Loureiro v. United States Post Office

Filing 7

ORDER: The motions to dismiss the complaint for lack of jurisdiction are Granted. (ECF Nos. 3 , 4 ). The Complaint is dismissed. Signed by Judge William Q. Hayes on 01/17/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CARLOS E. LOUREIRO,

Case No.: 17cv2176-WQH-JMA
Plaintiff,

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v.

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ORDER

UNITED STATES POST
OFFICE,

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Defendant.

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HAYES, Judge:
The matters before the Court are the motions to dismiss the complaint filed by

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Defendant United States Postal Service.1 (ECF Nos. 3, 4).
I.

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Background

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On September 22, 2017, Plaintiff Carlos E. Loureiro, proceeding pro se, filed a

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“Plaintiff’s Claim and ORDER to go to Small Claims Court” in the Superior Court of

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California for the County of San Diego. (ECF No. 1-2). Plaintiff alleges that Defendant

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“never sent my package back” and owes Plaintiff $344.40. Id. at 2.

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The United States Postal Service was erroneously sued as the United States Post Office. (See ECF No.
1).
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17cv2176-WQH-JMA

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On October 24, 2017, Defendant filed a notice of removal to this court. (ECF No. 1).

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On October 26, 2017, Defendant filed a “Certificate of Service of Notice to Adverse

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Parties of Removal of a Civil Action to Federal Court.” (ECF No. 2).

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On October 30, 2017, Defendant filed a motion to dismiss for lack of subject matter

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jurisdiction. (ECF No. 3). On November 15, 2017, Defendant filed an amended motion

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to dismiss. (ECF No. 4). The motions are identical in relevant part.

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The record reflects that Plaintiff has not filed a response to either motion.

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II.

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Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must contain a short

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and plain statement of the grounds for the court’s jurisdiction. Fed .R. Civ. P. 8(a). A

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motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject matter

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jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction.

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They possess only that power authorized by Constitution and statute, which is not to be

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expanded by judicial decree. It is to be presumed that a cause lies outside this limited

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jurisdiction, and the burden of establishing the contrary rests upon the party asserting

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jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

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(citations omitted). “A plaintiff suing in a federal court must show in his pleading,

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affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction,

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and, if he does not do so, the court, on having the defect called to its attention or on

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discovering the same, must dismiss the case, unless the defect be corrected by amendment.”

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Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (quoting

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Smith v. McCullough, 270 U.S. 456, 459 (1926)) abrogated on other grounds by Hertz

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Corp. v. Friend, 559 U.S. 77 (2010). The Court liberally construes pleadings by pro se

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litigants. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). A jurisdictional attack

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pursuant to Rule 12(b)(1) may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th

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Cir. 2000). “In a facial attack, the challenger asserts that the allegations contained in the

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complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for

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Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

Legal Standards

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17cv2176-WQH-JMA

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A district court may properly grant an unopposed motion pursuant to a local rule

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where the local rule permits, but does not require, the granting of a motion for failure to

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respond. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for

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failing to oppose a motion to dismiss, based on a local rule providing that “[t]he failure of

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the opposing party to file a memorandum of points and authorities in opposition to any

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motion shall constitute consent to the granting of the motion”). Civil Local Rule 7.1

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provides, “If an opposing party fails to file the papers in the manner required by Civil Local

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Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other

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request for ruling by the court.” CivLR 7.1(f)(3)(c). “Although there is ... a [public] policy

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favoring disposition on the merits, it is the responsibility of the moving party to move

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towards that disposition at a reasonable pace, and to refrain from dilatory and evasive

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tactics.” In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (quoting Morris v. Morgan Stanley

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& Co., 942 F.2d 648, 652 (9th Cir. 1991)) (affirming dismissal for failure to prosecute).

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III.

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Defendant moves the Court for an order dismissing this action for lack of subject

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matter jurisdiction. (ECF Nos. 3, 4). Defendant contends that the complaint should be

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dismissed because the United States has not waived its sovereign immunity for claims

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arising out of the Postal Service’s negligent transmission of mail. (ECF No. 3-1).

Discussion

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“The Postal Service enjoys federal sovereign immunity absent a waiver.” Dolan v.

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U.S. Postal Service, 546 U.S. 481, 484 (2006). “The Federal Tort Claims Act grants a

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waiver of sovereign immunity in certain cases.” Anderson v. U.S. Postal Service, 761 F.2d

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527, 528 (1985) (citing 28 U.S.C. § 1346(b)). The Postal Reorganization Act of 1971

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waives the immunity of the Postal Service and “provides that the FTCA ‘shall apply to tort

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claims arising out of the activities of the Postal Service.’” MB Fin. Grp., Inc. v. U.S. Postal

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Serv., 545 F.3d 814, 816 (9th Cir. 2008) (citing 39 U.S.C. § 409(c)). “The FTCA qualifies

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its waiver of sovereign immunity for certain categories of claims . . . . If one of the

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exceptions applies, the bar of sovereign immunity remains.” Dolan, 546 U.S. at 485. “[B]y

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28 U.S.C. § 2680(b), the United States retains sovereign immunity for tort claims against
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17cv2176-WQH-JMA

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it for ‘loss, miscarriage, or negligent transmission’ of the mail[].” Anderson, 761 F.2d at

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528.

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In this case, Plaintiff’s claim is premised on the allegation that Plaintiff did not

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receive a package from the Postal Service. (ECF No. 1-2). As alleged, Plaintiff attempts

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to bring a tort claim for “loss, miscarriage, or negligent transmission” of the mail. 28

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U.S.C. § 2680(b). This tort claim is barred by sovereign immunity. See Anderson, 761

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F.2d at 528 (holding that a tort claim against the Postal Service for loss of a package stolen

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from a postal carrier prior to delivery was barred by sovereign immunity). Accordingly,

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Plaintiff fails to establish that the Court properly has subject matter jurisdiction over this

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action.

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Further, the docket reflects that the motion to dismiss was served on Plaintiff on

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October 30, 2017 and the amended motion to dismiss was served on Plaintiff on November

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15, 2017. (ECF Nos. 3-2, 4-2). Pursuant to the local rules, Plaintiff was to file any response

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to the motions to dismiss no later than fourteen days prior to the hearing dates. The docket

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reflects that Plaintiff has failed to file any responses to the motions to dismiss as required

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by Civil Local Rule 7.1.e.2. The Court construes Plaintiff’s failure to oppose the motions

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to dismiss as “a consent to the granting of” the motions. CivLR 7.1(f)(3)(c).

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IV.

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IT IS HEREBY ORDERED that the motions to dismiss the complaint for lack of

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Conclusion

jurisdiction are granted. (ECF Nos. 3, 4). The Complaint is dismissed.
Dated: January 17, 2018

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