RONAL J. KISKILA and DONNA E. KISKILA v. United States of America

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONAL J. KISKILA and DONNA E.
KISKILA,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 09-56959
D.C. No. 3:08-cv-01032-JM-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted April 12, 2012
Pasadena, California
Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.
Ronal J. Kiskila and Donna E. Kiskila appeal the district court’s judgment
dismissing for lack of subject matter jurisdiction their Federal Tort Claims Act
FILED
APR 30 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(“FTCA”) action alleging medical malpractice and loss of consortium. We have
jurisdiction under 28 U.S.C. § 1291. Subject matter jurisdiction determinations are
subject to de novo review. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.
2009). The district court may weigh evidence to determine whether it has
jurisdiction unless the question of jurisdiction depends on the resolution of factual
issues going to the merits. Augustine v. United States, 704 F.2d 1074, 1077 (9th
Cir. 1983). When the question of jurisdiction is intertwined with the merits, the
trial court should employ the standard applicable to a motion for summary
judgment. Id.
Even if we accept that jurisdiction is intertwined with the merits, the district
court properly dismissed plaintiffs’ action for lack of subject matter jurisdiction
because Mr. Kiskila’s primary physician, Dr. Osvaldo Lopez, was an independent
contractor, not a federal employee under the FTCA, in that the government did not
control Dr. Lopez’s actions in “diagnosing and treating patients.” Carrillo v.
United States, 5 F.3d 1302, 1305 (9th Cir. 1993) (holding physician at government
hospital was an independent contractor under the FTCA because the federal
government did not control the physician’s practice of medicine); see also United

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States v. Sacramento Mun. Utility Dist., 652 F.2d 1341, 1343–44 (9th Cir. 1981)
(holding that whether a contract is ambiguous is a question of law).
Assuming without deciding that equitable estoppel could be applied in these
circumstances, the district court properly rejected plaintiffs’ contentions regarding
equitable estoppel because there was no evidence of “affirmative misrepresentation
or affirmative concealment of a material fact by the government.” Carrillo, 5 F.3d
at 1306. Nor did the plaintiffs establish that they were ignorant of the facts.
Plaintiffs were at the least on notice that the physician was employed by a
contractor and not the hospital when Mrs. Kiskila obtained the physician’s
business card a few days after her husband’s heart attack, and could have inquired
further before limitations barred a claim against the physician or his employer.
Plaintiffs’ argument that the district court ignored their allegations that other
parties who treated Mr. Kiskila were federal employees is meritless, because
plaintiffs testified that Dr. Lopez was their “primary and only doctor,” and they
have not identified any other parties who treated Mr. Kiskila. Nor did they seek to
amend their complaint to add these allegations, or attempt to show good cause for
their failure to do so. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir.1992) (“Rule 16(b)’s ‘good cause’ standard primarily considers the
diligence of the party seeking the amendment. The district court may modify the
pretrial schedule if it cannot reasonably be met despite the diligence of the party
seeking the extension.”).
AFFIRMED.

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