Ponce v. Adventist Medical Center - Hanford ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUZ YESENIA PONCE, No. 1:20-cv-00261-NONE-EPG 12 Plaintiff, 13 v. ORDER GRANTING UNITED STATES’ UNOPPOSED MOTION TO DISMISS AND 14 ADVENTISTS MEDICAL CENTER – REMANDING TO STATE COURT HANFORD, et al., 15 (Doc. No. 6) Defendants. 16 17 18 Plaintiff Luz Yesenia Ponce filed this action on July 23, 2019 in Kings County Superior 19 Court. (Doc. No. 1 at 5.) Defendant United States of America timely removed. (See id. at 1–3.) 20 The United States substituted in this action in the place of defendant David Cryns, D.O., pursuant 21 to 42 U.S.C. § 233(c) because defendant Cryns was a deemed employee of the Public Health 22 Service and was acting within the scope of such employment at the time of the incidents giving 23 rise to the action. (Doc. No. 2 at 2.) In this action, plaintiff alleges medical malpractice against 24 defendants in connection with a sterilization procedure. (Doc. No. 1 at 6–9.) 25 On February 26, 2020, the United States moved to dismiss the complaint under Federal 26 Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. No. 6 at 2–3.) The 27 United States argues that plaintiff has not exhausted an administrative tort claim to the United 28 States Department of Health and Human Services. (Id. at 3.) Therefore, the United States UV VV EV LOMA SMU PC eter OY Ove 1 | requests that the court dismiss plaintiff's claims against the United States without prejudice and 2 | remand plaintiffs claims against Adventist Medical Center — Hanford to state court. □□□□ On 3 | March 17, 2020, plaintiff filed a notice of non-opposition to the granting of the United States’ 4 | motion to dismiss. (Doc. No. 9.) 5 Accordingly, the court will dismiss the complaint based on plaintiff's statement of non- 6 | opposition to the pending motion to dismiss. See Way v. JPMorgan Chase Bank, N.A., No. 2:16- 7 | cv-02244-TLN-KJN, 2019 WL 1405599, *1 (E.D. Cal. Mar. 28, 2019) (granting unopposed 8 || motions to dismiss where plaintiff filed statement of non-opposition). This dismissal is without 9 | prejudice. 10 CONCLUSION ll For the reasons set forth above, defendant’s motion to dismiss (Doc. No. 6) is GRANTED 12 | and the claims against the United States are DISMISSED WITHOUT PREJUDICE. This action 13 | is hereby remanded to the Kings County Superior Court. 14 | IT IS SO ORDERED. si □ Dated: _ April 21, 2020 Yole A Lange 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28