United States District Court, D. Arizona
Susana E. Verduzco, Plaintiff,
v.
United States of America, Defendant.
ORDER
Dominic W. Lanza, United States District Judge.
Pending
before the Court are (1) a motion to dismiss filed by the
United States (Doc. 11) and (2) a motion for reconsideration,
filed by pro se Plaintiff Susana E. Verduzco, of an
earlier order denying Plaintiff’s motion for sanctions
(Doc. 20). For the following reasons, the motion to dismiss
will be granted and the motion for reconsideration will be
denied.
BACKGROUND
On May
22, 2019, Plaintiff initiated this lawsuit by filing a
complaint in the Maricopa County Superior Court. (Doc. 1-3 at
20-52.) In a nutshell, the complaint asserts a medical
malpractice claim against Kimberly A. Mulligan, M.D.
(“Mulligan”). (Id.)
On July
3, 2019, Plaintiff filed a motion for sanctions against
defense counsel. (Doc. 1-4.)
On July
17, 2019, the United States removed this action to federal
court on the ground that “it is an action against a
United States Department of Veterans Affairs employee who was
acting within the course and scope of her employment at or
around the time of the incident in question.” (Doc. 1.)
On July
18, 2019, the United States filed a notice of
substitution-substituting itself for Mulligan as the
defendant-because “[t]he sole cause of action of
negligence within Plaintiff’s Complaint is a state law
cause of action sounding in tort, ” the Federal Tort
Claims Act “provides that a suit against the United
States shall be the exclusive remedy for persons with claims
for damages resulting from the negligent or wrongful acts or
omissions of federal employees taken within the scope of
their office or employment, ” and the United States
Attorney’s Office has certified that, at the time of
the conduct alleged in the Complaint, Mulligan “was
acting within the scope of her federal employment” as
an employee of the United States Department of Veterans
Affairs (“VA”). (Doc. 5.)
On July
18, 2019, the United States separately filed a notice
informing the Court that, at the time of removal,
Plaintiff’s motion for sanctions was pending. (Doc. 6.)
On July
19, 2019, the Court issued an order denying the sanctions
motion. (Doc. 9.)
On July
24, 2019, the United States filed a motion to dismiss due to
Plaintiff’s failure to exhaust administrative remedies.
(Doc. 11.)
On July
31, 2019, Plaintiff filed a motion for subpoena. (Doc. 15.)
In that motion, Plaintiff stated that she wishes to submit a
subpoena to the “Phoenix VA Health Care System’s
Integrated Ethics Program Manager” so she can obtain a
copy of “Defendant’s privileging file.”
(Id. at 2.) This file, Plaintiff argued, would help
her overcome the exhaustion issue because it would reveal
that she filed an ethics/malpractice complaint against
Mulligan more than six months earlier. (Id.)
On
August 2, 2019, the Court issued an order denying
Plaintiff’s subpoena request. (Doc. 17.) This order
provided in relevant part as follows:
Plaintiff’s motion seems to be predicated on the notion
that the filing of any sort of complaint with the VA-such as
an ethics complaint-will trigger the six-month clock for
exhaustion under the FTCA. This is inaccurate. The FTCA
provides that an action shall not be instituted against the
United States “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 certified or registered
mail.” 28 U.S.C. § 2675(a) (emphases added). The
Ninth Circuit has further explained that, to qualify as a
“claim, ” a submission to an agency must contain
both “(1) a written statement sufficiently describing
the injury to enable the agency to begin its own
investigation, and (2) a sum certain damages claim.”
Warren v. U.S. Dep’t of Interior Bureau of Land
Management, 724 F.2d 776, 780 (9th Cir. 1984) (en banc).
Here, Plaintiff has not alleged that the ethics complaint she
submitted to the VA more than six months ago included a
“sum certain damages claim.” If the complaint
didn’t include such a request, it will be meaningless
for exhaustion purposes. Under these circumstances, the Court
will not authorize the issuance of a subpoena to obtain a
medical ...