Youssefi v. United States of America

Filing 15

MEMORANDUM AND ORDER granting 11 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Julie A. Robinson on 7/15/2013.Mailed to pro se party Armen Youssefi by regular mail. (bt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
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)
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Plaintiff,
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vs.
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UNITED STATES OF AMERICA,
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Defendant.
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___________________________________ )

ARMEN YOUSSEFI,

Case No. 13-2174-JAR-DJW

MEMORANDUM AND ORDER
Plaintiff Armen Youssefi, proceeding pro se, filed this action in Johnson County, Kansas,
District Court, alleging that Mike Hobson, a postal service employee, mishandled and lost a
registered package belonging to him. The United States filed a Notice of Substitution, certifying
that Hobson is a federal employee who was acting within the scope of his office or employment
at the time of the incident in question. The same day, the Government removed the case. Before
the Court is the Government’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc.
12). Plaintiff has not responded and the time for doing so has expired. As described more fully
below, the Government’s motion is granted as unopposed and because Plaintiff’s claims are
barred by the doctrine of sovereign immunity.
I.

Failure to Respond
Plaintiff failed to file a response to the motion to dismiss and the time to do so has

expired.1 Under D. Kan. R. 7.4,
Absent a showing of excusable neglect, a party or attorney who

1

See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within twenty-one days).

fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.
A pro se litigant is not excused from complying with the rules of the court and is subject to the
consequences of noncompliance.2 As a result of Plaintiff’s failure to respond, the Court may
grant Defendant’s motion to dismiss as uncontested.
II.

Sovereign Immunity
Federal courts are courts of limited jurisdiction and, as such, must have a statutory or

constitutional basis to exercise jurisdiction.3 A court lacking jurisdiction must dismiss the case,
regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.4
The party who seeks to invoke federal jurisdiction bears the burden of establishing that such
jurisdiction is proper.5 “Thus, plaintiff bears the burden of showing why the case should not be
dismissed.”6 Mere conclusory allegations of jurisdiction are not enough.7
Plaintiff alleges in his Petition that Hobson, a postal service employee, negligently

2
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).
3

Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see United States v. Hardage, 58 F.3d 569, 574
(10th Cir. 1995) (“Federal courts have limited jurisdiction, and they are not omnipotent. They draw their jurisdiction
from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1.”) (internal
citations omitted).
4

Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).

5

Montoya, 296 F.3d at 955.

6

Harms v. IRS, 146 F. Supp. 2d 1128, 1130 (D. Kan. 2001).

7

United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.

1999).

2

caused the loss of a package, a tort claim. Under the Federal Tort Claims Act, a suit against the
United States is the sole remedy where a Plaintiff claims that a federal employee committed
negligent or wrongful conduct within the scope of their office or employment.8 As such, the
United States was properly substituted as the Defendant in this action upon certifying that
Hobson was acting within the scope of his employment, and the case was appropriately
removed.9
Sovereign immunity shields the United States, its agencies, and its employees from suit.10
Waiver of sovereign immunity is a jurisdictional prerequisite to suits against the United States,
its agencies, or its employees.11 For any tort claims brought against the United States Postal
Service, the FTCA is the sole remedy and must provide the applicable waiver of sovereign
immunity in order for the Court to have subject matter jurisdiction.12 The FTCA contains a
specific exception to its waiver of sovereign immunity for mishandled mail by the USPS—the
waiver does not apply to “[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.”13
The allegations in Plaintiff’s state court petition make clear that he seeks redress for loss
of mail. Because such a claim squarely falls into an exception to the United States’ waiver of
sovereign immunity in the FTCA, sovereign immunity shields the United States from this claim.

8

28 U.S.C. § 2679(b)(1); 39 U.S.C. §§ 401(1), 409(c).

9

28 U.S.C. § 2679(d); Doc. 1 at 8–12.

10

FDIC v. Meyer, 510 U.S. 471, 475 (1994).

11

Id.

12

39 U.S.C. §§ 401(1), 409(c); Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006).

13

28 U.S.C. § 2680(b).

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The Court therefore dismisses this case for lack of subject matter jurisdiction.
IT IS THEREFORE ORDERED BY THE COURT that the Government’s Motion to
Dismiss for Lack of Subject Matter Jurisdiction (Doc. 12) is granted.
IT IS SO ORDERED.
Dated: July 15, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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