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D. L. v. Vassilev

United States Court of Appeals, Ninth Circuit

June 5, 2017

D. L., a minor by and through his Guardian Ad Litem, Kari Ann Junio, Plaintiff-Appellant,
v.
Margaret Vassilev, M.D.; Rodolfo Vicente, M.D.; Mark Wiseman, M.D.; Pavel Mundl, M.D.; County of Tulare; Kaweah Delta Healthcare District; Sandra Bosman, M.D.; Lori Ann M. Boken, M.D.; T. Plunkett, RNC; D. Brackett, RNC; B. Brown, RNFA; Christopher Bencomo, M.D., Defendants, and United States of America, Defendant-Appellee.

          Argued and Submitted February 13, 2017 San Francisco, California

         Appeal from the United States District Court No. 1:14-cv-00824-AWI-BAM for the Eastern District of California Anthony W. Ishii, Senior District Judge, Presiding

          Mark W. Coleman (argued), Nutall & Coleman, Fresno, California, for Plaintiff-Appellant.

          Victoria L. Boesch (argued) and Bobbie J. Montoya, Assistant United States Attorneys; United States Attorney's Office, Sacramento, California; for Defendant-Appellee.

          Before: Marsha S. Berzon and Richard R. Clifton, Circuit Judges, and Robert S. Lasnik, [*] District Judge.

         SUMMARY[**]

         Exhaustion / Federal Tort Claims Act

         The panel reversed the district court's dismissal for lack of subject-matter jurisdiction on exhaustion grounds of a Federal Tort Claims Act ("FTCA") claim brought by a minor plaintiff, alleging that his mother died of postpartum hemorrhage due to medical malpractice by a physician, who was a deemed employee of the U.S. Public Health Service.

         The panel held that plaintiff's initial failure to exhaust his administrative remedies as to a defendant whom the plaintiffs reasonably did not know was covered by the FTCA did not deprive the federal courts of subject-matter jurisdiction over that plaintiff's FTCA claim where the plaintiff dismissed his initial suit against that defendant, and then exhausted his administrative remedies before amending his complaint in state court to add the defendant again.

         The panel held that the district court erred in dismissing for lack of subject-matter jurisdiction plaintiff's administratively exhausted FTCA claim following the United States' second removal.

          OPINION

          LASNIK, District Judge.

         This case presents the question whether, under the Federal Tort Claims Act (FTCA), a plaintiff's initial failure to exhaust his administrative remedies as to a defendant whom the plaintiff reasonably did not know was covered by the FTCA deprives the federal courts of subject-matter jurisdiction over that plaintiff's FTCA claim even after the plaintiff dismisses his initial suit against that defendant, and then exhausts his administrative remedies before amending his complaint in state court to add the defendant again. On appeal, Plaintiff-Appellant D.L. argues that the district court erred in dismissing his FTCA claim on exhaustion grounds. We agree.

         BACKGROUND

         A. ...


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