Hastings v. The United States Postal Service et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State Claim

S.D. Cal.May 26, 2017

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 ALANA W. ROBINSON Acting United States Attorney VALERIE E. TORRES Assistant U.S. Attorney California Bar No. 223011 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101 Tel: (619) 546-7644 Fax: (619) 546-7751 Email: valerie.torres@usdoj.gov Attorneys for the UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WENDY HASTINGS, Plaintiff, v. THE UNITED STATES POSTAL SERVICE, UNITED STATES OF AMERICA, and DOES 1 through 25, inclusive, Defendants. Case No.: 16-cv-1259-JM (JLB) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT DATE: July 3, 2017 TIME: 10:00 a.m. CTRM: 5D (Schwartz) JUDGE: Hon. Jeffrey T. Miller Case 3:16-cv-01259-JM-JLB Document 10 Filed 05/26/17 PageID.36 Page 1 of 2 1 16-cv-1259-JM (JLB) 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 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on July 3, 2017, at 10:00 a.m., or as soon thereafter as this matter can be heard in Courtroom 5D (Schwartz) of the United States District Court located at 221 West Broadway, San Diego, California, Defendants United States of America and United States Postal Service will move to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Plaintiff’s First Amended Complaint on the grounds that the United States Postal Service is not a proper defendant in a Federal Tort Claims Act suit and Plaintiff’s claims against the United States are time-barred. This Motion is based upon this Notice of Motion, the Memorandum of Points and Authorities, Declaration of Mary C. Wiggins, and Request for Judicial Notice, filed in support thereof, and all pleadings and files in this action, and upon such other matters presented to the Court at the time of the hearing. DATED: May 26, 2017 Respectfully submitted, ALANA W. ROBINSON Acting United States Attorney s/ Valerie E. Torres Valerie E. Torres Assistant United States Attorney Attorneys for the UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE Case 3:16-cv-01259-JM-JLB Document 10 Filed 05/26/17 PageID.37 Page 2 of 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 ALANA W. ROBINSON Acting United States Attorney VALERIE E. TORRES Assistant U.S. Attorney California Bar No. 223011 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101 Tel: (619) 546-7644 Fax: (619) 546-7751 Email: valerie.torres@usdoj.gov Attorneys for the UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WENDY HASTINGS, Plaintiff, v. THE UNITED STATES POSTAL SERVICE, UNITED STATES OF AMERICA, and DOES 1 through 25, inclusive, Defendants. Case No.: 16-cv-1259-JM (JLB) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT DATE: July 3, 2017 TIME: 10:00 a.m. CTRM: 5D (Schwartz) JUDGE: Hon. Jeffrey T. Miller Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.38 Page 1 of 9 1 16-cv-1259-JM (JLB) 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 I. INTRODUCTION Pursuant to the Federal Tort Claims Act (“FTCA”), Plaintiff Wendy Hastings (“Plaintiff”) brings suit against the United States of America (“United States”) and the United States Postal Service (“Postal Service”) (collectively “Defendants”) for personal injuries following a fall at a local post office. The Postal Service, however, is not subject to suit under the FTCA; the United States is the only proper defendant in an FTCA action. Further, any FTCA claims against the United States are now time-barred because the six-month limitations period to bring suit against the United States expired in October 2016. See 28 U.S.C. § 2401. Plaintiff’s First Amended Complaint (“FAC”) adding the United States as a defendant does not relate back to Plaintiff’s original Complaint because Plaintiff cannot satisfy the notice requirements under Federal Rule of Civil Procedure 15(c). Accordingly, Defendants respectfully request that the Court dismiss, with prejudice, Plaintiff’s FAC for lack of jurisdiction and failure to state a claim. II. FACTUAL BACKGROUND Plaintiff allegedly suffered a fractured patella, among other injuries, when she fell while visiting a post office, located in San Diego, CA, on September 15, 2015. ECF No. 8, ¶¶ 5-7. On November 4, 2015, Plaintiff filed an administrative claim with the Postal Service for her alleged injuries. Id., ¶ 9. On April 27, 2016, the Postal Service denied Plaintiff’s administrative claim. See Request for Judicial Notice (“RJN”), Ex. 1, filed concurrently herewith. The Postal Service mailed, by certified mail, notice of the final denial to Plaintiff’s counsel on the same date. Id. Therein, the Postal Service informed Plaintiff that, in accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. § 912.9(a), Plaintiff was required to commence any FTCA action against the United States not later than six months from the date of mailing of the notice letter. Id. The notice letter also informed Plaintiff that the United States was the only proper defendant in an FTCA suit. Id. On May 26, 2016, Plaintiff filed this FTCA action, naming the Postal Service as the sole federal defendant. ECF No. 1, ¶¶ 1, 3. Plaintiff did not serve the United States Attorney or the United States Attorney General with a copy of the summons and original Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.39 Page 2 of 9 2 16-cv-1259-JM (JLB) 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 Complaint in this action until March 9, 2017 and March 15, 2017, respectively.1 See Declaration of Mary Wiggins, dated May 4, 2017, ¶ 5-6 (“Wiggins Decl.”), filed concurrently herewith. On May 8, 2017, the Postal Service filed a motion to dismiss Plaintiff’s original Complaint for lack of subject matter jurisdiction. See ECF No. 7. In response thereto, on May 12, 2017, Plaintiff filed the FAC, adding the United States as a defendant for the first time. See ECF No. 8, ¶ 3. On May 19, 2017, based on the filing of the FAC, the Court denied as moot and without prejudice the Postal Service’s motion to dismiss. ECF No. 9. III. LEGAL STANDARD A. Rule 12(b)(1) - Lack of Jurisdiction A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the Court’s subject matter jurisdiction. A lack of jurisdiction is presumed unless the party asserting jurisdiction establishes that it exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Thus, the plaintiff bears the burden of proof on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). If the court determines that it does not have subject matter jurisdiction, it must dismiss the claim. Fed. R. Civ. P. 12(h)(3). B. Rule 12(b)(6) - Failure to State a Claim A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To avoid dismissal, a complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 1 To serve a United States agency, Federal Rule of Civil Procedure 4(i)(2) requires that a plaintiff serve the summons and complaint on the following: (1) the United States (specifically the United States Attorney and the Attorney General) and (2) the federal agency being sued. See Fed. R. Civ. P. 4(i)(2). Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.40 Page 3 of 9 3 16-cv-1259-JM (JLB) 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 28 544, 570 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, “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.” Twombly, 550 U.S. at 555 (citation omitted). Furthermore, a court need not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Nor need the court “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit” or those which are “merely conclusory,” require “unwarranted deductions” or “unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see also Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) IV. ARGUMENT A. The United States is the Only Proper Defendant in an FTCA Action The United States is immune from suit unless it consents. See generally United States v. Dalm, 494 U.S. 596, 608 (1990). Thus, the United States, including its agencies and employees, may be sued only to the extent that it has expressly waived its sovereign immunity. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997). Absent a waiver of sovereign immunity, federal courts have no subject matter jurisdiction in cases against the United States. United States v. Mitchell, 463 U.S. 206, 212 (1983). Further, if Congress waives the government’s immunity from suit, the government’s susceptibility to suit is limited by the terms of that congressional waiver. See Lehman, 453 U.S. at 160; Hodge, 107 F.3d at 707. Moreover, it is “well Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.41 Page 4 of 9 4 16-cv-1259-JM (JLB) 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 established that federal agencies are not subject to suit eo nomine unless so authorized by Congress in ‘explicit language.’” Midwest Growers Co-op Corp. v. Kirkemo, 533 F.2d 455, 465 (9th Cir. 1976). Here, pursuant to the FTCA, Plaintiff purports to bring a tort action against the Postal Service. See FAC, ¶¶ 1, 4-6. Although FTCA claims can arise from the acts or omissions of United States agencies (28 U.S.C. § 2671), a federal agency is not subject to suit under the FTCA. See 28 U.S.C. § 2679(a) - (b)(1); Allen v. Veterans Administration, 749 F.2d 1386, 1388 (9th Cir. 1984) (“Individual agencies of the United States may not be sued [under FTCA].”). Instead, the FTCA allows claims only against the United States. F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA is the exclusive remedy for tortious conduct by the United States, and it only allows claims against the United States.”); Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (“The United States is the only proper defendant in an FTCA action”). Consequently, because the United States is the only proper defendant in an FTCA action, FTCA claims against federal agencies are subject to dismissal. See Kennedy v. United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (“Because the United States is the only proper party defendant in an FTCA action, the district court correctly dismissed her complaint as improperly filed against the Postal Service. . . .”); Matthews v. McDonald, No. 14cv1340-MMA (BLM), 2016 U.S. Dist. LEXIS 151, *38 (S.D. Cal. Jan. 4, 2016) (“Plaintiff’s tort claims are subject to dismissal for failure to name the United States as the proper defendant as required by the FTCA.”). Because Plaintiff’s FAC against the Postal Service is barred by the FTCA, Plaintiff’s claims against the Postal Service should be dismissed in their entirety, with prejudice, for lack of jurisdiction. B. Any FTCA Claims Against the United States are Now Time-Barred and The FAC Does Not Relate Back to Plaintiff’s Original Complaint Under the FTCA, when a federal agency denies an administrative claim, a claimant must commence suit within six months from the date the agency mailed, by certified or Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.42 Page 5 of 9 5 16-cv-1259-JM (JLB) 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 registered mail, notice of the final denial of the claim. See 28 U.S.C.S. § 2401(b); see also Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011). Accordingly, Plaintiff was required to file suit against the United States no later than October 27, 2016 (six months from date of mailing of denial letter on April 27, 2016). See 28 U.S.C. § 2401(b); see also RJN, Ex. 1. Plaintiff filed suit against the United States on May 12, 2017, long past October 27, 2016. Thus, any FTCA claims against the United States are now time- barred because the applicable limitations period expired approximately seven months ago. Moreover, Plaintiff cannot circumvent the six-month statute of limitations through amendment because the FAC does not relate back to the filing of Plaintiff’s original Complaint. Federal Rule of Civil Procedure 15(c) allows a plaintiff to amend a complaint, “after a statute of limitation period has run, to accurately name a defendant who was not correctly named in the pleading before the limitation period had run.” See G.F. Co. v. Pan Ocean Shipping Co., 23 F.3d 1498, 1501 (9th Cir. 1994); see also Fed. R. Civ. P. 15(c). However, before an amended complaint that seeks to bring in the United States can relate back to the original complaint, a plaintiff must satisfy either the “general notice provision” or the “government notice provision” set forth in Rule 15(c). See Miles v. Department of the Army, 881 F.2d 777, 781 (9th Cir. 1989). Under the general notice provision, an amendment seeking to change a party relates back if: (1) the amendment asserts a claim that arose out of the conduct, transaction, or occurrence set out in the original pleading, and (2), within the time period provided by Rule 4(m) (i.e., 90 days), the party to be added by amendment (i) received notice of the action and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. Fed. R. Civ. P. 15(c)(1)(C)(i)-(ii). The government notice provision, in turn, provides as follows: When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period [i.e., 90 days], process was delivered or mailed to the United States Attorney . . ., to the Attorney General of the United States, or to the officer or agency. Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.43 Page 6 of 9 6 16-cv-1259-JM (JLB) 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 Fed. R. Civ. P. 15(c)(2). Plaintiff does not satisfy the requirements of either the general notice provision or the government notice provision in Rule 15(c). To satisfy the general notice provision and allow an amendment adding the United States to relate back, the Ninth Circuit requires that both the U.S Attorney and the Attorney General receive notice during the statutory period. See Miles, 881 F.2d at 782 (“a plaintiff may substitute the United States as a defendant after the expiration of the statute of limitations only if both the U.S Attorney and the Attorney General received notice prior to the running of the statutory period”) (emphasis added)). This requirement, in turn, is based on Federal Rule of Civil Procedure 4, which states “that both the U.S. Attorney and the Attorney General must be served in order to properly serve the United States.” Id. (citing Allen, 749 F.2d at 1390); see also Fed. R. Civ. P. 4(i)(1). Here, Plaintiff served the United States Attorney on March 9, 2017 and the Attorney General on March 15, 2017, long past the 90-day period provided by Rule 4(m)2 and almost five months after the six-month limitations period expired. See Wiggins Decl., ¶¶ 5-6. Moreover, to the extent Plaintiff alleges that she served the Postal Service, such service, even if true, would not be sufficient to provide adequate notice to the United States because the Ninth Circuit holds that “actual knowledge possessed by an agency will not be imputed to the United States.” Allen, 749 F.2d at 1389. Consequently, unless Plaintiff can demonstrate that both the United States Attorney and the Attorney General received notice during the requisite time frame, she cannot satisfy the general notice provision of Rule 15(c)(1)(c).3 See Miles, 882 F.2d at 782 (holding that plaintiff did not satisfy the 2 Plaintiff filed suit on May 26, 2016. See ECF No. 1. Hence, the 90-day period provided for in Rule 4(m) expired on August 24, 2016. 3 Defendants further note that the general notice provision in Rule 15(c)(1)(C) also requires a “mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C); see also G.F. Co., 23 F.3d at 1503 (“Rule 15(c) was intended to protect a plaintiff who mistakenly names a party and then discovers, after the relevant statute of limitations has run, the identity of the proper party.”). The rule was designed to allow an amendment that changes the name of a party to relate back “only if the changing is the result of an error, such as a misnomer or misidentification.” Bondurant v. City of Battleground, Case No. 3:15-cv-05719-KLS, 2016 U.S. Dist. LEXIS 130699, *10-11 Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.44 Page 7 of 9 7 16-cv-1259-JM (JLB) 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 general notice provision because nothing in the record showed that the Attorney General received timely and adequate notice of the suit, and thus the plaintiff’s proposed amendment fell outside the scope of the terms of the general notice provision). The same holds true regarding the government notice provision. Rule 15(c)(2) requires that “process” be “delivered or mailed” to the United States Attorney or the Attorney General within 90 days after the complaint is filed. Fed. R. Civ. P. 15(c)(2). The only “process,” i.e., summons and complaint, delivered or mailed to the United States Attorney or Attorney General in this case occurred on March 9, 2017 and March 15, 2017, respectively, almost 10 months after Plaintiff filed suit. See Wiggins Decl., ¶¶ 5-6; see also Mertens v. Shensky, 355 F. App’x 990, 991 (9th Cir. 2009) (holding that amended complaint did not relate back because plaintiff failed to show that United States received notice of claim) (citing Allen, 749 F.2d at 1390); Christman v. Dep’t of the Air Force, Case No. 2:10-cv-00265-GMN-LRL, 2011 U.S. Dist. LEXIS 36264, *7-8 (D. Nev. Mar. 23, 2011) (dismissing complaint without leave to amend to add the United States because plaintiff provided no evidence that the United States Attorney or the Attorney General were put on notice). Accordingly, “process” was neither “delivered” nor “mailed” to the United States Attorney or the Attorney General within the time frame necessary to satisfy the government notice provision in Rule 15(c)(2). (W.D. Wash. Sept. 23, 2016). “Rule 15(c) was never intended to assist a plaintiff who ignores or fails to respond in a reasonable fashion to notice of a potential party.” G.F. Co., 23 F.3d at 1503. Plaintiff cannot demonstrate any such error or mistake here. In April 2016, Plaintiff’s counsel was expressly advised that the only proper party to an FTCA action is the United States. See RJN, Ex. 1, at p. 2. Hence, Plaintiff was on notice, prior to filing suit on May 26, 2016, that the United States was the correct defendant in this action. Furthermore, this is not a case of misnomer or misidentification. The United States was never named prior to the FAC and any argument that naming the Postal Service was the equivalent of either naming the United States or stating a claim against the United States is without merit. See Kennedy, 145 F.3d at 1078 (“A claim against the United States Postal Service in its own name is not a claim against the United States.”). Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.45 Page 8 of 9 8 16-cv-1259-JM (JLB) 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 In sum, unless Plaintiff affirmatively demonstrates that she satisfied either the general or government notice provision in Rule 15(c), the FAC does not relate back to Plaintiff’s original Complaint and Plaintiff’s FTCA claims against the United States are time-barred. V. CONCLUSION Based on the foregoing, Defendants respectfully request that the Court dismiss Plaintiff’s First Amended Complaint, with prejudice, for lack of jurisdiction and failure to state a claim. DATED: May 26, 2017 Respectfully submitted, ALANA W. ROBINSON Acting United States Attorney s/ Valerie E. Torres Valerie E. Torres Assistant United States Attorney Attorneys for the UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE Case 3:16-cv-01259-JM-JLB Document 10-1 Filed 05/26/17 PageID.46 Page 9 of 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 ALANA W. ROBINSON Acting United States Attorney VALERIE E. TORRES Assistant U.S. Attorney California Bar No. 223011 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101 Tel: (619) 546-7644 Fax: (619) 546-7751 Email: valerie.torres@usdoj.gov Attorneys for the UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WENDY HASTINGS, Plaintiff, v. THE UNITED STATES POSTAL SERVICE, UNITED STATES OF AMERICA, and DOES 1 through 25, inclusive, Defendants. Case No.: 16-cv-1259-JM (JLB) DECLARATION OF MARY C. WIGGINS IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT DATE: July 3, 2017 TIME: 10:00 a.m. CTRM: 5D (Schwartz) JUDGE: Hon. Jeffrey T. Miller Case 3:16-cv-01259-JM-JLB Document 10-2 Filed 05/26/17 PageID.47 Page 1 of 2 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 3 I, Mary C. Wiggins, hereby state and declare: 1. I am over the age of 18 and legally competent and capable of making this 4 Declaration. I have first-hand knowledge of the statements contained in this Declaration. 5 2. I am employed as the Civil Process clerk for the Civil Division of the Office 6 of the United States Attorney for the Southern District of California, located at 880 Front 7 Street, Room 6293, San Diego, California, 92101. I have held this position since March 8 1990. I am the only civil docket clerk for this Office. 9 3. As the civil docket clerk, I am authorized to accept service of process on 10 behalf of the United States Attorney for matters within the cognizance of the Civil Division. 11 4. All summonses and complaints which are personally served on the Civil 12 Division of this Office, or are received by mail, or otherwise left with this Office, come 13 directly to me for docketing. All incoming mail for the Civil Division is also routed to me 14 for necessary receipt processing, docketing (if necessary), and distribution. 15 5. The records that are under my care, custody, and control show that the United 16 States Attorney's Office for the Southern District of California was served on March 9, 17 2017 with a copy of the Summons and Complaint in the above-referenced case. 18 6. Also, on May 2, 2017, I contacted, by email, Matthew Maisel of the United 19 States Attorney General's office in Washington, D.C., inquiring as to whether the Attorney 20 General has been served in the above-referenced case. On the same date, Mr. Maisel 21 informed me that the United States Attorney General was served on March 15, 2017 in the 22 above-referenced case. 23 I declare under penalty of perjury that the foregoing is true and correct, and, if called 24 to testify, would be able to do so as to the information set forth above. 25 Executed this !±±±1 day ofMay, 2017, at San Diego, California. 26 27 28 ' 1 16-cv-1259-JM (JLB) Case 3:16-cv-01259-JM-JLB Document 10-2 Filed 05/26/17 PageID.48 Page 2 of 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 ALANA W. ROBINSON Acting United States Attorney VALERIE E. TORRES Assistant U.S. Attorney California Bar No. 223011 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101 Tel: (619) 546-7644 Fax: (619) 546-7751 Email: valerie.torres@usdoj.gov Attorneys for the UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WENDY HASTINGS, Plaintiff, v. THE UNITED STATES POSTAL SERVICE, UNITED STATES OF AMERICA, and DOES 1 through 25, inclusive, Defendants. Case No.: 16-cv-1259-JM (JLB) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT DATE: July 3, 2017 TIME: 10:00 a.m. CTRM: 5D (Schwartz) JUDGE: Hon. Jeffrey T. Miller Case 3:16-cv-01259-JM-JLB Document 10-3 Filed 05/26/17 PageID.49 Page 1 of 7 1 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 16-cv-1259-JM (JLB) In support of its Motion to Dismiss First Amended Complaint, Defendants hereby request that this Court take judicial notice of a formal letter, issued by the United States Postal Service (“Postal Service”) on April 27, 2016, denying Plaintiff’s administrative tort claim. Pursuant to Federal Rule of Evidence 201, this Court may take judicial notice of an adjudicative fact “not subject to reasonable dispute because it (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2). Defendants respectfully request that this Court take judicial notice of the following: a letter, sent via certified mail, return receipt requested, to Plaintiff’s counsel, Deon Goldschmidt, from Ann Mandernach, Tort Claims Coordinator/Adjudicator for the United States Postal Service, dated April 27, 2016, formally denying Plaintiff’s administrative claim filed with Postal Service pursuant to the Federal Tort Claims Act (hereinafter “Denial Letter”). See Denial Letter, attached hereto as Exhibit 1. When ruling on a 12(b)(6) motion, courts may consider the information contained in the pleadings, exhibits attached to the complaint, and “matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Courts can also “consider materials incorporated into the complaint or matters of public record.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 U.S. Dist. LEXIS 41804, at *24-25 (N.D. Cal. June 9, 2006) (courts may “take judicial notice of documents on which allegations in the complaint necessarily rely, even if not expressly referenced in the complaint, provided that the authenticity of those documents is not in dispute”). Matters of public record include orders and decisions made by other courts or administrative agencies. Papai v. Harbor Tug and Barge Co., 67 F.3d 203, 207 (9th Cir. 1995), reversed on other grounds by Harbor Tug and Barge Co. v. Papai, 520 U.S. 548 (1997); Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. Cal. 1986) (“a court may take judicial notice of records and reports of Case 3:16-cv-01259-JM-JLB Document 10-3 Filed 05/26/17 PageID.50 Page 2 of 7 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 16-cv-1259-JM (JLB) administrative bodies”), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). Moreover, the Ninth Circuit has “extended the doctrine of incorporation by reference to consider documents in situations where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document’s authenticity is not in question and there are no disputed issues as to the document’s relevance.” Coto Settlement, 593 F.3d at 1038. Further, in the context of administrative tort claims, courts routinely take judicial notice of documents issued during government claims procedures, including specifically notices denying such claims, on the grounds that such documents are public records. See, e.g., Clarke v. Upton, 703 F. Supp. 2d 1037, 1042 (E.D. Cal. 2010) (taking judicial notice of the filing date and content of plaintiff’s tort claims and their rejection by county because documents were “matters of public record and set forth facts ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned’”); Jen v. City & Cnty. of San Francisco, Case No. 15-cv-03834-HSG, 2016 U.S. Dist. LEXIS 89673, *8-10 (N.D. Cal. July 11, 2016) (taking judicial notice of certain records relating to plaintiff’s administrative government tort claim, including a rejection letter); Navarro v. City of Alameda, Case No. 14-cv-01954-JD, 2014 U.S. Dist. LEXIS 133779, * 3-4 (N.D. Cal. Sept. 22, 2014) (taking judicial notice of city’s letter rejecting the plaintiff’s government tort claim as untimely). Here, the Denial Letter represents the Postal Service’s final decision adjudicating Plaintiff’s administrative tort claim, and therefore constitutes a public record from the underlying administrative proceedings. See Fed. R. Evid. 201(b)(2). Further, Plaintiff expressly references her administrative claim in her First Amended Complaint and includes allegations regarding the filing and disposition of her administrative claim, presumably to demonstrate exhaustion of administrative remedies. See ECF No. 8, ¶ 9. Indeed, the underlying administrative claim is germane to this action because the Federal Tort Claims Act requires exhaustion of administrative remedies before this Court may exercise jurisdiction over this action. See Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992) (the administrative “claim requirement of section 2675 [FTCA] is jurisdictional in nature Case 3:16-cv-01259-JM-JLB Document 10-3 Filed 05/26/17 PageID.51 Page 3 of 7 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 16-cv-1259-JM (JLB) and may not be waived”). Accordingly, the Court may take judicial notice of and consider the Denial Letter in conjunction with the concurrently filed Motion to Dismiss Plaintiff’s First Amended Complaint.1 CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court take judicial notice of the Postal Service’s April 27, 2016 denial letter. DATED: May 26, 2017 Respectfully submitted, ALANA W. ROBINSON Acting United States Attorney s/ Valerie E. Torres VALERIE E. TORRES Assistant U.S. Attorney Attorneys for Defendants UNITED STATES OF AMERICA and UNITED STATES POSTAL SERVICE 1 Defendants note that this Court “may take judicial notice of ‘matters of public record’ without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not ‘subject to reasonable dispute.’” Intri-Plex Technologies, Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007); see also Mack, 798 F.2d at 1282 (“on a motion to dismiss a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment”). Case 3:16-cv-01259-JM-JLB Document 10-3 Filed 05/26/17 PageID.52 Page 4 of 7 EXHIBIT 1 Case 3:16-cv-01259-JM-JLB Document 10-3 Filed 05/26/17 PageID.53 Page 5 of 7 ,,. LAW DEPARTMENT NATIONAL TORT CENTER Q UNIT~D!!~TE~~ CERTIFIED MAIL RETURN RECEIPT REQUESTED April 27, 2016 Mr. Deon Goldschmidt Attorney at Law 4350 Executive Drive, Suite 320 San Diego, CA 92121 Re: Your Client: Date of Incident: Dear Mr. Goldschmidt: Wendy Hastings September 15, 2015 This is in reference to the administrative claim filed on behalf of your client Wendy Hastings under the provisions of the Federal Tort Claims Act, as a result of injuries allegedly sustained on or about September 15, 2015. The Postal Service is not legally obligated to pay all losses which may occur, but only those caused by the negligent or wrongful act or omission of an employee acting in the scope of his/her employment. We are guided in our determination by all the information available to us, including the reports of our personnel and any other persons acquainted with the facts. As to the incident at issue, an investigation of this matter failed to establish a negligent act or omission on the part of the U.S. Postal Service or its employees. In fact, our investigation, which included information provided by Ms. Hastings, is that her fall was caused by her haste in traversing the lobby while wearing flip flop shoes on the rainy day. Ms. Hastings reported that she was in a hurry- which is why she did not wipe her shoes on either of the mats she crossed, she was hungry, and she had recently taken medication (clonidine), which likely caused or contributed to her fall. In contrast, the evidence will show the Postal Service had placed mats in the entry way and was monitoring the floors on that day. As you know, although an owner of a business owes its customer a duty to exercise reasonable care to keep the premises in a reasonably safe condition, it is not an insurer of a customer's safety. We believe the evidence will convince a Federal District Court Judge that the Postal Service exercised reasonable care with respect to its premises and is not responsible for Ms. Hastings' fall. While we regret any injuries that may have occurred, we cannot accept legal liability for them. Accordingly, this claim is denied. In accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. 912.9(a), if dissatisfied with the Postal Service's final denial of an administrative claim, a claimant may file suit in 1720 MARKET STREET, ROOM 2400 ST. LOUIS, MO 63155-9948 TEL: 314/345-5820 FAX: 314/345-5893 Case 3:16-cv-01259-JM-JLB Document 10-3 Filed 05/26/17 PageID.54 Page 6 of 7 ,r ,..., l"'- 0- f1J - 2 - a United States District Court no later than six (6) months after the date the Postal Service mails the notice of that final action . Accord ingly, any suit filed in regards to this denial must be filed no later than six (6) months from the date of the mailing of this letter, which is the date shown above. Further, note the United States of America is the only proper defendant in a civil action brought pursuant to the Federal Tort Claims Act and such suit may be heard only by a federal district court. Alternatively, and in accordance with the regulations set out at 39 C.F.R. 912.9(b) , prior to the commencement of suit and prior to the expiration of the six (6) month period provided in 28 U.S.C. § 2401 (b) , a claimant, his duly authorized agent, or legal representative, may file a written request for reconsideration with the postal official who issued the final denial of the claim. Upon the timely filing of a request for reconsideration, the Postal Service shall have six (6) months from the date of filing in which to make a disposition of the claim and the claimant's option under 28 U.S.C. § 2675(a) shall not accrue until six (6) months after the filing of the request for reconsideration . A request for reconsideration of a final denial of a claim shall be deemed to have been filed when received in this office. Sincerely, $ ~ C ~ i al ~ ... u ~ C: a. ~~~ Ann Mandernach Tort Claims Examiner/Adjudicator Tel: 314/345-5847 cc: Norm Klein - Tort Claim Coordinator File No. 921-15-0634A U.S. Postal Service™ CERTIFIED MAIL® RECEIPT Domestic Mail Only Q) "O C) i:it a DD! C) c5 0) ai (/) 0 ~~ DD c--... ' i ~~ ~ {~ cc 2 Ee~ £ ,jj~~ :§.., 'g'E8! E = ~cno O :, ~~] cc'geeal ~ :?:-!£!£~E~~~:g o 5c>o~3~ 5,5,0 ti if~£c3~::cncn~ <1> ODD D DD § ~ C) - i?:' ~ l ~ ~ i?:' ~ ~ al ~ al ~ ~ ~ 'tl · i iii 'O ~ :g £ ~ $ - i?:' i?:' :E cc SJa,a, 1n 8._e e@a:~~ Q) >,:,:,:---Cl>Q) a: F-'lii'liiamoo== 5 E .c: >, 0) 0 = U1 q> 0 N -I'- rl g C') -co,:::- -- Cl> ::r gi - 2 == rl 6 :::r ,..., Cl I Return Receipt Fee Cl (Endorsement Required) Cl 1----- -~ Restricted Delivery Fee Cl (Endorsement Required) Ir :::r rn 11 I I I I I I! I I '11 I• ii•• 'I• I I I I I Ii••• I•• I 1111 11 I ii I 1 • 1 I I I 1111 I I I• 1 I I I ~ r Mr. Deon Goldschmidt CJ f; Attorney at Law I"'- ~ 4350 Executive Drive, Suite 320 San Diego, CA 92121 See Reverse for Instructions - 0 .c: C +-'.., . ~"E 0~ c.;8J~t5E -c""a> c"C.c:.oa. l ro"fil-0>0> C\i-cE£l6 ,.:§~_gg. u,0>...,-0~ E E § liic 0><11000 ~ C (I),._ .l!ls~:2~ 1: tg,1il;;£ E c:5 g § 8itg~5 • • • - ::::, -- ,..... 0 <') = U) == C') "i! 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