United States District Court, D. Oregon
AIMEE J. WRIGHT, Plaintiff,
UNITED STATES and TUALITY COMMUNITY HOSPITAL, Defendants.
OPINION AND ORDER
PAUL PAPAK, Magistrate Judge.
Plaintiff pro se Aimee J. Wright filed this action against defendants Tuality Community Hospital and the United States ("Defendants") alleging malpractice and personal injury as a result of allegedly negligent medical treatment in connection with Wright's labor and delivery at the facilities of defendant Tuality Community Hospital.
Before the court is the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction (#8) pursuant to Federal Rule of Civil Procedure 12(b)(l). The United States moves on the basis that Wright has failed to exhaust administrative remedies under the Federal Tort Claims Act ("FTCA"). I have considered the motion and all of the pleadings on file under the liberal pleading standards afforded to the filings of a pro se plaintiff. For the reasons that follow, the United States' motion to dismiss is granted and Wright's claims against the United States are dismissed. Additionally Wright's claims against Tuality are remanded to state court.
On July 10, 2014, Wright filed this medical malpractice action in the Washington County Circuit Court for the State of Oregon (#1). In her complaint, Wright alleges that she received medical care at Tuality Community Hospital, specifically from Dr. Michael J. Schiferl, MD. Complaint, #1-1, ¶ 4. Wright alleges that Dr. Schiferl was negligent in providing her care and that Wright was injured as a result of that negligence. Id. at ¶ 10.
The United States removed to this court on November 21, 2014 (#1), and substituted itself as a defendant in this action in the place of Dr. Schiferl and Tuality Community Hospital (#5), as it deems Dr. Schiferl a federal employee and deemed Tuality a federal entity pursuant to the Federally Supported Health Centers Assistance Act of 1992. 42 U.S.C. § 233(a) and (g). The United States later filed a correction to that motion (#7) wherein it redacted its attempt to substitute itself for Tuality Community Hospital, noting that it erred in deeming Tuality a federal entity.
On December 11, 2014, the United States filed this motion to dismiss Wright's claims against it for lack of subject matter jurisdiction (#8). On February 4, 2015, this court issued a scheduling order (#12) imposing a deadline of February 23, 2015, upon Wright for any response to the United States' motion. Despite notice sent to Wright (#13), entered the same day as this court's order, Wright did not submit a response to the United States' motion. This matter is now ready for decision.
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction
"Federal courts are courts of limited jurisdiction." Assoc. of Am. Med. Colleges v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000) (citation omitted). Courts presume that a case "lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. Federal Rule of Civil Procedure ("Rule") 12(b)(1) allows for a defendant to challenge subject matter jurisdiction.
A motion under Rule 12(b)(1) to dismiss for lack of subject-matter jurisdiction may be either "facial" or "factual." See Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial attack on subject-matter jurisdiction, the moving party asserts that a plaintiff's allegations are insufficient on their face to invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a facial challenge to subject-matter jurisdiction, the factual allegations of the complaint are presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003). By contrast, where a defendant raises a factual challenge to federal jurisdiction, "the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air v. Meyer, 373 F.3d at 1039 (citing Savage, 343 F.3d at 1039 n. 2). The court "need not presume the truthfulness of the plaintiff's allegations" and the plaintiff "must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. (citing White, 227 F.3d at 1242; Savage, 343 F.3d at 1039 n. 2.)
"Defective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts." 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of jurisdiction without leave to amend "unless it is clear, upon de nova review, that the complaint could not be saved by amendment." Snell v. Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir. 2002) (citing Lee v. City a/Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)).
II. Sua Sponte Dismissal for Lack of Subject-Matter Jurisdiction
Federal Civil Procedure Rule 12(h)(3) provides that "[i]f the court determines at anytime that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3); see also Cal. Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974) ("It has ...