1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHEILA HALOUSEK, No. 2:19-cv-0588-MCE-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. 14 UNITED STATES POSTAL SERVICE, (ECF No. 16)

ET AL.,

15 Defendants. 16 17 Presently pending before the court is defendant United States Postal Service’s (“USPS”) 18 Motion to Dismiss for lack of subject-matter jurisdiction.1 Plaintiff has not filed an opposition, 19 and the present motion was submitted without a hearing pursuant to Local Rule 230(g). 20 The undersigned has considered defendant’s motion and the appropriate portions of the 21 record in this case and, for the reasons stated below, recommends that defendant USPS’s Motion 22 to Dismiss be granted, non-moving defendant Golden Eagle Market be dismissed, and plaintiff’s 23 First Amended Complaint be dismissed with prejudice. 24 /// 25 //// 26 //// 27 1 This motion is referred to the undersigned by Local Rule 302(c)(21) for the entry of findings 28 and recommendations. See 28 U.S.C. § 636(b)(1)(B). 1 I. BACKGROUND2 2 Plaintiff is suing the United States Postal Service under the Federal Tort Claims Act based 3 on the alleged loss or mishandling of plaintiff’s mail at her PO Box located inside the Golden 4 Eagle Market in Marysville, California. (See ECF No. 4 at 5.) Plaintiff’s “Statement of Claim” 5 spans a single page and is largely vague. Based on plaintiff’s complaint, Golden Eagle Market is 6 a contractor of USPS who manages and operates the PO Box location. (See id. at 1-2.) Although 7 plaintiff names Golden Eagle Market as a defendant, plaintiff does not address the Market in her 8 complaint and instead attributes the alleged wrongdoings entirely to USPS including “the post 9 office, postal workers, and post office contractors[.]” (Id. at 5.) 10 Plaintiff claims that, on an unspecified date, she attempted to access her PO Box but found 11 that the locks were changed. (See id.) At that time, plaintiff claims she had been forwarding her 12 mail from the PO Box for an unspecified period of time due to an extended stay with family. (Id.) 13 When plaintiff inquired about the changed locks, plaintiff claims defendants informed her that she 14 no longer needed the PO Box since she was forwarding her mail. (Id.) Based solely on these 15 facts, plaintiff claims that defendants must have intentionally given access to her PO Box and 16 mail to others without her knowledge or consent, despite the fact that her complaint indicates the 17 mail was being forwarded. (Id.) Subsequently and as a result of this situation, plaintiff alleges 18 that “many months” of “[p]laintiff’s monthly CalPERS’ stipend [checks were] lost/missing.” 19 (Id.) Plaintiff claims that she had sole access to the PO Box, and upon realizing the locks were 20 changed, “reminded [d]efendants that[] her PO Box was for her use as long as she continued to 21 pay for it, and at that time it was still paid for.” (Id.) Therefore, plaintiff claims that “the loss of 22 her mail and checks, her personal property, was intentional and deliberate[.]” (Id.) Plaintiff does 23 not indicate whether she has attempted to contact Golden Eagle Market or the state agency 24 responsible for the disbursement of her checks. (See generally ECF No. 4). 25 Plaintiff indicates that she contacted USPS in person at the West Sacramento distribution 26 center, and by phone, at which time she filed a claim for her lost checks. (Id. at 5.) Plaintiff 27 2 All facts are derived from plaintiff’s First Amended Complaint unless otherwise noted. (See 28 ECF No. 4.) 1 states that she has not received any final disposition of the claim she filed with USPS and thus 2 plaintiff seeks “replacement (or repayment) of her lost CalPERS checks . . . as well as punitive 3 and exemplary damages[.]” (Id.) 4 Plaintiff filed the current action on April 4, 2019. (ECF No. 1.) USPS filed a timely 5 motion to dismiss, which is presently before the court. (ECF No. 16.) Defendant Golden Eagle 6 Market has not entered this matter. 7 II. LEGAL STANDARDS 8 A. Motion to Dismiss Under FRCP 12(b)(1) 9 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the 10 court’s subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that 11 “may not grant relief absent a constitutional or valid statutory grant of jurisdiction,” and “[a] 12 federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively 13 appears.” A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and internal quotes 14 omitted). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court 15 takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 16 2004). However, the court is not restricted to the face of the pleadings and “may review any 17 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 18 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “When subject 19 matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the 20 burden of proving jurisdiction in order to survive the motion.” Tosco Corp. v. Communities for a 21 Better Env’t., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds 22 by Hertz Corp v. Friend, 559 U.S. 77 (2010). 23 B. Sovereign Immunity and the Federal Tort Claims Act 24 The United States and its federal agencies are immune from suit absent a waiver providing 25 for their consent to be sued. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). “The terms of 26 consent to be sued may not be inferred, but must be ‘unequivocally expressed.’” United States v. 27 White Mt. Apache Tribe, 537 U.S. 465, 472 (2003) (citation omitted). A waiver of sovereign 28 immunity is strictly construed in favor of the government, and the plaintiff bears the burden to 1 show that the United States has waived its immunity as to the specific claim asserted. 2 Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986). 3 The Postal Reorganization Act (PRA) provides that the USPS is an independent executive 4 agency of the United States and enjoys sovereign immunity absent a waiver. See 39 U.S.C. 5 § 201; MB Fin. Grp., Inc. v. U.S. Postal Serv., 545 F.3d 814, 816 (9th Cir. 2008). The PRA 6 waives the Postal Service’s sovereign immunity to some extent by granting the Postal Service the 7 power “to sue and be sued in its official name,” and it provides that the Federal Tort Claims Act 8 (FTCA) “shall apply to tort claims arising out of activities of the Postal Service[.]” Dolan v. 9 United States Postal Serv., 546 U.S. 481, 484 (2006) (citations omitted). The FTCA provides the 10 exclusive remedy for tort actions against the Postal Service. See 28 U.S.C. § 2679(a); Kennedy v. 11 U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam). 12 The United States, and thereby the USPS, has waived its sovereign immunity in civil 13 actions under the FTCA “for injury or loss of property, or personal injury or death caused by the 14 negligent or wrongful act or omission of any employee of the Government while acting within the 15 scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1). The district court has exclusive 16 jurisdiction over civil actions seeking monetary damages for torts committed by government 17 employees acting in the scope of their employment. United States v. Park Place Assocs., Ltd., 18 563 F.3d 907, 924 (9th Cir. 2009).

19 III. DISCUSSION

20 A. The federal government has not waived its sovereign immunity under the FTCA regarding claims for the negligent handling or loss of mail. 21 22 The Court lacks subject-matter jurisdiction over plaintiff’s claim against USPS for the loss 23 of her mail. Under the FTCA, the USPS has explicitly provided an exception for its waiver of 24 sovereign immunity for “[a]ny claim arising out of the loss, miscarriage, or negligent 25 transmission of letters or postal matter.” 28 U.S.C. § 2680(b). This includes “negligence 26 causing mail to be lost or to arrive late, in damaged condition, or at the wrong address.” Dolan, 27 546 U.S. at 486 (citing Raila v. United States, 355 F.3d 118, 121 (2nd Cir. 2004) (finding that 28 1 § 2680(b) applies categorically to “injuries arising, directly or consequentially, because mail 2 either fails to arrive at all or arrives late”)). In Dolan, the Court further explained that the 3 exception extends “to situations involving personal or financial harms arising from nondelivery or 4 late delivery of sensitive materials or information (e.g., medicines or a mortgage foreclosure 5 notice) or from negligent handling of a mailed parcel (e.g., shattering of shipped china).” Id. 6 Plaintiff claims that her mail “should have been secured by the post office,” and as a result 7 of some unknown and unspecific alleged wrongdoing, plaintiff’s retirement checks are 8 “lost/missing.” (See ECF No. 4 at 5.) Plaintiff’s claim for lost or mishandled mail falls squarely 9 within the FTCA postal matter exception. See 28 U.S.C. § 2680(b); Dolan, 546 U.S. at 489; 10 Beasor v. United States Postal Serv., 2018 U.S. Dist. LEXIS 65496, at *7 (E.D. Cal. Apr. 18, 11 2018) (“The Court finds that Plaintiff's claim arises out of the negligent transmission of postal 12 matter and clearly falls within the postal matter exception to the FTCA.”); see also Bono v. 13 United States, 145 F. Supp. 2d 441, 445 (D.N.J. 2001) (finding that § 2680(b) covers the loss or 14 miscarriage of mail). Therefore, the federal government has not explicitly waived its sovereign 15 immunity for this type of claim, and the USPS should therefore be dismissed from this case. 16 B. Non-moving defendant Golden Eagle Market should be dismissed. 17 “A District Court may properly on its own motion dismiss an action as to defendants who 18 have not moved to dismiss where such defendants are in a position similar to that of moving 19 defendants or where claims against such defendants are integrally related.” Silverton v. Dep't of 20 Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). “Such a dismissal may be made without notice 21 where the [plaintiffs] cannot possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 22 991 (9th Cir. 1987). The court’s authority in this regard includes sua sponte dismissal as to 23 defendants who have not been served and defendants who have not yet answered or appeared. 24 Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir. 1995) (“We 25 have upheld dismissal with prejudice in favor of a party which had not yet appeared, on the basis 26 of facts presented by other defendants which had appeared”); see also Bach v. Mason, 190 F.R.D. 27 567, 571 (D. Idaho 1999); Ricotta v. California, 4 F. Supp. 2d 961, 978-79 (S.D. Cal. 1998). 28 1 Here, it does not appear that defendant Golden Eagle Market has been served, and it has 2 not responded to plaintiff’s complaint. However, plaintiff assigns all liability in this matter to 3 USPS, and plaintiff does not address any purported relationship between USPS and Golden Eagle 4 Market or how the Market could otherwise be liable in this action. Therefore, plaintiff’s 5 complaint does not allege sufficient facts to state a claim upon which relief could possibly be 6 granted against Golden Eagle Market. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim 7 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 8 reasonable inference that the defendant is liable for the misconduct alleged.”); Omar, 813 F.2d at 9 991 (holding that a court may dismiss a non-moving defendant sua sponte pursuant to Fed. R. 10 Civ. Proc. 12(b)(6)). Accordingly, the undersigned recommends that defendant Golden Eagle 11 Market be dismissed as well. See Omar 813 F.2d at 991; Columbia Steel Fabricators, 44 F.3d at 12 802. 13 IV. CONCLUSION 14 The undersigned finds that the court lacks subject-matter jurisdiction over plaintiff’s claim 15 and plaintiff’s complaint should be dismissed with prejudice. See Beasor, 2018 U.S. Dist. LEXIS 16 65496, at *7 (dismissing a similar claim with prejudice for lack of subject-matter jurisdiction). 17 Because the undersigned recommends dismissing this matter pursuant to § 2680(b), the court 18 does not address the remaining issues raised in defendant’s motion. 19 Accordingly, it is HEREBY RECOMMENDED that: 20 1. Defendant’s Motion to Dismiss (ECF No. 16) be GRANTED 21 2. Plaintiff’s First Amended Complaint (ECF No. 4) be DISMISSED with prejudice; and 22 3. The Clerk of the Court be directed to close this case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 25 days after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 28 shall be served on all parties and filed with the court within fourteen (14) days after service of the wAIDS 6 LDU VOM YVOOTIVINS LING □□ RAMU ON PO Oe Yt

1 | objections. The parties are advised that failure to file objections within the specified time may 2 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 3 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 | Dated: April 30, 2020 Fens Arn 6 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

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