Free Proposed Order - District Court of California - California

Case 5:07-cv-05022-PVT

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SCOTT N. SCHOOLS (SC 9990) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MELISSA K. BROWN (CSBN 203307) [email protected] Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6962 FAX: (415) 436-6748 Attorneys for Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 JAGUAR ASSOCIATES GROUP, 12 Plaintiff, 13 v. 14 UNITED STATES POSTAL SERVICE, 15 Defendants. 16 17 On November 20, 2007, the Defendant's motion to dismiss came on regularly for hearing. 18 Having considered the pleadings, papers on file, and the parties' arguments, the Court hereby 19 GRANTS the motion to dismiss with prejudice. 20 A. 21 The United States Postal Service ("USPS") moved for an order dismissing this action 22 with prejudice for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal 23 Rules of Civil Procedure. A claim for lost mail is specifically excluded by the Federal Tort 24 Claims Act ("FTCA"). See 28 U.S.C. §2680(b). 25 On or about September 10, 2007, the USPS received Plaintiff Jaguar Associate Group's a 26 Complaint Case number 407SC025077, naming the USPS as a defendant. In block three of its 27 Complaint, Plaintiff alleges that it made a mailing of a newsletter on April 4, 2006, but that two 28
[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS C 07-5022 PVT

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No. C 07-5022 PVT [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

ANALYSIS

Case 5:07-cv-05022-PVT

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weeks later the newsletters had not been delivered. Plaintiff further alleges that as a result of the alleged failure of delivery with respect to the first mailing that it made a second mailing. Plaintiff seeks $204.75 in damages. The U.S. Attorney's Office removed the claim on September 28, 2007. A motion to dismiss under Rule 12(b)(1) tests the subject-matter jurisdiction of the court. See, e.g., Savage v. Glendale Union High School, 343 F.3d 1036, 1039-40 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004). A motion will be granted if the complaint, when considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction. Id. at 1039 n.2. The United States, as sovereign, can be sued only to the extent that it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Moreover, the terms of that consent define a federal court's jurisdiction to entertain such suit. United States v. Testan, 424 U.S. 392, 399 (1976). The FTCA is the exclusive waiver of sovereign immunity for actions sounding in tort against the United States, its agencies and/or employees acting within the scope of their employment. Smith v. United States, 507 U.S. 197, 201 (1993) (citing 28 U.S.C. §1346(b)). The United States is the only proper party defendant in an FTCA action. 28 U.S.C. § 2679(a); Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (per curium). B. PLAINTIFF'S CLAIM IS BARRED BY THE "LOST MAIL" EXCEPTION Plaintiff's claim is barred by the lost mail exception to the FTCA. Plaintiff's Complaint clearly states a claim for Section 2680, Title 28, United States Code, bars tort claims arising from the process of mail delivery. Specifically, § 2680(b) bars: "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." Plaintiff's claim clearly arises out of the alleged "loss, miscarriage, or negligent transmission" of mail that allegedly was not delivered. // //
[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 2 C 07-5022 PVT

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C.

CONCLUSION For the foregoing reasons, the Court hereby dismisses Plaintiff Jaguar Associate's

Complaint with prejudice.

IT IS SO ORDERED

DATED: _________________

________________________________ PATRICIA V. TRUMBULL United States Magistrate Judge

[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 3 C 07-5022 PVT

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CERTIFICATE OF SERVICE The undersigned hereby certifies that she is an employee of the Office of the United States Attorney for the Northern District of California and is a person of such age and discretion to be competent to serve papers. The undersigned further certifies that she is causing a copy of the following: [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Jaguar Associates Group v. United States Postal Service C 06-05022 PVT to be served this date upon each of the persons indicated below at the address shown:

9 10 11 12 13 14 15 16 17 18 ______ 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. Executed October 3, 2007 at San Francisco, California. 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 4 C 07-5022 PVT

Richard H. France 22860 Old Santa Cruz Hwy Los Gatos, CA 95033 / BY FIRST CLASS MAIL by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing U.S. mail in accordance with this office's practice. BY PERSONAL SERVICE (BY MESSENGER): I caused such envelope to be delivered by hand to the person or offices of each addressee above. BY FACSIMILE (FAX): I caused each such document to be sent by facsimile to the person or offices of each addressee above. ______ BY E-MAIL: I caused each such document to be sent by e-mail to the person or offices of each address above. BY FEDERAL EXPRESS

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/s/ KATHY TERRY Legal Assistant