Ronal Kiskila v. United States

MEMORANDUM

Roñal J. Kiskila and Donna E. Kiskila appeal the district court’s judgment dismissing for lack of subject matter jurisdiction their Federal Tort Claims Act (“FTCA”) action alleging medical malpractice and loss of consortium. We have jurisdiction under 28 U.S.C. § 1291 . Subject matter jurisdiction determinations are subject to de novo review. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009). The district court may weigh evidence to determine whether it has jurisdiction unless the question of jurisdiction depends on the resolution of factual issues going to the merits. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). When the question of jurisdiction is intertwined with the merits, the trial court should employ the standard applicable to a motion for summary judgment. Id.

Even if we accept that jurisdiction is intertwined with the merits, the district court properly dismissed plaintiffs’ action for lack of subject matter jurisdiction because Mr. Kiskila’s primary physician, Dr. Osvaldo Lopez, was an independent contractor, not a federal employee under the FTCA, in that the government did not control Dr. Lopez’s actions in “diagnosing and…