Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 1 of 26 Page ID #:1276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Chief, General Civil Section SEKRET T. SNEED (State Bar No. 217193) Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3551 Facsimile: (213) 894-7819 E-mail: sekret.sneed@usdoj.gov Attorneys for Defendant UNITED STATES OF AMERICA ROBERT GARBER, Plaintiff, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA v. UNITED STATES OF AMERICA, Defendant. WESTERN DIVISION No. CV15-05867 CAS (JPRx) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT UNITED STATES OF AMERICA S MOTION AND MOTION FOR SUMMARY JUDGMENT Date: October 24, 2016 Time: 10:00 a.m. Ctrm: United States Courthouse 312 N. Spring Street Courtroom 5, 2nd Floor Los Angeles, California 90017 [Fed. R. Civ. Proc. 56] Honorable Christina A. Snyder
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 2 of 26 Page ID #:1277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO THE PRO SE PLAINTIFF: Pursuant to Rule 201 of the Federal Rules of Evidence, defendant United States hereby requests that the Court take judicial notice of the following records from the matter entitled Garber v. United States, USDC Case No. CV14-4547 CAS-RZ: 1) Notice of Removal, filed June 12, 2014, attached hereto as Exhibit A; 2) Notice of Substitution, filed June 13, 2014, attached hereto as Exhibit B; 3) September 23, 2014, Minute Order, attached hereto as Exhibit C; and, The Court may take judicial notice of these records because the records are from the electronic filing system of the United States District Court for the Central District of California, which is a source whose accuracy cannot reasonably be questioned. See FRE 201(b)(2). Dated: July 27, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Chief, General Civil Section /s/ SEKRET T. SNEED Attorneys for Defendant UNITED STATES OF AMERICA -1-
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 3 of 26 Page ID #:1278 EXHIBIT A
Case 2:14-cv-04547-CAS-RZ Document 1 Filed 06/12/14 Page 1 of 4 Page ID #:1 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 4 of 26 Page ID #:1279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Chief, Civil Division SEKRET T. SNEED (State Bar No. 217193) Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3551 Facsimile: (213) 894-7819 E-mail: sekret.sneed@usdoj.gov Attorneys for NORTHEAST VALLEY HEALTH CORP. and ROLAND GIEDRAITIS, DDS ROBERT GARBER, Plaintiff, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA v. NORTHEAST VALLEY HEALTH CORPORATION and ROLAND GIEDRAITIS, Defendants. WESTERN DIVISION No. NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. 2679(d)(2) and 42 U.S.C. 233(c)
Case 2:14-cv-04547-CAS-RZ Document 1 Filed 06/12/14 Page 2 of 4 Page ID #:2 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 5 of 26 Page ID #:1280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA: PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. 2679(d)(2) and 42 U.S.C. 233(c), the United States Attorney, on behalf of defendants Northeast Valley Health Corporation ( Northeast Valley ) and Roland Giedraitis, DDS (collectively, Defendants ), hereby remove the above-captioned action from the Superior Court of the State of California, Small Claims Court, for the County of Los Angeles to this Court. The grounds for removal are as follows: 1. Plaintiff Robert Garber ( Plaintiff ) filed this small claims action entitled Garber v. Northeast Valley Health Corp., et al., LASC Case No. 14V00946, in the Superior Court of the State of California for the County of Los Angeles on April 1, 2014. 2. Pursuant to 28 U.S.C. 1446(a), attached hereto as Exhibit A is a true and correct copy of the operative Complaint. 3. The Complaint alleges that Defendants failed to properly diagnose and treat his dental issues from November 2013 to the present. Plaintiff seeks damages in the amount of $10,000. 4. This action may be removed to this Court pursuant to 28 U.S.C. 2679(d)(2) and 42 U.S.C. 233(c), which provide that [u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending..... 5. Defendant Northeast Valley, as a public or nonprofit private entity receiving Federal funds under Sections 254b, 254c, 256 and/or 256a of the Public -1-
Case 2:14-cv-04547-CAS-RZ Document 1 Filed 06/12/14 Page 3 of 4 Page ID #:3 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 6 of 26 Page ID #:1281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Health Services Act, and defendant Dr. Giedraitis, as an employee of Northeast Valley, are deemed to be federal employees acting within the course and scope of employment with the Public Health Service of the United States. Attached hereto as Exhibit B is a true and correct copy of a Certification executed by the United States Attorney for the Central District of California attesting that Northeast Valley and Dr. Giedraitis were acting within the course and scope of employment. 6. Since Plaintiff brought this action against Northeast Valley and Dr. Giedraitis, who are deemed to be United States employees, in Los Angeles County, this Court is the proper court to hear this action. Moreover, this Court has original jurisdiction over this action because it is a civil action for money damages for personal injury or loss of property allegedly caused by the act or omission of an employee of the United States while acting in the course and scope of his employment. 28 U.S.C. 1346(b)(1) & 2679(d)(2). 7. In addition, Defendants intend to assert various defenses based on federal law, including, among other things, that there has been no waiver of sovereign immunity by Defendants as to the claims set forth in the Complaint. Specifically, Plaintiff did not exhaust administrative remedies prior to bringing this suit, as required by the Federal Tort Claims Act, 28 U.S.C. 1346(b) & 2671, et seq. 8. Plaintiff did not serve the Attorney General of the United States, or the United States Attorney s Office for the Central District, as required by Federal Rule of Civil Procedure 4(i)(1)-(2) to effectuate service on an employee of the United States. Accordingly, the time for this case to be removed pursuant to 28 U.S.C. 1446(b) has not began to run. 9. Promptly after filing this notice, Defendants shall give written notice of this removal to the adverse parties and to the clerk of the state court. See 28 U.S.C. 1446(d). 10. Because this notice is filed on behalf of Defendants, no bond is required as set forth in 28 U.S.C. 2679(d)(2). -2-
Case 2:14-cv-04547-CAS-RZ Document 1 Filed 06/12/14 Page 4 of 4 Page ID #:4 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 7 of 26 Page ID #:1282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Defendants request that this Court assume full jurisdiction over the case herein as provided by law. Dated: June 12, 2014 Respectfully submitted, ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Chief, Civil Division /s/ SEKRET T. SNEED Attorneys for NORTHEAST VALLEY HEALTH CORP. and ROLAND GIEDRAITIS, DDS. -3-
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Case 2:14-cv-04547-CAS-RZ Document 1-1 Filed 06/12/14 Page 7 of 7 Page ID #:11 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 14 of 26 Page ID #:1289
Case 2:14-cv-04547-CAS-RZ Document 1-2 Filed 06/12/14 Page 1 of 1 Page ID #:12 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 15 of 26 Page ID #:1290 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF; SERVICE BY U.S. MAIL I am over the age of 18 and not a party to the referenced action. I am employed by the Office of United States Attorney, Central District of California. My business address is 300 North Los Angeles Street, Suite 7516, Los Angeles, California 90012. On June 12, 2014 I served the NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. 2679(d)(2) AND 42 U.S.C. 233(c) on each person or entity named below by enclosing a copy in an envelope with postage fully prepaid, and placing said envelope in the United States mail at Los Angeles, California. The envelope was addressed as follows: Robert Garber 7449 Reseda Blvd., #246 Reseda, California 91335 I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: June 12, 2014, at Los Angeles, California. /s/ Joanne Legaspi JOANNE LEGASPI
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 16 of 26 Page ID #:1291 EXHIBIT B
Case 2:14-cv-04547-CAS-RZ Document 5 Filed 06/13/14 Page 1 of 5 Page ID #:19 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 17 of 26 Page ID #:1292 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Chief, Civil Division SEKRET T. SNEED (State Bar No. 217193) Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3551 Facsimile: (213) 894-7819 E-mail: sekret.sneed@usdoj.gov Attorneys for NORTHEAST VALLEY HEALTH CORP. and ROLAND GIEDRAITIS, DDS ROBERT GARBER, Plaintiff, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA v. NORTHEAST VALLEY HEALTH CORPORATION and ROLAND GIEDRAITIS, Defendants. WESTERN DIVISION No. CV14-04547 CAS (RZx) NOTICE OF SUBSTITUTION
Case 2:14-cv-04547-CAS-RZ Document 5 Filed 06/13/14 Page 2 of 5 Page ID #:20 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 18 of 26 Page ID #:1293 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that, pursuant to the Federal Employee Liability Reform and Tort Compensation Act of 1988 5, 6, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified at 28 U.S.C. 2679(d)), and specifically 28 U.S.C. 2679(d)(2), the United States of America ( United States ) is hereby substituted as the Federal defendant herein, in place and instead of Northeast Valley Health Corporation ( Northeast Valley ) and Roland Giedraitis, DDS (collectively, Defendants ). The grounds for this substitution are: 1. Plaintiff Robert Garber ( Plaintiff ) has brought a negligence action against Defendants arising from the alleged failure to diagnose and treat dental issues. This claim is a tort that arises under state law. 2. Defendants, as public or nonprofit private entities (or employees thereof) receiving Federal funds under Sections 254b, 254c, 256 and/or 256a of the Public Health Services Act, are deemed employees of the Public Health Service pursuant to the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. 233(g), as amended by the Federally Supported Health Centers Assistance Act of 1995 (P.L. 104-73). 3. Upon certification by the Attorney General that a federal employee was acting within the scope of his office or employment at the time of the incident out of which a state law claim arises, any civil action arising out of the incident shall be deemed an action against the United States, and the United States shall be substituted as sole defendant with respect to those claims. 28 U.S.C. 2679(d)(2). The Attorney General has delegated certification to the United States Attorney. 28 C.F.R. 15.4. 4. United States Attorney, André Birotte Jr., has certified that at the time of the conduct alleged, Defendants are deemed to have been federal employees acting within the course and scope of their employment with the Public Health Service of the -1-
Case 2:14-cv-04547-CAS-RZ Document 5 Filed 06/13/14 Page 3 of 5 Page ID #:21 Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 19 of 26 Page ID #:1294 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States at all times material to the incidents alleged in the Complaint. A true and correct copy of the Certification is attached hereto as Exhibit A. 5. The remedy against the United States provided by the Federal Tort Claims Act, 28 U.S.C. 1346(d) and 2672, is the exclusive remedy for claims against employees of the Public Health Service for personal injury resulting from the performance of medical, surgical, dental or related functions by such employees. 28 U.S.C. 2679(a); 42 U.S.C. 233(a). For the foregoing reasons, the United States has, by operation of law, been substituted in place and instead of defendants Northeast Valley Health Corporation and Roland Giedraitis. Dated: June 13, 2014 Respectfully submitted, ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Chief, Civil Division /s/ SEKRET T. SNEED Attorneys for NORTHEAST VALLEY HEALTH CORP. and ROLAND GIEDRAITIS, DDS. -2-
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Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 22 of 26 Page ID #:1297 EXHIBIT C
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 23 of 26 Page ID #:1298 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL O JS-6 Case No. 2:14-cv-04547-CAS(RZx) Date September 23, 2014 Title ROBERT GARBER V. UNITED STATES OF AMERICA Present: The Honorable CHRISTINA A. SNYDER Catherine Jeang Not Present N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present Proceedings: (IN CHAMBERS): DEFENDANT S MOTION TO DISMISS (Filed 06/19/2014)[7] PLAINTIFF S MOTION TO REMAND (Filed 07/14/2014)[9] I. INTRODUCTION & BACKGROUND On April 1, 2014, pro se plaintiff Robert Gerber filed this action in Small Claims Court of the Superior Court for the County of Los Angeles against Northeast Valley Health Corporation ( NVHC ) and Dr. Roland Geidraitis, seeking to recover $10,000 for allegedly negligent dental treatment. Dkt. 1, Ex. A. The complaint alleged that NVHC and Giedraitis had failed to properly diagnose and treat plaintiff s dental issues, beginning in November 2013 and continuing to the present. Id. On June 12, 2012 the United States removed this action on behalf of NVHC and Giedraitis, on the grounds that at the time the alleged negligence occurred in 2013 both were deemed to be federal employees acting within the course and scope of employment with the United States Public Health Service pursuant to 42 U.S.C. 233(g) and 28 U.S.C. 1441 & 2679(d)(2). Dkt. 1. Upon motion by the United States, the Court issued an order substituting the United States as the defendant in this action. Dkts. 5,6. On June 19, 2014, the United States filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. 7. The United States argued that plaintiff had not complied with the procedures set forth in the Federal Tort Claims Act, 28 U.S.C. 1346 & 2671, et seq. ( FTCA ), which requires that a plaintiff present his claim in writing to the U.S. Department of Health and Human CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 4
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 24 of 26 Page ID #:1299 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL O JS-6 Case No. 2:14-cv-04547-CAS(RZx) Date September 23, 2014 Title ROBERT GARBER V. UNITED STATES OF AMERICA Services as a predicate to the Court s exercise of jurisdiction. Mot. Dism. at 4. In support of its motion, the United States submitted documentation confirming that NVHC and Geidraitis had been deemed to be federal employees during the years 2012, 2013, and 2014. Mot. Dism., Decl. Meredith Torres 5-6, Ex. 1. Although plaintiff did not oppose the United States motion to dismiss, plaintiff filed a motion to remand the action to state court July 14, 2014. Dkt. 9. In that motion, plaintiff expounded upon his claim for negligence, clarifying that the alleged negligence actually occurred in 2011 not 2013, as plaintiff alleged in his complaint. Mot. Remand at 2-3. Plaintiff asserted that NVHC and Giedraitis were not deemed to be federal employees in 2011 and, accordingly, federal jurisdiction was improper. Id. at 5-6. The United States opposed this motion on July 24, 2014, re-asserting that NVHC and Giedraitis were deemed to be federal employees in 2013. Dkt. 10. 1 On September 8, 2014, the Court held a hearing. Dkt. 15. At the hearing, plaintiff reiterated his contention that the alleged negligence occurred in 2011, a time period for which the United States had not presented evidence of deeming. In light of this, the Court ordered supplemental briefing. The Court also strongly encouraged plaintiff to visit the pro se clinic in the Courthouse. Id. On September 15, 2014, the United States filed supplemental briefing. Dkt. 16. This briefing confirmed that NVHC and Giedraitis were deemed to be federal employees during the year 2011. Id., Decl. Sekret Sneed, Ex. A. Plaintiff has not responded. 2 II. LEGAL STANDARD & DISCUSSION In light of the United States supplemental briefing, the Court finds that it lacks subject matter jurisdiction over plaintiff s claims. McCarthy v. United States, 850 F.2d 1 On August 4, 2014, plaintiff also requested joinder of Dr. Grace Hardy, an employee of NVHC, as a co-defendant. Dkt. 12. However, to the extent that plaintiff purports to add Hardy, in her individual capacity, to this suit, it appears as though Hardy has not been properly served with the summons and complaint. See Dkt. 16. 2 At the September 8, 2014 hearing, the Court ordered plaintiff to submit supplemental briefing no later than September 22, 2014. Dkt. 15. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 4
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 25 of 26 Page ID #:1300 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL O JS-6 Case No. 2:14-cv-04547-CAS(RZx) Date September 23, 2014 Title ROBERT GARBER V. UNITED STATES OF AMERICA 558, 560 (9th Cir. 1988) ( [W]hen considering a motion to dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction. ). The United States only may be sued to the extent that it has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814 (1976). Under the FTCA, the United States has consented to be sued for personal injury claims arising out of the performance of medical, surgical, dental or related functions by employees of the U.S. Public Health Service. 28 U.S.C. 2679; 42 U.S.C. 233(a). As a condition of that waiver of sovereign immunity, the FTCA requires that an individual seeking to recover damages from the United States present written notice of his claims to the appropriate government agency and exhaust such claims with that agency. See 28 U.S.C. 2675(a) ( An action shall not be instituted upon a claim against the United States for money damages... unless the claimant shall first have presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing.... ). Consequently, a district court cannot exercise subject matter jurisdiction over an action brought pursuant to the FTCA unless the plaintiff shall have first presented the claim to the appropriate Federal agency. Blair v. IRS, 304 F.3d 861, 863-864 (9th Cir. 2002) (citations and quotations omitted). Here, plaintiff has not filed an administrative claim with the U.S. Department of Health and Human Services. Mot. Dism. 5, Torres Decl., 2-4. Because plaintiff has not complied with the requirements set forth in the FTCA, this Court lacks subject matter jurisdiction over plaintiff s claims. Accordingly, the Court GRANTS the United States motion to dismiss. Moreover, pursuant to 28 U.S.C. 1346(b)(1), federal district courts have exclusive jurisdiction over FTCA actions. 28 U.S.C.A. 1346(b)(1) ( [T]he district courts... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment... ). Accordingly, plaintiff s motion to remand is DENIED. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 4
Case 2:15-cv-05867-CAS-JPR Document 78-14 Filed 07/27/16 Page 26 of 26 Page ID #:1301 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL O JS-6 Case No. 2:14-cv-04547-CAS(RZx) Date September 23, 2014 Title ROBERT GARBER V. UNITED STATES OF AMERICA III. CONCLUSION In accordance with the foregoing, the Court GRANTS the United States motion to dismiss and DENIES plaintiff s motion to remand. IT IS SO ORDERED. 00 : 00 Initials of Preparer CMJ CV-90 (06/04) CIVIL MINUTES - GENERAL Page 4 of 4