Moss v. Social Security Administration

Filing 10

ORDER that Defendant's 8 Motion to Dismiss is granted. ORDERED directing the Clerk of Court to terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 3/20/2014.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lorrie Moss,

No. CV-13-02608-PHX-GMS
Plaintiff,

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v.

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Social Security Administration,

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ORDER

Defendant.

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Pending before the Court is Defendant’s Motion to Dismiss (Doc. 8). For the
following reasons the Motion is granted.

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BACKGROUND

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Plaintiff filed a Chapter 7 no-asset bankruptcy on November 19, 2012. (Id.) The

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docket in Plaintiff’s bankruptcy case shows a discharge was entered on March 5, 2013

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and termination on March 13, 2013. (Doc. 1-3, at 5.) During the bankruptcy proceeding,

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an overpayment reimbursement owed from Plaintiff to the Social Security Administration

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(SSA) was discharged.

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overpayment that occurred before Plaintiff’s bankruptcy petition. (Doc. 8-1 at ¶ B-C.)

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There is a continuing administrative proceeding with the SSA regarding an overpayment

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amount to Plaintiff that occurred after Plaintiff’s bankruptcy petition. (Doc. 8-1 at ¶ G.)

(Doc. 8 at 2.)

However this amount only included the

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Plaintiff filed her Complaint in Superior Court of Arizona Maricopa County on

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October 15, 2013. The Complaint consisted of one hand-written paragraph requesting a

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hearing and damages regarding Defendant’s violation of a bankruptcy stay. (Doc. 1-2, at

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13.) Defendant removed the case to this Court from Maricopa County Superior Court in

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December 2013 based on 28 U.S.C. § 1442(a)(1). (Doc. 1.) Defendant filed a motion to

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dismiss the Complaint and action for lack of subject matter jurisdiction on January 13,

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2014. (Doc. 8.) On February 24, 2014, after no response from Plaintiff, the Court issued

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an Order stating “that LRCiv 12.1(b) and 56.1(d) provides that an opposing party to a

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motion to dismiss for lack of jurisdiction ‘may, unless otherwise ordered by the Court,

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have thirty (30) days after service within which to serve and file a responsive

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memorandum in opposition.’” (Doc. 9 at 1.) The Court ordered Plaintiff to file and serve

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a responsive pleading by March 10, 2014. In the order, the Court stated that “[s]hould

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Plaintiff fail to comply, the Court may consider such failure to respond as consent to the

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granting of the motion. This could result in the dismissal of Plaintiff’s claim(s).” (Id. at

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2.) This second deadline has now passed.

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DISCUSSION

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Local Rule of Civil Procedure 7.2 provides that an unrepresented party’s failure to

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respond to a motion “may be deemed a consent to the . . . granting of the motion and the

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Court may dispose of the motion summarily.” LRCiv 7.2(i). Federal Rule of Civil

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Procedure 60(b)(1) provides that a court “may relieve a party or its legal representative

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from a final judgment, order, or proceeding” for “mistake, inadvertence, surprise, or

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excusable neglect.” However, “mistakes construing the rules do not usually constitute

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‘excusable’ neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S.

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380, 392 (1993). This Circuit has made clear that “[p]ro se litigants must follow the same

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rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1986); see Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (pro se

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litigants should not be treated more favorably than parties represented by attorneys);

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United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (pro se litigants are subject to

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the same good faith limitations imposed on lawyers). Plaintiff’s failure to respond to

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Defendant’s Motion to Dismiss and the Court’s order are sufficient grounds for dismissal.

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However, as Defendant’s Motion to Dismiss also succeeds on the merits.

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The Court lacks subject matter jurisdiction over this case. Suits against the United

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States and its agencies are barred by sovereign immunity unless permitted by an explicit

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waiver of immunity from suit. FDIC v. Meyer, 510 U.S. 471 (1994). The Social Security

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Administration, as an agency of the United States, is entitled to sovereign immunity.

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Gerritsen v. Consulado General de Mexico, 988 F.2d 340, 343 (9th Cir. 1993). No

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statutory waiver of sovereign immunity is applicable. At any rate, statutory waivers of

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sovereign immunity are strictly construed and any ambiguities resolved against allowing

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suit. United States v. Williams, 514 U.S. 527, 531 (1995); See also United States v.

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Nordic Village, 503 U.S. 30, 37 (1992). This Court does not have jurisdiction over

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Plaintiff’s bankruptcy case. Nor does the state court where the Complaint was originally

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filed.

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Therefore,

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IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 8) is granted.

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IT IS FURTHER ORDERED directing the Clerk of Court to terminate this

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action and enter judgment accordingly.
Dated this 20th day of March, 2014.

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