Pacheco-Mussed et al v. United States Postal Services et al

Filing 30

ORDER denying 10 Motion Submitting Order Summons; denying 18 Motion to Dismiss; and denying 27 Motion for Entry of Default. Plaintiffs shall Show Cause on or before 1/27/2023, as to why this case should not be dismissed for want of subject-matter jurisdiction. Signed by Judge Silvia L. Carreno-Coll on 1/18/2023. (mcv)

Case 3:22-cv-01130-SCC Document 30 Filed 01/18/23 Page 1 of 9

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

DANIEL PACHECO-MUSSEB AND
YOANN M. LÓPEZ-PÉREZ,
Plaintiffs,
v.
CIV. NO.: 22-1130 (SCC)
UNITED STATES POSTAL SERVICES,
VICTOR M. RIVERA-GONZÁLEZ, JANE
DOE, SAFE LOGISTIC INC., MAPFRE
PRAICO INSURANCE COMPANY AND
THE CONJUGAL PARTNERSHIP
RIVERA-DOE,
Defendants.
OMNIBUS ORDER
Pending before the Court are two motions that, in one way
or another, call the Court’s subject-matter jurisdiction to hear
this case into question. On the one hand, is Plaintiffs Daniel
Pacheco-Musseb 1 and Yoann López Pérez’ motion requesting
the entry of default as to the United States Postal Service
(“USPS”). 2 Docket No. 27. On the other hand, is Defendant

The Court orders Plaintiffs to, by January 27, 2023, clarify Mr. Daniel
Pacheco-Musseb’s last name for the record, given that in some filings he is
identified as Mr. Daniel Pacheco-Mussed and in others as Mr. Daniel
Pacheco-Musseb.
1

In that motion, Plaintiffs invoke “FRCP Rule 45.1” and “Rule 34.2(d)(3)” as
the basis for their request for the entry of default. See Docket No. 27 at ¶ 5.
But those rules do not concern the entry of default. The rule that does pertain

2

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Mapfre Praico Insurance Company (“Mapfre”) and Safe
Logistic Inc.’s (“Safe Logistic”) Motion to Dismiss. Docket No.
18. A third motion regarding summons by publication is also
pending. Docket No. 10. The Court will begin by addressing
the motion requesting the entry of default since the Court’s
ruling regarding that motion will directly impact how the
Court will handle the Motion to Dismiss. The Court will then
address the motion regarding summons by publication.
I. MOTION REQUESTING THE ENTRY OF DEFAULT
Plaintiffs argue that albeit having properly effected service
on the USPS, the USPS has yet to answer their Complaint or
otherwise defend this action and so the entry of default by the
Clerk of Court is warranted. Docket No. 27. Plaintiffs’ request,
however, misses the mark. While it is correct that the USPS has
not appeared in this case, its failure to do so is not surprising,
for in view of the allegations advanced in the Complaint, the
USPS is not the proper defendant. 3

to the entry of a default is Federal Rule of Civil Procedure 55(a). See FED. R.
CIV. P. 55(a). Accordingly, the Court will construe Plaintiffs’ request as one
made pursuant to Rule 55(a).
The Court also notes that even if the USPS would have been the proper
defendant, Plaintiffs did not properly effect service on it. Federal Rule of
Civil Procedure 4(i)(2) states that “[t]o serve a United States agency or
corporation . . .a party must serve the United States and also send a copy of
the summons and the complaint by registered or certified mail to the agency,
3

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Plaintiffs’ Complaint invokes the Court’s federal question
jurisdiction and asserts a claim pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80. 4 The
Complaint, however, does not name the United States as a
defendant in this case and the failure to do so is critical because
even though the Postal Reorganization Act (“PRA”), 39 U.S.C.
§ 101 et seq., allows for the USPS “to sue and be sued in its
official name,” 39 U.S.C. § 401, the PRA “also provides that the
FTCA ‘shall apply to tort claims arising out of activities of the
Postal Service,’” Dolan v. U.S. Postal Serv., 546 U.S. 481, 484
(2006) (quoting 39 U.S.C. § 409(c)). And under the FTCA, the
United States is the proper defendant, not the federal agency,
given that the FTCA specifically states that “[t]he authority of
any federal agency to sue and be sued in its own name shall not
be construed to authorize suits against such federal agency on
claims which are cognizable under” 28 U.S.C. § 1346(b) “and
the remedies provided by this title in such cases shall be

corporation, officer or employee.” FED. R. CIV. P. 4(i)(2). But here, the record
shows that Plaintiffs merely mailed a copy of the summons and the
complaint to the USPS. See Docket No. 24. There is no evidence that the
United States was served.
In their Complaint, Plaintiffs also invoke this Court’s supplemental
jurisdiction to hear their general tort claim under Puerto Rico law.
4

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exclusive.” See 28 U.S.C. § 2679(a). In turn, 28 U.S.C. § 1346(b)(1)
provides that federal courts shall have “exclusive jurisdiction
of civil actions on claims against the United States, for money
damages . . . for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope
of his office or employment ….” See 28 U.S.C. § 1346(b)(1).
According to the facts alleged in the Complaint, while
driving, Plaintiff Pacheco-Musseb was impacted by a truck that
was being “negligently” driven by Mr. Victor Rivera. Docket
No. 1 at ¶¶ 25-27. Plaintiff Pacheco-Musseb contends that Mr.
Victor Rivera was employed by the USPS and that the crash
occurred while he was on the clock for the USPS. Id. at ¶ 25. He
further claims that due to Mr. Rivera’s “negligent, careless and
reckless acts and/or omissions,” he has suffered significant
injuries and is still suffering from the emotional and physical
damages caused by the incident. Id. at ¶¶ 27-36. The Complaint
also includes allegations to the effect that Ms. Yoann LópezPérez, Plaintiff Pacheco-Musseb’s wife, has suffered emotional
damages and that their conjugal partnership has taken a
financial hit because of this incident. Id. at ¶¶ 14, 47-48.
Plaintiffs’ Complaint intends to advance an FTCA claim that
is cognizable under 28 U.S.C. § 1346(b). Therefore, here, the

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proper defendant is the United States and not the USPS. See
F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994) (explaining that “if a
suit is ‘cognizable’ under § 1346(b) . . . the FTCA remedy is
‘exclusive’ and the federal agency cannot be sued ‘in its own
name’ ….”). Without the proper defendant, to wit, the United
States, an FTCA action is not properly before this Court.
Therefore, because the USPS is not the proper defendant,
Plaintiffs’ request for it to be found in default is misplaced and
the Court must DENY the same.
In this vein, the Court ORDERS Plaintiffs to SHOW
CAUSE by January 27, 2023, as to why this action should not
be dismissed for lack of subject-matter jurisdiction given the
failure to name the United States as a defendant in this FTCA
action. 5 The Court acknowledges that the matter regarding the
Plaintiffs’ Complaint also invokes this Court’s supplemental jurisdiction as
to what appears to be a Puerto Rico law general tort claim. The First Circuit
has stated that “[t]he baseline rule is that the dismissal of a foundational
federal claim does not deprive a federal court of authority to exercise
supplemental jurisdiction over pendent state-law claims.” Sexual Minorities
Uganda v. Lively, 899 F.3d 24, 35 (1st Cir. 2018). Therefore, if the Court were
to dismiss the “foundational federal claim,” (the FTCA claim), and it then
had to consider if it would exercise supplemental jurisdiction, without the
presence of a federal claim, it must evaluate certain factors, including
“judicial economy, convenience, fairness, and comity[.]” Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). As things stand, considering that
this case is in its infancy and no discovery has been conducted, the Court
would not be inclined to assert supplemental jurisdiction over the Puerto
Rico law general tort claim. See, e.g., Santana-Vargas v. Banco Santander Puerto
Rico, 948 F.3d 57, 61-62 (1st Cir. 2020). This is the reason why the Court warns
5

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proper defendant was raised sua sponte and the First Circuit has
warned that “sua sponte dismissals are risky business,” and they
will be upheld “only if the allegations contained in the
complaint, taken in the light most favorable to the plaintiff, are
patently meritless beyond all hope of redemption.” See
González-González v. United States, 257 F.3d 31, 37 (1st Cir. 2001).
At this juncture, the defect that the Court has identified may be
cured. See, e.g., FED. R. CIV. P. 15(a)(2); see also 28 U.S.C. § 1653.
The ball is now in Plaintiffs’ court.
II. DEFENDANTS MAPFRE AND SAFE LOGISTIC’S MOTION TO
DISMISS
Defendants Mapfre and Safe Logistic also challenge this
Court’s subject-matter jurisdiction in their Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1). Docket
No. 18. Specifically, they argue that Mr. Rivera was employed
by Safe Logistic, not the USPS. Id. at pgs. 4-5; see also Docket No.
18-1. And so they reason that if no Government employee was
involved in the incident, the Court is divested of subject-matter
jurisdiction to hear this case because there would be no federal
claim left to litigate. Docket No. 18 at pgs. 4-5. In their
Plaintiffs that their failure to comply with the order to show cause would
not solely result in the dismissal of the FTCA claim, but it may also result in
the dismissal of this suit in its entirety.

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Opposition to the Motion to Dismiss, Plaintiffs countered that
before a decision was made as to the Motion to Dismiss, they
should be allowed to conduct discovery “[r]egarding the
control and preview of the USPS on the operations and control
over co-defendant Safe Logistic Inc.” Docket No. 19 at ¶ 7. 6
From what the Court could understand, it appears that
Plaintiffs are arguing that Safe Logistic was acting as an
independent contractor that was in business with the USPS at
the time of the incident.
Defendants Mapfre and Sage Logistic’s Motion to Dismiss
presents a factual challenge which calls on the Court to “engage
in judicial factfinding to resolve the merits of the jurisdiction
claim.” Marasco & Nesselbush, LLP v. Collins, 6 F.4th 150, 166 n.
19 (1st Cir. 2021). In doing so, “the court enjoys broad authority
to order discovery, consider extrinsic evidence, and hold
evidentiary

hearings

in

order

to

determine

its

own

The Court has not overlooked the fact that Plaintiffs’ Opposition to the
Motion to Dismiss was not timely filed. The opposition was due on or before
August 22, 2022, but was filed on August 29, 2022. The record confirms that
Plaintiffs did not move for an extension of time to justify the late filing. But
by the same token, Defendants Mapfre and Safe Logistic failed to move to
strike the opposition or contest the late filing. Local Rule 7(b) instructs that
if a party fails to oppose a motion within fourteen (14) days, that party, here,
Plaintiffs, “shall be deemed to have waived any objection to the motion.”
But because the Court denies Defendants Mapfre and Safe Logistic’s Motion
to Dismiss, for reasons unrelated to those advanced in Plaintiffs’ Opposition,
the fact that it considered the same is inconsequential.

6

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jurisdiction.” Valentin v. Hospital Bella Vista, 254 F.3d 358, 363364 (1st Cir. 2001). Here, the Court could very well order that
jurisdictional discovery be conducted in view of the type of
factual challenge advanced by Defendants Mapfre and Safe
Logistic. But the Court finds that the proper defendant matter
is a threshold matter that must be addressed before moving
forward. 7 Accordingly, the Court will DENY the Motion to
Dismiss at this time. The same may be refiled at a later date, for
after Plaintiffs file their response to the Court’s Order to Show
Cause, the Court will enter any necessary orders and deadlines.
III. SUMMONS BY PUBLICATION
Plaintiffs submitted proposed orders for the Clerk of Court
to issue summons by publication as to Mr. Rivera, Jane Doe and
the conjugal partnership comprised of Mr. Rivera and Jane Doe.
Docket No. 10. But while the Court authorized the issuance of
summons by publication as to Mr. Rivera, see Docket No. 6,
Plaintiffs never moved the Court for the issuance of summons
by publication as to Jane Doe or the conjugal partnership
comprised of Mr. Rivera and Jane Doe. Further the proposed
orders at Docket Nos. 10-1, 10-2 and 10-3 do not comply with

There could very well be other jurisdictional matters that the Court may
have to address in the near future, but the Court will cross that bridge in due
course, if need be.

7

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Puerto Rico Rule of Civil Procedure 4.6. Therefore, the motion
is DENIED at this time. The same may be refiled once the
matter regarding the proper defendant is settled.
IV. CONCLUSION
In view of the above, the Court hereby ORDERS the
following:
•

Plaintiffs’ motion requesting the entry of default as to the
USPS at Docket No. 27 is DENIED;

•

Plaintiffs shall show cause on or before January 27, 2023,
as to why this case should not be dismissed for want of
subject-matter jurisdiction;

•

Plaintiffs shall, on or before January 27, 2023, clarify
Plaintiff Daniel Pacheco-Musseb’s last name;

•

Defendants’ MAPFRE and Safe Logistic’s Motion to
Dismiss at Docket No. 18 is DENIED; and

•

Plaintiffs’ motion for the issuance of summons by
publication at Docket No. 10 is DENIED.

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 18th day of January 2023.
S/ SILVIA CARREÑO-COLL
UNITED STATES DISTRICT COURT JUDGE