Doe 1 v. United States

• Court: District Court, E.D. California
• Decided: October 29, 2024
• Docket: 2:24-cv-01669
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANE DOE 1, et al., No. 2:24-cv-01669-DAD-CSK 12 Plaintiffs, 13 v. ORDER GRANTING DEFENDANT UNITED STATES’S MOTION TO DISMISS 14 COMMUNITY MEDICAL CENTERS, PLAINTIFFS’ CLAIMS BROUGHT INC., et al., AGAINST IT AND REMANDING THIS 15 ACTION TO THE SOLANO COUNTY Defendants. SUPERIOR COURT 16 (Doc. No. 5) 17

18 19 This matter is before the court on the motion to dismiss filed by defendant United States 20 of America on June 18, 2024. (Doc. No. 5.) On July 17, 2024, the pending motion was taken 21 under submission on the papers. (Doc. No. 8.) For the reasons explained below, defendant 22 United States’s motion to dismiss plaintiffs’ complaint will be granted, and this action will be 23 remanded to the Solano County Superior Court to proceed on plaintiffs’ claims brought against 24 defendant Andy Yongde Zhu. 25 BACKGROUND 26 On October 23, 2023, plaintiffs Jane Doe 1, Jane Doe 2, and Jane Doe 3 filed their 27 complaint initiating this action against defendant Community Medical Centers, Inc. (“CMC”) and 28 defendant Zhu in the Solano County Superior Court, alleging that defendant CMC gave defendant 1 Zhu access to female patients despite knowing of Dr. Zhu’s history of sexual harassment and 2 predation. (Doc. No. 1 at 5.) Plaintiffs asserted the following seven claims against defendants 3 CMC and Zhu in their complaint: (1) sexual battery in violation of California Civil Code 4 § 1708.5, asserted against defendant Zhu; (2) negligent hiring, asserted against defendant CMC; 5 (3) medical malpractice, asserted against all defendants; (4) negligence, asserted against all 6 defendants; (5) premises liability, asserted against all defendants; (6) sexual harassment in 7 violation of California Civil Code § 51.9, asserted against all defendants; and (7) gender violence 8 in violation of California Civil Code § 52.4, asserted against defendant Zhu. (Doc. No. 1 at 10– 9 14.) 10 Pursuant to 28 U.S.C. § 2679(d)(2), for any civil action commenced in state court, 11 whereupon the Attorney General has certified that the defendant was acting within the scope of 12 employment for the United States, such action may be removed to a district court at any time 13 before trial. Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 743–45 (9th Cir. 1991). 14 The United States is then substituted as the defendant. Id.; see, e.g., Davis v. Loo, No. 1:20-cv- 15 01096-DAD-JLT, 2020 WL 6582419, at *2 (E.D. Cal. Nov. 10, 2020). The proceeding is then 16 “deemed a tort action brought against the United States under the” Federal Tort Claims Act, 28 17 U.S.C. §§ 1346, 2671–80 (“FTCA”). D.L. by and through Junio v. Vassilev, 858 F.3d 1242, 1244 18 (9th Cir. 2017). 19 Here, defendants filed a “Certificate Regarding Scope of Employment” through a 20 designee of the United States Attorney for the Eastern District of California certifying that 21 defendant CMC was a public or non-profit entity deemed by the Department of Health and 22 Human Services to be an employee of the Public Health Service pursuant to 42 U.S.C. § 233(g) 23 and was acting as a covered person within the scope of its employment at the time of the alleged 24 incidents giving rise to plaintiffs’ claim. (Doc. No. 1-1.) Consequently, on June 11, 2024, this 25 action was removed to this federal court pursuant to 42 U.S.C. § 233(c) and the United States was 26 substituted as a defendant in place of defendant CMC.1 (See Doc. Nos. 1, 3.) 27

28 1 Defendant CMC was terminated as a named defendant in this action on June 11, 2024. 1 On June 18, 2024, defendant United States filed the pending motion to dismiss the claims 2 brought against it due to lack of subject matter jurisdiction, pursuant to Federal Rule of Civil 3 Procedure 12(b)(1). (Doc. No. 5.) Plaintiffs filed their opposition to the pending motion on 4 July 2, 2024. (Doc. No. 6.) On July 12, 2024, defendant United States filed its reply thereto. 5 (Doc. No. 7.) 6 LEGAL STANDARD 7 Federal Rule of Civil Procedure 12(b)(1) permits a party to “challenge a federal court’s 8 jurisdiction over the subject matter of the complaint.” Nat’l Photo Grp., LLC v. Allvoices, Inc., 9 No. 13-cv-03627-JSC, 2014 WL 280391, at *1 (N.D. Cal. Jan. 24, 2014). “A Rule 12(b)(1) 10 jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the 11 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” 12 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal citation omitted). 13 “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): 14 Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s 15 favor, the court determines whether the allegations are sufficient as a legal matter to invoke the 16 court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). However, the 17 court need not assume the truth of legal conclusions cast in the form of factual allegations. 18 Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). “By contrast, in a 19 factual attack, the challenger disputes the truth of the allegations that, by themselves, would 20 otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. 21 ANALYSIS 22 In its pending motion defendant United States argues that plaintiffs failed to exhaust their 23 administrative remedies before filing suit against defendant United States as required by the 24 FTCA, 28 U.S.C. § 2675(a). (Doc. No. 5-1.) Defendant United States does not specify whether 25 in advancing this argument it is thereby mounting a facial or factual attack. The court notes that 26 defendant United States submitted as an attachment to its pending motion a declaration from 27 Meredith Torres, an attorney in the Office of the General Counsel of the Department of Health 28 and Human Services (“the Department”), wherein attorney Torres states that there is no record in 1 any computerized database of an administrative tort claim filed by any of the plaintiffs with the 2 Department. (Doc. No. 5-2 at ¶¶ 1–4.) However, defendant United States cannot be said to be 3 “disput[ing] the truth of factual allegations that, by themselves, would otherwise invoke federal 4 jurisdiction,” Safe Air for Everyone, 373 F.3d at 1039, because plaintiffs have not alleged in their 5 complaint that they exhausted their administrative remedies. Accordingly, the court construes the 6 pending motion as bringing a facial attack under Rule 12(b)(1). Ultimately, and in any event, 7 resolution of the pending motion does not depend on whether the attack is facial or factual, 8 because plaintiffs do not dispute that they did not exhaust their administrative remedies prior to 9 filing suit. 10 Instead, plaintiffs argue in their opposition that “[a]s of June 28, 2024, each plaintiff in 11 this matter has filed an administrative tort claim form with the Department of Health and Human 12 Services,” and that this action should be stayed while those claims are pending review by the 13 Department.2 (Doc. No. 6 at 2–3.) Plaintiffs do not cite any authority in support of their position 14 in this regard. Defendant United States argues in reply that subject matter jurisdiction is 15 determined at the time of removal, that plaintiffs had not exhausted their administrative remedies 16 under the FTCA at the time of removal, and that dismissal of their claims brought against the 17 United States is therefore required. (Doc. No. 7.) 18 The court concludes that plaintiffs’ claims asserted against defendant United States must 19 be dismissed. “The FTCA’s exhaustion requirement is jurisdictional and may not be waived.” 20 D.L., 858 F.3d at 1244. “An administrative claim is deemed exhausted once the relevant agency 21 finally denies it in writing, or if the agency fails to make a final disposition of the claim within six 22 months of the claim’s filing.” Id. (citing 28 U.S.C. § 2675(a)). Because “[f]ederal jurisdiction 23 under the FTCA is determined at the time of removal,” id. at 1246, and because plaintiffs concede 24 that they only filed administrative claims after this action was removed to this federal court and

25 2 The bulk of plaintiffs’ opposition does not respond to the only argument advanced by defendant United States, i.e., that dismissal of FTCA claims is required where a plaintiff has failed to 26 exhaust their administrative remedies. Instead, plaintiffs argue that they could not have 27 discovered that their claims would fall under the scope of the FTCA until June 11, 2024, that the relevant statutes of limitations have not elapsed, and that equitable tolling is appropriate in this 28 instance. (See Doc. No. 6 at 2–3.) 1 thereby failed to exhaust their administrative remedies, this court lacks subject matter jurisdiction 2 over plaintiffs’ claims brought against defendant United States. The pending motion to dismiss 3 must therefore be granted. See Martinez v. Kaweah Delta Med. Ctr., No. 1:21-cv-01601-EPG, 4 2021 WL 6118650, at *3 (E.D. Cal. Dec. 27, 2021) (concluding that “this Court is not free to stay 5 the case until the HHS renders a decision because ‘Congress intended to require complete 6 exhaustion of Executive remedies before invocation of the judicial process’”) (quoting McNeil v. 7 United States, 508 U.S. 106, 112 (1993)); Boules v. United States, No. 23-cv-08891-CBM-PVC, 8 2024 WL 4203832, at *7 (C.D. Cal. Sept. 16, 2024) (“The Court does not have subject matter 9 jurisdiction over FTCA claims that are filed in federal court before the administrative claim is 10 filed. A stay of proceedings cannot cure this lack of jurisdiction. Accordingly, the motion to stay 11 is denied.”); Abbott on behalf of N.C.D. v. United States, No. 19-cv-00014-TMB, 2020 WL 12 1845225, at *3 (D. Alaska Apr. 10, 2020) (“Here, the United States asserts and Plaintiff concedes 13 that Plaintiff has not exhausted administrative remedies. . . . [A] stay to allow administrative 14 exhaustion is improper here. Once a court determines that it lacks jurisdiction, ‘the court must 15 dismiss the action.’”) (quoting Fed. R. Civ. P. 12(h)(3)); see also Fed. R. Civ. P. 12(h)(3) (“If the 16 court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 17 action.”). 18 Defendant United States argues that “this court should decline to exercise supplemental 19 jurisdiction over the state-law claims against Dr. Zhu” and remand this action to the Solano 20 County Superior Court. (Doc. No. 5-1 at 4.) Plaintiffs do not respond to this argument in their 21 opposition. Because plaintiffs’ only remaining claims will be their state law claims asserted 22 against Dr. Zhu, the court will decline to exercise supplemental jurisdiction over these claims. 23 Accordingly, this action will be remanded to the Solano County Superior Court. See Medina v. 24 United States, No. 1:20-cv-01030-AWI-SKO, 2020 WL 6544497, at *2 (E.D. Cal. Nov. 6, 2020) 25 (“[T]he Court lacks subject-matter jurisdiction over Plaintiffs’ claims against the United States 26 because Plaintiffs have not shown they complied with the exhaustion requirement under § 2675. 27 . . . Because dismissing those claims extinguishes the only viable basis for federal jurisdiction, 28 there is no reasonable basis for exercising jurisdiction over Plaintiffs’ remaining state law claims 1 | against the other named defendants. Therefore, the Court finds it appropriate to remand the 2 | remainder of this action to state court.”); Martinez, 2021 WL 6118650, at *4 (remanding the 3 | plaintiffs’ remaining claims to state court after dismissing the plaintiffs’ claims brought against 4 | the United States due to the plaintiffs’ failure to exhaust administrative remedies); Abbott, 2020 5 | WL 1845225, at *4 (same) (citing 28 U.S.C. § 1367(c)); see also 28 U.S.C. § 1367(c) (“The 6 | district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) 7 | if... the district court has dismissed all claims over which it has original jurisdiction ....”). 8 CONCLUSION 9 For the reasons explained above, 10 1. The motion to dismiss plaintiffs’ claims brought against it filed by defendant 11 United States (Doc. No. 5) is granted without prejudice; 12 2. This action is remanded to the Solano County Superior Court to proceed on 13 plaintiffs’ claims brought against defendant Andy Yongde Zhu; and 14 3. The Clerk of the Court is directed to close this case. 15 IT IS SO ORDERED. | Dated: _ October 28, 2024 □□□ A. 2, ye 17 DALE A. DROZD ig UNITED STATES DISTRICT JUDGE

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