1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANH BAO VY HUYNH, No. 2:20-cv-01757-MCE-CKD 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 SUTTER HEALTH; SUTTER ROSEVILLE MEDICAL CENTER 15 FOUNDATION; NATHAN HALE ALLEN, M.D.; and DOES 1-50, 16 inclusive, 17 Defendants. 18 19 Through the present lawsuit, Plaintiff Anh Bao Vy Huynh (“Plaintiff”) asserts 20 various causes of action against Defendants Sutter Health, Sutter Roseville Medical 21 Center Foundation, and Nathan Hale Allen, M.D. (collectively “Defendants” unless 22 otherwise noted) for personal injuries she claims to have sustained as a result of an 23 outpatient surgical procedure. Plaintiff’s complaint, originally filed in the Placer County 24 Superior Court, was removed to this court by the United States on August 31, 2020, on 25 grounds that Dr. Allen, at all times relevant to these proceedings, was performing 26 medical functions as an employee of the Public Health Service (“PHS”) acting within the 27 course and scope of said employment. ECF No. 1, ¶ 2. The United States avers that 28 /// 1 Dr. Allen’s status as such an employee confers federal jurisdiction for injuries caused by 2 his negligent act or omission under 28 U.S.C. § 233(a). 3 Now before the Court is a motion to dismiss brought by the United States 4 pursuant to Federal Rule of Civil Procedure 12(b)(1).1 That motion (ECF No. 8), filed on 5 November 9, 2020, first seeks to substitute the government in the place of Dr. Allen on 6 grounds that the United States, and not Dr. Allen, is the proper party to these 7 proceedings given his employment by the PHS. Then, once that substitution is 8 effectuated, the motion asks that any claims against the United States be dismissed for 9 lack of subject matter jurisdiction under Rule 12(b)(1) on grounds that Plaintiff failed to 10 comply with the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346, et seq. 11 (“FTCA”), as a prerequisite to filing suit against the government. Finally, upon its 12 dismissal as a party, the United States urges that any remaining claims against other 13 defendants be remanded back to state court for adjudication. 14 In addition to opposing the government’s motion, Plaintiff has also filed her own 15 Motion for Judicial Review of the United States’ certification of scope of employment of 16 Dr. Allen (ECF No. 19). Plaintiff also requests a conference as to what discovery will be 17 needed to resolve that issue, as well as a stay of any decision on the United States’ 18 Motion until the necessary discovery and review have been completed. 19 For the reasons set forth below, the United States’ Motion is GRANTED, and the 20 Plaintiff’s Motion is DENIED.2 21 /// 22 /// 23 /// 24 /// 25
1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless 26 otherwise noted.
27 2 Having determined that oral argument would not be of material assistance, this matter was submitted on the briefs in accordance with E.D. Local Rule 230(g). 28 1 BACKGROUND 2 3 According to the operative Amended Complaint for Damages (ECF No. 5),3 4 Plaintiff, a Vietnamese immigrant who speaks little English, sought medical treatment on 5 or about November 8, 2018, from Defendants and was diagnosed as suffering from 6 ovarian cysts. Plaintiff underwent robotic laparoscopic surgery, performed by Dr. Allen, 7 that same day on an outpatient basis. She claims that during the course of that robotic 8 surgery, an errant incision both perforated her colon, injured her lung, and caused 9 extensive peritoneal contamination. Despite post-surgical complications that ultimately 10 required an overnight stay in the hospital following the procedure, Plaintiff claims she 11 was discharged without treating the errant incision and alleges it was only two days later, 12 when she returned very ill, that the true scope of her injuries were ascertained. 13 In addition to alleging that she was subjected to medical batteries caused by 14 Defendants’ negligence, Plaintiff also claims, inter alia, that Defendants failed to warn 15 her of the possible consequences and dangers associated with the surgery, in part by 16 failing to provide a Vietnamese interpreter. In addition, Plaintiff contends she was 17 discriminated against under California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 18 et seq. (“Unruh Act’) and discharged early because of her national origin as an immigrant 19 born in Vietnam. 20 As indicated above, the United States now requests that it be substituted in place 21 of Dr. Allen on grounds that Dr. Allen was an employee of a federally funded clinic and is 22 accordingly also deemed a federal employee of the PHS subject to the protections of the 23 FTCA. Assuming that substitution is permitted, the United States also asks that it be 24 dismissed because Plaintiff failed to comply with the requirements of the FTCA prior to 25 filing her lawsuit, and the government further requests that the remainder of the lawsuit 26 be remanded back to state court where it originated. Plaintiff’s motion in response 27 3 The facts as set forth in this section are taken, at times verbatim, from the allegations of the 28 Amended Complaint. 1 requests that judicial review of Dr. Allen’s certification as a PHS employee be permitted, 2 that additional discovery be authorized in conjunction with that inquiry, and that any 3 decision on the United States’ motion be deferred until after Plaintiff’s own motion has 4 been adjudicated. 5 6 STANDARD 7 8 Federal courts are courts of limited jurisdiction and are presumptively without 9 jurisdiction over civil actions. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 10 377 (1994). The burden of establishing the contrary rests upon the party asserting 11 jurisdiction. Id. Because subject matter jurisdiction involves a court’s power to hear a 12 case, it can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630 13 (2002). Accordingly, lack of subject matter jurisdiction may be raised by either party at 14 any point during the litigation, through a motion to dismiss pursuant to Rule 12(b)(1). 15 Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); see also Int’l Union of Operating 16 Eng’rs v. Cnty. of Plumas, 559 F.3d 1041, 1043-44 (9th Cir. 2009). Lack of subject 17 matter jurisdiction may also be raised by the district court sua sponte. Ruhrgas AG v. 18 Marathon Oil Co., 526 U.S. 574, 583 (1999). Indeed, “courts have an independent 19 obligation to determine whether subject matter jurisdiction exists, even in the absence of 20 a challenge from any party.” Id.; see Fed. R. Civ. P. 12(h)(3) (requiring the court to 21 dismiss the action if subject matter jurisdiction is lacking). 22 There are two types of motions to dismiss for lack of subject matter jurisdiction: a 23 facial attack, and a factual attack. Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 24 594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either make an attack on the 25 allegations of jurisdiction contained in the nonmoving party’s complaint, or may 26 challenge the existence of subject matter jurisdiction in fact, despite the formal 27 sufficiency of the pleadings. Id. 28 /// 1 When a party makes a facial attack on a complaint, the attack is unaccompanied 2 by supporting evidence, and it challenges jurisdiction based solely on the pleadings. 3 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). If the motion to 4 dismiss constitutes a facial attack, the Court must consider the factual allegations of the 5 complaint to be true and determine whether they establish subject matter jurisdiction. 6 Savage v. Glendale High Union Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 7 2003). In the case of a facial attack, the motion to dismiss is granted only if the 8 nonmoving party fails to allege an element necessary for subject matter jurisdiction. Id. 9 However, in the case of a factual attack, district courts “may review evidence beyond the 10 complaint without converting the motion to dismiss into a motion for summary judgment.” 11 Safe Air for Everyone, 373 F.3d at 1039. 12 In the case of a factual attack, “no presumptive truthfulness attaches to plaintiff’s 13 allegations.” Thornill, 594 F.2d at 733 (internal citation omitted). The party opposing the 14 motion has the burden of proving that subject matter jurisdiction does exist and must 15 present any necessary evidence to satisfy this burden. St. Clair v. City of Chico, 16 880 F.2d 199, 201 (9th Cir. 1989). If the plaintiff’s allegations of jurisdictional facts are 17 challenged by the adversary in the appropriate manner, the plaintiff cannot rest on the 18 mere assertion that factual issues may exist. Trentacosta v. Frontier Pac. Aircraft Ind., 19 Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting Exch. Nat’l Bank of Chi. v. Touche 20 Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the district court may 21 review any evidence necessary, including affidavits and testimony, in order to determine 22 whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d 558, 560 23 (9th Cir. 1988); Thornhill, 594 F.2d at 733. If the nonmoving party fails to meet its 24 burden and the court determines that it lacks subject matter jurisdiction, the court must 25 dismiss the action. Fed. R. Civ. P. 12(h)(3). 26 /// 27 /// 28 /// 1 ANALYSIS 2 3 A. Substitution of United States as a Party 4 The Public Health Services Act, at 42 U.S.C. § 254b, authorizes the Secretary of 5 Health and Human Services to provide federal grants to health centers caring for 6 medically underserved populations. Moreover, under the terms of the so-called 7 Federally Supported Health Centers Assistance Act, 42 U.S.C. §§ 233 et seq. 8 (“FSHCAA”), a health center that receives such funds is eligible to have itself and its 9 personnel “deemed” by the Secretary to be employees of the PHS. See 42 U.S.C. 10 § 233(g). As “deemed” employees of the PHS, health centers and their personnel are 11 immune from claims for “personal injury . . . resulting from the performance of medical, 12 surgical, dental or related functions.” Id. at § 233(a). Such claims must instead be 13 brought against the United States through the auspices of the FTCA. Id. 14 The United States argues through the present Motion that WellSpace Health, a 15 federally funded community health center, and its employees, including Dr. Allen, are 16 “deemed” employees of the Public Health Service with respect to Plaintiff’s allegations 17 herein. Submitted in conjunction with the motion is a declaration obtained from Meredith 18 Torres, Senior Attorney for the Department of Health and Human Services. ECF 19 No. 8-3. The Torres Declaration attaches documentation confirming that WellSpace 20 Health is deemed to be an employee of the PHS and has been covered under FTCA 21 malpractice coverage since January 1, 2018. Id. at ¶ 5, Ex. 1. Ms. Torres also attests to 22 the fact that she reviewed WellSpace’s employment records and determined that Dr. 23 Allen was an employee of WellSpace at the time of the incident giving rise to this suit. 24 Id. at ¶ 6. 25 In addition to the Torres Declaration, the United States also presents a 26 Certification of Employment from David Shelledy, the Chief of the Civil Division of the 27 United States Attorney’s Office, who further confirms, in accordance with the provisions 28 of 28 C.F.R. § 15.4 and 42 U.S.C. § 233(a) and (c), that Dr. Allen was deemed to be an 1 “employee of the Public Health Service and was acting within the course and scope of 2 such employment at the time of the incidents alleged in the [Amended Complaint].” ECF 3 No. 8-2. 4 Dr. Allen’s own declaration is in accord. He attests to being a licensed 5 Obstetrician/Gynecologist employed by WellSpace Health since April 4, 2016. ECF 6 No. 5, ¶¶ 1-2. Dr. Allen goes on to state that he personally did not bill privately for any 7 medical services provided to Plaintiff, and he received no financial compensation for 8 those services from any source whatsoever other than the regular compensation he 9 received from WellSpace. Id. at 3-4. Dr. Allen further indicates he has not been 10 employed by any other health center or private medical facility other than Wellspace 11 during the timeframe relevant to this lawsuit. Id. at 5. 12 While Plaintiff’s opposition papers indicate she does not contest Dr. Allen’s status 13 as an employee of WellSpace, Plaintiff’s counsel Sean Musgraves nonetheless argues 14 that Dr. Allen should not be substituted out of this case because, according to Plaintiff, 15 after her primary care doctor at the WellSpace clinic told her she needed to have ovarian 16 cysts removed, she was referred to Dr. Allen for the surgery since “WellSpace did not do 17 surgeries.” ECF No. 14, ¶ 2. Otherwise, Plaintiff states only, and without further 18 explication, that she simply “was under the belief that Dr. Nathan Allen Hale was a 19 doctor from Sutter because he was doing the surgery at Sutter Hospital.” ECF No. 14, 20 ¶ 3. 21 Plaintiff’s counsel, for his part, states that he filed suit in Placer County and 22 believed Dr. Allen was not a federal employee for purposes of the FTCA because he had 23 affiliations with a number of medical centers, including Sutter and Dignity Health, and 24 appeared to accept a variety of insurances. Decl. of Sean Musgraves, ECF No. 13-1, 25 ¶¶ 3, 5. 26 In order to explore the parameters of Dr. Allen’s employment, the parties agreed 27 for a preliminary production of documents to take place in January of 2021, and once 28 those documents were reviewed, Mr. Musgraves indicated he would review “the 1 documents produced and determine[e] what additional discovery may need to be done 2 to determine Dr. Nathan Hale Allen’s employment status with WellSpace.” Opp’n, ECF 3 No. 13, 2:22-25; Musgrove Decl., Ex. A, B. Moreover, in order to accommodate that 4 review, the parties agreed to permit Plaintiff to file a supplemental opposition not later 5 than March 19, 2021, with a supplemental reply to follow on April 2, 2021. ECF No. 18. 6 Despite being afforded additional time, Plaintiff’s amended opposition, filed 7 March 18, 2021, contains virtually nothing to controvert the United States’ position as to 8 Dr. Allen’s employment status, or the fact that WellSpace was a federally funded clinic 9 under the PHS which made both the clinic and its employees, including Dr. Allen, 10 deemed employees of the PHS subject to the provisions of the FTCA. The only 11 “evidence” Plaintiff points to, other than her own declaration, is a Non-Pharmacy Claims 12 Utilization roster obtained from Anthem Blue Cross which lists billings submitted on 13 Plaintiff’s behalf. That roster (ECF No. 24-1, Ex. A) submitted in reply to Plaintiff’s own 14 Motion for Judicial Review of Dr. Allen’s Certification (ECF No. 19), indicates that a 15 billing was submitted on behalf of Dr. Allen for services rendered on September 12, 16 2018, nearly two months before the subject outpatient surgical procedure was done on 17 November 8, 2021.4 Even though the roster indicates that no payment was made by 18 Anthem Blue Cross as to that particular billing, Plaintiff argues that it creates an 19 “inconsistency” between Dr. Allen’s declaration that he never billed directly for any 20 services he provided to Plaintiff, and therefore creates a discrepancy entitling Plaintiff to 21 yet more discovery. 22 In considering the import of the evidence that has been submitted in determining 23 whether substitution of the United States in place of Dr. Allen is proper; we look to 24 guiding precepts identified in the applicable case law. “Certification by the Attorney 25 General is prima facie evidence that a federal employee was acting in the scope of [his
26 4 According to the United States, Dr. Allen had in fact evaluated Plaintiff at the WellSpace clinic in Sacramento on September 12, 2018, and October 31, 2018, prior to the time he did outpatient surgery at 27 Sutter General Hospital on November 8, 2018 (Reply, ECF No. 16, 317-20), a fact which belies any inference from Plaintiff’s declaration that she had not seen Dr. Allen previously at Wellspace and thought 28 he was affiliated with Sutter because that was where the surgery itself was performed. 1 or her] employment at the time of the incident and is conclusive unless challenged.” 2 Manulid v. Sycuan Casino & Resort, No. 10-cv-721 WQH (CAB), 2010 WL 5349849 at 3 *2 (S.D. Cal. Dec. 20, 2010) (quoting Billings v. United States, 57 F.3d 797, 800 (9th Cir. 4 1995)). “The party challenging the certification is required to present evidence 5 disproving the Attorney General’s certification by a preponderance of the evidence.” 6 Stringer v. White, No. C-07-5516 SI, 2008 WL 344215 at *3 (N.D. Cal. Feb 6, 2008) 7 (citing Billings, 47 F.3d at 800); see also Ponds v. Veterans Med. Research Found., 8 No. 12-cv-1745 BEN (BGS), 2013 WL 607847, at *2 (S.D. Cal. Feb 15, 2013) (“The 9 United States remains the named federal defendant unless and until the District Court 10 determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged 11 in conduct beyond the scope of his employment.” (quoting Jackson v. Tate, 648 F.3d 12 729, 726 (9th Cir. 2011)) (emphasis in original, internal quotation marks omitted)). 13 In establishing its prima facie case that Dr. Allen was acting as a federal 14 employee in treating Plaintiff, and as already enumerated above, the Attorney General’s 15 designee,5 United States Attorney David Shelledy, attests that Dr. Allen was a deemed 16 employee of the PHS acting within the course and scope of that employment at the time 17 of the incidents underlying Plaintiff’s complaint. ECF 8-2, ¶ 2. In addition, as also 18 indicated above, counsel for the Department of Health and Human Services, who 19 administers the PHS, additionally confirms both that Dr. Allen was an employee of 20 WellSpace, and that WellSpace was a federally qualified health center with medical 21 malpractice coverage under the FTCA. Torres Decl., ECF No. 8-3, ¶¶ 5-6, Ex. 1. 22 Finally, Dr Allen himself states that WellSpace was his only employer, and that the only 23 compensation he received for treating Plaintiff was his regular salary from WellSpace. 24 Allen Decl., ECF No. 8-5, ¶¶ 2-5. 25 The Court finds this evidence to be powerful, multi-layered support for 26 establishing, on a prima facie basis, Dr. Allen’s status as a deemed employee of the
27 5 Under 28 C.F.R. § 15.4, the United States Attorney for the district where a civil action or proceeding is brought is authorized to make a statutory certification that a federal employee was acting 28 within the scope of his employment at the time of the incident underlying the action. 1 PHS, which, in turn, entitles the United States to substitute into this litigation in 2 Dr. Allen’s place. As already stated above, in order to rebut that prima facie showing, 3 Plaintiff must produce not just evidence but evidence that disproves the prima facie case 4 by the preponderance of the evidence. Billings, 47 F.3d at 800. The “evidence” 5 submitted by Plaintiff does not come close to meeting that stringent standard. The fact 6 that Plaintiff herself was under the “belief” that Dr. Allen was a Sutter physician simply 7 because he was doing the surgery at Sutter does not suffice. As the United States 8 points out, this Court has previously observed it is not unusual for doctors at federal 9 qualified health centers to have admitting privileges at local hospitals in order to provide 10 necessary care for their patients. See, e.g., G.H. v. Sutter Davis Hosp., No. 2:15-cv- 11 00813-MCE-KJN, 2015 WL 4078273 at * 2 (E.D. Cal. July 6, 2015) (granting the 12 government’s motion to dismiss under the FTCA where employees of a federally 13 qualified health center provided inpatient labor and delivery services, along with follow- 14 up care, at Sutter Davis Hospital). In addition, citing an unpaid claim made on behalf of 15 Dr. Allen to Anthem Blue Shield for care he provided to Plaintiff two months before the 16 surgery does not carry the day. The fact that a billing may have been generated on 17 Dr. Allen’s behalf (presumably by WellSpace) to Anthem is not inconsistent with Dr. 18 Allen’s statement that he never personally billed for any of the services he provided by 19 Plaintiff.6 20 Nor is Plaintiff’s argument that she is entitled to additional discovery (beyond that 21 already provided) to challenge the government’s certification of Dr. Allen’s employment 22 any more persuasive. Limited discovery as to certification determinations is permitted 23 “only when a plaintiff ‘allege[s] sufficient facts that, taken as true, would establish that the 24 defendant[’s] actions exceeded the scope of [his] employment.’” Wuterich v. Murtha, 25 562 F.3d 375, 378 (D.C. Cir. 2009); accord Saleh v. Bush, 848 F.3d 880, 889 (9th Cir. 26 2017). As indicated above, Plaintiff has failed to allege any specific facts or evidence to 27 6 See Dr. Allen’s Response to Plaintiff’s Initial Request for Discovery, ECF 22-1, Ex. A, 28 Question 4. 1 plausibly suggest that Dr. Allen was not a deemed employee of the PHS or was acting 2 outside of his employment with WellSpace, despite being afforded initial discovery to 3 uncover such evidence.7 Moreover, as even Plaintiff concedes, the renewed discovery 4 she now proposes is a “mirror image” of the initial discovery requests already 5 propounded to and answered by Dr. Allen and the Sutter Defendants in January 2020. 6 See Pl.’s Mot., ECF 19-1, 7:9-12. This demonstrates, as Defendants point out, that 7 Plaintiff’s renewed request is no more than a “fishing expedition. . . lack[ing] any 8 articulable basis or explanation.” Opp., ECF No. 23, 3:6-8 (citing Wuterich, 562 F.3d at 9 386 (district court should not authorize “a fishing expedition for facts that might give rise 10 to a viable scope-of-employment claim” (emphasis in original)). 11 In sum, then, the Court grants the United States’ request for substitution in the 12 place of Dr. Allen, and denies Plaintiff’s request for any additional judicial review of the 13 government’s certification of Dr. Allen’s employment status,8 or for additional discovery 14 to shed further light on that status. 15 B. Dismissal of United States for Failure to Comply with FTCA 16 Having established that Dr. Allen is deemed a federal employee, the government 17 next argues that any lawsuit against him arising from medical or related functions must 18 be brought against the United States pursuant to the provisions of the FTCA at 19 28 U.S.C. §§ 1346(b), 2671-80. Then, because it is undisputed that Plaintiff did not 20 7 While Plaintiff claims that the responses she received to those requests were not “verified” and 21 consequently have no binding effect, that argument is misplaced. Rule 26(g)(1) provides that the signature of the attorney of record signifies any such responses are made pursuant to the attorney’s 22 “knowledge, information, and belief formed after a reasonable inquiry,” and that any disclosures made pursuant thereto are “complete and correct” to the best of the attorney’s knowledge. Significantly, the 23 responses/disclosure made pursuant to Plaintiff’s initial discovery requests by Sutter on January 7, 2021 (ECF No. 21-1, Ex. C) and by Dr. Allen on March 2, 2021 (ECF No. 22-1, Ex. A) comply with the 24 requirements of Rule 26(g)(1). Rule 26 contains no verification requirement otherwise.
25 8 Plaintiff’s reliance on Rendon v. United States, 91 F. Supp. 2d 817 (E.D. Pa. 2000) to suggest otherwise is unavailing. As a preliminary matter, Rendon is out-of-circuit and of limited precedential value in the first instance. In addition, Rendon’s conclusion that a decision to certify the scope of employment is 26 “reviewable, albeit narrowly” (id. at 819) is consistent in any event with the authority cited by the United States—that the district court has discretion to review certification provided the opposing party makes a 27 proper evidentiary showing. This Court is not disputing that it has authority to conduct a review of whether Dr. Allen’s employment certification is appropriate; instead, it finds here only that no adequate basis for 28 such a review has been presented. 1 comply with the FTCA-mandated administrative claims process before filing suit, the 2 United States contends that it must be dismissed as a party to these proceedings for 3 lack of subject matter jurisdiction. 4 “Absent a waiver, sovereign immunity shields the Federal Government and its 5 agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). By enacting the 6 FTCA, Congress waived that sovereign immunity with respect to certain tort liability. See 7 28 U.S.C. § 1346(b). Nonetheless, as the government points out, “[a] federal court’s 8 jurisdiction to hear damage actions against the United States is limited by section 2675 9 of the FTCA.” Shipek v. United States, 752 F.2d 1352, 1353 (9th Cir. 1985); accord 10 Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). Section 2675 (a) requires, as 11 a prerequisite to suing the United States, that a plaintiff first present his or her tort claim 12 to the appropriate federal agency. Shipek, 752 F.2d at 1353. The plaintiff must then 13 receive a denial of the claim or await the passage of six months from submission of the 14 claim before filing suit. Id. If a plaintiff fails to comply with those provisions, the 15 government is entitled to dismissal for lack of subject matter jurisdiction under § 2675(a). 16 Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992) (“Section 2675(a) establishes 17 explicit prerequisites to the filing of suit against the Government in district court. It 18 admits of no exceptions.”). 19 The Torres Declaration submitted in support of the United States’ Motion indicates 20 that at the time Plaintiff commenced the instant lawsuit, there was no evidence she had 21 submitted an administrative tort claim under the FTCA to the appropriate federal agency, 22 here the United States Department of Health and Human Services. ECF No 8-3, ¶ 4. 23 Plaintiff’s counsel, for his part, offers nothing to controvert that conclusion, resting his 24 argument against dismissal solely on a foundational argument, as rejected above, that 25 the United States has not demonstrated that Dr. Allen was in fact a “deemed” federal 26 employee such that the United States was entitled to substitute in his stead in the first 27 instance. 28 /// 1 Counsel does point to allegations in the Amended Complaint that Defendants, 2 including Dr. Allen, discriminated against Plaintiff in violation of the Unruh Act because 3 she was Vietnamese (by releasing her early and by not affording her an interpreter such 4 that Plaintiff’s meaningful consent could be obtained). According to Plaintiff, those 5 allegations do not fall within the purview of the FTCA and are not subject to dismissal 6 even if no FTCA tort claim was presented. 7 This argument, however, ignores the fact that the scope of immunity provided to 8 federally funded healthcare centers like WellSpace and its employees is a broad one 9 under 42 U.S.C. § 233(a). That section makes an FTCA claim against the United States 10 the exclusive remedy for all claims for damages “resulting from the performance of 11 medical, surgical, dental, or related functions . . . by any . . . employee of the Public 12 Health Service while acting within the scope of his office or employment.” 42 U.S.C. 13 § 233(a). Here, Plaintiff’s operative pleading, makes it clear that Plaintiff’s discrimination 14 claims against Dr. Allen under the Unruh Act (Plaintiff’s Fifth and Sixth Causes of Action) 15 arise from “medical, surgical, . . . or related functions”, as provided by § 233, because 16 they are based on Dr. Allen’s alleged decision to discharge Plaintiff from the hospital, as 17 well as his claimed failure to provide Plaintiff with a Vietnamese interpreter “to allow her 18 to understand the medical treatment” to which she was allegedly consenting.” See Am. 19 Compl., ECF No. 5, ¶¶ 5-6, 8, 45, 51. In addition, Plaintiff’s Amended Complaint offers 20 no specific facts in any event to show that Dr. Allen was motivated by any discriminatory 21 animus prohibited by the Unruh Act, as opposed to what would otherwise appear to be 22 simple negligence in prematurely discharging a patient from the hospital or making sure 23 she understood the treatment to which she was consenting. See Jianjun Xie v. Oakland 24 Unified Sch Dist., No. C 12-02950 CRB, 2013 WL 812445 at *4 (C.D. Cal. March 5, 25 2013) (finding that general allegations of discrimination on the basis of race and national 26 origin fail to meet minimum pled standards where unsupported by any factual averments 27 beyond formulaic legal conclusions); see also Doe v. Astrue, No. C 09-00980 MHP, 28 2009 WL 2566720 at *12 (N.D. Cal. Aug, 18, 2009) (“If the well-pleaded facts support a 1 more persuasive, and likely benign, ‘obvious alternative explanation’ for the defendant’s 2 actions, a claim is not plausible.”). The Court agrees with Dr. Allen that Plaintiff cannot 3 thwart his statutory immunity by unsupported allegations of discrimination that fail to 4 satisfy basic federal pleadings requirements. 5 Because the United States is properly substituted as a party to these proceedings 6 in place of Dr. Allen, and because it is uncontroverted that Plaintiff failed to comply with 7 the provisions of the FTCA, which apply to all pertinent claims against it, prior to 8 instituting these proceedings, the United States must be dismissed under 28 U.S.C. 9 § 2675 for lack of subject matter jurisdiction. Jerves v. United States, 966 F.2d at 521. 10 C. Remand of Remaining Claims 11 Having dismissed the United States as a party to these proceedings, no basis for 12 this court’s continuing jurisdiction exists. Removal was effectuated from state court by 13 the United States only because it qualified as a party. Therefore remand of the 14 remainder of this case to the Placer County Superior Court where it originated is proper. 15 16 CONCLUSION 17 18 For all the foregoing reasons, Plaintiff’s Motion to Substitute, Remand, and 19 Dismiss (ECF No. 8) is GRANTED, in its entirety. The United States is hereby 20 SUBSTITUTED in as the proper Defendant in these proceedings in place of Nathan Hale 21 Allen, M.D. All resulting claims against the United States are DISMISSED, without 22 prejudice, for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 23 12(b)(1). Having dismissed the United States, whose presence in this litigation was the 24 only basis for federal jurisdiction, the Court REMANDS all remaining claims back to the 25 Placer County Superior Court for ultimate adjudication. 26 /// 27 /// 28 /// 1 Plaintiffs Motion for Judicial Review, Discovery Conference and Stay of the 2 | United States’ Motion (ECF No. 19) is DENIED. 3 IT |S SO ORDERED. 4 5 Dated: September 13, 2021 Matar LEK: Whip AX XC - SENIOR UNITED STATES URTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15