G.G. v. United States ( 2020 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 G.G., a minor by and through his Case No. 20-cv-02690-MMC Guardian Ad Litem, Stefanie Gulick, 8 ORDER GRANTING UNITED STATES Plaintiff, OF AMERICA'S MOTION TO DISMISS 9 OR STRIKE; AFFORDING PLAINTIFF v. LEAVE TO FILE AMENDED 10 COMPLAINT; CONTINUING CASE UNITED STATES OF AMERICA, et al., MANAGEMENT CONFERENCE; 11 VACATING HEARING Defendants. 12 13 Before the Court is defendant United States of America's Motion, filed July 20, 14 2020, "to Dismiss and in the Alternative Strike Portions of Plaintiff's Complaint." Plaintiff 15 G.G. has filed opposition, to which the United States has replied. Having read and 16 considered the papers filed in support and in opposition to the motion, the Court deems 17 the matter suitable for determination on the parties' respective written submissions, 18 VACATES the hearing scheduled for August 28, 2020, and rules as follows: 19 1. As the United States asserts, and plaintiff acknowledges (see Pl.'s Opp. at 4:2- 20 3), the only proper defendant in the above-titled action is the United States. Accordingly, 21 defendants Open Door Community Health Clinic and Steffen Lassen will be dismissed. 22 2. As the only remaining defendant is the United States, and each of plaintiff's 23 claims is brought pursuant to the Federal Tort Claims Act ("FTCA"), plaintiff's jury 24 demand will be stricken. See Nurse v. United States, 226 F.3d 996, 1005 (9th Cir. 2000) 25 (holding jury trials "impermissible in FTCA claims"). 26 3. To the extent the First Claim for Relief, titled "Negligence," is based on a theory 27 that plaintiff's injuries are the result of the United States' alleged failure to "properly train 1 and supervise employees" (see Compl. ¶ 27(e); see also Compl. ¶ 27(f)), the First Claim 2 for Relief is subject to dismissal. Specifically, any such claim is barred by the 3 discretionary function exception to the FTCA, as plaintiff fails to "allege facts which would 4 support a finding that the challenged actions are not the kind of conduct that can be said 5 to be grounded in the policy of the regulatory regime." See United States v. Gauberts, 6 499 U.S. 315, 324-25 (1991); see also id. at 332 (holding plaintiff failed to state FTCA 7 claim where "nothing in [plaintiff's] complaint effectively alleg[ed] that the discretionary 8 acts performed by [government employees] were not entitled to the exception"); Nurse, 9 226 F.3d at 1001-02 (holding "supervision and training" fall "squarely within the 10 discretionary function exception"; explaining exception applies where challenged acts 11 "involve an element of judgment or choice" and the "judgments and choices . . . are those 12 grounded in social, economic, and political policy").1 13 4. The Second Claim for Relief, titled "Negligent Supervision [and] Training," is, as 14 its title indicates, based on a theory that plaintiff's injuries are the result of the United 15 States' alleged negligent supervision and training of employees (see Compl. at 8:23-25; 16 ¶¶ 32, 33, 36),2 and is subject to dismissal for the reasons stated above. 17 5. The Third Claim for Relief, titled "Res Ispa Loquitor," is subject to dismissal. 18 Res ipsa loquitor is an evidentiary doctrine by which a plaintiff may seek to establish a 19 negligence claim. See Wilson v. United States, 645 F.2d 728, 730 (9th Cir. 1981) 20 (holding "application of the doctrine of res ipsa loquitor simply makes it permissible to 21 draw an inference of negligence from a set of facts"). It is not itself a "stand-alone cause 22 of action." See E.J. v. United States, 2013 WL 6072867, at *3 (N.D. Cal. November 14, 23 1 In his opposition, plaintiff asserts that "because there are mandatory directives to 24 supervise and train Health Center employees in statutes, regulations, and policies that are explained in [a] compliance manual, the discretionary [function exception] does not 25 apply." (See Pl.'s Opp. at 8:24-26.) As the complaint contains no reference to any mandatory directives, however, the Court does not consider such argument at this time. 26 2 As the United States observes, the Second Claim for Relief appears to be 27 duplicative of the First Claim for Relief to the extent the First Claim for Relief is based on 1 2013) (dismissing "res ipsa loquitor" claim without prejudice to plaintiff's arguing doctrine 2 applies to support existing negligence claim). 3 CONCLUSION 4 The United States' motion to dismiss or, in the alternative, strike is hereby 5 || GRANTED, as follows: 6 1. Plaintiff's claims against Open Door Community Health Clinic and Steffen 7 || Lassen are hereby DISMISSED. 8 2. Plaintiff's jury demand is hereby STRICKEN. 9 3. To the extent the First Claim for Relief is based on claims of negligent 10 || supervision and negligent training, the First Claim for Relief is hereby DISMISSED with 11 leave to amend. g 12 4. The Second Claim for Relief is hereby DISMISSED with leave to amend. 13 5. The Third Claim for Relief is hereby DISMISSED. 14 6. If plaintiff wishes to file a First Amended Complaint, plaintiff shall file it no later 2 15 || than September 11, 2020. If plaintiff does not file a First Amended Complaint by the a 16 || deadline provided, the above-titled action will proceed on the remaining portions of the 17 |} First Claim for Relief. 5 18 In light of the above, the Case Management Conference is hereby CONTINUED 19 || from October 9, 2020, to November 20, 2020, at 10:30 a.m. A Joint Case Management 20 || Statement shall be filed no later than November 13, 2020. 21 IT IS SO ORDERED. 22 23 || Dated: August 24, 2020 fins Md, Chater 24 Unted States District Judge 25 26 27 28