Errica Mickens v. United States Postal Service

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.September 9, 2016

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division KEVIN B. FINN (Cal. Bar No. 128072) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-6739 Facsimile: (213) 894-7327 E-mail: kevin.finn@usdoj.gov Attorneys for Defendant United States Postal Service UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ERRICA MICKENS, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant, No. CV 16-4726 DSF (JCx) NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES DATE: October 17, 2016 TIME: 1:30 p.m. CTRM: 840 Honorable Dale S. Fischer TO PLAINTIFF ERRICA MICKENS: NOTICE IS HEREBY GIVEN to plaintiff Errica Mickens that defendant United States of America, will bring for hearing a motion to dismiss before the Honorable Dale S. Fischer, United States District Judge, at the Roybal Federal Courthouse, Courtroom 840, 255 East Temple Street, Los Angeles, California 90012, on Monday, October 17, Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 1 of 9 Page ID #:57 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2016, at 1:30 p.m., or as soon thereafter as the parties may be heard. This motion is made pursuant to Rules 8, 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the complaint fails to conform to the pleading requirements of Rule 8, the Court does not have subject matter jurisdiction over plaintiff’s complaint, and the complaint fails to state a claim. This motion will be based upon these moving papers, the Memorandum of Points and Authorities, and such other and further arguments as may be submitted to the Court in the future. Pursuant to Local Rule 16-12(d), this matter is exempt from the conference of counsel requirement of Local Rule 7-3; however, defendant gave notice of the motion to plaintiff on July 19, 2016 and in discussions thereafter. Dated: September 9, 2016 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Kevin Finn KEVIN B. FINN Assistant United States Attorney Attorneys for Defendant United States Postal Service Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 2 of 9 Page ID #:58 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND On May 4, 2016, plaintiff filed her form small claims complaint in the Los Angeles Superior Court. Plaintiff’s small claims form alleges that the United States Postal Service (“USPS”) owes her $272.00 because she rented two post office boxes “in which mail was not delivered….” Her complaint seeks “the amount I paid for both P O Boxes Rental Fees…” [all caps removed]. On June 28, 2016, defendant removed the case to this Court. Contrary to the mandates of F.R.C.P. 8, Plaintiff’s complaint fails to establish a minimum factual and legal basis for her claim that is sufficient to give defendant fair notice of what Plaintiff=s claims are and the grounds upon which they rest. Among other things, it is unclear whether plaintiff seeks a tort claim or a breach of contract claim. However, in either case, dismissal would be appropriate because the Court lacks jurisdiction. First, under the doctrine of derivative jurisdiction, this Court lacks subject matter jurisdiction if the state court in which the small claim was originally brought lacked jurisdiction to hear either a tort or a contract claim against the USPS. Second, even if this case were originally brought in this Court, the Court would still lack subject matter jurisdiction over plaintiff’s claim because the Court lacks jurisdiction over a tort claim brought against the USPS and over a tort claim in which plaintiff has failed to exhaust the administrative remedies, and the Court of Federal Claims has exclusive jurisdiction over a contract claim arising from the procurement of services. II. ARGUMENT A. Legal Standard Governing Rule 12 and Rule 8 Motions A party mounting a Rule 12(b)(1) challenge to the Court’s jurisdiction may do so either on the face of the pleadings or by presenting extrinsic evidence for the Court’s consideration. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In either case, Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 3 of 9 Page ID #:59 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff bears the burden of demonstrating that the Court has subject matter jurisdiction to hear the action. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). In deciding a factual jurisdictional attack, Courts may weigh the evidence presented, and determine the facts in order to evaluate whether they have the power to hear the case. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). In addition to establishing jurisdiction, a plaintiff must file a complaint in conformance with Federal Rule of Civil Procedure 8(a). Rule 8(a) states that a pleading setting forth a claim for a relief “shall contain,” among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” As the Supreme Court stated, “Rule 8(a) contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader=s “bare averment that he wants relief and is entitled to it.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, n. 3 (2007), quoting 5 C. Wright & A. Miller, Federal Practice and Procedure ' 1202, at 94, 95 (3d ed. 2004). To comply with Rule 8=s requirements, a complaint must establish a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what Plaintiff=s claims are and the grounds upon which they rest. See Twombly, 127 S.Ct. at 1965, n. 3. Here, even if plaintiff established this Court’s subject matter jurisdiction, plaintiff’s complaint fails to comply with Rule 8. B. The Doctrine of Derivative Jurisdiction Establishes That This Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Claims 1. The Doctrine of Derivative Jurisdiction When an action is removed by the United States or any federal agency, the jurisdiction of the federal court, or lack thereof, derives from that of the state court; this is otherwise known as the doctrine of derivative jurisdiction. As the Ninth Circuit has held: “[w]hen an action is removed from state court by the United States pursuant to 28 Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 4 of 9 Page ID #:60 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S.C. § 1442(a)(1), the jurisdiction of the district court upon removal is derivative of the state court’s.” In re Elko County Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997). “This means that where the state court lacked jurisdiction over the claim giving rise to the removal, ‘the federal court acquires none, although in a like suit originally brought in federal court it would have had jurisdiction.’” Golden Eagle Ins. Corp. v. Allied Tech. Group, 83 F.Supp.2d 1132, 1134 (C.D. Cal. 1999), citing Minnesota v. United States, 305 U.S. 382, 389 (1939); see also Glass v. Nat’l Railroad Passenger Corp., 570 F.Supp.2d 1180 (C.D. Cal. 2008) (dismissing cross-complaint against the United States under the derivative jurisdiction doctrine). 2. The Doctrine of Derivative Jurisdiction Remains Viable for Section 1442 Removals In 1986, a statutory amendment to another removal statute, 28 U.S.C. § 1441(e) became effective and abolished the doctrine of derivative jurisdiction, but only with respect to section 1441. See, e.g., Golden Eagle, 83 F.Supp.2d at 1132 (applying the doctrine of derivative jurisdiction to section 1442 removal despite amendment to section 1441); Mooreland v. Van Buren GMC, 93 F.Supp.2d 346, 354 (S.D.N.Y. 1999) (finding the weight of authority holds that the derivative jurisdiction doctrine remains applicable to removals under section 1442(a)(1) even after the 1986 amendment to section 1441). The Glass court found that “at least two Ninth Circuit cases have continued to apply the doctrine of derivative jurisdiction to matters removed pursuant to section 1442 even after the addition of section 1441(e).” Glass, 570 F. Supp. 2d at 1182-83, citing In re Elko County Grand Jury, 109 F.3d at 555; Golden Eagle, 83 F. Supp. 2d at 1134. In 2002, Congress again amended Section 1441, adding the words “under this section” to the clause eliminating the doctrine of derivative jurisdiction for Section 1441. See Glass, 570 F.Supp.2d at 1183. “In the newly added section 1441(f) (which replaced section 1441(e)), Congress made clear that the principles of derivative jurisdiction were Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 5 of 9 Page ID #:61 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inapplicable to matters removed to federal court under ‘this section’ (i.e., section 1441).” Id. Thus, courts have held that the doctrine of derivative jurisdiction continues to apply to actions removed under Section 1442. See, e.g., FBI v. Super. Ct. of Calif., 507 F.Supp.2d 1082, 1092 (N.D. Cal. 2007), quoting Barnaby v. Quintos, 410 F.Supp.2d 142, 146 (S.D.N.Y. 2005) (holding that “[h]ad Congress intended to abolish derivative jurisdiction altogether, it could have done so when amending Section 1441 again in 2002, but it chose to make it clear that the elimination of derivative jurisdiction was limited to cases removed under Section 1441”); Lombardi v U.S., 2016 WL 1604492 (District Court would lack derivative jurisdiction over postal refund contract claim removed from small claims court.) The FBI court then concluded “that the doctrine of derivative jurisdiction applies to Section 1442 removals and that the In re Elko County Grand Jury decision is analytically controlling.” Id. (other citations holding that the doctrine of derivative jurisdiction applies to Section 1442 removals omitted). Accordingly, since the 2002 amendment, this District has likewise adopted the reasoning of the FBI and In re Elko County Grand Jury courts to dismiss actions based on the derivative jurisdiction doctrine. See, e.g., Kilroe v. Veterans Affairs Med. Ctr., Case No. CV 07-6107 R (VBKx)(C.D. Cal. 2008); Glaze v. Cootz, CV 09-1390 SVW (RZx)(C.D. Cal. 2009); Jenkins v. U.S. Dept. of Education, Case No. CV 10-03207 MMM (Ex) (C.D. Cal. 2010). 3. This Court Lacks Jurisdiction Because No Jurisdiction Existed In State Court Because the instant action was removed pursuant to 28 U.S.C. § 1442(a)(1), this Court must determine whether the state court had jurisdiction to hear the claim against Defendant in the first instance. See FBI v. Super. Ct. of Calif., 507 F.Supp.2d at 1092; see also, Golden Eagle, 83 F.Supp.2d at 1134. If no jurisdiction existed in the state Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 6 of 9 Page ID #:62 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court, none exists in this Court and, as a consequence, the action against Defendant must be dismissed. Id. A tort action, against the United States, or any agency or employee thereof, is governed by the FTCA. Only a federal court may hear the matter under the FTCA, not a state court. See Will v. United States, 60 F.3d 656, 659 (9th Cir. 1995) (“Under the FTCA, the district courts have exclusive jurisdiction over claims against the United States for injuries or losses of property caused by the negligent or wrongful act or omission of a government employee”) (emphasis added). Therefore, to the extent plaintiff asserts tort claims, the state court lacked jurisdiction, and because this Court’s jurisdiction is derived from that of the state court, this Court likewise lacks jurisdiction. FBI v. Super. Ct. of Calif., 507 F.Supp.2d at 1092; Golden Eagle, 83 F.Supp.2d at 1134. Furthermore, under the FTCA, an action against the United States is the only remedy available for an agency’s tortious action. Therefore, the Court lacks jurisdiction over an action against individuals acting in their official capacity for alleged tortious conduct, or federal agencies such as the USPS. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985); see Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410 (1952). Moreover, prior to filing suit under the FTCA, a plaintiff must allege he has exhausted his administrative remedies. See 28 U.S.C. §§ 2401(b), 2675(a). Since plaintiff failed to allege timely exhaustion of her administrative tort remedies, the Court lacks jurisdiction over a plaintiff’s tort claims. Accordingly, this action must be dismissed. Additionally, to the extent plaintiff’s complaint could be interpreted as asserting contract claims, the derivative jurisdiction doctrine likely still applies. Section 409(a) of the Postal Reorganization Act states that “[e]xcept as otherwise provided in this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service.” 39 U.S.C. § 409(a). 39 U.S.C. § 409(a) provides for the USPS to remove to the appropriate District Court any action brought in state court against it. 39 U.S.C. § 409(b) provides that the provisions of Title Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 7 of 9 Page ID #:63 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 relating to venue and the rules of procedure under Title 28 apply to suits against the Postal Service. The waiver of sovereign immunity in the Little Tucker Act is exclusive to claims brought in federal district courts or the Court of Federal Claims. 28 U.S.C. § 1346(a); see United States v. Bormes, 133 S.Ct. 12, 16 n.2 (2012). The Court would lack derivative jurisdiction over a Little Tucker Act a refund claim removed from small claims state court pursuant to 28 U.S.C. § 1442(a)(1). See, Lombardi v. United States, No. 15-CV- 1047-A, 2016 WL 1604492, at 3 (W.D.N.Y. Apr. 22, 2016). The Contract Disputes Act (“CDA”) overrides the grant of jurisdiction to the federal district courts in § 409(a). See, Anselma Crossing, L.P. v. U.S. Postal Serv., 637 F.3d 238, 244 (3rd Cir. 2011). When plaintiff files a complaint in conformance with Rule 8, if ever, then defendant can analyze whether the District Court has jurisdiction over it, or if the Court of Claims has exclusive jurisdiction over it under the Contract Disputes Act (“CDA”). C. Plaintiff’s Complaint Fails to State a Claim Upon Which Relief Can Be Granted Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint should be dismissed where the factual allegations of the complaint, even if accepted as true, fail to state a claim for relief. See Enesco Corp. v. Price/Costco Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007). Rule 8(a)of the Federal Rules of Civil Procedure “does not require detailed factual allegations, but it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 8 of 9 Page ID #:64 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This minimum standard is not met in the instant action. Plaintiff merely makes conclusory allegations that the USPS owes her money related to her Post Office Box, without providing sufficient legal and non-conclusory factual basis for her claims. IV. CONCLUSION Based on the foregoing, the Court should require plaintiff to file an amended complaint alleging both the factual and legal basis for her claims against the USPS, if any. Alternatively, the Court should dismiss this action without prejudice pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. Dated: September 9, 2016 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Kevin Finn KEVIN B. FINN Assistant United States Attorney Attorneys for Defendant United States of America Case 2:16-cv-04726-DSF-JC Document 11 Filed 09/09/16 Page 9 of 9 Page ID #:65 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ERRICA MICKENS, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant, No. CV 16-4726 DSF (JCx) (Proposed) ORDER OF DISMISSAL DATE: October 17, 2016 TIME: 1:30 p.m. CTRM: 840 Honorable Dale S. Fischer The Motion to Dismiss of the United States Postal Service having come on for hearing on October 17, 2016, before the Honorable Dale S. Fischer, and the Court having considered the oral argument at the time of the hearing and the pleadings, declarations and evidence filed in support of the Motion to Dismiss, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that plaintiff’s Complaint shall be dismissed with leave to file an amended complaint within thirty days. DATED: This day of October, 2016 DALE S. FISCHER United States District Judge Case 2:16-cv-04726-DSF-JC Document 11-1 Filed 09/09/16 Page 1 of 1 Page ID #:66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL I am over the age of eighteen years, and am not a party to the above-entitled action. I am employed by the office of United States Attorney for the Central District of California. My business address is 300 North Los Angeles Street, Los Angeles, California 90012. On September 9, 2016, I served NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES, and (Proposed) ORDER OF DISMISSAL on each person or entity named below by enclosing a copy in an envelope addressed as shown below and placing the envelope for collection and mailing on the date and at the place shown below in a mailbox at the United States Postal Service Office with postage fully prepaid, addressed to: Errica Mickens P.O. Box 452061 Los Angeles, CA 90045 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: September 9, 2016 at Los Angeles, California. /s/ Kevin B. Finn Case 2:16-cv-04726-DSF-JC Document 11-2 Filed 09/09/16 Page 1 of 1 Page ID #:67