Opinion
No. C 13-0851 MMC
03-27-2013
MELISSA LINDFORS, Plaintiff, v. ENTERPRISE-RENT-A-CAR COMPANY OF SAN FRANCISCO, RONALD HENRY BERG, DOES 1-30, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Before the court is defendant United States of America's Motion to Dismiss, filed March 4, 2013. By said motion the United States seeks an order (1) dismissing defendant Ronald Henry Berg with prejudice for the reason that said individual is no longer a proper defendant to the action, and (2) dismissing the United States without prejudice for the reason that plaintiff has not complied with the exhaustion requirement of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. On March 22, 2013, plaintiff filed a Non-Opposition to Defendant's Motion to Dismiss. Having read and considered the papers filed in support of and in response to the motion, the Court finds the matter suitable for decision on the parties' respective written submissions, VACATES the hearing scheduled for April 12, 2013, and hereby GRANTS the motion.
The Chief of the Civil Division of the United States Attorney's Office has certified that defendant Ronald Henry Berg was acting within the course and scope of his employment with the Federal Deposit Insurance Corporation at all times material to plaintiff's claim. (See Certification, filed Feb. 26, 2013). Consequently, the instant action is "deemed to be an action . . . brought against the United States," and the United States is "substituted as the party defendant" by operation of law. See 28 U.S.C. § 2679(d)(2).
Accordingly, plaintiff's claims against Ronald Henry Berg are hereby DISMISSED with prejudice and plaintiff's claims against the United States are hereby DISMISSED without prejudice to plaintiff's refiling said claims after compliance with the above-referenced exhaustion requirement.
IT IS SO ORDERED.
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MAXINE M. CHESNEY
United States District Judge