Portello v. Supervisor for Delivery, USPS
Filing
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ORDER granting Defendant's 6 Motion to Dismiss with prejudice. Signed by U.S. District Judge John C Coughenour. (PM) cc: plaintiff via the USPS
THE HONORABLE JOHN C. COUGHENOUR
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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KAREN PORTELLO,
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Plaintiff,
v.
CASE NO. C17-0090-JCC
ORDER GRANTING THE
GOVERNMENT’S MOTION TO
DISMISS
SUPERVISOR FOR DELIVERY, USPS,
Defendant.
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This matter comes before the Court on the Government’s motion to dismiss (Dkt. No. 6).
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Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral
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argument unnecessary and hereby GRANTS the motion for the reasons explained herein.
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Plaintiff Karen Portello filed a Notice of Small Claim and an Extended Notice of Claim
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in the Snohomish County District Court against “Supervisor Lori for P.O. Deliveryman” of the
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United States Postal Service and “Supervisor for Deliveryman,” claiming $210 in property
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damage. (Dkt. No. 1-1.) The Government contends that the Federal Tort Claims Act (FTCA), 28
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U.S.C. §§ 2679, et seq., is the sole and exclusive remedy for negligence claims, whereas here,
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the United States is the real party in interest. (Dkt. No. 1 at 2.) The Court agrees.
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The Government properly removed the matter to this Court pursuant to 28 U.S.C. § 1442,
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(Dkt. No. 1), and filed a motion to dismiss for lack of subject matter jurisdiction, (Dkt. No. 6).
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Plaintiff did not respond to the motion to dismiss, and the Court deems this as an admission that
ORDER GRANTING THE GOVERNMENT’S
MOTION TO DISMISS
PAGE - 1
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the motion has merit. See W.D. Wash. Local Civ. R. 7(b)(2).
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Pursuant to Federal Rule of Civil Procedure 12(b)(1), a complaint must be dismissed if
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the Court lacks subject matter jurisdiction. A motion to dismiss under Rule 12(b)(1) may be a
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facial or factual attack. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In reviewing a
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facial attack, the Court assumes all material allegations in the complaint are true. Thornhill
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Publ’g Co. v. General Tel. Elec., 594 F.2d 730, 733 (9th Cir. 1979).
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The United States is immune from suit unless it consents to be sued. United States v.
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Mitchell, 445 U.S. 535, 538 (1980). The FTCA is a limited waiver of sovereign immunity that
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permits claims to be brought against the United States for the “negligent or wrongful act or
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omission of any employee of the Government while acting within the scope of his office or
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employment.” 28 U.S.C. § 1346(b)(1). However, the postal service exception, 28 U.S.C.
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§ 2680(b), is an express limitation on the FTCA’s sovereign immunity waiver. Pursuant to this
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exception, the Government is not liable for “[a]ny claim arising out of the loss, miscarriage, or
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negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). Therefore, Plaintiff’s
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claim for property damage that occurred during the transmission of her mail is barred by
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sovereign immunity. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 489 (2006). Under these
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facts, this complaint cannot be saved with further amendment because the Court lacks subject
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matter jurisdiction over the claim. See Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of
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Higher Educ., 616 F.3d 963, 972 (9th Cir. 2010). Therefore, Plaintiff’s claim is DISMISSED
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with prejudice. 1
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The Government also argues that the claim should be dismissed because Plaintiff failed to exhaust her
administrative remedies. (Dkt. No. 6 at 4–5.) However, the Court will not address this argument because it lacks
subject matter jurisdiction over the matter.
ORDER GRANTING THE GOVERNMENT’S
MOTION TO DISMISS
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DATED this 22nd day of March 2017.
A
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John C. Coughenour
UNITED STATES DISTRICT JUDGE
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ORDER GRANTING THE GOVERNMENT’S
MOTION TO DISMISS
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