. United States, 656 3 F. Supp. 2d 1106 (D. Ariz. 2009). (Doc. 17 at 11-12.) That case, however, was not 4 brought under the FTCA. Therefore, the Salt River decision does not support Plaintiffs’ 5 argument that Navajo law should apply to their claims under the FTCA. 6 Plaintiffs also cite Estate of Abriana Lynn Tsinahnajinnie v. Rachel John, 8 7 Navajo Rptr. 69 (Navajo 2001), and Rule 6 of the Navajo Rules of Probate Procedure, to 8 support their argument that Navajo law applies to their claims under the FTCA. (Doc. 17 9 at 11.) The Tsinahnajinnie case, decided by the Supreme Court of the Navajo Nation, 10 concerned a dispute over the distribution of insurance proceeds, filed in tribal court, 11 between the natural parents of a child who was killed in a motor vehicle accident. The 12 case did not involve an FTCA claim. Tsinahnajinnie, 8 Navajo Rptr. 69, 3 Am. Tribal 13 Law 478, 480. Likewise, Rule 6 of the Navajo Rules of Probate Procedure is irrelevant 14 to the issues before this Court because it concerns “persons entitled to distribution of the 15 estate in the absence of a will” under tribal law, not who has standing to bring a wrongful 16 death action under the FTCA. See www.navajocourts.org/Rules/probatepro.htm. 17 Plaintiffs also argue that choice of law analysis in the Restatement (Second) of the 18 Conflict of Laws favors applying Navajo law. (Doc. 17 at 12.) As the government 19 argues in its reply, the Restatement does not apply because it concerns a choice of law 20 between two different states in federal or state court, not whether the Court should apply 21 tribal law or state law in an FTCA action. (Doc. 22 at 5); see Restatement (Second) of 22 the Conflict of Laws §145(1)(stating that “[t]he rights and liabilities of the parties with 23 respect to an issue in tort are determined by the local law of the state which, with respect 24 to that issue, has the most significant relationship to the occurrence and the parties . . . .”). 25 Therefore, the Court finds that Plaintiffs have not cited binding or persuasive authority to 26 support their argument that the Court should apply Navajo law to their claims under the 27 FTCA. The Court relies on the Ninth Circuit and District of Arizona cases cited above 28 1 and concludes that Arizona law is the “law of the place” for purpose of Plaintiffs’ claims 2 under the FTCA. 3 B. Decedent’s Siblings and the Personal Representative of the Estate 4 The government moves to dismiss Derrith Watchman Moore in her capacity as 5 personal representative for decedent’s estate and siblings Callan David Moore, Cheyenne 6 Sumner Moore, Cerra Dawn Moore, and Chael Skye Moore (the siblings) on the ground 7 that they are not proper parties to a wrongful death suit under Arizona law.2 (Doc. 11 at 5 8 (citing Ariz. Rev. Stat. § 12-612(A).) 9 1. The Siblings are not Proper Parties 10 The right of action for wrongful death under Arizona law “is purely statutory and 11 the action must be brought in the names of the persons to whom the right is given by 12 statute.” Barragan v. Superior Court, Pima Cty, 469 P.2d 92, 94 (Ariz. Ct. App. 1970). 13 Specifically, Arizona’s wrongful death statute provides: 14 An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or 15 guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children 16 or parents, or if none of these survive, on behalf of the decedent’s estate. 17 18 Ariz. Rev. Stat. § 12-612(A). 19 As the government argues, siblings Callan David Moore, Cheyenne Sumner 20 Moore, Cerra Dawn Moore, and Chael Skye Moore are not proper parties in this 21 wrongful death suit action Arizona law. (Doc. 11 at 5); see Ariz. Rev. Stat. § 12-612(A). 22 A sibling may recover only if there are no primary survivors as expressly named in the 23 statute, and under such circumstances, a sibling may only bring a wrongful death action 24 on behalf of the decedent’s estate. See Solomon v. Harman, 489 P.2d 236, 240 (Ariz. 25 1971) (affirming dismissal of decedent’s brother and sister under Ariz. Rev. Stat. § 12- 26 612(A)). Because the decedent has surviving parents, Plaintiffs Derrith Watchman Moore 27

28 2 The government does not seek to dismiss Derrith Watchman Moore individually as the decedent’s surviving mother. (Doc. 11 at 2 n.2.) 1 and Henry K. Moore, decedent’s siblings Callan David Moore, Cheyenne Sumner Moore, 2 Cerra Dawn Moore, and Chael Skye Moore may not maintain an action against the 3 United States under § 12-612(A). Plaintiffs do not dispute that under the Arizona 4 wrongful death statute, the decedent’s siblings are not proper parties to a wrongful death 5 suit under Arizona law. (Doc. 17 at 11-14.) Rather, they argue that the siblings can 6 pursue a claim for the wrongful death of their sister under Navajo law. (Doc. 17 at 11- 7 14.) The Court has determined that Arizona law, not Navajo law, applies to Plaintiffs’ 8 claims brought under FTCA and, therefore, Plaintiffs’ argument fails. Because the 9 decedent has surviving parents, the decedent’s siblings are not authorized to maintain a 10 wrongful death action under § 12-612(A), and the Court recommends the dismissal of 11 those Plaintiffs’ FTCA claims. 12 2. The Personal Representative is not a Proper Party 13 Similarly, a decedent’s estate may only maintain a wrongful death suit if no 14 statutory beneficiary is available. Ariz. Rev. Stat. § 12- 612(A); Solomon, 489 P.2d at 15 240 (holding that the estate is a beneficiary “only if none of those named beneficiaries 16 survive”); Bowslaugh v. Bowslaugh, 617 P.2d 25, 27 (Ariz. 1979) (strictly construing the 17 list of beneficiaries in Ariz. Rev. Stat. § 12-612(A) and not allowing estate to bring a 18 wrongful death claim when the decedent’s mother survived). Because Derrith 19 Watchman-Moore and Henry K. Moore are surviving parents in this action, the 20 decedent’s estate cannot be a beneficiary under Ariz. Rev. Stat. § 12–612. In response to 21 the motion to dismiss, Plaintiffs do not dispute that in her role as personal representative 22 of the estate Derrith Watcham Moore may not maintain an action under § 12-612(A).3 23 (Doc. 17 at 7-12.) The decedent has surviving parents and, thus, Derrith Watchman- 24 Moore is not statutorily authorized to bring a claim on behalf of the estate pursuant to 25 Ariz. Rev. Stat. § 12–612. Therefore, the Court recommends the dismissal of Derrith 26 Watchman-Moore’s claims in her capacity of personal representative of the decedent’s 27 estate. 28 3 As discussed in Section III.B.3, Plaintiffs instead move to add a survival claim. 1 3. Amendment to Add a Survival Claim 2 Plaintiffs argue that the Court should grant them leave to amend the complaint to 3 add a new claim, a survival action on behalf of the estate under Ariz. Rev. Stat. § 14- 4 3110, so that Derrith Watchman-Moore can remain as a plaintiff in her capacity as a 5 personal representative of the estate. (Doc. 17 at 7-12.) Plaintiffs, however, have not 6 filed a proposed amended pleading or otherwise complied with the requirements for 7 seeking leave to file an amended complaint. See LRCiv. 15.1. Therefore, the Court 8 recommends that Plaintiffs’ motion for leave to amend to add a survival claim be denied. 9 C. Proper Defendants 10 The government next argues that because the United States is the only proper 11 defendant in a claim brought under the FTCA, all other defendants should be dismissed. 12 (Doc. 11 at 6-7.) As discussed below, the Court recommends dismissal of all defendants 13 other than the United States. 14 As set forth above, the FTCA waives the sovereign immunity of the United States 15 for certain torts committed by federal employees. 28 U.S.C. § 1346(b). The FTCA 16 makes the United States liable “to the same extent as a private individual under like 17 circumstances.” 28 U.S.C. § 2674. As originally enacted, the FTCA provided tort 18 victims a remedy against the United States, and did not preclude suit against individual 19 government employees. See Smith v. United States, 507 U.S. 197, 215 n.15 (1993) 20 (Stevens, J. dissenting). However, in 1988, Congress enacted the Federal Employees 21 Liability Reform and Tort Compensation Act, which makes claims against the United 22 States under the FTCA the exclusive remedy for torts committed by federal employees 23 acting within the scope of their employment. 28 U.S.C. § 2679(b)(1). Congress’s 24 purpose in enacting this legislation was “‘to protect Federal employees from personal 25 liability for common law torts committed within the scope of their employment, while 26 providing persons injured by the common law torts of Federal employees with an 27 appropriate remedy against the United States.’” Smith, 507 U.S. at 215 n.15 (quoting 28 § 2(b), 102 Stat. 4564, 28 U.S.C. § 2671 note); see also Adams v. United States, 420 F.3d 1 1049, 1054 (9th Cir. 2005) (noting Congress was concerned with federal employees 2 being held personally liable for actions taken within their scope of employment). 3 1. Individual Defendants 4 The complaint names the following individual Defendants: Fort Defiance Indian 5 Hospital employees Curtis Olson, MD, Alithea Gabrellas, MD, Roger V. Begay, MD, 6 and Cammie Oster, RN. (Doc. 1.) In their response to the motion to dismiss, Plaintiffs 7 agree to “remove” the individual defendants from the Complaint. (Doc. 17 at 2.) 8 Plaintiffs, however, ask the Court to clarify that the government is vicariously liable for 9 the conduct of Fort Defiance Hospital and its employees. (Id. at 3.) However, as 10 previously stated, the Federal Employees Liability Reform and Tort Compensation Act 11 makes the United States liable under the FTCA for torts committed by federal employees 12 acting within the scope of their employment. See 28 U.S.C. § 2674. The government 13 does not dispute that this matter arises from the alleged negligence of federal employees 14 acting within the scope and course of their employment. Therefore, Plaintiffs’ request for 15 clarification is moot. Because individual employees are not proper defendants under the 16 FTCA, the Court recommends the dismissal of the individual defendants. 28 U.S.C. 17 § 2679(a); See Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) 18 (affirming the dismissal of the Postmaster General as a defendant in an FTCA case). 19 Hartman v. United States Customs and Border Protection, 2015 WL 5731618, at *4 (D. 20 Ariz. June 30, 2015) (recommending dismissal of individual defendants when the only 21 remaining count was an FTCA claim). 22 2. Fictional Defendants 23 The Complaint names the following fictional defendants: Jane Doe Olsen, John 24 Doe Gabrellas, Jane Doe Begay and John Doe Oster, John and Jane Does I-V, Black and 25 White Corps. I-V, and Grey Partnerships I-V. (Doc. 1.) The government moves to 26 dismiss these defendants as improper parties. (Doc. 11 at 7.) Plaintiffs do not respond to 27 that argument. (Doc. 17 at 2-3.) Because the fictional defendants are not proper 28 defendants to an FTCA action, the Court recommends the dismissal of the fictional 1 defendants. See Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (dismissing 2 Does 1-20 because the only proper party in an FTCA action is the United States); 3 Coward v. United States, 2017 WL 3484154, at *3 (D. Hawaii Aug. 14, 2017) 4 (dismissing various Doe defendants in an FTCA case). 5 3. Fort Defiance Indian Hospital 6 The government also moves to dismiss Fort Defiance Indian Hospital as a 7 defendant because the FTCA does not provide for claims against institutional entities. 8 (Doc. 11 at 7.) Plaintiffs do not make any legal arguments in opposition to the motion to 9 dismiss Fort Defiance Indian Hospital. (Doc. 17 at 2-3.) 10 The FTCA provides for a limited waiver of the United States’ sovereign immunity 11 and makes the United States liable “to the same extent as a private individual under like 12 circumstances. . . .” 28 U.S.C. § 2674. The FTCA defines “employee of the 13 government” to include “officers and employees of any federal agency,” as well as 14 “persons acting on behalf of a federal agency in an official capacity.” 28 U.S.C. § 2671. 15 The Ninth Circuit has held that the terms “person” and “employee of the government” as 16 used in 28 U.S.C. § 2671 do not include corporations. Adams v. United States, 420 F.3d 17 1049, 1054 (2005). Instead, the term “employee” is meant to be limited to individuals, 18 and the term “persons” is to be limited to natural persons. Id. at 1053-55. Thus, the 19 Court recommends the dismissal of Fort Defiance Indian Hospital. See Kennedy, 145 20 F.3d at 1078 (U.S. Postal Service properly dismissed in FTCA action); Allen v. Veterans 21 Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (dismissing tort claim against the VA 22 because “[i]ndividual agencies of the United States may not be sued” under the FTCA). 23 D. Allegations of Negligent Hiring, Supervision, and Retention 24 Defendants move to dismiss Plaintiffs’ claims for negligent hiring, supervision, 25 and retention for failure to state a claim. (Doc. 11 at 7-9.) To survive a Rule 12(b)(6) 26 motion to dismiss, a plaintiff must, at a minimum, set forth factual allegations sufficient 27 “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 570. To 28 avoid dismissal, a plaintiff must plead facts sufficient to “state a claim to relief that is 1 plausible on its face.” Iqbal, 556 U.S. at 678. Plaintiffs argue that Arizona is a notice 2 pleading state and that Iqbal does not apply to this case. (Doc. 17 at 3.) However, 3 Plaintiffs’ argument fails because Arizona’s notice pleading standard does not apply in 4 federal court, and instead federal procedural rules apply to this matter. See Wright v. 5 United States, 2008 WL 820557, at *3 (D. Ariz. March 25, 2008) (citing United States v. 6 Yellow Cab Co., 340 U.S. 543, 553 & n. 9 (1951) (stating that although Arizona law 7 supplies the substantive law governing a FTCA claim, the Federal Rules of Civil 8 Procedure establish the procedural rules for the adjudication of such a claim).)4 9 The complaint alleges that Fort Defiance Indian Hospital “failed to properly 10 supervise their staff, including physicians and nurses” (Doc. 1 at ¶ 51), “allowed 11 inadequate and/or incompetent and/or unqualified medical personnel to staff their facility 12 and render direct or indirect medical care to their patients,” (Id. at ¶ 50), and “was 13 actively and/or passively negligent by failing to properly supervise and/or credential 14 physicians making use of hospital facilities.” (Doc.1 at ¶ 61.) The government argues 15 that these conclusory allegations fail to state a claim. (Doc. 11 at 7-11.) 16 To state a claim for negligent supervision under Arizona law, a plaintiff must 17 allege that the employer knew or should have known that the employee was not 18 competent to undertake the task delegated, and the employer’s failure to supervise the 19 employee caused injury to the plaintiff. See Humana Hosp. Desert Valley v. Superior 20 Ct., 742 P.2d 1382, 1386 (App. Ct. App. 1987). The employer’s knowledge, “actual or 21 constructive, is an essential factor in determining whether or not the [employer] exercised 22 reasonable care or was guilty of negligence.” Tucson Med. Ctr. Inc. v. Misevch, 545 P.2d 23 958, 960 (Ariz. 1976). However, when an employee’s actions are hostile to his 24 employer’s interests, the courts will not impute knowledge of those actions to the 25 employer, and the presumption is that the employer has no knowledge of those actions 26 until proven otherwise. Rice v. Brakel, 310 P.3d 16, 21-22 (Ariz. Ct. App. 2013).

27 4 Plaintiffs do not respond to the motion to dismiss their negligent hiring and retention claims. (Doc. 17 at 3-7.) The Court therefore, recommends dismissal of these 28 claims for the same reasons it recommends dismissal of the negligent supervision claim and because it appears that Plaintiffs may have abandoned these claims. 1 Plaintiffs’ conclusory allegations are insufficient to state a claim for negligent 2 supervision, retention, or hiring. Plaintiffs do not identify any supervisor who was 3 allegedly negligent in his or her supervision or decision to hire or retain Dr. Curtis Olson, 4 Dr. Alithea Gabrellas, Dr. Roger V. Begay, or Nurse Cammie Oster. Similarly, Plaintiffs 5 do not allege any facts that would make it plausible on its face that the United States had 6 any knowledge that they those individuals were not competent in their duties, or that 7 there was a reasonable possibility that they would commit the alleged medical 8 malpractice. See Sloan v. United States, 2016 WL 3548766, at * 2 (D. Ariz. June 30, 9 2016) (dismissing negligent supervision claim because conclusory allegations did not 10 “allege, or even suggest, that the United States knew that Toddy was not competent to 11 perform his law enforcement duties” than thus fell “far short of the plausibility standard 12 set forth in Iqbal and Twombly,” and because the plaintiff also failed to “sufficiently 13 allege the causation element with the conclusory assertion that the United States’ failure 14 to supervise Toddy” caused the plaintiff’s damages.). Similarly, Plaintiff has not alleged 15 any facts to establish that the alleged failure to supervise caused the injuries at issue. 16 Furthermore, the FTCA does not provide for suits against institutional defendants 17 or unnamed individuals. Therefore, to the extent that the complaint alleges claims for 18 negligent supervision, hiring and retention by Fort Defiance Indian Hospital or unnamed 19 supervisors, the Court recommends dismissal of those claims. See Meier v. United 20 States, 310 Fed. App’x. 976 (9th Cir. 2009) (affirming dismissal of negligent hiring, 21 training, and supervision of a Veteran’s Administration doctor on the grounds that the 22 VA hospital was not a “person” and therefore not subject to suit for purposes of the 23 FTCA); Adams v. United States, 420 F.3d 1049 (9th Cir. 2005) (for purposes of the 24 FTCA, “persons” does not include corporate entities). 25 Although Plaintiffs’ Complaint fails to state a claim for negligent supervision, 26 “[l]eave to amend should be granted if it appears at all possible that the plaintiff can 27 correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). It appears that 28 Plaintiffs may be able to cure their negligent supervision claim by alleging additional 1 facts, such as identifying the supervisors involved in their allegations. Therefore, the 2 Court recommends dismissal of Plaintiffs’ negligent supervision claim without prejudice. 3 Accordingly, 4 IT IS RECOMMENDED that the government’s partial motion to dismiss 5 (Doc. 11) be GRANTED and that 6 1. The FTCA claims brought by the decedent’s siblings Callan David Moore, 7 Cheyenne Sumner Moore, Cerra Dawn Moore, and Chael Skye Moore be DISMISSED. 8 2. The FTCA claim brought by Derrith Watchman Moore in her capacity as 9 personal representative of the decedent’s estate be DISMISSED. 10 3. Defendants Curtis Olson, MD, Alithea Gabrellas, MD, Roger V. Begay, 11 MD, and Cammie Oster, RN be DISMISSED. 12 4. Defendants Jane Doe Olsen, John Doe Gabrellas, Jane Doe Begay, John 13 Doe Oster, John and Jane Does I-V, Black and White Corps. I-V, and Grey Partnerships 14 I-V be DISMISSED. 15 5. The FTCA claim against Fort Defiance Indian Hospital Board, Inc. be 16 DISMISSED. 17 6. Plaintiff’s negligent hiring, supervision, and retention claims be 18 DISMISSED without prejudice. 19 IT IS FURTHER RECOMMENDED that Plaintiffs’ motion for leave to amend 20 (Doc. 17) be DENIED without prejudice. 21 IT IS ORDERED that the Clerk of Court shall refer this Report and 22 Recommendation to the Honorable Stephen M. McNamee in accordance with General 23 Order 11-03. 24 This recommendation is not an order that is immediately appealable to the Ninth 25 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 26 Rules of Appellate Procedure should not be filed until entry of the District Court’s 27 judgment. The parties shall have fourteen days from the date of service of a copy of this 28 recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which 2|| to file a response to the objections. Failure to file timely objections to the Magistrate 3], Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. || Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 6 Dated this 13th day of April, 2018. 7 8 . xi het” bh Graphe 10 Bridget S. Bade United States Magistrate Judge

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