Gomabon v. United States Postal Service
Filing
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ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 13 .Excerpt of conclusion: "Defendant's Motion to Dismiss, filed October 20, 2017, is HEREBY GRANTED. Plaintiff's Complaint, filed on Au gust 2, 2017 in the small claims court, is HEREBY DISMISSED WITH PREJUDICE, in other words, WITHOUT LEAVE TO FILE AN AMENDED COMPLAINT. The Clerk's Office is directed to enter final judgment in favor of Defendant and to close this case immediate ly."IT IS SO ORDERED. Signed by JUDGE LESLIE E. KOBAYASHI on 3/30/2018. (afc)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RANDY RABE GOMABON, JR.,
)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES POSTAL SERVICE, )
)
)
Defendant.
_____________________________ )
CIVIL 17-00417 LEK-RLP
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Before the Court is Defendant United States Postal
Service’s (“USPS” or “Defendant”) Motion to Dismiss (“Motion”),
filed on October 20, 2017.
[Dkt. no. 13.]
Pro se Plaintiff
Randy Rabe Gomabon, Jr. (“Plaintiff”) did not file a response to
the Motion.
On January 4, 2018, an entering order was issued
finding the Motion suitable for disposition without a hearing,
pursuant to Rule LR7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
Rules”).
[Dkt. no. 17.]
The Motion is hereby granted for the
reasons set forth below.
BACKGROUND
On August 2, 2017, Plaintiff filed a “Statement of
Claim and Notice [General Form]” in the State of Hawai`i Small
Claims Division of the District Court of the First Circuit,
Honolulu Division (“small claims court”).
This document is
considered Plaintiff’s “Complaint” in the instant case.
[Notice
of Removal of Civil Action (“Notice of Removal”), filed 8/21/17
(dkt. no. 1), Exh. A (Complaint).]
Defendant removed the case pursuant to 28 U.S.C.
§ 1442(a)(1).1
[Notice of Removal at ¶ 4.]
Plaintiff states he
dropped off two packages at the USPS’s Kapalama office, but a
couple of days later – apparently on November 9, 2016 – a USPS
employee told him the packages were not received.
On November
12, 2016, Plaintiff asked a USPS mail carrier about the packages,
and she confirmed the packages had been returned.
She told
Plaintiff she left them on his neighbors’ porch.
Plaintiff
argues this was a violation of USPS policies, which state that a
mail carrier must leave a note and return packages to the post
office if the intended recipient is not available to receive
them.
Plaintiff alleges the two packages were lost and seeks
$1,008.00 in damages from Defendant.
1
[Complaint at 1.]
Section 1442(a) states:
A civil action . . . that is commenced in a State
court and that is against or directed to any of
the following may be removed by them to the
district court of the United States for the
district and division embracing the place wherein
it is pending:
(1) The United States or any agency thereof
or any officer (or any person acting under
that officer) of the United States or of any
agency thereof, in an official or individual
capacity, for or relating to any act under
color of such office . . . .
2
In the instant Motion, Defendant argues Plaintiff’s
Complaint must be dismissed because: pursuant to 28 U.S.C.
§ 2680(b), the United States, its agencies, and its officials are
immune from such claims; this Court lacks jurisdiction over the
case because Plaintiff did not exhaust his administrative
remedies, as required by the Federal Tort Claims Act (“FTCA”);
and, even if Defendant’s first two arguments are rejected,
Plaintiff’s Complaint fails to state a claim upon which relief
can be granted.
Defendant also asserts the dismissal should be
with prejudice – in other words, Plaintiff should not be allowed
to try to fix the defects in his Complaint by filing an amended
complaint.
DISCUSSION
I.
Exhaustion of Administrative Remedies
This district court has stated:
The United States, as a sovereign state, is
immune from suit unless it specifically consents.
United States v. Mitchell, 445 U.S. 535, 538
(1980); Reed v. U.S. Dep’t of Interior, 231 F.3d
501, 504 (9th Cir. 2000). Any waiver of sovereign
immunity must be unequivocally expressed. Block
v. North Dakota, 461 U.S. 273, 287 (1983). When a
statute waives sovereign immunity, the Court must
strictly construe the statute in favor of the
United States. Brady v. United States, 211 F.3d
499, 502 (9th Cir. 2000). If there has not been
an express waiver of sovereign immunity, then the
Court lacks subject matter jurisdiction over the
case and it must be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(1). Orff v. United
States, 358 F.3d 1137, 1142 (9th Cir. 2004)[.]
3
The Federal Tort Claims Act (“FTCA”) provides
for a broad waiver of the United States’ sovereign
immunity. Schoenfeld v. Quamme, 492 F.3d 1016,
1019 (9th Cir. 2007). The FTCA manifests the
United States’ consent to be sued “in the same
manner and to the same extent as a private
individual under like circumstances[.]” 28 U.S.C.
§ 2674. The FTCA waives sovereign immunity for
the negligence of “any employee of the Government
while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1).
. . . .
The FTCA bars claimants from seeking damages
against the United States in court until they have
exhausted their administrative remedies. 28
U.S.C. § 2675(a); McNeil v. United States, 508
U.S. 106, 113 (1993). A plaintiff’s
administrative remedy is exhausted pursuant to the
FTCA if:
(1) the agency has denied the claim in
writing; or,
(2) the agency has failed to issue a final
disposition of the claim six months after it
was filed.
28 U.S.C. § 2675(a); Jerves v. United States, 966
F.2d 517, 519 (9th Cir. 1992).
If no such claim is presented to the
appropriate federal agency within two years after
the claim accrues, a tort claim shall be forever
barred. 28 U.S.C. § 2401(b).
The Ninth Circuit Court of Appeals has made
clear that the FTCA exhaustion requirement is
jurisdictional and must be adhered to strictly.
Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250
(9th Cir. 2006).
Hensley v. United States, No. CIV. 14-00472 HG-RLP, 2014 WL
7205492, at *3-5 (D. Hawai`i Dec. 16, 2014) (some alterations in
Hensley) (footnote omitted).
4
A complaint filed pursuant to the FTCA must allege
facts showing the plaintiff exhausted his administrative
remedies.
Hoapili v. Enoki, CIVIL NO. 17-00384 SOM-KJM, 2017 WL
4106074, at *1 (D. Hawai`i Sept. 12, 2017) (citing Gillespie v.
Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (“The timely filing
of an administrative claim is a jurisdictional prerequisite to
the bringing of a suit under the FTCA . . . and, as such, should
be affirmatively alleged in the complaint.” (citation omitted));
Moore v. United States, 1988 WL 57696, at *2 (9th Cir. Sept. 28,
1988) (indicating that FTCA plaintiffs “must” allege
exhaustion)).
Plaintiff’s Complaint must be liberally construed
because he is proceeding pro se.
See, e.g., Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454
U.S. 364, 365, 102 S. Ct. 700, 701, 70 L. Ed. 2d 551 (1982) (per
curiam))).
However, even liberally construed, Plaintiff’s
Complaint does not allege facts showing he exhausted his
administrative remedies.
The Motion is therefore granted,
insofar as Plaintiff’s Complaint is dismissed “‘for failure to
allege this jurisdictional prerequisite.’”
Gillespie, 629 F.2d at 640).
5
See id. (quoting
“Unless it is absolutely clear that no amendment can
cure the defect . . . a pro se litigant is entitled to notice of
the complaint’s deficiencies and an opportunity to amend prior to
dismissal of the action.”
248 (9th Cir. 1995).
Lucas v. Dep’t of Corr., 66 F.3d 245,
In theory, Plaintiff could file an amended
complaint to address the exhaustion of administrative remedies.
Plaintiff wrote his original Complaint on a standard small claims
court form that does not require the claimant to address
administrative remedies.
However, Defendant has presented
evidence that no “administrative tort claim was received by [the
USPS] on behalf of anyone with the name Randy Rabe Gomabon, Jr.”
[Motion, Decl. of Conny Beatty (“Beatty Decl.”) at ¶ 4.2]
Because Plaintiff did not respond to the Motion, he has not
presented any evidence contradicting Defendant’s evidence.
This
Court therefore concludes it is absolutely clear no amendment can
cure the exhaustion defect in Plaintiff’s Complaint.3
2
Conny Beatty is employed by the USPS as an attorney at the
National Tort Center in St. Louis, Missouri. The adjudication of
FTCA claims against the USPS is part of her job duties. [Beatty
Decl. at ¶ 2.] In her position, she has “access to databases
containing information relating to administrative tort claims
submitted to the [USPS] nationwide as well as to claims submitted
directly to [USPS] personnel in filed offices around the
country.” [Id. at ¶ 3.]
3
Consideration of materials other than the allegations in
the complaint ordinarily requires the conversion of a motion to
dismiss into a motion for summary judgment. Yamalov v. Bank of
Am. Corp., CV. No. 10–00590 DAE–BMK, 2011 WL 1875901, at *7 n.7
(D. Hawai`i May 16, 2011) (citing Parrino v. FHP, Inc., 146 F.3d
(continued...)
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II.
Exception to the FTCA Waiver of Sovereign Immunity
There is a general waiver of sovereign immunity
allowing the USPS “to sue and be sued in its official name.”
U.S.C. § 401(1).
39
In spite of this general waiver, the FTCA still
“appl[ies] to tort claims arising out of [USPS] activities.”
U.S.C. § 409(c).
39
“Section 2680 provides for several exceptions
that severely limit the FTCA’s waiver of sovereign immunity.
If
a plaintiff’s tort claim falls within one of the exceptions, the
district court lacks subject matter jurisdiction.”
Snyder &
Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157
(9th Cir.) (brackets, citations, and internal quotation marks
omitted), amended on reh’g, 868 F.3d 1048 (9th Cir. 2017).
One
of the exceptions is for “[a]ny claim arising out of the loss,
miscarriage, or negligent transmission of letters or postal
matter.”
§ 2680(b).
The allegations of Plaintiff’s Complaint
fall squarely within this exception.
Thus, even if Plaintiff
could amend his Complaint to cure the exhaustion defect, it is
absolutely clear he cannot amend the Complaint to cure the fact
3
(...continued)
699, 706 n.4 (9th Cir. 1998), superseded by statute on other
grounds, as stated in, Abrego Abrego v. The Dow Chemical Co., 443
F.3d 676, 681-82 (9th Cir. 2006) (per curiam)). This Court,
however, did not consider the Beatty Declaration in determining
Plaintiff’s Complaint must be dismissed because of the failure to
address exhaustion. Because this Court only considered the
Beatty Declaration in the analysis of whether the dismissal is
with prejudice or without prejudice, conversion of the Motion
into a motion for summary judgment is not necessary.
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that the USPS has not waived its sovereign immunity from claims
like the claim Plaintiff alleges in the Complaint.
III. Summary
Plaintiff’s Complaint is dismissed because he it does
not address whether he exhausted his administrative remedies.
The dismissal is with prejudice because it is absolutely clear
Plaintiff cannot cure the following defects: the exhaustion
defect because no administrative tort claim was submitted to the
USPS by him or on his behalf; and the sovereign immunity defect
because the USPS has not waived its sovereign immunity from the
type of claim Plaintiff is trying to assert.
In other words,
Plaintiff has no claims remaining in this case, he will not be
allowed to file an amended complaint, and this case will be
closed.
In light of these rulings, it is not necessary to
address Defendant’s alternative argument that Plaintiff’s
Complaint must be dismissed for failure to state a claim upon
which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss, filed October 20, 2017, is HEREBY GRANTED.
Plaintiff’s
Complaint, filed on August 2, 2017 in the small claims court, is
HEREBY DISMISSED WITH PREJUDICE, in other words, WITHOUT LEAVE TO
FILE AN AMENDED COMPLAINT.
The Clerk’s Office is directed to
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enter final judgment in favor of Defendant and to close this case
immediately.
If Plaintiff wishes to file a motion for
reconsideration of this Order, he is directed to consult Rules 59
and 60 of the Federal Rules of Civil Procedure.
Plaintiff can
access the Federal Rules of Civil Procedure through the “Links”
tab on the district court’s website (www.hid.uscourts.gov).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 30, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RANDY RABE GOMABON, JR. VS. UNITED STATES POSTAL SERVICE; CIVIL
17-00417 LEK-RLP; ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
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