ORDER ON MOTION TO DISMISS

(Doc. 25)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiffs Nohemi Gallegos ("Ms. Gallegos") and minor J.H., by and through her guardian ad litem Ms. Gallegos, bring this medical malpractice suit against various defendants including Lawrence S. Garcia, M.D. ("Dr. Garcia"), a federal employee under the Federally Supported Health Centers Assistance Act ("FSHCAA"). Plaintiffs, mother and daughter, allege that Dr. Garcia was negligent with regard to the treatment they received during Ms. Gallegos' pregnancy with J.H. Pending before the Court is the United States' ("government") motion to dismiss for lack of subject matter jurisdiction. For the reasons discussed below, this Court GRANTS the government's motion to dismiss with prejudice.

II. BACKGROUND

A. Facts1

On November 10, 2010, Ms. Gallegos went to the Delano Regional Medical Center to treat a possible ectopic2 pregnancy. Eric P. Hoffman, M.D. ("Dr. Hoffman") determined that Ms. Gallegos' pregnancy was ectopic. Accordingly, on November 16, 2010, Ms. Gallegos employed Dr. Garcia, Kern Medical Center, and Clinica Sierra Vista to treat her ectopic pregnancy. Without first confirming that Ms. Gallegos was in fact suffering from an ectopic pregnancy, Dr. Garcia administered Ms. Gallegos the drug methotrexate to end her pregnancy. It was subsequently determined that Ms. Gallegos was not suffering from an ectopic pregnancy and that her pregnancy was intrauterine in nature. Thus, Dr. Garcia administered methotrexate to Ms. Gallegos during an intrauterine pregnancy. On July 7, 2011, Ms. Gallegos gave birth to J.H. J.H. suffers from several birth defects including a malformed skull and hip. She also suffers from developmental issues. Plaintiffs allege that J.H.'s birth defects were caused by the methotrexate Dr. Garcia administered to Ms. Gallegos during her pregnancy.

B. Procedural History

On October 9, 2012, plaintiffs filed suit in Kern County Superior Court3 against Kern Medical Center, Kern County, Delano Regional Medical Center, Dr. Hoffman, Dr. Garcia, and Does 1-30. On April 4, 2013, the government removed the action to this Court based on Dr. Garcia's status as a federal employee under the FSHCAA. On September 20, 2013, plaintiffs filed a second amended complaint. They allege medical malpractice claims with regard to the treatment plaintiffs received during Ms. Gallegos' pregnancy. Pending before the Court is the government's motion to dismiss for lack of subject matter jurisdiction. On March 13, 2014, this Court found the motion suitable for a decision without oral argument, pursuant to Local Rule 230(g), and vacated the March 20, 2014, hearing date.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court's jurisdiction over the subject matter of the complaint. Dismissal is appropriate when the district court lacks subject matter jurisdiction over the claim. FED. R. CIV. P. 12(b)(1). The burden of establishing jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In considering a Rule 12(b)(1) motion, the Court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

IV. DISCUSSION

The government contends that plaintiffs' claims against Dr. Garcia should be dismissed for lack of subject matter jurisdiction because plaintiffs filed their complaint before exhausting their administrative remedies under the Federal Tort Claims Act ("FTCA").

Under the FSHCAA, "[u]pon a certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action . . . shall be . . . deemed a tort action brought against the United States . . ." 42 U.S.C. § 233(c). Here, the Attorney General certified that Dr. Garcia is an employee of the Public Health Service pursuant to the FSHCAA, and was acting in the scope of his employment at the time of the events alleged. (Doc. 1-1). Accordingly, the instant action is a tort action brought against the United States. As a result, the FTCA is the exclusive remedy available to plaintiffs. 28 U.S.C. § 2679(b)(1).

Under the FTCA, an "action shall not be instituted upon a claim against the United States for money damages" unless the claimant has first exhausted administrative remedies. 28 U.S.C. § 2675(a). "[T]he statutory procedure is clear. A tort claimant may not commence proceedings in court against the United States without first filing her claim with an appropriate federal agency and either receiving a conclusive denial of the claim from the agency or waiting for six months to elapse without a final disposition of the claim being made." Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992). The exhaustion requirement is jurisdictional in nature and thus, "must be strictly adhered to." Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).

Plaintiffs filed suit against Dr. Garcia in California state court on October 9, 2012. (Doc. 25-2). Subsequently, J.H. filed an administrative claim with the Department of Health & Human Services ("HHS") which was received by HHS on February 22, 2013. (Doc. 25-3, p. 4). HHS denied the claim on May 3, 2013. (Doc. 25-3, p. 13). Shortly thereafter, Ms. Gallegos filed an administrative claim asserting the same allegations. HHS received Ms. Gallegos claim on May 20, 2013. (Doc. 25-3, p. 16, 18). On May 22, 2013, HHS informed Ms. Gallegos that she could not file a claim asserting the same allegations as J.H. because a final determination had already been made. (Doc. 25-3, p. 18). Plaintiffs filed their lawsuit in October 2012, but did not exhaust their administrative remedies until May 2013. Because plaintiffs filed their lawsuit before exhausting their administrative remedies, this Court lacks subject matter jurisdiction over plaintiffs' claims against Dr. Garcia.

Plaintiffs contend that because their complaint does not allege FTCA claims against the United States and because they exhausted their administrative remedies during the pendency of this suit that they are now entitled to amend their complaint to allege their exhausted FTCA claims against the United States. Plaintiffs rely on Valadez-Lopez v. Chertoff, 656 F.3d 851 (9th Cir. 2011) to support their argument.

In Valadez-Lopez, plaintiff filed suit against local officials under § 1983 and alleged a Bivens claim against federal officials. Id. at 854. Plaintiff separately filed an administrative tort claim with the appropriate federal agencies, pursuant to the FTCA's exhaustion requirement. Id. "After six months, having received no response from the agencies as to his administrative claims, he considered the requests to have been deemed denied and amended his complaint to name the United States as a defendant and allege[d] liability under the FTCA." Id. (internal citations omitted). The district court granted the United States' motion to dismiss the FTCA claims for failure to exhaust. Id. The Ninth Circuit determined that the district court erred in concluding that plaintiff failed to exhaust his administrative remedies because plaintiff's original complaint "neither named the United States as a defendant nor stated a claim under the [FTCA]." Id. at 855. Thus, plaintiff exhausted his administrative remedies before instituting a claim against the United States under the FTCA. Id.

The facts of this case can be distinguished from Valadez-Lopez. Although plaintiffs do not explicitly state a FTCA claim against the United States; pursuant to the FSHCAA, their claims against Dr. Garcia are "deemed a tort action brought against the United States." 42 U.S.C. § 233(c). Plaintiffs brought their claims against Dr. Garcia before exhausting their administrative remedies. Thus, they failed to exhaust their administrative remedies before instituting their claim against the United States.

Moreover, even if the Court were to give plaintiffs the opportunity to amend their complaint, their claims are time barred. "A tort claim against the United States shall be forever barred unless . . . action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b). Plaintiffs' administrative claims were denied in May 2013. Accordingly, even if the Court were to give plaintiffs the opportunity to amend their complaint their claims would be time barred because it is well past the six month statutory deadline.

In addition, plaintiffs would not be entitled to equitable tolling because they cannot show that they pursued their rights diligently. "[A] litigant seeking equitable tolling bears the burden of establishing . . . (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (en banc). "The standard for reasonable diligence . . . requires the effort that a reasonable person might be expected to deliver under his or her particular circumstances." Id. Plaintiffs were aware of the government's jurisdictional argument as early as April 11, 2013, when the government raised the issue in their answer to plaintiffs' first amended complaint. (Doc. 5). Yet plaintiffs failed to file a lawsuit against the United States in a timely manner. Therefore, plaintiffs would not be entitled to equitable tolling.

V. CONCLUSION AND ORDER

For the reasons discussed above, this Court:

IT IS SO ORDERED.