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Watson v. United States

United States District Court, D. Nevada

July 6, 2017

FRANCIS G. WATSON, Plaintiff,
v.
UNITED STATES, et al. Defendants.

          ORDER DEFENDANT'S MOTIONS TO DISMISS (ECF NO. 5)

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case is before the Court on a Motion to Dismiss for Lack of Jurisdiction by Defendant United States (ECF No. 5).

         For the reasons stated below, the Motion to Dismiss is GRANTED as to the United States. The remaining claims against Defendants Kirmani, Nevada Retina Associates, Eisenberg, and Shepherd Eye Center, brought under Nevada state law, are remanded to state court.

         II. BACKGROUND

         A. Factual Background

         Plaintiff's Complaint asserts medical malpractice and professional negligence causes of action against Defendants. The Court finds the following summary of factual allegations relevant to the federal Defendant in this case:

         On or about November 5, 2013, Mr. Watson presented to Dr. Molchan of the Ophalmology Department at Nellis Air Force Base, for an operation on his left eye. During the surgery, Dr. Molchan placed an interior chamber lens that was oversized, which caused Mr. Watson to have stretching of the iris and significant bleeding issues. On or about November 15, 2013, Dr. Molchan performed an anterior chamber irrigation on Mr. Watson's left eye to remove dried blood, which provided partial vision. After Mr. Watson saw Dr. Molchan for multiple appointments, the parties decided that Mr. Watson should seek consultation from a retina specialist.

         Watson's Complaint also contains various allegations related to other subsequent operations with different doctors, who are the non-federal Defendants in this case. As a result of Defendants' actions, Mr. Watson is blind in his left eye and has permanent glaucoma.

         B. Procedural Background

         Plaintiff filed his Complaint against federal employee Defendant Ryan P. Molchan, and remaining non-federal Defendants, on April 30, 2015, in Clark County District Court. Defendant Molchan was served on January 5, 2016. The case was removed to federal court on March 18, 2016. (ECF No. 1). On March 18, 2016, the United States filed a motion to substitute itself for individual Defendant Ryan P. Molchan, in the matter. (ECF No. 2). The Court granted this motion, pursuant to the Westfall Act, since the United States Attorney's office provided a certification that, at all times relevant to the allegations in the Complaint, Dr. Molchan was acting within the course and scope of federal employment or office with the United States. The Court granted this substitution on January 29, 2017.

         Defendant United States filed a Motion to Dismiss for Lack of Jurisdiction on March 25, 2016. (ECF No. 5). Plaintiff filed a Response on April 15, 2016. (ECF No. 10), and Defendant filed a Reply on April 28, 2016. (ECF No. 15). A hearing was held on February 9, 2017, and the Court incorporates the discussion from that hearing by reference.

         III. LEGAL STANDARD

         A. Motion to Dismiss Under ...


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