United States District Court, D. Nevada
before the court is defendant United States of America's
(the “government”) motion to dismiss. (ECF No.
33). Plaintiffs Spencer and Jacqueline Neaman filed a
response (ECF No. 35), to which the government replied (ECF
a medical malpractice action arising out of the care and
treatment of F.N., a minor, in March 2013. (ECF No. 1).
Plaintiffs are suing in their individual capacities and as
representatives of their minor child F.N. (ECF No. 1).
March 4, 2013, plaintiffs took F.N. to the Wendover Community
Health Center (“WCHC”) for evaluation and
treatment of acute abdominal pain. (ECF No. 1). Physician
assistant Emilse Peraza, an employee of NHC, treated F.N.
(ECF No. 1). Plaintiffs allege that Peraza failed to diagnose
F.N. with appendicitis. (ECF No. 1). Plaintiffs further
allege that there were no medical doctors practicing at WCHC
despite Nevada law's requirement that a physician's
assistant be supervised by a board certified physician. (ECF
diagnosed F.N. with gastroenteritis and an upper respiratory
infection and prescribed Bactrim DS. (ECF No. 1). After
returning home, F.N.'s symptoms persisted. (ECF No. 1).
Plaintiffs called the clinic and were told that the clinic
could not accommodate them at that time, so they set an
appointment for a few days later. (ECF No. 1).
eventually decided to take F.N. to Primary Children's
Medical Center (“PCMC”) in Salt Lake City, Utah.
(ECF No. 1). Upon arrival at PCMC, physicians noted that F.N.
had a variety of serious medical problems. (ECF No. 1). F.N.
was diagnosed with a ruptured appendix. (ECF No. 1). F.N. had
contracted bacteremia and peritonitis. (ECF No. 1).
owned by Nevada Health Centers, Inc. (“NHC”), a
federally-subsidized network of health clinics in Nevada. NHC
is a federally supported health center pursuant to the Public
Health Service Act, 42 U.S.C. §§ 254(b), 224
(g)-(n). Consequently, WCHC and its employees are considered
employees of the federal government. As federal employees,
any civil tort action against these individuals or entities
is subject to the provisions of the Federal Tort Claims Act,
28 U.S.C. § 1346 (“FTCA”).
February 4, 2016, plaintiffs filed the underlying complaint
against the government alleging four FTCA claims: (1)
negligence/malpractice committed by Emilse Peraza; (2)
negligence/medical malpractice committed by Dr. Felix
DeGuzman and NHC; (3) negligence/medical malpractice
committed by NHC employees; and (4) negligence committed by
NHC. (ECF No. 1).
April 25, 2016, the government moved to dismiss claims (2)
and (4) of plaintiffs' complaint pursuant to Federal Rule
of Civil Procedure 12(b)(1). (ECF No. 11). Plaintiffs did not
file a response. On May 23, 2016, the court dismissed claims
(2) and (4). (ECF No. 18).
instant motion, the government moves to dismiss
plaintiffs' remaining claims pursuant to Rule 12(b)(1)
and 12(b)(6), as well as NRS 41A.071. (ECF No. 33).
Lack of Subject Matter Jurisdiction
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
1989). Thus, federal subject matter jurisdiction must exist
at the time an action is commenced. Mallard Auto. Grp.,
Ltd. v. United States, 343 F.Supp.2d 949, 952 (D. Nev.
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule
12(b)(1) is appropriate if the complaint, considered in its
entirety, fails to allege facts on its face sufficient to
establish subject matter jurisdiction. In re Dynamic
Random Access Memory (DRAM) Antitrust Litig., 546 F.3d
981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the
defect be corrected by amendment.” Smith v.
McCullough, 270 U.S. 456, 459 (1926).
moving to dismiss under Rule 12(b)(1), the challenging party
may either make a “facial attack, ” confining the
inquiry to challenges in the complaint, or a “factual
attack” challenging subject matter on a factual basis.
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n.2 (9th Cir. 2003). For a facial attack, the court
assumes the truthfulness of the allegations, as in a motion
to dismiss under Rule 12(b)(6). Trentacosta v. Frontier
Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th
Cir. 1987). By contrast, when presented as a factual
challenge, a Rule 12(b)(1) motion can be supported by
affidavits or other ...