Verduzco v. United States

          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 ...