Galina Ogeone v. W. Yang
700 F. App'x 779
| 9th Cir. | 2017Background
- Plaintiff Galina Ogeone sued over dental treatment, asserting federal and state claims; case proceeded to jury trial in district court.
- A federal employee (Yang) was named; the U.S. Attorney General certified that the employee acted within scope of employment.
- Defendants removed the case to federal court and the United States was substituted as defendant for FTCA purposes.
- District court dismissed the FTCA claim but retained supplemental jurisdiction over the remaining state-law claim and tried the case; defendant sought attorney’s fees post-judgment.
- Ogeone filed multiple motions (remand, continuance, challenges to jurisdiction and due process) which the district court denied; she appealed pro se.
- The Ninth Circuit consolidated appeals and affirmed the district court in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper removal/substitution under FTCA | Removal was untimely; appeals before trial divested court; federal substitution improper | AG certification requires substitution and federal jurisdiction under FTCA | Denied remand; substitution and federal jurisdiction proper under Osborn/Billings |
| Personal jurisdiction over Yang | District court lacked personal jurisdiction | Court had jurisdiction; substitution and motions resolved properly | Court did not lack personal jurisdiction |
| Retention of state-law claims after FTCA dismissal | State claim should be remanded or dismissed | District court may retain supplemental jurisdiction | Court did not abuse discretion in retaining supplemental jurisdiction (Satey) |
| Continuance one day before trial | Denied continuance prejudiced Ogeone | Continuance would seriously inconvenience court/defendant; no prejudice shown | Denial not an abuse of discretion (Flynt) |
| Award of attorney’s fees | Fees improper | Action was in nature of assumpsit; fee statute permits awarding fees | Grant of attorney’s fees not an abuse of discretion (Haw. Rev. Stat. interpreted via Kona) |
| Due process and other procedural claims | Various due process violations by district court | Claims unsupported or not properly raised below | Contentions rejected as unsupported or forfeited; appeals denied |
Key Cases Cited
- Osborn v. Haley, 549 U.S. 225 (U.S. 2007) (AG scope certification requires substitution of United States and federal-court FTCA jurisdiction)
- Billings v. United States, 57 F.3d 797 (9th Cir. 1995) (scope certification by Attorney General must be rebutted by preponderance of the evidence)
- Satey v. JPMorgan Chase & Co., 521 F.3d 1087 (9th Cir. 2008) (district court has discretion to retain supplemental jurisdiction over state claims)
- United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985) (standards and factors for reviewing denial of continuance)
- Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) (interpreting Hawaii statute awarding attorney’s fees for actions in the nature of assumpsit)
- Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) (issues not properly raised below need not be considered on appeal)
- Hall v. N. Am. Van Lines, Inc., 476 F.3d 683 (9th Cir. 2007) (de novo review of remand denials)