United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFFS' MOTIONS TO AMEND AND VOLUNTARILY DISMISS
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on "Plaintiffs' Motion To Amend Complaint And Remand, " Dkt. # 11, and "Defendants' Motion To Dismiss Pursuant To F.R.C.P. 12(b)(1), " Dkt. # 13. Having reviewed the memoranda,  declarations, and exhibits submitted by the parties, and the arguments presented at the December 17, 2014 hearing on these motions, the Court finds as follows:
On February 11, 2013, plaintiff Matthew Hipps was allegedly injured during a urological surgical procedure performed at Virginia Mason Medical Center by Dr. Chong Choe, Dkt. # 4 at 3 (Compl. ¶¶ 3.4, 7-3.8), who at the time was employed by the United States Navy, Dkt. # 2 at 3 (Certification), and was working at Virginia Mason as part of a fellowship program, Dkt. # 16-1 at 6 (Mem. Of Understanding). Plaintiffs claim that Mr. Hipps had only consented to a different doctor performing the operation in question and that Mrs. Hipps had confirmed verbally that Dr. Choe would not be performing the operation. Dkt. # 4 at 3 (Compl. ¶¶ 3.5-3.6). Plaintiffs brought suit against Virginia Mason and Dr. Choe in King County Superior Court on July 18, 2014, accusing both of "medical negligence" and Dr. Choe of "medical battery." Dkt. # 4 at 9-10 (Compl. ¶¶ 4.1-5.2). Invoking 28 U.S.C. § 2679(d)(1), (2) and 28 C.F.R. § 15.3(a), the United States removed the case to this Court and substituted itself for Dr. Choe as a defendant, on the grounds that Dr. Choe was employed by the Navy and was acting within the scope of his employment when he performed surgery on Mr. Hipps. Dkt. ## 1 at 1-4 (Notice of Removal); 2 (Notice of Substitution and Certification); 6 (Order Reforming Caption). At the time that they filed their Complaint, plaintiffs had no idea that Dr. Choe was a Navy doctor. Dkt. # 11 at 1.
On August 28, 2014, plaintiffs moved to amend the Complaint in order to drop Dr. Choe (and thus the United States) as a defendant and to modify their allegations against Virginia Mason; plaintiffs' motion further sought to have the case remanded to state court. Dkt. # 11. Plaintiffs sought to drop the United States from the action in recognition of the fact that they had not exhausted their administrative remedies as to this defendant under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671 et seq. ("FTCA"). Dkt. # 11 at 5. Nevertheless, plaintiffs argued that their claims against Virginia Mason remained viable and properly belonged in state court. Id. at 4-5. In the alternative, if the Court declined to remand, plaintiffs requested that this case be voluntarily dismissed without prejudice under Fed.R.Civ.P. 41(a)(2), so that plaintiffs could refile their action in state court. Id. at 6.
On September 4, 2014, defendants moved to dismiss under Fed.R.Civ.P. 12(b)(1). Dkt. # 13. Defendants argued that this Court lacked subject matter jurisdiction over plaintiffs' action against the United States due to plaintiffs' failure to exhaust their administrative remedies under the FTCA, id. at 4-7, and further argued that plaintiffs' action against Virginia Mason failed because its liability was solely based on the actions of Dr. Choe (who was immune from suit and had been replaced by another immune party), id. at 8.
III. APPLICABLE STATUTES
Absent a Congressional waiver of sovereign immunity, a claim against the United States must be dismissed for lack of subject matter jurisdiction. See Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (citations omitted). The FTCA creates a limited waiver of sovereign immunity under which the United States may be found liable for torts committed by its employees while acting within the scope of their federal employment. 28 U.S.C. §§ 1346(b), 2674; Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). To bring suit against the United States in federal court under the FTCA, a plaintiff must first exhaust his administrative remedies, presenting his claim in writing to the appropriate federal agency within two years of the accrual of his claim. 28 U.S.C. §§ 2401(b), 2675(a). Where a plaintiff has failed to exhaust his administrative remedies pursuant to 28 U.S.C. § 2675(a) prior to bringing an action in federal court falling under the FTCA, his action will be dismissed for lack of subject matter jurisdiction. Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).
Under the Medical Malpractice Immunity Act, or the "Gonzalez Act, " 10 U.S.C. § 1089, "a suit against the United States under the FTCA is the exclusive remedy for torts committed by military medical personnel acting within the scope of their government employment." Ward v. Gordon, 999 F.2d 1399, 1041 (9th Cir. 1993) (interpreting 10 U.S.C. § 1089(a)). The Act "does not create rights in favor of malpractice claimants; rather, it serves solely to protect military medical personnel from malpractice liability." Id. at 1041-42.
Under the Federal Employees Liability Reform and Tort Compensation Act, or the "Westfall Act, " 28 U.S.C. § 2679, the United States may remove a state court action against a government employee to federal court and substitute itself for the employee as the defendant, upon the certification of the Attorney General or his designee that the employee was acting within the scope of his employment at the time of the allegedly tortious act. 28 U.S.C. § 2679(d)(2); 28 C.F.R. § 15.3 (certification by designee is sufficient); Osborn v. Haley, 549 U.S. 225, 229-30 (2007). After removal and substitution, the suit becomes an action against the United States under the FTCA. 28 U.S.C. § 2679(d)(2); Osborn, 549 U.S. at 230. The Westfall Act thus accords federal employees "absolute immunity" from common-law tort claims arising out of acts that they undertook in the course of their official duties. Osborn, 549 U.S. at 229.
A. Motion to Amend Complaint and Remand
Plaintiffs seek to amend the Complaint (to drop Dr. Choe and therefore the United States as a defendant and to modify their allegations against Virginia Mason) and to then have the case remanded. Dkt. # 11. Fed.R.Civ.P. 15(a) allows a party to amend its pleading once as a matter of course within 21 days after service of a responsive pleading. Defendants do not oppose the proposed amendments to the Complaint, Dkt. ## 15 at 6 (Virginia Mason Resp. Amend); 17 at 1 (United States Resp. Amend); however, Virginia Mason argues that this action still may not be ...