Hastings v. The United States Postal Service et al

Filing 18

ORDER Granting Defendants' 10 Motion to Dismiss. Plaintiff's claim against the Postal Service is dismissed with prejudice and without leave to amend. Plaintiff's claim against the United States is dismissed with leave to amend. Plaintiff may filed a second amended complaint within fourteen days of this order. Signed by Judge Jeffrey T. Miller on 7/10/2017. (rlu)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WENDY HASTINGS, Case No.: 16cv1259 JM (JLB) Plaintiff, 12 13 14 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS v. THE UNITED STATES POSTAL SERVICE and THE UNITED STATES OF AMERICA, 15 16 Defendants. 17 18 19 The United States Postal Service (“the Postal Service”) and the United States of 20 America (“the United States”) (collectively, “Defendants”) move to dismiss the first 21 amended complaint (“FAC”) of Plaintiff Wendy Hastings for lack of subject matter 22 jurisdiction and failure to state a claim. (Doc. No. 10.) Plaintiff opposes the motion. 23 The court finds the matter suitable for decision without oral argument pursuant to Civil 24 Local Rule 7.1(d)(1) and, for the following reasons, grants Defendants’ motion. 25 BACKGROUND 26 On September 15, 2015, Plaintiff fell while visiting a San Diego post office, 27 fracturing her kneecap and arm. (See generally Doc. No. 8.) About two months later, 28 and pursuant to the Federal Tort Claims Act (“FTCA”), Plaintiff filed an administrative 1 16cv1259 JM (JLB) 1 claim with the Postal Service for injuries incurred as a result of that fall. (See id. at 3, 2 ¶ 9.) The Postal Service denied the claim on April 27, 2016. (See Doc. No. 10-3 at 6–7.) 3 Thereafter, in May 2016, Plaintiff initiated this action, filing a complaint (“the original 4 complaint”), again pursuant to the FTCA, against the Postal Service. (Doc. No. 1.) 5 Plaintiff did not name the United States as a defendant in the original complaint. (See id. 6 ¶ 3.) Plaintiff served the Postal Service, (see Doc. No. 5), but there is no record on the 7 docket, or allegations in the FAC, that Plaintiff personally delivered, hand delivered, or 8 physically mailed process (i.e., the original complaint and summons) to either the United 9 States Attorney’s Office or Attorney General. While the United States Attorney’s Office 10 received an automatic, court-generated notice of electronic filing (“NEF”)1 for both the 11 original complaint and summons,2 the Attorney General did not receive an NEF for 12 either. 13 On May 8, 2017, the Postal Service moved to dismiss the original complaint for 14 lack of subject matter jurisdiction. Four days later, Plaintiff filed the FAC, adding the 15 United States as a defendant for the first time. (See Doc. No. 8.) Defendants filed the 16 instant motion two weeks later. 17 LEGAL STANDARDS 18 Defendants move to dismiss the FAC under two different provisions of Federal 19 Rule of Civil Procedure 12. 20 I. Rule 12(b)(1) – Lack of Subject Matter Jurisdiction Federal courts are courts of limited jurisdiction. “Without jurisdiction the court 21 22 cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it 23 ceases to exist, the only function remaining to the court is that of announcing the fact and 24 25 26 27 28 1 An NEF is an email giving notice of the electronic filing; it is not the actual filed document. Instead, the party receiving the email may download the filed document from a link contained in the email. 2 The court grants Plaintiff’s request for judicial notice of the NEFs and case docket. (Doc. No. 13.) 2 16cv1259 JM (JLB) 1 dismissing the cause.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 2 (1998). A party may make either a facial or factual attack on subject matter jurisdiction. 3 See, e.g., Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). 4 In resolving a facial challenge, as Defendants make here, the court considers whether 5 “the allegations contained in [the] complaint are insufficient on their face to invoke 6 federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 7 2004). The court must accept the allegations as true and must draw all reasonable 8 inferences in Plaintiff’s favor, Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004), 9 but ultimately, as the party putting the claims before the court, Plaintiff bears the burden 10 of establishing jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 11 377 (1994). 12 II. 13 Rule 12(b)(6) – Failure to State a Claim A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the 14 legal sufficiency of the pleadings. To overcome such a motion, the complaint must 15 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 16 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference that 18 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009). Facts merely consistent with a defendant’s liability are insufficient to survive a 20 motion to dismiss because they establish only that the allegations are possible rather than 21 plausible. Id. at 678–79. The court must accept as true the facts alleged in a well-pled 22 complaint, but mere legal conclusions are not entitled to an assumption of truth. Id. The 23 court must construe the pleading in the light most favorable to the non-moving 24 party. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995). 25 DISCUSSION 26 The court will first address Plaintiff’s claim against the Postal Service before 27 turning to Plaintiff’s claim against the United States. 28 /// 3 16cv1259 JM (JLB) 1 I. 2 Plaintiff’s Claim Against the Postal Service The FAC, which asserts a single claim under the FTCA, names both the United 3 States and the Postal Service as defendants. Defendants argue that only the United States 4 is properly within the court’s jurisdiction. The court agrees. 5 Although FTCA claims can arise from the acts or omissions of United States 6 agencies, see 28 U.S.C. § 2671, a federal agency is not subject to suit under the FTCA, 7 see 28 U.S.C. § 2679(a)–(b)(1); Allen v. Veterans Administration, 749 F.2d 1386, 1388 8 (9th Cir. 1984) (“Individual agencies of the United States may not be sued [under the 9 FTCA].”). Instead, the “FTCA is the exclusive remedy for tortious conduct by the 10 United States, and it only allows claims against the United States.” F.D.I.C. v. Craft, 157 11 F.3d 697, 706 (9th Cir. 1998); Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) 12 (“The United States is the only proper defendant in an FTCA action.”); Kennedy v. 13 United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (“Because the United 14 States is the only proper party defendant in an FTCA action, the district court correctly 15 dismissed [the] complaint as improperly filed against the Postal Service . . . .”). 16 Based on this clear authority, the court grants Defendants’ motion to dismiss 17 Plaintiff’s claim against the Postal Service, with prejudice, for lack of jurisdiction. 18 II. 19 Plaintiff’s Claim Against the United States Defendants argue that Plaintiff’s claim against the United States is time barred 20 because: (1) the six-month limitations period to bring suit against the United States 21 expired before Plaintiff filed the FAC, and (2) the FAC does not relate back to the 22 original complaint. The court agrees in both respects. 23 A. 24 Under the FTCA, when a federal agency denies an administrative claim, a claimant Plaintiff Filed the FAC Too Late 25 must file suit within six months from the date the agency mailed notice of final denial of 26 the claim. See 28 U.S.C.S. § 2401(b); Adams v. United States, 658 F.3d 928, 933 (9th 27 Cir. 2011). The letter denying Plaintiff’s claim was mailed on April 27, 2016; 28 accordingly, Plaintiff had until October 27, 2016, to file suit against the United States 4 16cv1259 JM (JLB) 1 (the only proper defendant, as discussed above). Plaintiff missed the deadline by over six 2 months. The FAC, which named the United States for the first time, was filed on May 3 12, 2017. Thus, unless the FAC relates back to the original complaint, Plaintiff’s FTCA 4 claim against the United States is now time barred. 5 B. 6 7 The FAC Does Not Relate Back 1. The Rules on Relation Back Federal Rule of Civil Procedure 15(c) allows a plaintiff to amend a complaint, 8 “after a statute of limitation period has run, to accurately name a defendant who was not 9 correctly named in the pleading before the limitation period had run.” See G.F. Co. v. 10 Pan Ocean Shipping Co., 23 F.3d 1498, 1501 (9th Cir. 1994). Generally, an amendment 11 seeking to change a party “relates back” to the original pleading if the amendment asserts 12 a claim that arose out of the conduct, transaction, or occurrence set out in the original 13 pleading and, “within the time period provided by Rule 4(m) for serving the summons 14 and complaint [90 days], the party to be brought in by amendment: (i) received notice of 15 the action that it will not be prejudiced in defending on the merits; and (ii) knew or 16 should have known that the action would have been brought against it, but for a mistake 17 concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(i)–(ii). This is often 18 referred to as the “general notice provision.” See Miles v. Department of the Army, 881 19 F.2d 777, 781 (9th Cir. 1989). 20 When a plaintiff seeks to add the United States as a defendant, an amended 21 complaint will relate back to the original complaint if the plaintiff satisfies either the 22 general notice provision or the so-called “government notice provision” set forth in Rule 23 15(c)(2). That government notice provision provides that when the United States is 24 added as a defendant by amendment, subdivisions (i) and (ii) of the general notice 25 provision are satisfied if, “during the stated period, process was delivered or mailed to the 26 United States attorney or the United States attorney’s designee, to the Attorney General 27 of the United States, or to the officer or agency.” Fed. R. Civ. P. 15(c)(2) (emphasis 28 added). 5 16cv1259 JM (JLB) 1 2. 2 Analysis a. 3 The Parties’ Positions Defendants argue that Plaintiff cannot satisfy either the general notice provision or 4 the government notice provision. In her opposition, Plaintiff acknowledges that she “is 5 not relying on the general notice provision to invoke the relation back doctrine but 6 instead the government notice provision.” (Doc. No. 12 at 6.)3 Plaintiff claims that she 7 satisfied the government notice provision when “[t]he summons and complaint were 8 ‘delivered’ and electronically ‘mailed’” to the United States Attorney by way of an 9 automatically generated NEF. Plaintiff’s argument, in a nutshell, is that an NEF, sent by 10 the court to an email account maintained by the United States Attorney’s Office, 11 constitutes “process” that is “delivered” or “mailed” as the terms are used in Rule 12 15(c)(2). Defendants, in reply, contend that “[n]othing in Rule 15(c)(2) or the Federal 13 Rules of Civil Procedure supports such a novel interpretation of the terms ‘delivered’ or 14 ‘mailed.’”4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s concession on this point is merited. To satisfy the general notice provision, the Ninth Circuit requires that both the United States Attorney and the Attorney General receive notice during the statutory period. See Miles, 881 F.2d at 782 (stating that “a plaintiff may substitute the United States as a defendant after the expiration of the statute of limitations only if both the U.S Attorney and the Attorney General received notice prior to the running of the statutory period”); Allen, 749 F.2d at 1390 (“Only if the United States Attorney and the Attorney General receive notice of the suit prior to the running of the statute of limitations will a plaintiff be allowed to substitute the United States as a defendant under Rule 15(c).”). Here, there is no allegation that the Attorney General received any notice of the original complaint, via an NEF or otherwise. 4 Defendants also claim that the “only ‘process,’ i.e., summons and complaint, delivered or mailed to the United States Attorney or Attorney General in this case occurred on March 9, 2017 and March 15, 2017, respectively, almost 10 months after Plaintiff filed suit.” In support, Defendants attach the declaration of Mary C. Wiggins, Civil Process Clerk at the United States Attorney’s Office for the Southern District of California. The court cannot consider Ms. Wiggins’s declaration on a Rule 12(b)(6) motion to dismiss, however. Rather, in deciding a Rule 12(b)(6) motion, a court may consider only the face of the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice. United States v. Ritchie, 342 3 6 16cv1259 JM (JLB) 1 2 b. The Court’s View The Ninth Circuit instructs that “Rule 15(c) is to be interpreted literally.” Miles, 3 881 F.2d at 782. Reading Rule 15(c)(2) literally, the court finds that it does not embrace 4 automatically generated email notifications of filings that allow the recipients of those 5 emails to download the filings. To the contrary, a literal interpretation of the terms 6 “process,” “delivered” and “mailed” suggest that a copy of the complaint and summons 7 must be personally or hand delivered, or put in the U.S. Mail. Indeed, in evaluating those 8 terms as they are used in other Federal Rules of Civil Procedure, numerous courts have 9 determined the same. See, e.g., Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9th 10 Cir. 1996) (stating that “mail” as used in Rule 5 means U.S. Mail); Rhodes v. U.S. I.R.S., 11 2010 WL 5392636, at *4 (D. Ariz. Dec. 28, 2010) (stating that “delivery of the complaint 12 and summons” as used in Rule 4(i)(1)(A) “means personal service” (citing Whale v. 13 United States, 792 F.2d 951, 953 (9th Cir. 1986)); Gabriel v. United States, 30 F.3d 75, 14 77 (7th Cir. 1994) (holding that “delivering a copy of the summons and of the complaint 15 on the United States Attorney,” as stated in Rule 4, “require[s] that the United States 16 Attorney be personally served”). 17 Moreover, as Defendants point out, if the promulgators of the Federal Rules of 18 Civil Procedure intended for Rule 15 to encompass electronic means, they could have 19 said so. They certainly know how to make the distinction between “mailing” and 20 “delivering,” on the one hand, and “sending . . . by electronic means,” on the other—Rule 21 5 does just that. See Fed. R. Civ. P. 5 (allowing service by electronic means only if the 22 recipient consented in writing, and only for orders, pleadings “filed after the original 23 24 25 26 27 28 F.3d 903, 907–08 (9th Cir. 2003); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1020 (C.D. Cal. 2015). Thus, instead of accepting the facts as declared by Ms. Wiggins, the court notes the absence of facts (in the form of allegations in the FAC) or even argument (in Plaintiff’s opposition) demonstrating that Plaintiff mailed or delivered process, in any manner other than an NEF, to the United States Attorney or Attorney General within the period provided by Rule 4(m). 7 16cv1259 JM (JLB) 1 complaint,” discovery papers, motions, and other similar papers (emphasis added)). 2 Unlike Rule 5, Rule 15 makes no mention of electronic means. 3 Nor do the Advisory Committee Notes accompanying Rule 15 suggest that 4 delivering or mailing process includes sending by electronic means. The 1966 5 amendment of Rule 15, which added the government notice provision, refers to Rule 4: 6 “[I]n the government cases[,] the first and second requirements [of the general notice 7 requirement, Rule 15(c)(1)(C)(i)–(ii)] are satisfied when the government has been 8 notified in the manner there described (see Rule 4(d)(4) and (5)).” Fed. R. Civ. P. 15 9 advisory committee’s notes to 1966 Amendment, 39 F.R.D. 69, 83 (1966). The 10 referenced provisions of Rule 4 (currently Rule 4(i)(1)–(2)) provide, in turn, that service 11 on the United States Attorney is accomplished in one of two ways: by “(i) deliver[ing] a 12 copy of the summons and of the complaint to the United States attorney for the district 13 where the action is brought—or to an assistant United States attorney or clerical 14 employee whom the United States attorney designates in a writing filed with the court 15 clerk—or (ii) send[ing] a copy of each by registered or certified mail to the civil-process 16 clerk at the United States attorney’s office.” Fed. R. Civ. P. 4(i). 17 Again, there is no mention of electronic means. And in fact, it was only in 1993 18 that Rule 4 was amended “to permit the United States attorney to be served by registered 19 or certified mail.” See Fed. R. Civ. P. 4 advisory committee’s notes to 1993 Amendment 20 (emphasis added). Since common sense suggests that this amendment aimed to make 21 service less burdensome on plaintiffs, rather than more, and since service by electronic 22 means is explicitly provided for in other circumstances but is absent from Rule 4, there is 23 no reason to believe that Rule 4 has at any time, then or now, included electronic means.5 24 25 26 27 28 5 A contrary result would allow plaintiffs in the Southern District of California to rely on the NEF to serve process on the United States Attorney whenever they file a case against a federal government agency. That would nullify not only the requirements of Rule 4, but also the requirements of the court’s own local rules. See CivLR 4.1.a; see also e.g., Mares v. United States, No. 13-cv-6187-CJS, 2014 U.S. Dist. LEXIS 77465, *6–7 8 16cv1259 JM (JLB) 1 Thus, the court agrees with Defendants that “if the terms ‘delivery’ or ‘mail’ in Rule 4(i) 2 do not include delivery or mail by electronic means and instead require hard copy mailing 3 or delivery of the summons and complaint, the same should hold true for Rule 15(c)(2),” 4 especially considering the Advisory Committee’s own citation to Rule 4. See Magnuson 5 v. Video Yesteryear, 85 F.3d 1424, 1431 (9th Cir. 1996) (“Nor, on a practical level, does 6 it make sense to adopt an approach that interprets the term ‘mail’ differently for the 7 purposes of different rules within the Federal Rules of Civil Procedure.”). 8 9 10 In short, the plain text of Rule 15(c)(2), its contrast with Rule 5, and the Advisory Committee’s guidance all indicate that the government notice provision cannot be satisfied by means of an NEF. 11 Furthermore, it bears noting that Plaintiff’s interpretation of Rule 15(c)(2) 12 implicates the United States’ sovereign immunity, and the court must strictly construe 13 any waiver by the United States of its sovereign immunity. As the Supreme Court 14 proclaimed in United States v. Kubrick, 444 U.S. 111 (1979), “We should also have in 15 mind that the [FTCA] waives the immunity of the United States and that in construing the 16 statute of limitations, which is a condition of that waiver, we should not take it upon 17 ourselves to extend the waiver beyond that which Congress intended.” Id. at 117–18; see 18 also United States v. Nordic Vill. Inc., 503 U.S. 30, 34 (1992) (“[T]he traditional 19 principle [is] that the Government’s consent to be sued must be construed strictly in favor 20 of the sovereign, and not enlarged beyond what the language requires.” (internal 21 quotations and alterations omitted)); Eno v. Jewell, 798 F.3d 1245, 1252 (9th Cir. 2015) 22 (stating that the Ninth Circuit “strictly construe[s] waivers of sovereign immunity”). 23 24 25 26 27 28 (W.D.N.Y. June 5, 2014) (rejecting argument that service on the United States Attorney was accomplished through the court’s electronic case filing system where the United States Attorney’s Office in the Western District of New York was a registered user and stating that an “initial pleading in a lawsuit cannot be served electronically and must be served in the manner specified by Rule 4”). 9 16cv1259 JM (JLB) 1 If the court were to find that an NEF constitutes mail or delivery of process— 2 something no other court appears to have done—it would broaden the scope of the 3 relation back doctrine, which would broaden the FTCA’s limited waiver of sovereign 4 immunity, which would run counter to Supreme Court and Ninth Circuit authority. The 5 court therefore declines to take that step. Cf. Rio Properties, Inc. v. Rio Int'l Interlink, 6 284 F.3d 1007, 1018 (9th Cir. 2002) (“leav[ing] it to the discretion of the district court to 7 balance the limitations of email service against its benefits in any particular case” while 8 noting that “except for the provisions recently introduced into Rule 5(b), email service is 9 not available absent a Rule 4(f)(3) court decree”). 10 In sum, Plaintiff does not allege that she mailed or delivered process in compliance 11 with Rule 15(c)(2) within the time permitted.6 Consequently, the FAC does not relate 12 back to the original complaint, and the court must grant Defendants’ motion. Plaintiff’s 13 claim against the United States is dismissed without prejudice. If Plaintiff can plausibly 14 allege that she mailed or delivered process on either the United States Attorney or the 15 Attorney General in accordance with Rule 15(c)(2) and the principles laid out in this 16 order, she may filed a second amended complaint within fourteen days. 17 CONCLUSION For the foregoing reasons, the court grants Defendants’ motion. Plaintiff’s claim 18 19 against the Postal Service is dismissed with prejudice and without leave to amend. 20 Plaintiff’s claim against the United States is dismissed with leave to amend. Plaintiff 21 may filed a second amended complaint within fourteen days of this order. 22 23 IT IS SO ORDERED. DATED: July 10, 2017 JEFFREY T. MILLER United States District Judge 24 25 26 27 28 6 Although Plaintiff served the original complaint on the Postal Service, that service does not satisfy Rule 15(c)(2) under Ninth Circuit precedent. See Williams v. United States, 711 F.2d 893, 898 (9th Cir. 1983) (“However, we will not impute the knowledge of a government agency to the U.S. Attorney or the U.S. Attorney General.”). 10 16cv1259 JM (JLB)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?