United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO
JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE
United States Postal Service (“the Postal
Service”) and the United States of America (“the
United States”) (collectively,
“Defendants”) move to dismiss the first amended
complaint (“FAC”) of Plaintiff Wendy Hastings for
lack of subject matter jurisdiction and failure to state a
claim. (Doc. No. 10.) Plaintiff opposes the motion. The court
finds the matter suitable for decision without oral argument
pursuant to Civil Local Rule 7.1(d)(1) and, for the following
reasons, grants Defendants' motion.
September 15, 2015, Plaintiff fell while visiting a San Diego
post office, fracturing her kneecap and arm. (See
generally Doc. No. 8.) About two months later, and
pursuant to the Federal Tort Claims Act (“FTCA”),
Plaintiff filed an administrative claim with the Postal
Service for injuries incurred as a result of that fall.
(See id. at 3, ¶ 9.) The Postal Service denied
the claim on April 27, 2016. (See Doc. No. 10-3 at
6-7.) Thereafter, in May 2016, Plaintiff initiated this
action, filing a complaint (“the original
complaint”), again pursuant to the FTCA, against the
Postal Service. (Doc. No. 1.) Plaintiff did not name the
United States as a defendant in the original complaint.
(See Id. ¶ 3.) Plaintiff served the Postal
Service, (see Doc. No. 5), but there is no record on
the docket, or allegations in the FAC, that Plaintiff
personally delivered, hand delivered, or physically mailed
process (i.e., the original complaint and summons) to either
the United States Attorney's Office or Attorney General.
While the United States Attorney's Office received an
automatic, court-generated notice of electronic filing
(“NEF”) for both the original complaint and
summons,  the Attorney General did not receive an
NEF for either.
8, 2017, the Postal Service moved to dismiss the original
complaint for lack of subject matter jurisdiction. Four days
later, Plaintiff filed the FAC, adding the United States as a
defendant for the first time. (See Doc. No. 8.)
Defendants filed the instant motion two weeks later.
move to dismiss the FAC under two different provisions of
Federal Rule of Civil Procedure 12.
Rule 12(b)(1) - Lack of Subject Matter Jurisdiction
courts are courts of limited jurisdiction. “Without
jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases
to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.”
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 94 (1998). A party may make either a facial or
factual attack on subject matter jurisdiction. See,
e.g., Warren v. Fox Family Worldwide, Inc., 328
F.3d 1136, 1139 (9th Cir. 2003). In resolving a facial
challenge, as Defendants make here, the court considers
whether “the allegations contained in [the] complaint
are insufficient on their face to invoke federal
jurisdiction.” Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). The court must accept
the allegations as true and must draw all reasonable
inferences in Plaintiff's favor, Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004), but
ultimately, as the party putting the claims before the court,
Plaintiff bears the burden of establishing jurisdiction,
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994).
Rule 12(b)(6) - Failure to State a Claim
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the legal sufficiency of the pleadings.
To overcome such a motion, the complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 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). Facts
merely consistent with a defendant's liability are
insufficient to survive a motion to dismiss because they
establish only that the allegations are possible rather than
plausible. Id. at 678-79. The court must accept as
true the facts alleged in a well-pled complaint, but mere
legal conclusions are not entitled to an assumption of truth.
Id. The court must construe the pleading in the
light most favorable to the non-moving party. Concha v.
London, 62 F.3d 1493, 1500 (9th Cir. 1995).
court will first address Plaintiff's claim against the
Postal Service before turning to Plaintiff's claim
against the United States.
Plaintiff's Claim ...