Kazemi v. Wertin

• Court: District Court, W.D. Washington
• Decided: January 15, 2020
• Docket: 2:19-cv-01659
• Status: Unknown

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 BEHROUZ KAZEMI, CASE NO. C19-1659JLR 11 Plaintiff, ORDER DISMISSING v. COMPLAINT FOR LACK OF 12 SUBJECT MATTER JURISDICTION KATHERINE WERTIN, et al., 13 Defendants. 14

15 I. INTRODUCTION 16 Before the court is Defendant United States of America’s (“the Government” or 17 “the United States”) Federal Rule of Civil Procedure 12(b)(1) motion to dismiss Plaintiff 18 Behrouz Kazemi’s complaint for lack of subject matter jurisdiction pursuant to the 19 Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675. (See MTD (Dkt. # 5); see also 20 Compl. (Dkt. # 1-1).) Mr. Kazemi did not file a response to the Government’s motion. 21 (See generally Dkt.) The court has reviewed the motion, relevant portions of the record, 22 // 1 and the applicable law. Being fully advised,1 the court GRANTS the Government’s 2 motion and DISMISSES Mr. Kazemi’s complaint WITHOUT PREJUDICE.

3 II. BACKGROUND 4 On or about May 23, 2019, Mr. Kazemi filed a complaint in King County Superior 5 Court. (See generally Compl.) In his complaint, Mr. Kazemi alleges that he suffered 6 injuries and incurred damages on May 30, 2016, following a medical appointment with 7 Dr. Katherine Wertin at HealthPoint, which is a federally supported health center. (See 8 generally id. ¶¶ 6.1-6.7.) Specifically, Mr. Kazemi alleges that he was misdiagnosed

9 with a serious heart condition and prescribed medication. (See generally id.) Prior to 10 filing his complaint, Mr. Kazemi did not file an administrative claim with the United 11 States Department of Health and Human Services (“the Department”). (Torres Decl. 12 (Dkt. # 7) ¶¶ 2-4.) 13 On October 16, 2019, the Government removed Mr. Kazemi’s complaint to

14 federal court. (See Notice of Removal (Dkt. # 1).) The next day, the Government 15 certified that Dr. Wertin and HealthPoint, and its employees, “are federal employees 16 acting within the scope of employment for purposes of coverage under the Federally 17 Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233.” (See Notice 18 of Sub. (Dkt. # 2) at 1-2; see also Torres Decl. ¶¶ 5-6).) Pursuant to that certification, the

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1 Mr. Kazemi did not file a response to the Government’s motion (see generally Dkt.), 21 and the Government has not requested oral argument (see MTD at 1). The court does not consider oral argument to be helpful to its disposition of this motion. See Local Rules W.D. 22 Wash. LCR 7(b)(4). 1 Government substituted itself for Healthpoint and Dr. Wertin as the defendant in this 2 action. (Id. (citing 28 U.S.C. §§ 2679(b), (d)(1)).)

3 On October 22, 2019, the Government filed its present motion to dismiss for lack 4 of subject matter jurisdiction. (See MTD.) Mr. Kazemi failed to respond to the 5 Government’s motion. (See generally Dkt.) The court now considers the Government’s 6 motion. 7 III. ANALYSIS 8 A. Standards for a Rule 12(b)(1) Motion to Dismiss

9 Subject matter jurisdiction is a threshold issue that goes to the court’s power to 10 hear a case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). A Rule 11 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be facial or factual. 12 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a 13 facial attack, the challenger asserts that the allegations of the complaint are insufficient

14 on their face to invoke the jurisdiction of the court. See id. However, “[i]n resolving a 15 factual attack on jurisdiction, the district court may review evidence beyond the 16 complaint without converting the motion to dismiss into a motion for summary 17 judgment.” Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 18 (9th Cir. 2003)). “Once the moving party has converted the motion to dismiss into a

19 factual motion by presenting affidavits or other evidence properly brought before the 20 court, the party opposing the motion must furnish affidavits or other evidence necessary 21 to satisfy its burden of establishing subject matter jurisdiction.” Id. (quoting Savage, 343 22 F.3d at 1039 n.2). 1 B. The Court Lacks Subject Matter Jurisdiction Because Mr. Kazemi Failed to File an Administrative Claim 2 The United States is immune from suit unless it consents to be sued. United States 3 v. Mitchell, 445 U.S. 535, 538 (1980); Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 4 1995). Any waiver of immunity is strictly construed in favor of the United States. 5 United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992). The FTCA is a limited 6 waiver of sovereign immunity that permits plaintiffs to bring claims against the United 7 States for the “negligent or wrongful act or omission of any employee of the Government 8 while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). 9 As a jurisdictional prerequisite, an FTCA claim may only be instituted after the 10 Government denies an administrative claim, either actually or constructively by failing to 11 act upon the claim within six months. See 28 U.S.C. § 2675(a); McNeil v. United States, 12 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court 13 until they have exhausted their administrative remedies.”). “The requirement of an 14 administrative claim is jurisdictional.” Brady v. United States, 211 F.3d 499, 502 (9th 15 Cir. 2000). “Because the requirement is jurisdictional, it must be strictly adhered to. 16 This is particularly so since the FTCA waives sovereign immunity.” Id. (internal citation 17 and quotation omitted). 18 The Government provides competent evidence that Mr. Kazemi did not present an 19 administrative claim to the Department prior to filing suit in King County Superior Court. 20 (See Torres Decl. ¶¶ 2-4.) Mr. Kazemi provides no response to the Government’s 21 evidence. (See generally Dkt.) Thus, the court concludes that because Mr. Kazemi did 22 1 not “first present the claim to” the relevant federal agency and allow the agency to make 2 a final disposition of his claim, he failed to exhaust his administrative remedies as

3 required under 28 U.S.C. § 2675(a). As a result, the United States has not waived its 4 sovereign immunity, and this court lacks subject matter jurisdiction over Mr. Kazemi’s 5 complaint. The court grants the Government’s motion and dismisses Mr. Kazemi’s 6 complaint without prejudice. 7 IV. CONCLUSION 8 Based on the foregoing analysis, the court GRANTS the Government’s motion to

9 dismiss Mr. Kazemi’s complaint for lack of subject matter jurisdiction (Dkt. # 5) and 10 DISMISSES his complaint WITHOUT PREJUDICE. 11 Dated this 14th day of January, 2020. 12 A 13 14 JAMES L. ROBART United States District Judge 15 16 17 18 19 20 21 22