1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 M. W., et al., Case No. 25-cv-05823-SVK

8 Plaintiffs,

ORDER GRANTING FEDERAL

9 v. DEFENDANTS’ MOTION TO

DISMISS; SUA SPONTE REMANDING

10 GARDNER FAMILY HEALTH THE ACTION TO STATE COURT NETWORK, INC, et al., 11 Re: Dkt. No. 6 Defendants. 12 13 Before the Court is Defendant Gardner Family Health Network, Inc.’s (originally sued 14 under the name Gardner Health Services, and referred to herein as “Gardner”)1 Motion to Dismiss 15 the Complaint for lack of subject matter jurisdiction, based on Plaintiff’s failure to exhaust 16 administrative remedies. Dkt. 6 (the “Motion”). The Court finds the Motion suitable for 17 determination without oral argument. Civil L.R. 7-1(b). Having reviewed the Parties’ 18 submissions, the relevant law and the record in this action, the Court GRANTS the Motion and, 19 because the Court consequently lacks subject matter jurisdiction to hear this matter, sua sponte 20 REMANDS the case to the Superior Court for the County of Santa Clara. 21 I. BACKGROUND 22 The following allegations of the Complaint are not challenged by Gardner for the purposes 23 of this Motion. On July 21, 2023, Plaintiff M.W., a minor, was evaluated by Danielle Dukellis, 24 M.D., for pain in his right knee at Gardner Health Services at the South County Health 25 Center. Dkt. 1-1 at 5-11 (“Compl.”), ¶ 12. He was diagnosed with Osgood-Schlatter’s disease 26

27 1 The Court notes that the Motion was brought on behalf of both Gardner and Dr. Danielle 1 and given a referral for physical therapy. Id. On November 11, 2023, after slipping and falling, 2 Plaintiff was evaluated by, inter alia, David Feldman, M.D. for a knee injury at the Good 3 Samaritan Hospital. Id., ¶ 13. 4 After other treatment and undergoing physical therapy with no improvement of his 5 symptoms, on March 5, 2024, Plaintiff returned to Gardner for right knee pain. Id., ¶¶ 14-15. At 6 that time he was diagnosed with slipped capital femoral epiphysis (SCFE), transported to a 7 hospital and told not to let his leg bear any weight – in contrast to the prior recommendations of 8 physical therapy and his practice of using crutches. See id., ¶¶ 13, 15. As alleged, treatment for 9 SCFE involves surgery, and early detection is important. Id., ¶ 15. Although Plaintiff 10 subsequently underwent treatment in March, 2024 at Lucille Packard Children’s Hospital- 11 Stanford, he alleges that Drs. Dukellis’ and Feldman’s, and Gardner’s and Good Samaritan 12 Hospital’s, wrongful care caused “pain, suffering, delay in diagnosis and a resulting, prolonged 13 course of treatment.” See id., ¶ 20. 14 Plaintiff brought suit in Santa Clara County superior Court on January 16, 2025 against Dr. 15 Dukellis and Gardner as Federal Defendants and Dr. Feldman and Good Samaritan Hospital as 16 private Defendants. See, generally, Compl. On July 11, 2025, the case was removed to this 17 Court. See Dkt. 1. Good Samaritan Hospital and Dr. Dukellis were dismissed from the case prior 18 to its removal. See Dkt. 15 (confirming dismissal of Good Samaritan Hospital); Dkt. 9 at 4. On 19 July 18, 2025, Gardner moved in this Court to dismiss the case due to Plaintiff’s failure to exhaust 20 administrative remedies under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., 21 arguing that Plaintiff did not first properly present the appropriate federal agency with a 22 claim. See Dkt. 6 at 3-4. 23 II. LEGAL STANDARD 24 Dismissal under Federal Rule of Civil Procedure 12(b)(1) is required where the court lacks 25 subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may 26 be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). As 27 relevant here, “in a factual attack, the challenger disputes the truth of the allegations that, by 1 jurisdiction, the district court may review evidence beyond the complaint without converting the 2 motion to dismiss into a motion for summary judgment.” Id. “Once the moving party has 3 converted the motion to dismiss into a factual motion by presenting affidavits or other evidence 4 properly brought before the court, the party opposing the motion must furnish affidavits or other 5 evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. 6 As relevant to the FTCA, 28 U.S.C. § 2675(a) requires a potential plaintiff, before 7 instituting an action for money damages for injury caused by negligent or wrongful conduct, to 8 “present[] the claim to the appropriate Federal agency.” In order to satisfy this requirement, at a 9 minimum, a plaintiff must furnish the appropriate federal agency with “(1) a written statement 10 sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum 11 certain damages claim.” Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985). 12 III. DISCUSSION 13 A. The Claims Against Gardner Must be Dismissed 14 The Parties agree on the following facts. First, as of June 2024, Plaintiff was unaware that 15 Gardner and Dr. Dukellis were affiliated with the United States Government and so did not initiate 16 an administrative proceeding with the appropriate federal agency directly (e.g., the U.S. 17 Department of Health and Human Services). Compare Dkt. 9 at 5 (Plaintiff) with Dkt. 13 at 2 18 (Gardner). Second, however, and prior to filing his state court Complaint, Plaintiff was required 19 in any case to serve a Notice of Intent to Commence Legal Action pursuant to California Code of 20 Civil Procedure Section 364. Id. Third, Plaintiff in fact served such a Notice on June 13, 21 2024. See id.; Dkt. 9, Ex. 1 (the “Section 364 Notice”). Fourth, the contents and authenticity of 22 the letter—attached as Exhibit 1 to the Opposition—are not disputed. See, generally, Dkt. 13 23 (Gardner’s reply). 24 The Parties’ arguments distill down to whether the Section 364 Notice, which was served 25 upon Gardner, satisfies the requirement of “presenting the claim to the appropriate Federal 26 agency.” Burns, 764 F.2d 722 at 724 (9th Cir. 1985). Gardner does not challenge that the Section 27 364 Notice constitutes “a written statement sufficiently describing the injury,” but maintains that 1 appropriate Federal agency.” Id. 2 Turning first to the challenged requirement of a “sum certain,” Plaintiff’s only argument is 3 that the Section 364 Notice “described the general damages alleged.” Dkt. 9 at 5. The Court is 4 not persuaded that this is sufficient. “Since the purpose of the administrative claim is to facilitate 5 settlement of these disputes, a specific dollar amount is necessary to allow realistic assessment of 6 the settlement value of a case.” Dobrowski v. United States, No. 11-cv-02835 JAM, 2013 WL 7 5954901, at *4 (E.D. Cal. Nov. 7, 2013) (quoting Caidin v. United States, 564 F.2d 284, 287 (9th 8 Cir. 1977)). While the letter describes the injuries Plaintiff allegedly suffered (“pain, suffering, 9 emotional distress, and additional treatment, and a diminished ability to bear weight on the right 10 leg”), nowhere does it state a specific dollar amount—i.e., a sum certain of the 11 damages. Accordingly, Plaintiff’s Section 364 Notice does not meet this requirement. 12 Thus, the Court need not address the second question. See Burns, 764 F.2d at 724 (“The 13 only document submitted by [Plaintiff], or on his behalf, to the [U.S. Dep’t H.H.S.] which could 14 arguably be called an administrative claim for money damages, is the letter written to [Gardner]. 15 While it might convincingly be asserted that this letter did not afford the [U.S. Dep’t H.H.S.] 16 sufficient notice of an imminent lawsuit to enable them to initiate their own investigation, we need 17 not consider this contention because it is clear that nowhere in the letter is contained the requisite 18 sum certain claim. Thus, we find that Burns has failed to satisfy section 2675, and that his action 19 was correctly dismissed by the court below.”). 20 The Court therefore GRANTS Gardner’s Motion. Moreover, because leave to amend as to 21 this failure to exhaust would be futile, the Court’s dismissal is with prejudice. 22 B. The Court Lacks Subject Matter Jurisdiction and Remands the Remaining Claims Against Dr. Feldman 23 Finally, the Court addresses the status of the Parties and of this case. Plaintiff argues in 24 opposition that the motion to dismiss as to Dr. Dukellis is moot. Dkt. 9 at 4. Gardner agrees, and 25 moreover counsel for Gardner argues that, because the claims against Dr. Dukellis have been 26 dismissed, the Court should substitute the United States in place of Gardner. See Dkt. 13 at 5. 27 The Court agrees with Plaintiff and DENIES the motion to dismiss Dr. Dukellis as moot ] and will order the Clerk of Court to terminate Dr. Dukellis as a defendant for clarity. The Court 2 || DENIES Gardner’s request for substitution as moot, given that it has GRANTED Gardner’s 3 motion to dismiss. 4 Accordingly, this leaves Dr. Feldman as the only defendant and Plaintiffs cause of action 5 for professional negligence against Dr. Feldman as the only claim. See Dkt. 1-1 at 9-11. The 6 || Complaint alleges that both Plaintiff and Dr. Feldman are California citizens. Compl., □□ 1, 4. 7 || Accordingly, this Court lacks either federal question jurisdiction or diversity jurisdiction and so 8 lacks subject matter jurisdiction. “If at any time before final judgment it appears that the district 9 || court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447. Section 10 1447 is ordinarily applied upon a motion to remand by a party. However, while “[a] district court 11 lacks authority under 28 U.S.C. § 1447(c) to remand sua sponte based on a non-jurisdictional 12 || defect ... subject matter jurisdiction is the touchstone for a district court’s authority to remand sua 13 || sponte.” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 790 (9th Cir. 2018). 14 The Court therefore sua sponte REMANDS the case. © 2 15 || IV, CONCLUSION 16 For the forgoing reasons, the Court GRANTS the Motion to Dismiss Gardner Family 2 17 || Health Network. The Clerk of Court shall terminate Gardner Family Health Network and Danielle Z 18 || Dukellis as defendants. 19 The Court furthermore REMANDS the case to the Superior Court of the State of 20 || California for the County of Santa Clara. The Clerk of Court shall remand the case. 21 22 SO ORDERED. 23 Dated: November 21, 2025 24 25 Seaton yet

SUSAN VAN KEULEN

26 United States Magistrate Judge 27 28