Barbara J Riede et al v. Rosa Olmos, Asw et al

Northern District of California, cand-4:2015-cv-01874

ORDER by Judge Hamilton granting {{8}} Motion to Dismiss and remanding case (pjhlc2, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BARBARA J. RIEDE, et al., Case No. 15-cv-1874-PJH 8 Plaintiffs, 9 v. ORDER GRANTING MOTION TO DISMISS AND REMANDING CASE 10 ROSA OLMOS, et al., 11 Defendants. 12 Northern District of California United States District Court 13 14 Defendants' motion to dismiss came on for hearing before this court on June 24, 15 2015. Plaintiffs Barbara Reide and Mike Reide ("plaintiffs") appeared through their 16 counsel, William Paynter. Defendants Community Health Clinic Olé, Rosa Olmos, Evelyn 17 Cazares, Laura Paoletti, Charlene Reilly, Pamela Higgins, Jennifer Despres, Rebecca 18 Levy-Gantt, and Jerome Solomon ("the moving defendants") appeared through their 19 counsel, Rebecca Falk. Defendants Napa Obstetrics and Gynecologists/Queen of the 20 Valley Medical Center and St. Joseph Health/Queen of the Valley Medical Center ("the 21 non-moving defendants") appeared through their counsel, Lauren Tate. Having read the 22 papers filed in conjunction with the motion and carefully considered the arguments and 23 the relevant legal authority, and good cause appearing, the court hereby GRANTS the 24 motion to dismiss as stated at the hearing, and as follows. 25 The moving defendants have filed a certification asserting that Community Health 26 Clinic Olé is covered by the Federal Tort Claims Act ("FTCA"), as are its employees 27 (specifically, Olmos, Cazares, Paoletti, Reilly, Higgins, Despres, Levy-Gantt, and 28 Solomon), who were acting within the scope of their employment at the time of the 1 incidents alleged in this suit. See Dkt. 2, ¶ 2. Based on the certification, the moving 2 defendants argue that the claims against them should be dismissed, and that the United 3 States should be substituted in their place. 4 Plaintiffs do not challenge the substitution as to Community Health Clinic Olé, but 5 argue that there are factual disputes as to whether the individual defendants were acting 6 within the scope of their employment, and thus, request that dismissal and substitution be 7 denied at this time. 8 The government's certification constitutes prima facie evidence that the employees 9 were acting in the scope of their employment. Billings v. U.S., 57 F.3d 797, 800 (9th Cir. 10 1995); Pauly v. Dept. of Agriculture, 348 F.3d 1143, 1151 (9th Cir. 2003). The 11 certification is conclusive unless challenged, and may be overcome only by "presenting 12 evidence and disproving the Attorney General's certification by a preponderance of the Northern District of California United States District Court 13 evidence." Billings, 57 F.3d at 800. Plaintiffs admit that they cannot meet this standard, 14 and instead request the opportunity to take the deposition of at least one of the 15 employees. Based on plaintiffs' failure to meet the preponderance of the evidence 16 standard, the moving defendants' request that they be dismissed and that the United 17 States be substituted is GRANTED. 18 The moving defendants then request that the claims against the United States be 19 dismissed for failure to exhaust under the FTCA. Indeed, the Supreme Court has held 20 that "the FTCA bars claimants from bringing suit in federal court until they have 21 exhausted their administrative remedies," and specifically rejected the argument that 22 exhaustion need not necessarily occur before the filing of a lawsuit, and need only occur 23 before "substantial progress" is made in the suit. McNeil v. U.S., 508 U.S. 106 (1993). 24 As a result, the claims against the United States are DISMISSED for failure to exhaust, 25 though the dismissal is without prejudice to re-filing the claims after exhaustion. 26 Finally, the court finds that it lacks subject matter jurisdiction over the remaining 27 claims, asserted against Napa Obstetrics and Gynecologists/Queen of the Valley Medical 28 Center, St. Joseph Health/Queen of the Valley Medical Center, Julio Espinosa, Richard 2 1 Wa aters, and Francine F Morisette. Though the ccourt may a address the e issue of ssubject 2 ma atter jurisdic ction sua sp ponte, the non-moving n g defendantts raised th he issue at tthe hearing g 3 by requesting g remand, and a plaintiffs s did not op ppose the rrequest. Acccordingly, as to the 4 portion of the case that has h not bee ed (i.e., the claims brought againsst Napa en dismisse 5 Ob bstetrics and Gynecolo ogists/Quee en of the Va alley Mediccal Center, S St. Joseph 6 He ealth/Queen n of the Valley Medical Center, Ju ulio Espinossa, Richard d Waters, a and 7 Fra ancine Morisette), the case is RE EMANDED to the Napa a County S Superior Court. 8 USION CONCLU 9 For the e foregoing reasons, defendants d Communityy Health Clinic Olé, Ro osa Olmos,, 10 Ev velyn Cazarres, Laura Paoletti, P Ch harlene Reillly, Pamela a Higgins, Jennifer Desspres, 11 Re ebecca Levy y-Gantt, an nd Jerome Solomon S arre DISMISS SED from th he case and d the 12 Un nited States s is substituted in their place; the claims aga ainst the Un nited Statess are Northern District of California United States District Court 13 DIS SMISSED without w prejjudice pend ding adminiistrative exhaustion; a and the claim ms against 14 Na apa Obstetrrics and Gynecologists s/Queen of the Valley Medical Ce enter, St. Jo oseph 15 He ealth/Queen n of the Valley Medical Center, Ju ulio Espinossa, Richard d Waters, a and 16 Fra ancine Morisette are REMANDED R D to the Na apa County Superior C Court. 17 18 IT IS SO S ORDER RED. 19 ated: June 24, 2015 Da 20 __ __________ __________ __________ _______ PH HYLLIS J. HHAMILTON 21 Un nited Statess District Ju udge 22 23 24 25 26 27 28 3