IN THE UNITED ST ATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

AIMEE J. WRIGHT, 

Plaintiff, 

v. 

UNITED STATES and TUALITY 

COMMUNITY HOSPITAL, 

Defendants. 

PAP AK, Magistrate Judge: 

3: 14-CV-01861-PK 

OPINION AND ORDER 

Plaintiff prose Aimee J. Wright filed this action against defendants Tuality Community 

Hospital and the United States ("Defendants") alleging malpractice and personal injury as a 

result of allegedly negligent medical treatment in connection with Wright's labor and delivery at 

the facilities of defendant Tuality Community Hospital. 

Before the court is the United States' Motion to Dismiss for Lack of Subject Matter 

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Case 3:14-cv-01861-PK Document 20 Filed 04/27/15 Page 1 of 9
Jurisdiction (#8) pursuant to Federal Rule of Civil Procedure 12(b)(l). The United States moves 

on the basis that Wright has failed to exhaust administrative remedies under the Federal Toti 

Claims Act ("FTCA"). I have considered the motion and all of the pleadings on file under the 

liberal pleading standards afforded to the filings of a prose plaintiff. For the reasons that follow, 

the United States' motion to dismiss is granted and Wright's claims against the United States are 

dismissed. Additionally Wright's claims against Tuality are remanded to state court. 

BACKGROUND 

On July 10, 2014, Wright filed this medical malpractice action in the Washington County 

Circuit Court for the State of Oregon (#1). In her complaint, Wright alleges that she received 

medical care at Tuality Community Hospital, specifically from Dr. Michael J. Schiferl, MD. 

Complaint, #1-1, ii 4. Wright alleges that Dr. Schiferl was negligent in providing her care and 

that Wright was injured as a result of that negligence. Id at ii 10. 

The United States removed to this comi on November 21, 2014 (#1), and substituted 

itself as a defendant in this action in the place of Dr. Schiferl and Tuality Community Hospital 

(#5), as it deems Dr. Schiferl a federal employee and deemed Tuality a federal entity pursuant to 

the Federally Suppmied Health Centers Assistance Act of 1992. 42 U.S.C. § 233(a) and (g). The 

United States later filed a correction to that motion (#7) wherein it redacted its attempt to 

substitute itself for Tuality Community Hospital, noting that it eiTed in deeming Tuality a federal 

entity. 

On December 11, 2014, the United States filed this motion to dismiss Wright's claims 

against it for lack of subject matter jurisdiction (#8). On February 4, 2015, this comi issued a 

scheduling order (#12) imposing a deadline ofFebrumy 23, 2015, upon Wright for any response 

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Case 3:14-cv-01861-PK Document 20 Filed 04/27/15 Page 2 of 9
to the United States' motion. Despite notice sent to Wright (#13), entered the same day as this 

court's order, Wright did not submit a response to the United States' motion. This matter is now 

ready for decision. 

LEGAL STANDARD 

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction 

"Federal courts are coutts of limited jurisdiction." Assoc. of Am. i'vfed. Colleges v. United 

States, 217 F.3d 770, 778-779 (9th Cir. 2000) (citation omitted). Coutts presume that a case 

"lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the 

party assertingjurisdiction." Id Federal Rule of Civil Procedure ("Rule") 12(b)(l) allows for a 

defendant to challenge subject matter jurisdiction. 

A motion under Rule l 2(b )(1) to dismiss for lack of subject-matter jurisdiction may be 

either "facial" or "factual." See Safe Air v. 1\!feyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing 

White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial attack on subject-matter 

jurisdiction, the moving party asserts that a plaintiff's allegations are insufficient on their face to 

invoke federal jurisdiction, whereas in a factual attack, the moving party disputes the factual 

allegations that, if true, would give rise to subject-matter jurisdiction. Where a defendant raises a 

facial challenge to subject-matter jurisdiction, the factual allegations of the complaint are 

presumed to be true, and the motion may be granted only if the plaintiff fails to allege an element 

necessaiy for subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 

1036, 1039 n. 1 (9th Cir. 2003). By contrast, where a defendant raises a factual challenge to 

federal jurisdiction, "the district court may review evidence beyond the complaint without 

converting the motion to dismiss into a motion for summary judgment." Safe Air v. 1\!feyer, 373 

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F.3d at 1039 (citing Savage, 343 F.3d at 1039 n. 2). The court "need not presume the 

truthfulness of the plaintiff's allegations" and the plaintiff "must furnish affidavits or other 

evidence necessmy to satisfy its burden of establishing subject matter jurisdiction." Id. (citing 

White, 227 F.3d at 1242; Savage, 343 F.3d at 1039 n. 2.) 

"Defective allegations of jurisdiction may be amended, upon te1ms, in trial or appellate 

courts." 28 U.S.C. § 1653. It is improper to dismiss an action based on a defective allegation of 

jurisdiction without leave to amend "unless it is clear, upon de nova review, that the complaint 

could not be saved by amendment." Snell v. Cleveland, Inc., 316 F.3d 822, 828 n. 6 (9th Cir. 

2002) (citing Lee v. City a/Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)). 

II. Sua Sponte Dismissal for Lack of Subject-Matter Jurisdiction 

Federal Civil Procedure Rule 12(h)(3) provides that "[i]fthe court determines at anytime 

that it lacks subject-matter jurisdiction, the cou1t must dismiss the action." F~d. R. Civ. P. 

12(h)(3); see also Cal. Diversified Promotions, Inc. v. 1vfusick, 505 F.2d 278, 280 (9th Cir. 1974) 

("It has long been held that a judge can dismiss sua sponte for lack of jurisdiction"). 

III. Filings of a Pro Se Plaintiff 

This court must liberally constrne the filings of a pro se plaintiff and afford the plaintiff 

the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). "A pro 

se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the 

deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. Los Angeles 

Police Dep't., 839 F.2d 621, 623 (9th Cir. 1988) (citation and internal quotation marks omitted). 

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, however, eve1y complaint must 

contain "a sho1t and plain statement of the claim showing that the pleader is entitled to relief." 

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This standard "does not require 'detailed factual allegations,' "but does demand "more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, (quoting 

Twombly, 550 U.S. at 555). "A pleading that offers 'labels and conclusions' or 'a fo1mulaic 

recitation of the elements of a cause of action will not do."' Id (quoting Twombly, 550 U.S. at 

555). 

ANALYSIS 

Defendant United States moves to dismiss Wright's claims brought against it on the basis 

that Wright has not exhausted administrative remedies available to her under the FTCA. 28 

U.S.C. § 2675(a). The United States argues that exhausting those remedies is a jurisdictional 

prerequisite to Wright's federal claim. I address this issue below. 

I. Tort Claims 

The Ninth Circuit considers the doctrine of sovereign immunity an important limitation 

on the subject matter jurisdiction of federal courts. Dunn & Black, P .S. v. United States, 492 

F.3d 1084, 1087 (9th Cir. 2007). Unless Wright satisfies the burden of establishing that this 

action falls within an unequivocally expressed waiver of sovereign immunity by Congress, it 

must be dismissed. Id. at 1088. The Supreme Court has held "that a waiver of sovereign 

immunity is to be strictly construed, in terms of its scope, in favor of the sovereign." Id (quoting 

Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)). 

The Federal Tort Claims Act (FTCA) sets out the limited circumstances in which the 

government waives its sovereign immunity for tort suits: 

An action shall not be instituted upon a claim against the United 

States for money damages for injmy or loss of property or personal 

injmy or death caused by the negligent or wrongful act or omission 

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of any employee of the Govemment while acting within the scope 

of his office or employment, unless the claimant shall have first 

presented the claim to the appropriate Federal agency and his claim 

shall have been finally denied by the agency in writing and sent by 

ce1iified or registered mail. The failure of an agency to make final 

disposition of a claim within six months after it is filed shall, at the 

option of the claimant any time thereafter, be deemed a final denial 

of the claim for purposes of this section. 

28 U.S.C. § 2675(a). The requirement to file an administrative claim is jurisdictional. Brady v. 

United States, 211 F.3d 499, 502 (9th Cir. 2000). Federal regulations dictate that a tmi claim is 

deemed to have been presented when: "a Federal agency receives from a claimant, his duly 

authorized agent or legal representative, an executed Standard Form 95 or other written 

notification of an incident, accompanied by a claim for money damages in a sum ce1iain for 

injury to or loss of prope1iy, personal injury, or death alleged to have occuned by reason of the 

incident .... " 28 C.F.R. § 14.2. 

Wright does not allege executing a Standard Form 95, nor does she assert drafting and 

sending any written notification of the incident at issue. See generally Complaint, # 1-1. As a 

result, the United States mounts a factual challenge to the court's subject matter jurisdiction. The 

United States provides a declaration from Meredith Torres, a Senior Attomey in the Depaiiment 

of Health and Human Services ("HHS") Office of General Counsel, attesting that the HHS has 

no record ofreceiving any FTCA claim from Wright pe1iaining to this dispute. Torres Dec., #8-

1, if 4. Wright does not respond to the factual challenge posed by the United States nor does she 

contend that she has satisfied the rigors of the FTCA. 

Because Wright has not exhausted her administrative remedies under the FTCA, this 

court lacks subject matter jurisdiction over Wright's claims against the United States. Thus, 

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Wright's claims against the United States are dismissed without prejudice. 

II. Efficacy of Amendment 

· The Court must permit a pro se litigant the opportunity to correct the deficiencies of her 

complaint unless it is clear those deficiencies cannot be cured by amendment. See 

Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988); see also Noll v. 

Carlson, 809 F.2d 1446, 1447 (9th Cir.1987). Since it is possible that Wright can amend her 

complaint to allege sufficient facts suppmting subject matter jurisdiction by properly exhausting 

her administrative remedies under the FTCA and thereby rebutting the factual dispute raised by 

the United States, Wright's action against the United States is dismissed without prejudice. 

III. Claims Against Tuality Community Hospital Remanded to State Court 

Wright's complaint contains no cause of action arising under, or that contains any 

reference to, any federal statute or the Constitution. In consequence, this comt lacks federal 

question jurisdiction over Wright's surviving medical malpractice claim against Tuality 

Community Hospital. 28 U.S.C. § 1331. Additionally, Wright is a citizen of Oregon and Tuality 

Community Hospital is located in Washington County, Oregon. Complaint, #1-1, ~~ 1, 3. Thus, 

this comt does not have diversity jurisdiction over Wright's claims against Tuality Community 

Hospital pursuant to 28 U.S.C. § 1332. Accordingly, this comt lacks subject-matter jurisdiction 

over Wright's claims. 

As noted above, Federal Civil Procedure Rule 12(h)(3) provides that "[i]fthe court 

determines at any time that it lacks subject-matter jurisdiction, the comt must dismiss the action." 

Fed. R. Civ. P. 12(h)(3); see also Cal. Diversified Promotions, 505 F.2d at 280. 

The Ninth Circuit has made clear that the district comt may, in its discretion, remand or 

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dismiss an action in which all federal claims have been withdrawn or dismissed. See, e.g., 

Destjino v. Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (the district court did not abuse its 

discretion when it declined to remand a matter to state court after all federal claims had been 

dismissed). While this matter has been pending in this Comi for a number of months, the United 

States' erroneous deeming ofTuality as well as the fact that Wright brings this action prose lend 

to a sound basis for remand of Wright's claims against Tuality. Fmther, Wright's claims against 

Tutality involve only questions of state law. 

Thus, I decline to exercise supplemental jurisdiction over Wright's remaining claims and I 

must therefore determine whether to dismiss this action or to remand it to state court. Reliable 

jurisprudence shows a preference for remand, rather than dismissal, in situations similar to those 

in the instant case. See Carnegie-},;fellon Univ. v. Cohill, 484 U.S. 343, 353 (1988) (favoring 

remand as opposed to dismissal, as dismissal potentially increases both the expense and 

inconvenience involved in enforcing state law due to repetitive filing requirements). 

For all of these reasons, Wright's claims against Tuality Community Hospital are 

remanded to state court. 

CONCLUSION 

Consistent with the foregoing, the United States' motion to dismiss (#8) is granted and 

Wright's claims against the United States are dismissed without prejudice for lack of subject 

matter jurisdiction in this comi under Rule 12(b )(! ). 

I II 

II I 

Ill 

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Additionally, Wright's remaining claims against Tuality Community Hospital are 

remanded to state comt. 

IT IS SO ORDERED. 

Dated this 27th day of April, 2015. 

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( _) p ~ t 

--'.' ----+A.Ll lL-'(L_/:._l __JL__-".._<J--l--=·"'--'';~ Honot:able Paul Papak 

United States Magistrate Judge 

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