Lois Mulleneaux v. United States Postal Service et al

NOTICE OF MOTION AND MOTION to Dismiss Case ; Memorandum of Points and Authorities, and Declaration of Nathan Livingston

C.D. Cal.May 9, 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 SANDRA R. BROWN Acting 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 KAREN P. RUCKERT (KS. Bar No. 20384) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 393-5354 Facsimile: (213) 894-7819 E-mail: Karen.Ruckert2@usdoj.gov Attorneys for Defendant United States Postal Service UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION LOIS MULLENEAUX, Plaintiff, vs. UNITED STATES POSTAL SERVICE and DOES 1 through 10, inclusive, Defendants. No. CV 16-08960-DSF (ASx) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES, AND DECLARATION OF NATHAN LIVINGSTON [Fed. R. Civ. P. 12(b)(1), 12(b)(6)] Date: June 12, 2017 Time: 1:30 p.m. Place: Courtroom 7D First Street Courthouse 1. DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT; 2. MEMORANDUM OF POINTS AND AUTHORITIES. Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 1 of 7 Page ID #:82 ii 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 NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT PLEASE TAKE NOTICE THAT ON June 12, 2017 at 1:30 p.m., or as soon thereafter as the parties may be heard, Defendant the United States Postal Service will bring on for hearing this motion to dismiss. The hearing will take place before the Honorable Dale S. Fischer, United States District Judge, in courtroom 7D, First Street Courthouse, 350 W. 1st Street, Los Angeles, California 90012. Defendant respectfully moves to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim for which relief can be granted. This Motion is based on the Memorandum of Points and Authorities attached hereto, and upon such other and further arguments, documents and grounds as may be advanced at or before the hearing of this motion. Pursuant to Local Rule 7-3, Counsel for Defendant initiated a conference of counsel by leaving a voice mail with counsel for Plaintiff at the number on file with the Court on May 1, 2017 and emailing him on May 2, 2017. Counsel for Plaintiff returned the call later on March 2, 2017. Dated: May 9, 2017 SANDRA R. BROWN Acting 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 /s/ Karen P. Ruckert KAREN P. RUCKERT Assistant United States Attorney Attorneys for Defendant United States Postal Service Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 2 of 7 Page ID #:83 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 MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction Plaintiff Lois Mulleneaux (“Plaintiff”) brings this action against Defendant the United States Postal Service (“Defendant” or “USPS”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1) and 2671 et seq. (See generally Compl., ECF 13-1). Defendant moves to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim for which relief can be granted. First, the Court lacks subject matter jurisdiction over Plaintiff’s claims against the USPS as the sole proper defendant in an FTCA action is the United States. Thus, the Court should dismiss the Complaint for this reason alone. Second, because Plaintiff filed the Complaint more than seven months after the FTCA’s six-month statute of limitations had run, and because Plaintiff cannot now cure this defect, the Complaint fails to state a claim for which relief can be granted. Accordingly, the Court should dismiss the Complaint with prejudice. II. Relevant Procedural History Plaintiff filed this lawsuit on December 5, 2016, alleging a personal injury arising from a December 5, 2014, fall outside a USPS building in Culver City, California. (See Compl., ECF 1, ECF 13-1 ¶ 10). 1 Plaintiff filed an SF-95 claim form with USPS on February 17, 2015. (See SF-95, Ex. A to Compl., ECF 13-1). A USPS adjudicator issued a letter on October 15, 2015, notifying Plaintiff of the agency’s final denial of her claim. See Denial of Claim, Ex. 1 at 4-5; Livingston Decl., Ex. 2 The USPS sent the letter the same day by certified mail to Plaintiff’s attorney. See Denial of Claim, Ex. 1 at 4-5; Livingston Decl., Ex. 2. 1 Plaintiff filed a Notice of Errata on December 21, 2016, correcting a case number in the Complaint’s caption. See Compl. (ECF 13-1). However, the original complaint was filed on December 5, 2016. See Compl. (ECF 1). Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 3 of 7 Page ID #:84 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 The letter advised Plaintiff in relevant part that, “[i]n 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 a United States District Court no later than six (6) months after the date the Postal Service mails notice of that final action. Accordingly, 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 . . . .”. See Denial of Claim, Ex. 1, at 4 (emphasis in original). The letter further informed Plaintiff that the United States of America is the only proper defendant in a civil action brought under the FTCA. Id. at 4- 5. III. Plaintiff’s Complaint Should Be Dismissed With Prejudice a. The Court Lacks Subject Matter Jurisdiction Over the Complaint Federal Rule of Civil Procedure 12(b)(1) requires a Court to dismiss a complaint when it lacks subject matter jurisdiction. Federal courts have subject matter jurisdiction only over matters authorized by the Constitution and Congress. E.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Plaintiff bears the burden to prove jurisdiction. E.g., Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). When moving under Rule 12(b)(1), a party may either show that the allegations of the complaint, taken as true, are insufficient to invoke federal jurisdiction, or present evidence that disputes allegations that, by themselves, would otherwise be sufficient to invoke jurisdiction. E.g., Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Here, the Court lacks subject matter jurisdiction over the Plaintiff’s claims against the named Defendant. The Complaint names only the United States Postal Service and Does 1-10 as defendants. However, as Defendant informed Plaintiff in the October 15, 2015, letter denying her administrative claim, the United States is the only proper defendant in an FTCA action. 28 U.S.C. § 1346(b)(1); see also id. § 2679(a) (prohibiting FTCA suits against federal agencies); Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (affirming district court’s dismissal of FTCA complaint as improperly filed against the United States Postal Service and agency head); see also Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 4 of 7 Page ID #:85 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 supra § II. Furthermore, the United States has not waived sovereign immunity so as to allow suit against its agencies eo nomine. See, e.g., City of Whittier v. U.S. Dep’t of Justice, 598 F.2d 561, 562 (9th Cir. 1979). Thus, the Court lacks subject matter jurisdiction over the Plaintiff’s claims against the named Defendant and should dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for this reason alone. b. The Complaint is Untimely and Thus Fails to State a Claim for Which Relief Can be Granted Even if Plaintiff had named the United States as a defendant, the Complaint should be dismissed with prejudice for failure to state a claim for which relief can be granted. The FTCA provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Here, Plaintiff’s denial letter was mailed on October 15, 2015. See Denial of Claim, Ex. 1, at 4-5; Livingston Decl., Ex. 2. Thus, her deadline to file a Complaint in federal court was April 15, 2016, six months later. See 28 U.S.C. § 2401(b). However, Plaintiff failed to file her Complaint until December 5, 2016, more than seven months too late. (See Compl., ECF 1). Plaintiff’s failure to file this action within the statute of limitations precludes her from stating a claim for which relief can be granted. The FTCA’s emphatic language indicates Congress’s intent to “encourage the prompt presentation of claims” for money damages to be paid out of the federal Treasury. United States v. Kubrick, 444 U.S. 111, 117 (1979). The time limit reflects the balance that Congress struck between “affording plaintiffs … a reasonable time to present their claims” and “protect[ing] [the federal government] and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 5 of 7 Page ID #:86 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 witnesses, fading memories, disappearance of documents, or otherwise.” Id. Far from a “‘trap for the unwary,’” McNeil v. United States, 508 U.S. 106, 113 (1993), the FCTA’s statute of limitations is “a ‘meritorious defense, in itself serving a public interest.’” Id. (citation omitted). Plaintiff’s failure to comply with 28 U.S.C. § 2401(b)’s statute of limitations thus bars her claim. Moreover, in applying 28 U.S.C. § 2401(b) in the context of a 12(b)(6) motion to dismiss, the Court may properly consider the October 15, 2015, denial letter. See Denial Letter, Ex. 1, at 4-5. Although the Complaint does not allege the date upon which the USPS sent notice of its final denial of Plaintiff’s administrative tort claim or attach the denial letter, Plaintiff relies on the SF-95 claim form to establish the Court’s jurisdiction. (See ECF 13 ¶ 19; SF-95, Ex. A to Complaint, ECF 13-1). Yet the Court’s jurisdiction also depends upon the Defendant’s notification to Plaintiff of its final denial of her administrative claim. See 28 U.S.C. § 2401(b). The denial letter therefore is properly before the Court on this motion to dismiss as a “document[] incorporated into the complaint by reference.” See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 2014) (affirming district court’s consideration on motion to dismiss of SEC filings relied upon in, but not attached to, complaint); Wright v. City of Santa Cruz, No. 13-cv-1230, 2014 WL 3058470, at *4-6 (N.D. Cal. July 3, 2014) (considering administrative tort claim referenced in but not attached to complaint in granting Rule 12(b)(6) motion). As a result of the incurable defect resulting from this action’s untimeliness, the Complaint fails to state a claim for which relief can be granted. A 12(b)(6) motion to dismiss requires a court to determine the sufficiency of the plaintiff’s complaint and whether it contains a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 6 of 7 Page ID #:87 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 content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (a complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively” and “must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation”). Because Plaintiff failed to file her Complaint within the FTCA’s six-month limitations period, her claim against the federal government is time-barred. Plaintiff cannot remedy the Complaint’s untimeliness. As such, the Complaint fails to state a claim upon which relief may be granted and should be dismissed with prejudice. IV. CONCLUSION For all of the above reasons, Defendant requests that the Court dismiss the Complaint and this action with prejudice, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted. Because the Complaint’s defects are not subject to cure, dismissal should be with prejudice. See, e.g., Gompper v. Visx, Inc., 298 F.3d 893, 898 (9th Cir. 2003). Dated: May 9, 2017 SANDRA R. BROWN Acting 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 /s/ Karen P. Ruckert KAREN P. RUCKERT Assistant United States Attorney Attorneys for Defendant United States Postal Service Case 2:16-cv-08960-DSF-AS Document 23 Filed 05/09/17 Page 7 of 7 Page ID #:88 1 EXHIBIT 1 Case 2:16-cv-08960-DSF-AS Document 23-1 Filed 05/09/17 Page 1 of 5 Page ID #:89 2 EXHIBIT 1 Case 2:16-cv-08960-DSF-AS Document 23-1 Filed 05/09/17 Page 2 of 5 Page ID #:90 3 EXHIBIT 1 Case 2:16-cv-08960-DSF-AS Document 23-1 Filed 05/09/17 Page 3 of 5 Page ID #:91 4 EXHIBIT 1 Case 2:16-cv-08960-DSF-AS Document 23-1 Filed 05/09/17 Page 4 of 5 Page ID #:92 5 EXHIBIT 1 Case 2:16-cv-08960-DSF-AS Document 23-1 Filed 05/09/17 Page 5 of 5 Page ID #:93 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 SANDRA R. BROWN Acting 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 KAREN P. RUCKERT (KS. Bar No. 20384) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 393-5354 Facsimile: (213) 894-7819 E-mail: Karen.Ruckert2@usdoj.gov Attorneys for Defendant United States Postal Service UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION LOIS MULLENEAUX, Plaintiff, vs. UNITED STATES POSTAL SERVICE and DOES 1 through 10, inclusive, Defendants. No. CV 16-08960-DSF (ASx) DECLARATION OF NATHAN LIVINGSTON DECLARATION OF NATHAN LIVINGSTON I, Nathan Livingston, do hereby declare and state as follows: 1. I am an attorney employed with the National Tort Center of the United States Postal Service (“USPS”) Law Department. I make the following factual statements based on my review of the agency’s official records. If called as a witness, I could and would competently testify thereto. 6 EXHIBIT 2 - Livingston Decl. Case 2:16-cv-08960-DSF-AS Document 23-2 Filed 05/09/17 Page 1 of 2 Page ID #:94 7 EXHIBIT 2 - Livingston Decl. Case 2:16-cv-08960-DSF-AS Document 23-2 Filed 05/09/17 Page 2 of 2 Page ID #:95 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 LOIS MULLENEAUX, Plaintiff, vs. UNITED STATES POSTAL SERVICE and DOES 1 through 10, inclusive, Defendants. No. CV 16-08960-DSF (ASx) [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Hon. Dale S. Fischer Defendant the United States Postal Service (“Defendant”)’s motion to dismiss came on regularly for hearing before this Court on June 12, 2017. Plaintiff appeared represented by her counsel for the Federal Defendants appeared. In issuing this order, the Court has considered the moving, opposition and reply papers, pleadings on file in this action, and all other matters that were appropriately before the Court along with the arguments of counsel. Defendant moves to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim for which relief can be granted. The Court finds that it lacks subject matter jurisdiction over the Complaint, because the only proper Defendant in this Federal Tort Claims Act (“FTCA”) action is the United States of America. See 28 U.S.C. § 1346(b)(1); see also id. § 2679(a) (prohibiting FTCA suits against federal agencies); Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (affirming district court’s dismissal of FTCA complaint as improperly filed against the United States Postal Service and agency head). Accordingly, the only proper defendant in this action is the United States. Thus, Federal Case 2:16-cv-08960-DSF-AS Document 23-3 Filed 05/09/17 Page 1 of 4 Page ID #:96 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 Rule of Civil Procedure 12(b)(1) requires the Court to dismiss the Complaint for lack of subject matter jurisdiction. Second, the Court finds that the Complaint also fails to state a claim for which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). A 12(b)(6) motion to dismiss requires a court to determine the sufficiency of the plaintiff’s complaint and whether it contains a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In deciding whether to dismiss a complaint pursuant to Rule 12(b)(6), a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them, see, e.g., Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998), and must read the complaint in the light most favorable to the nonmoving party. E.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The Court finds that Plaintiff has filed this action well outside the FTCA’s statute of limitations. The FTCA provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Here, Plaintiff’s denial letter was mailed on October 15, 2015. See Denial of Claim, ECF 22-1, at 4-5; Livingston Decl., ECF 22-2. Thus, Plaintiff’s deadline to file a Complaint in federal court was April 15, 2016, six months later. See 28 U.S.C. § 2401(b). However, Plaintiff failed to file her Complaint until December 5, 2016, more than seven months too late. (See Compl., ECF 1). Notably, the denial letter advised Plaintiff and her attorney of the FTCA’s requirements for filing a timely action in federal court, but Plaintiff nonetheless failed to do so. See Denial of Claim, Ex. 22-1, at 4. Case 2:16-cv-08960-DSF-AS Document 23-3 Filed 05/09/17 Page 2 of 4 Page ID #:97 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 The Court notes that in applying 28 U.S.C. § 2401(b) in the context of a 12(b)(6) motion to dismiss, the Court may properly consider the October 15, 2015, denial letter. See Denial Letter, Ex. 1, at 4-5. Although the Complaint does not allege the date upon which the USPS sent notice of its final denial of Plaintiff’s administrative tort claim or attach the denial letter, Plaintiff relies on the SF-95 claim form to establish the Court’s jurisdiction. (See ECF 13 ¶ 19; SF-95, Ex. A to Complaint, ECF 13-1). Yet the Court’s jurisdiction also depends upon the Defendant’s notification to Plaintiff of its final denial of her administrative claim. See 28 U.S.C. § 2401(b). The denial letter therefore is properly before the Court on this motion to dismiss as a “document[] incorporated into the complaint by reference.” See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 2014) (affirming district court’s consideration on motion to dismiss of SEC filings relied upon in, but not attached to, complaint); Wright v. City of Santa Cruz, No. 13-cv- 1230, 2014 WL 3058470, at *4-6 (N.D. Cal. July 3, 2014) (considering administrative tort claim referenced in but not attached to complaint in granting Rule 12(b)(6) motion). Case 2:16-cv-08960-DSF-AS Document 23-3 Filed 05/09/17 Page 3 of 4 Page ID #:98 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 Therefore: IT IS HEREBY ORDERED that the Federal Defendants’ motion to dismiss is GRANTED, and that Plaintiff’s action is dismissed with prejudice. Dated: June , 2017 HONORABLE DALE S. FISCHER U.S. DISTRICT JUDGE Respectfully submitted by: SANDRA R. BROWN Acting 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 /s/ Karen P. Ruckert KAREN P. RUCKERT Assistant United States Attorney Attorneys for Defendant United States Postal Service Case 2:16-cv-08960-DSF-AS Document 23-3 Filed 05/09/17 Page 4 of 4 Page ID #:99