NOT FOR PUBLICATION FILED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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