1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER JABO, Case No.: 3:21-cv-01479-AJB-AHG Plaintiff, 12

ORDER GRANTING MOTION TO

v. 13 DISMISS FOR FAILURE TO UNITED STATES OF AMERICA, et al., EXHAUST ADMINISTRATIVE 14

REMEDIES

15 Defendants. (Doc. No. 6) 16 17 18 Before the Court is Defendant the United States of America’s motion to dismiss 19 Plaintiff Christopher Jabo’s Complaint for failure to exhaust administrative remedies. 20 (Doc. No. 6.) The Court set a briefing schedule for the motion, directing that any opposition 21 be filed by September 10, 2021. (Doc. No. 7.) Plaintiff did not file an opposition or 22 otherwise respond to the United States’ motion. Pursuant to Local Rule 7.1(d)(1), the Court 23 deems this matter suitable for determination without oral argument and hereby VACATES 24 the motion hearing date scheduled for November 4, 2021. For the reasons set forth below, 25 the Court GRANTS the United States’ motion to dismiss without prejudice. 26 I. BACKGROUND 27 On April 22, 2021, Plaintiff filed a Complaint alleging negligence in dental care 28 against several defendants, including Vista Community Clinic (“VCC”), Shannon Lynn 1 Jardina, and Bridget Ann Maniscalco (hereafter the “United States” or “Federal 2 Defendants”). On August 19, 2021, the Federal Defendants removed this case to federal 3 district court and filed a motion requesting the Court to dismiss them as defendants and to 4 substitute the United States as a defendant in their place. (Doc. Nos. 1, 2.) The Court 5 granted the motion, and the United States subsequently filed the instant motion to dismiss. 6 (Doc. No. 6.) 7 According to the United States, VCC was a federally supported community health 8 clinic during the relevant periods of the Complaint and therefore receives tort protection 9 under the Federal Tort Claims Act, 28 U.S.C. §§ 1342; 2670-2680 (“FTCA”). VCC 10 received this federal support through the Department of Health and Human Services 11 (“HHS”). The United States asserts that Plaintiff’s case must be dismissed for lack of 12 subject matter jurisdiction because he has failed to exhaust his administrative remedies 13 with HHS before filing suit. Plaintiff filed no opposition. 14 II. LEGAL STANDARD 15 Federal Rule of Civil Procedure 12(b)(1) allows for a motion to dismiss where the 16 court lacks subject-matter jurisdiction. Because “[f]ederal courts are courts of limited 17 jurisdiction,” a court “presume[s] that a cause [of action] lies outside this limited 18 jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A 19 Rule 12(b)(1) motion “can attack the substance of a complaint’s jurisdictional allegations 20 despite their formal sufficiency, and in so doing rely on affidavits or any other evidence 21 properly before the court.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). 22 No presumption of truthfulness attaches to the allegations of the plaintiff's complaint as the 23 plaintiff bears the burden of establishing subject matter jurisdiction. Stock West, Inc. v. 24 Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Thus, the court must presume 25 that it lacks jurisdiction until subject matter jurisdiction has been established. Id. A defense 26 based on the lack of subject matter jurisdiction is never waived, and may be raised by any 27 party at any time. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594– 28 95 (9th Cir. 1996). 1 III. DISCUSSION 2 The FTCA provides that an action against United States cannot be instituted “unless 3 the claimant shall have first presented the claim to the appropriate Federal agency and his 4 claim shall have been finally denied[.]” 28 U.S.C. § 2675(a). An administrative claim is 5 denied either by a conclusive denial of the claim from the agency or waiting for six months 6 to elapse without a final disposition of the claim. Id.; see also Anderson v. United States, 7 803 F.2d 1520, 1522 (9th Cir. 1986). The claim filing requirement of the FTCA is 8 jurisdictional in nature and cannot be waived. Caldwater v. United States, 45 F.3d 297, 300 9 (9th Cir. 1995) (citation omitted). The jurisdictional limitation of Section 2675(a) has “no 10 exceptions.” Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992). Dismissal of a 11 claim is appropriate when a plaintiff does not exhaust his administrative remedies. McNeil 12 v. United States, 508 U.S. 106, 113 (1993). 13 Here, Plaintiff has not exhausted the FTCA’s claims procedures. While Plaintiff 14 filed an administrative tort claim with HHS on April 29, 2021, there appears to be no final 15 disposition of that claim as of this date. (Doc. No. 6-1 at 2.) Moreover, Plaintiff filed no 16 response to demonstrate anything to the contrary. The FTCA’s procedural requirements 17 are clear—“a tort claimant may not commence proceedings in court against the United 18 States without first filing [his] claim with an appropriate federal agency and either 19 receiving a conclusive denial of the claim from the agency or waiting for six months to 20 elapse without a final disposition of the claim being made.” Jerves, 966 F.2d at 519. 21 Plaintiff did not comply with this procedure. He improperly filed suit before receiving a 22 denial of his claim from HHS or waiting for six months to elapse without a final decision 23 on the claim being made. Consequently, the Court finds that Plaintiff has failed to exhaust 24 his administrative remedies, and thus, GRANTS the United States’ motion to dismiss. See 25 McNeil, 508 U.S. at 113 (“The FTCA bars claimants from bringing suit in federal court 26 until they have exhausted their administrative remedies. Because petitioner failed to heed 27 that clear statutory command, the District Court properly dismissed his suit.”). 2 As analyzed above, Plaintiff has failed to satisfy the jurisdictional prerequisite to 3 pursuing an FTCA claim in federal court. Accordingly, the Court GRANTS the United 4 || States’ motion and DISMISSES without prejudice the claims against it for lack of subject 5 ||matter jurisdiction. Additionally, as there remains no claim over which the Court has 6 || original jurisdiction, there can be no pendent jurisdiction for the state law tort claims in 7 || Plaintiff's Complaint. See Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 8 (9th Cir.2001). 9 As such, the Clerk of Court is DIRECTED to VACATE the motion hearing date 10 ||scheduled for November 4, 2021, and REMAND the case to the Superior Court of 11 || California, County of San Diego to permit Plaintiff to pursue his state tort claims against 12 || the other defendants. 13 IT IS SO ORDERED. 14 Dated: October 4, 2021 © 15 Hon. Anthony J. attaglia 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 AAI nN4aATtNR □□□ □□□□□□□