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Neaman v. United States ex rel United States Department of Health and Human Services

United States District Court, D. Nevada

April 4, 2017

SPENCER NEAMAN, et al., Plaintiffs,


         Presently 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 No. 36).

         I. Facts

         This is 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).

         On 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 No. 1).

         Peraza 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).

         Plaintiffs 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).

         WCHC is 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”).

         On 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).

         On 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).

         In the 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).

         II. Legal Standards

         A. Lack of Subject Matter Jurisdiction

         Federal 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. 2004).

         Federal 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).

         Although 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).

         In 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 ...

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