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Connolly v. Triwest Healthcare Alliance Corp.

United States District Court, D. Hawaii

October 21, 2019

STEVEN JOSEPH CONNOLLY, Plaintiff,
v.
TRIWEST HEALTHCARE ALLIANCE CORPORATION; JOHN DOES 1-10, Defendant.

          ORDER DENYING DEFENDANT TRIWEST HEALTHCARE ALLIANCE CORPORATION'S, MOTION TO DISMISS (ECF No. 6)

          Helen Gillmor United States District Judge

         In September 2017, Plaintiff filed a Complaint against Defendant TriWest Healthcare Alliance Corporation (“TriWest”) in the Circuit Court of the First Circuit of the State of Hawaii.

         The Complaint alleges that in October 2015, Plaintiff received medical care from the United States Department of Veterans Affairs (“VA”) at the VA Medical Center in Hawaii. The Complaint asserts that the VA medical provider informed Plaintiff that he would need to seek treatment from a non-VA dermatologist. Plaintiff claims Veterans Affairs informed him that Defendant TriWest would arrange for the referral to a non-VA dermatologist. Plaintiff asserts that Defendant TriWest was negligent in that it failed to arrange for the referral.

         Defendant TriWest filed a Motion to Dismiss. Defendant seeks dismissal on three separate bases.

         First, Defendant asserts that the Court should dismiss the Complaint due to untimely service of process.

         Second, Defendant argues that the Complaint should be dismissed based on sovereign immunity. Defendant claims that Defendant TriWest is a contractor for the United States government and is entitled to derivative sovereign immunity pursuant to Yearsley v. W.A. Ross Const. Co., 309 U.S. 18 (1940).

         Third, Defendant argues that Plaintiff's Complaint must be dismissed pursuant to the Veterans Judicial Review Act.

         Specifically, Defendant asserts that Plaintiff cannot seek review of the administration of his Veterans Choice Benefits before this Court. Rather, Defendant argues that Plaintiff must follow the procedures set forth in the Veterans Judicial Review Act.

         Defendant's Motion to Dismiss (ECF No. 6) is DENIED.

         PROCEDURAL HISTORY

         On September 28, 2017, Plaintiff Steven Joseph Connolly filed a Complaint in the Circuit Court of the First Circuit, State of Hawaii. (Complaint, attached as Ex. A to Def.'s Notice of Removal, ECF No. 1-4).

         On June 17, 2019, the Complaint was served on Defendant TriWest Healthcare Alliance Corporation. (Notice of Service of Process, attached as Ex. B to Def.'s Notice of Removal, ECF No. 1-5).

         On July 18, 2019, Defendant TriWest Healthcare Alliance Corporation removed the Complaint to the United States District Court for the District of Hawaii. (ECF No. 1).

         On July 24, 2019, Defendant filed DEFENDANT TRIWEST HEALTHCARE ALLIANCE CORPORATION'S MOTION TO DISMISS. (ECF No. 6).

         On August 14, 2019, Plaintiff filed PLAINTIFF STEVEN JOSEPH CONNOLLY'S MEMORANDUM IN OPPOSITION TO DEFENDANT TRIWEST HEALTHCARE ALLIANCE CORP.'S MOTION TO DISMISS. (ECF No. 9).

         On August 28, 2019, Defendant filed its REPLY. (ECF No. 11).

         On September 25, 2019, the Court held a hearing on Defendant's Motion to Dismiss. (ECF No. 13).

         On October 9, 2019, Plaintiff filed a Return of Executed Summons Served on Defendant TriWest Healthcare Alliance Corporation. (ECF No. 17).

         BACKGROUND

         The Complaint alleges that on October 1, 2015, Plaintiff sought treatment from a medical provider of the United States Department of Veterans Affairs (“VA”) at the Spark M. Matsunaga Veterans Administration Medical Center, located in Honolulu, Hawaii. (Complaint at ¶¶ 7-8, ECF No. 1-4).

         Plaintiff claims that a VA Medical Provider treated him and advised Plaintiff that “the VA would refer him to another Medical Provider, and specifically a Dermatologist, for additional medical treatment and care.” (Id. at ¶ 8).

         Plaintiff asserts that the VA requested that Defendant TriWest Healthcare Alliance Corporation (“TriWest”) “arrange for, secure, schedule, select, and monitor the referral of Plaintiff to a non-VA Medical Provider, and specifically a Dermatologist, for additional medical treatment and care.” (Id. at ¶ 9).

         The Complaint alleges that Defendant TriWest “failed to arrange for, secure, schedule, select, and monitor the referral of Plaintiff to a non-VA Medical Provider.” (Id. at ¶¶ 10-11).

         Plaintiff claims that if TriWest had timely provided for the referral, his “condition for which the referral was determined to be required, would not have progressed in the manner and degree to which it did, where such condition is not incurable and/or the efficacy of treatment has been diminished or negated by the delay in treatment and care.” (Id. at ¶ 12).

         On September 28, 2017, Plaintiff filed the Complaint in the Circuit Court of the First Circuit, State of Hawaii. (Id. at p. 1).

         On June 17, 2019, Plaintiff served the Complaint on Defendant TriWest. (Notice of Service of Process, attached as Ex. B to Def.'s Notice of Removal, ECF No. 1-5).

         On July 18, 2019, Defendant TriWest removed the Complaint to the United States District Court for the District of Hawaii. (ECF No. 1).

         On October 9, 2019, Plaintiff filed a Return of Executed Summons Served on Defendant TriWest Healthcare Alliance Corporation. (ECF No. 17).

         STANDARD OF REVIEW

         A plaintiff has the burden of proving that subject-matter jurisdiction does in fact exist. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

         Federal Rule of Civil Procedure 12(b)(1) requires that a case must be dismissed for lack of subject-matter jurisdiction when the Court lacks a constitutional or statutory basis to adjudicate the controversy. Fed.R.Civ.P. 12(b)(1); Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th Cir. 2012).

         A challenge to the Court's subject-matter jurisdiction may be “facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the party challenging jurisdiction argues that the allegations contained in a complaint are insufficient “on their face” to invoke federal jurisdiction. Id. A facial challenge, therefore, mirrors a traditional motion to dismiss analysis. The Court must take all allegations contained in the pleading “to be true and draw all reasonable inferences in [its] favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

         In a factual attack, the party challenging jurisdiction argues that the facts in the case, notwithstanding the allegations in the Complaint, divest the Court of subject-matter jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). No presumptive truthfulness attaches to the Complaint's allegations. Id. The party challenging jurisdiction presents “affidavits or other evidence properly brought before the court” indicating that subject matter jurisdiction is lacking. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). The burden then shifts to “the party opposing the motion [to] furnish affidavits or other evidence to satisfy its burden of establishing subject matter jurisdiction.” Id.; Colwell v. Dep't of Health and Human Serv., 558 ...


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