Depron v. United States Postal Service et al

Filing 9

ORDER granting 7 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Martin L.C. Feldman on 7/10/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ETHEL DEPRON

CIVIL ACTION

v.

NO. 17-1102

UNITED STATES POSTAL SERVICE
and CALVIN DAIZ, JR.

SECTION "F"

ORDER AND REASONS
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

No memoranda in opposition to the

defendants’ motion to dismiss, noticed for submission on July 12,
2017, has been submitted.
Accordingly, because the motion is unopposed, and further, it
appearing to the Court that the motion has merit, 1 IT IS ORDERED:

On February 8, 2017, Ethel Depron sued the United States Postal
Service and Calvin Daiz, whom allegedly was driving a U.S. Postal
Service vehicle that collided with a vehicle in which Ms. Depron
was riding as a passenger on August 11, 2015 at the intersection
of Loyola Avenue and Tulane Avenue in New Orleans, Louisiana. Ms.
Depron alleges that her “body and mind” was injured in the
collision that she said was caused by Mr. Daiz. Ms. Depron seeks
to recover damages caused by the negligence of Daiz and the U.S.
Postal Service; she also demands a jury trial. She alleges that
the Court has jurisdiction pursuant to the Postal Reorganization
Act, 39 U.S.C. § 409(a).
Contending that the Court lacks jurisdiction, the U.S. Postal
Service and Mr. Daiz seek to dismiss the plaintiff’s claims against
them because the plaintiff failed to name the United States or
1
1

that

the defendants’

unopposed.

motion

to

dismiss

is

hereby

GRANTED

as

The plaintiff’s claims are hereby dismissed.

New Orleans, Louisiana, July 10, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

mention the FTCA, which is her exclusive basis for recovery. The
Court agrees. The Federal Tort Claims Act is the sole basis of
recovery for tort claims against the United States, and the only
proper defendant in an FTCA action is the United States, not the
alleged responsible agency or employee. See 28 U.S.C. §§ 2671,
2679; Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988). An FTCA
claim brought against a federal agency or employee rather than the
United States shall be dismissed for want of jurisdiction. See
Galvin, 860 F.2d at 183. Finally, a plaintiff is not entitled to
a jury trial under the FTCA.
See 28 U.S.C. § 2402; see also
Carlson v. Green, 446 U.S. 14, 22 (1980)(noting that “a plaintiff
cannot opt for a jury in an FTCA action”).
Here, the plaintiff sued the United States Postal Service and
U.S. Postal Service employee, Calvin Daiz, Jr.
She makes no
mention of the FTCA in her complaint. The statute under which she
files suit, the Postal Reorganization Act, explicitly conditions
the waiver of sovereign immunity by Section 409(c), which provides
that the remedies and restrictions of the FTCA shall apply in all
actions sounding in tort. See Ins. Co. of North America v. United
States Postal Service, 675 F.2d 756, 758 (5th Cir. 1982). Because
the FTCA is the exclusive remedy for damages arising from tortious
acts of federal agencies or their employees, and because the
plaintiff has failed to name or sue the United States, the only
proper defendant in an FTCA lawsuit, her claims against the U.S.
Postal Service and Mr. Daiz must be dismissed for lack of
jurisdiction.
2