Galina Ogeone v. W. Yang

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

GALINA VICTOROVNA OGEONE, Nos. 15-15499
15-16005
Plaintiff-Appellant,
D.C. No. 1:13-cv-00166-SOM-RLP
v.

W. RUTH YANG, Dentist, MEMORANDUM*

Defendant-Appellee.

Appeals from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding

Submitted October 23, 2017**

Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.

In these consolidated appeals, Galina Victorovna Ogeone appeals pro se

from the district court’s judgment following a jury trial in her action alleging

federal and state claims arising out of her dental treatment. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a denial of a motion to remand. Hall

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th Cir. 2007). We affirm.

The district court properly denied Ogeone’s April 12, 2013 and May 2, 2013

motions to remand because Ogeone’s claims against a federal employee certified to

be acting within the scope of her employment must proceed in federal court under

the Federal Tort Claims Act (“FTCA”) with the United States as the proper

defendant. See Osborn v. Haley, 549 U.S. 225, 229-32 (2007) (where the U.S.

Attorney General certifies that a federal employee named as a defendant in a tort

action was acting within the scope of her employment, the United States must be

substituted as the defendant and the case must proceed in federal court under the

FTCA); Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995) (Attorney

General’s certification that a federal employee was acting within the scope of

employment must be disproved by a preponderance of the evidence). We reject as

without merit Ogeone’s contentions that removal was untimely, that Ogeone’s state

and federal notices of appeal before trial divested the district court of jurisdiction,

and that the district court lacked personal jurisdiction over defendant Yang.

The district court did not abuse its discretion in retaining supplemental

jurisdiction over Ogeone’s state law claim after dismissing her FTCA claim. See

Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1090-91 (9th Cir. 2008) (setting

forth standard of review and explaining that the district court has discretion to

retain supplemental jurisdiction over state law claims even if federal claims are

2 15-15499
dismissed).

The district court did not abuse its discretion in denying Ogeone’s motion to

continue trial because a continuance one day before trial would have seriously

inconvenienced the court and defendant, and Ogeone failed to establish that she

was prejudiced by the denial of the continuance. See United States v. Flynt, 756

F.2d 1352, 1358-59 (9th Cir. 1985) (setting forth standard of review and factors

that the court should consider when reviewing the denial of a request for

continuance).

The district court did not abuse its discretion in granting defendant’s motion

for attorney’s fees because Ogeone’s action was in the nature of assumpsit. See

Haw. Rev. Stat. § 607-14; Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877,

883-84 (9th Cir. 2000) (setting forth standard of review and explaining that § 607-

14 provides for attorney’s fees to the prevailing party in actions in the nature of

assumpsit, which includes all possible contract claims).

We reject as unsupported by the record Ogeone’s contentions regarding the

district court’s violations of her due process rights.

We do not consider matters that were not properly raised before the district

court. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

Ogeone’s motion to supplement the record and request for judicial notice

(Docket Entry Nos. 25 and 26 in appeal No. 15-15499; Docket Entry Nos. 18 and

3 15-15499
19 in appeal No. 15-16005) are denied.

Ogeone’s motion to rule on pending appeal (Docket Entry No. 29 in appeal

No. 15-15499; Docket Entry No. 21 in appeal No. 15-16005) is granted.

AFFIRMED.

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