Jimenez v. United States

• Court: District Court, D. Nevada
• Decided: February 7, 2023
• Docket: 2:22-cv-00680
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Mirelys Jimenez, Case No.: 2:22-cv-00680-JAD-BNW

4 Plaintiff Order Directing Further Briefing Re: 5 v. Plaintiff’s Motion to Amend Judgment

6 United States of America, [ECF No. 18]

7 Defendant

8 Plaintiff Mirelys Jimenez sued the United States of America under the Federal Tort 9 Claims Act for negligence and intentional infliction of emotional distress, alleging that her 10 medical providers at the Veterans Affairs (VA) Southern Nevada Healthcare System failed to 11 accurately categorize a cancerous lesion during her ultrasound.1 The government moved to 12 dismiss, arguing that Jimenez lacked standing.2 I granted that motion, concluding that, because 13 Jimenez brought this action after filing for bankruptcy without reference to her pending medical- 14 malpractice claim before the VA, “the bankruptcy estate owned the claim . . . and had the 15 [exclusive] right to bring suit.”3 In that order, I noted that “Jimenez fail[ed] to respond to the 16 government’s standing argument[,]” which would “permit the court to deem her silence as 17 consent to granting the [government’s] motion.”4 But I “nonetheless . . . analyze[d] the merits of 18 th[e] standing argument[,]” found that Jimenez lacked standing, and ordered the case remanded 19 and closed.5 20

21 1 ECF No. 1. 2 ECF No. 2. 22 3 ECF No. 15 at 2–3. 23 4 Id. at 1 n.1. 5 Id. at 1 n.1, 4. 1 Jimenez now moves to amend or alter that judgment under Federal Rule of Civil 2 Procedure (FRCP) 59(e), arguing that I incorrectly “found [that] Jimenez failed to respond to the 3 [government’s] standing argument and treated the silence as consent to granting the [m]otion to 4 [d]ismiss.”6 The government correctly points out that I did not dismiss the case on that 5 procedural basis and instead assessed the standing issue on its merits.7 Jimenez counters that,

6 instead of dismissing the case right away, the court should have provided a “reasonable time . . . 7 for the real party in interest to ratify, join, or be substituted into the action” under FRCP 8 17(a)(3).8 But Jimenez failed to raise that argument in her motion and did so only in her reply 9 brief—depriving the government of the opportunity to respond. Though belatedly raising an 10 argument can amount to forfeiture of that argument,9 because the court has an independent 11 obligation to assess its subject-matter jurisdiction10 and because I find some basis for Jimenez’s 12 Rule 17 argument,11 13 14

15 6 ECF No. 18 at 1. Jimenez also filed a renewed motion to substitute the bankruptcy trustee as the real party in interest under FRCP 25(c). ECF No. 21. As this case is currently closed for 16 lack of subject-matter jurisdiction, I defer decision on that motion until after the government’s response to Jimenez’s belated Rule 17 argument in support of the court’s subject-matter 17 jurisdiction. 18 7 ECF No. 23 at 1. 8 ECF No. 26 at 3. 19 9 Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (holding that a “district court need not 20 consider arguments raised for the first time in a reply brief”). 10 United Invs. Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (holding 21 that “the district court had a duty to establish subject[-]matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not.”) 22 11 See Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123, 1129 (9th Cir. 2017) (“Consistent with the text of Rule 17 and our case law interpreting it, we conclude that the district court 23 abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.”). 1 IT IS ORDERED that the United States must file a surreply to Jimenez’s reply in support of her motion to alter or amend the judgment by February 17, 2023. The surreply must be limited to five pages and to the topic of whether Rule 17(a)(3) permits party substitution No further briefing by either party will be entertained. . 6 US. Distsict Judge J énnjfer A. Dorsey February 7, 2023 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23