D. L., a minor by and through his Guardian Ad Litem, Kari Ann Junio, Plaintiff-Appellant,
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.
and Submitted February 13, 2017 San Francisco, California
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
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.
/ Federal Tort Claims Act
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.
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
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.
LASNIK, District Judge.
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.