1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD N. FERRERIA, No. 2:21–cv–264–TLN-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON

DEFENDANT’S MOTION TO DISMISS;

13 v. ANCILLARY ORDER 14 UNITED STATES POSTAL SERVICE, (ECF No. 5.) 15 Defendant. 16 17 Plaintiff Ronald N. Ferreria, proceeding without counsel, filed an action against defendant 18 United States Postal Service (“USPS”) in California Small Claims Court, asserting the mail 19 carrier was negligent in delivering a package to him. (ECF No. 1.) USPS removed to this court, 20 asserting any civil actions for negligence against the government should be disposed of in federal 21 court, as per the Federal Tort Claims Act (“FTCA”).1 (ECF No. 5.) USPS now moves to dismiss 22 plaintiff’s claims, arguing Congress has not waived sovereign immunity concerning negligently- 23 handled mail. (Id.) Plaintiff failed to file opposition, so the court vacated the hearing on the 24 matter and provided plaintiff with an additional opportunity to respond. (ECF No. 7.) Plaintiff 25 did not respond. 26 The court recommends USPS’s motion be GRANTED, and this case be CLOSED. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 28 302(c)(21) for the entry of findings and recommendations. See Local Rule 304. 1 Legal Standard – Motions to Dismiss under Rule 12(b)(1) 2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court’s 3 subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that “may not 4 grant relief absent a constitutional or valid statutory grant of jurisdiction,” and “[a] federal court 5 is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” A- 6 Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and internal quotes omitted). 7 A federal district court generally has original jurisdiction over a civil action when: (1) a 8 federal question is presented in an action “arising under the Constitution, laws, or treaties of the 9 United States” or (2) there is complete diversity of citizenship and the amount in controversy 10 exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). However, there are other issues that can 11 affect a court’s subject matter jurisdiction, including, as here, matters of sovereign immunity for 12 claims arising under the FTCA. See Anderson v. U.S. Postal Serv., 761 F.2d 527 (9th Cir. 1985) 13 (dismissing claim for negligent loss of a package based on lack of subject matter jurisdiction). 14 When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes 15 the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 16 However, the court is not restricted to the face of the pleadings and “may review any evidence, 17 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). The burden to 19 demonstrate subject matter jurisdiction is on the party asserting the claim. See Harris v. KM 20 Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020). 21 Analysis 22 The United States and its federal agencies are immune from suit absent a waiver providing 23 for their consent to be sued. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). “The terms of 24 consent to be sued may not be inferred, but must be unequivocally expressed.” United States v. 25 White Mt. Apache Tribe, 537 U.S. 465, 472 (2003) (citation omitted). A waiver of sovereign 26 immunity is strictly construed in favor of the government, and the plaintiff bears the burden to 27 show that the United States has waived its immunity as to the specific claim asserted. See 28 Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986). 1 Broadly speaking, the United States has waived its sovereign immunity in civil actions 2 under the FTCA “for injury or loss of property, or personal injury or death caused by the 3 negligent or wrongful act or omission of any employee of the Government while acting within the 4 scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1). Federal courts have exclusive 5 jurisdiction over civil actions seeking monetary damages for torts committed by government 6 employees acting in the scope of their employment. Id.; U.S. v. Park Place Assocs., Ltd., 563 7 F.3d 907, 924 (9th Cir. 2009). 8 Relevant here, the Postal Reorganization Act (PRA) provides that the USPS is an 9 independent executive agency of the United States and enjoys sovereign immunity absent a 10 waiver. See 39 U.S.C. § 201; MB Fin. Grp., Inc. v. U.S. Postal Serv., 545 F.3d 814, 816 (9th Cir. 11 2008). The PRA waives the Postal Service’s sovereign immunity to some extent by granting the 12 Postal Service the power “to sue and be sued in its official name,” and it provides that the Federal 13 Tort Claims Act (FTCA) “shall apply to tort claims arising out of activities of the Postal 14 Service[.]” Dolan v. United States Postal Serv., 546 U.S. 481, 484 (2006) (citations omitted). 15 The FTCA provides the exclusive remedy for tort actions against the Postal Service. See 28 16 U.S.C. § 2679(a); Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998). 17 However, under the FTCA, Congress has explicitly provided an exception for its waiver 18 of sovereign immunity against USPS concerning “[a]ny claim arising out of the loss, miscarriage, 19 or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). This includes 20 “negligen[tly] causing mail to be lost or to arrive late, in damaged condition, or at the wrong 21 address.” Dolan, 546 U.S. at 486 (finding that Section 2680(b) applies categorically to “injuries 22 arising, directly or consequentially, because mail either fails to arrive at all or arrives late”)). In 23 Dolan, the Court further explained that the exception extends to “to situations involving personal 24 or financial harms arising from non-delivery or late delivery of sensitive materials or information 25 (e.g., medicines or a mortgage foreclosure notice) or from negligent handling of a mailed parcel 26 (e.g., shattering of shipped china).” Id. 27 Here, plaintiff asserts that “[o]n Nov. 17, 2020, the mail man supposed [sic] to deliver my 28 package and left it in the door,” but that he “lost my important documents.” (See ECF No. 1 at 5- 1 | 6.) Plaintiffs claim for lost or mishandled mail falls squarely within the FTCA postal-matter 2 | exception. 28 U.S.C. § 2680(b); Dolan, 546 U.S. at 489; see also, e.g., Beasor v. U.S.P.S., 2018 3 | WL 1845471, *3 (E.D. Cal. Apr. 18, 2018) (“Plaintiff's claim arises out of the negligent 4 | transmission of postal matter and clearly falls within the postal matter exception to the FTCA.”). 5 | Because the federal government has not explicitly waived its sovereign immunity for this type of 6 | claim, this case should be dismissed for lack of subject matter jurisdiction. Anderson, 761 F.2d 7 | 527. Farther, plaintiff's failure to file opposition to USPS’s motion is construed as non- 8 | opposition to dismissal. See Local Rule 230(c) (‘‘A failure to file a timely opposition may also be 9 | construed by the Court as a non-opposition to the motion.”). 10 ORDER AND RECOMMENDATIONS 11 In light of the above, the court now VACATES the July 15, 2021 status conference. (See 12 | □□□ □□□ 2.) Further, it is HEREBY RECOMMENDED that: 13 1. Defendant’s motion to dismiss (ECF No. 5) be GRANTED; 14 2. Plaintiff's complaint (ECF No. 1) be DISMISSED WITH PREJUDICE for lack of 15 subject matter jurisdiction; and 16 3. The Clerk of the Court be directed to CLOSE this case. 17 | These findings and recommendations are submitted to the United States District Judge assigned to 18 the case. 28 U.S.C. § 636(b)(). Within fourteen (14) days after being served with these findings 19 | and recommendations, any party may file written objections with the court and serve a copy on all 20 | parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 21 || Recommendations.” Any reply to the objections shall be served on all parties and filed with the 22 | court within seven (7) days after service of the objections. Failure to file objections within the 23 || specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 24 | F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 || Dated: March 30, 2021 Foci) Aharon 7 KENDALL J. NE ferr.264 UNITED STATES MAGISTRATE JUDGE 28