Leomi Tienda v. Adventist Health Hanford ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEOMI TIENDA, et al., No. 1:20-cv-01169-NONE-SAB 12 Plaintiffs, 13 v. ORDER GRANTING STIPULATION TO DISMISS CLAIMS AGAINST THE UNITED 14 ADVENTIST HEALTH HANFORD, et STATES AND REMANDING TO STATE al., COURT 15 Defendants. (Doc. No. 8) 16 17 18 Plaintiffs Leomi Tienda and Jimmy Tienda filed this action on February 6, 2020 in Kings 19 County Superior Court. (Doc. No. 1 at 3.) Defendant United States of America timely removed. 20 (See id. at 1–2.) The United States substituted in this action in the place of Defendant David 21 Wayne Nelson, M.D., pursuant to 42 U.S.C. § 233(c) because Defendant Nelson was a deemed 22 employee of the Public Health Service and was acting within the scope of such employment at the 23 time of the incidents giving rise to the action. (Doc. No. 8 at 2.) Plaintiffs allege medical 24 malpractice, loss of consortium, and medical battery against defendants in connection with 25 performing a sterilization surgery instead of a scheduled diagnostic laparoscopy. (Doc. No. 1 at 26 3, 6–7.) 27 On September 3, 2020, the parties filed a stipulation to dismiss claims against the United 28 States without prejudice and remand plaintiffs’ claims against Defendants Adventist Health wOoOU 4:6 UV VE EVM YAR MUO, AI ee AY ee 1 | Hanford and Samuel Morales, CRNA, back to the Kings Court Superior Court. (Doc. No. 8 at 1.) 2 | The parties stipulated that plaintiff has not exhausted an administrative tort claim to the United 3 | States Department of Health and Human Services. (See id. at 2-3.) Therefore, the parties request 4 | that the court dismiss plaintiffs claims against the United States without prejudice and remand 5 | plaintiffs claims against Defendants Adventist Health Hanford and Samuel Morales to Kings 6 | County Superior Court. Cd.) 7 Accordingly, the court will dismiss the claims against the United States based on the 8 || parties’ stipulation to dismiss. See Way v. JPMorgan Chase Bank, N.A., No. 2:16-cv-02244- 9 | TLN-KJN, 2019 WL 1405599, *1 (E.D. Cal. Mar. 28, 2019) (granting unopposed motions to 10 | dismiss where plaintiff filed statement of non-opposition). This dismissal is without prejudice. 11 CONCLUSION 12 For the reasons set forth above, the parties’ stipulation to dismiss (Doc. No. 8) is 13 | GRANTED and the claims against the United States are DISMISSED WITHOUT PREJUDICE. 14 | Plaintiffs’ claims against Defendants Adventist Health Hanford and Samuel Morales, CRNA, are 15 | remanded to the Kings County Superior Court. 16 | IT IS SO ORDERED. me □ "7 Dated: _ September 10, 2020 L yA 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28