ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Docket No. 10)
EDWARD M. CHEN, District Judge.
Plaintiff Jonathan Jimenez filed the instant suit against the United States, the United States Postal Service (the "USPS"), and a number of Doe Defendants pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and the Postal Reorganization Act, 39 U.S.C. §§ 101 et seq. (Dkt. No. 1). Plaintiff alleges negligence against Defendants for injuries he sustained when a vehicle driven by a USPS employee collided with the vehicle in which Plaintiff was a passenger. Pending before the Court is the United States' motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction and failure to state a claim. (Dkt. No. 10).
II. FACTUAL & PROCEDURAL BACKGROUND
On June 5, 2010, Plaintiff alleges he sustained physical injuries when a USPS vehicle operated by a USPS employee collided with the vehicle in which Plaintiff was a passenger. (Complaint ("Compl."), Preliminary Statement). Plaintiff alleges that the motor vehicle accident was caused by the negligence of the USPS employee driver while in the course of her employment with the USPS. (Compl. ¶ 7). Plaintiff claims he satisfied the notice requirement of the FTCA when his girlfriend, who was the driver of the vehicle in which Plaintiff was a passenger, gave notice of her FTCA property damage claim to the USPS on or about July 28, 2010. (Dkt. No. 15).
However, the first communication the USPS received from, or on behalf of, Plaintiff in connection with the June 5, 2010 incident was a representation letter from Plaintiff's counsel dated March 1, 2012. (Beatty Decl. ¶ 6; Def.'s Mot. Ex. A). In response, the USPS provided Plaintiff's counsel with the Standard Form 95 ("SF-95"). (Beatty Decl. ¶ 7; Ex. B). Plaintiff's counsel returned the SF-95 by mailing it from Eureka, California to USPS claims personnel in San Francisco on June 4, 2012. (Beatty Decl. ¶ 8; Ex. D). This was the day before the FTCA's two year statute of limitations expired on Plaintiff's claim. The USPS did not receive the SF-95 until June 6, 2012 - the day after the two year statute had run. (Beatty Decl. ¶ 9; Ex. E). USPS claims personnel date stamped the SF-95 on June 7, 2012. (Beatty Decl. ¶ 8; Ex. D). Because Plaintiff did not file his claim with the USPS within two years of the accrual of his claim (June 5, 2010), the USPS denied Plaintiff's claim on January 28, 2013. (Beatty Decl. ¶ 10; Ex. F).
On June 21, 2013, Plaintiff filed suit pursuant to 28 U.S.C. § 1346(b)(1) and 39 U.S.C. § 409, alleging negligence of the USPS employee while acting within the scope of her employment. (Dkt. No. 1). On August 22, 2013, the United States moved to dismiss Plaintiff's complaint arguing that (1) Plaintiff improperly sued the USPS and Doe Defendants; and (2) Plaintiff's complaint should be dismissed for Plaintiff's failure to timely exhaust his administrative remedies prior to filing suit as required by 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b). (Dkt. No. 10). In response to United States' motion, on September 5, 2013, Plaintiff filed his opposition. (Dkt. No. 15). Plaintiff concedes that the USPS and Doe Defendants are not properly named defendants, but argues that the remainder of the United States' motion should be denied because (1) according to the California state law and common law mail box rule, Plaintiff timely presented his administrative claim to the USPS in compliance with 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b); and (2) even if Plaintiff failed to timely present his claim, this failure should be excused under the doctrine of excusable neglect.
A. Rule 12(b)(1): Standard of Review for a Motion to Dismiss
A defendant may move for a dismissal based on a lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). The party asserting jurisdiction [i.e., plaintiff] has the burden of proving all jurisdictional facts. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In effect, the court should presume lack of jurisdiction until the plaintiff proves otherwise. See Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction "may either attack the allegations of the complaint or may be made as a speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In resolving a "speaking motion" or "factual attack" under Rule 12(b)(1), the court is not limited to the allegations in the pleadings if the jurisdictional issue is separable from the merits of the case. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Instead, the court may view evidence outside the record, Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983), and "[i]t then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
B. Dismissal Is Required As Plaintiff Has Failed to Comply with the FTCA's Exhaustion Requirement.
In the motion to dismiss Plaintiff's complaint, the United States argues that Plaintiff failed to properly present his claim to the USPS and thus failed to comply with the FTCA's exhaustion of administrative remedies requirement. (Def.'s Mot. at 5-7).
The FTCA allows a tort claimant to sue the United States in federal court only after the claimant exhausts his administrative remedies with the federal agency that is responsible for the injury. See Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983); Caton v. United States, 495 F.2d 635, 638 (9th Cir. 1974). Congress provided a two-year statute of limitations for FTCA claims in 28 U.S.C. § 2401(b),  and prescribed the following two requirements for a claimant to exhaust his administrative remedies in 28 U.S.C. § 2675(a). First, the claimant must properly present his injury claim to the federal agency whose employee's negligence caused the ...