                                                                           FILED
                            NOT FOR PUBLICATION                             APR 30 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RONAL J. KISKILA and DONNA E.                    No. 09-56959
KISKILA,
                                                 D.C. No. 3:08-cv-01032-JM-CAB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

UNITED STATES OF AMERICA,

              Defendant - Appellee.



                   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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“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


                                           3
(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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