Weldon v. Ponche

[2] 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA [5] 6 DOUG WELDON, CASE NO. 1:19-CV-1479 AWI SKO 7 Plaintiff ORDER VACATING HEARING, 8 v. ORDER TERMINATING PARTY, AND ORDER ON DEFENDANT’S RULE 9 UNITED STATES OF AMERICA, 12(b)(1) MOTION TO DISMISS 10 Defendant (Doc. Nos. 4, 6) [12] 13 This is a dispute involving allegations of mail tampering between pro se Plaintiff Doug 14 Weldon and Defendant the United States of America.1 The matter was removed from the Fresno 15 County Superior Court small claims division on October 17, 2019. Currently before the Court is a 16 Rule 12(b)(1) motion to dismiss. Hearing on this motion is currently set for December 9, 2019, at 17 1:30 p.m. Plaintiff has not filed an opposition to the motion. After review, the Court has 18 determined that the motion is suitable for decision without oral argument. See Local Rule 230(g). 19 The Court will vacate the December 9, 2019, hearing and issue this order, which resolves the 20 pending Rule 12(b)(1) motion to dismiss. [21] 22 BACKGROUND 23 From the Complaint, between December 2018 and July 2019, Weldon claims that Postal 24 Service worker Margarito Ponche tampered with his mail and an unknown evidence in violation of [25] 1 Weldon initially named Margarito Ponche, an employee of the United States Postal Service, as the sole defendant. 26 However, on October 17, 2019, the United States filed a Certificate of Scope of Employment that certified that Ponche was acting within the scope of his employment with the Postal Service at the time of the alleged incident in Weldon’s 27 complaint. By operation of law, the United States was substituted as the sole defendant in place of Ponche when the Certificate of Scope of Employment was filed. 28 U.S.C. § 2679 (d)(1); Saleh v. Bush, 848 F.3d 880, 888 (9th Cir. 28 2017). However, the docket still that Ponche is a defendant. The Court will order that the docket be corrected to [1] 18 U.S.C. §§ 1700 , 1701, 1702, 1703, 1709, and 1710. Further, Ponche failed to deliver Weldon’s 2 “monetary mail” and “evidence.” Weldon sought $169.86 in damages. [3] 4 LEGAL FRAMWORK 5 Federal Rules of Civil Procedure 12(b)(1)allows for a motion to dismiss based on lack of 6 subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental precept that federal 7 courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 , 8 374 (1978); K2 Am. Corp. v. Roland Oil & Gas, 653 F.3d 1024, 1027 (9th Cir. 2011). Limits 9 upon federal jurisdiction must not be disregarded or evaded. Owen Equip., 437 U.S. 365 , 374 10 (1978); Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984). “It is presumed that a cause lies outside 11 this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting 12 jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); K2 Am., 653 F.3d 13 at 1027 . Rule 12(b)(1) motions may be either facial, where the inquiry is confined to the 14 allegations in the complaint, or factual, where the court is permitted to look beyond the complaint 15 to extrinsic evidence. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Safe Air For 16 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a defendant challenges 17 jurisdiction “facially,” all material allegations in the complaint are assumed true, and the court 18 determines whether the factual allegations are sufficient to invoke the court’s subject matter 19 jurisdiction. See Leite, 392 F.3d at 362; Meyer, 373 F.3d at 1039 . When a defendant makes a 20 factual challenge “by presenting affidavits or other evidence properly brought before the court, the 21 party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden 22 of establishing subject matter jurisdiction.” Meyer, 373 F.3d at 1039 ; see Leite, 749 F.3d at 1121 . 23 The court need not presume the truthfulness of the plaintiff’s allegations under a factual attack. 24 Wood v. City of San Diego, 678 F.3d 1075 , 1083 n.2 (9th Cir. 2011). The plaintiff must show by 25 a preponderance of the evidence each requirement for subject-matter jurisdiction, and as long as 26 the dispute is not intertwined an element of the plaintiff’s cause of action, the court may resolve 27 any factual disputes itself. Leite, 749 F.3d at 1121 . [28] 1 DEFENDANT’S MOTION 2 Defendant’ Argument 3 The United States argues inter alia it has sovereign immunity. Although the Federal Tort 4 Claims Act waives sovereign immunity over certain claims, that act does not apply to claims 5 involving a miscarriage or negligent transmission of letters or postal matters. Because Weldon’s 6 claims relate to non-delivery of his mail, sovereign immunity applies and deprives the court of 7 jurisdiction. 8 Plaintiff’s Opposition 9 Plaintiff has filed no opposition. 10 Discussion 11 The United States Postal Service (“USPS”) is an “independent establishment of the 12 executive branch of the Government of the United States.” MB Fin. Group, Inc. v. United States 13 Postal Service, 545 F.3d 814, 816 (9th Cir. 2008). Accordingly, a suit against the USPS is a suit 14 against the United States. Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir. 15 1985). As a result, the USPS “enjoys sovereign immunity absent a waiver.” MB Fin. Group, 545 16 F.3d at 816; see also Anderson, 761 F.2d at 528 . Although the USPS has the power to sue and be 17 sued in its own name, and the waiver provisions of the Federal Tort Claims Act generally apply to 18 the USPS, there is an important qualification. See MB Fin. Group, 545 F.3d at 816 . The Federal 19 Tort Claims Act excepts thirteen categories of claims from its broad waiver of sovereign 20 immunity. See 28 U.S.C. § 2680 ; MB Fin. Group, 545 F.3d at 816 . One of the categories that 21 retains sovereign immunity to “any claim arising out of the loss, miscarriage, or negligent 22 transmission of letters or postal matter.” 28 U.S.C. § 2680 (b); MB Fin. Group, 545 F.3d at 816 ; 23 Anderson, 761 F.2d at 528 . Courts have no jurisdiction over claims falling under § 2680(b). See 24 Anderson, 761 F.2d at 528 . 25 Here, the United States characterizes the Complaint as involving claims that arise out of 26 the negligent delivery or non-delivery of mail. Weldon’s Complaint is on a pre-printed form and 27 the allegations are sparse. Nevertheless, this reading of the Complaint is reasonable. In the 28 absence of an opposition, the Court agrees with the United States that Weldon is complaining 1 | about the non-delivery, miscarriage, or negligent delivery of his mail. Thus, Weldon’s claims fit 2 squarely within § 2680(b)’s retention of sovereign immunity. See 28 U.S.C. § 2680 (b); Anderson, 3 | 761 F.2d at 528 . Because sovereign immunity applies, the Court lacks subject matter jurisdiction 4 | and must dismiss this lawsuit. See DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117 , 1127 5 Cir. 2019); Vacek v. United States Postal Service, 447 F.3d 1248, 1250 (9t h Cir. 2006); 6 | Anderson, 761 F.2d at 528 . [7] 8 ORDER 9 Accordingly, IT IS HEREBY ORDERED that: 10 | 1. The December 9, 2019, hearing date is VACATED; 11 The Clerk shall TERMINATE Defendant Margarito Ponche as a party to this matter, 12 pursuant to 28 U.S.C. § 2679 (d)(1); 13 }3. Defendant’s Rule 12(b)(1) motion to dismiss (Doc. Nos. 4, 6) is GRANTED; 14 Plaintiff's Complaint is DISMISSED without leave to amend for lack of subject matter 15 jurisdiction; and 16 The Clerk shall CLOSE this case. [17] 18 IT IS SO ORDERED. 19 Dated: _ December 3, 2019 —= ZS Cb □□ SENIOR DISTRICT JUDGE