United States District Court, E.D. California
ORDER VACATING HEARING, ORDER TERMINATING PARTY, AND
ORDER ON DEFENDANT'S RULE 12(B)(1) MOTION TO DISMISS
(DOC. NOS. 4, 6)
a dispute involving allegations of mail tampering between pro
se Plaintiff Doug Weldon and Defendant the United States of
America. The matter was removed from the Fresno
County Superior Court small claims division on October 17,
2019. Currently before the Court is a Rule 12(b)(1) motion to
dismiss. Hearing on this motion is currently set for December
9, 2019, at 1:30 p.m. Plaintiff has not filed an opposition
to the motion. After review, the Court has determined that
the motion is suitable for decision without oral argument.
See Local Rule 230(g). The Court will vacate the
December 9, 2019, hearing and issue this order, which
resolves the pending Rule 12(b)(1) motion to dismiss.
the Complaint, between December 2018 and July 2019, Weldon
claims that Postal Service worker Margarito Ponche tampered
with his mail and an unknown evidence in violation of 18
U.S.C. §§ 1700, 1701, 1702, 1703, 1709, and 1710.
Further, Ponche failed to deliver Weldon's
“monetary mail” and “evidence.”
Weldon sought $169.86 in damages.
Rules of Civil Procedure 12(b)(1)allows for a motion to
dismiss based on lack of subject matter jurisdiction.
See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental
precept that federal courts are courts of limited
jurisdiction. Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978); K2 Am. Corp. v.
Roland Oil & Gas, 653 F.3d 1024, 1027 (9th Cir.
2011). Limits upon federal jurisdiction must not be
disregarded or evaded. Owen Equip., 437 U.S. 365,
374 (1978); Jones v. Giles, 741 F.2d 245, 248 (9th
Cir. 1984). “It is presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994); K2 Am., 653 F.3d at 1027. Rule 12(b)(1)
motions may be either facial, where the inquiry is confined
to the allegations in the complaint, or factual, where the
court is permitted to look beyond the complaint to extrinsic
evidence. See Leite v. Crane Co., 749 F.3d 1117,
1121 (9th Cir. 2014); Safe Air For Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a
defendant challenges jurisdiction “facially, ”
all material allegations in the complaint are assumed true,
and the court determines whether the factual allegations are
sufficient to invoke the court's subject matter
jurisdiction. See Leite, 392 F.3d at 362;
Meyer, 373 F.3d at 1039. When a defendant makes a
factual challenge “by presenting affidavits or other
evidence properly brought before the court, the party
opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Meyer, 373 F.3d at 1039;
see Leite, 749 F.3d at 1121. The court need not
presume the truthfulness of the plaintiff's allegations
under a factual attack. Wood v. City of San Diego,
678 F.3d 1075, 1083 n.2 (9th Cir. 2011). The plaintiff must
show by a preponderance of the evidence each requirement for
subject-matter jurisdiction, and as long as the dispute is
not intertwined an element of the plaintiff's cause of
action, the court may resolve any factual disputes itself.
Leite, 749 F.3d at 1121.
United States argues inter alia it has sovereign
immunity. Although the Federal Tort Claims Act waives
sovereign immunity over certain claims, that act does not
apply to claims involving a miscarriage or negligent
transmission of letters or postal matters. Because
Weldon's claims relate to non-delivery of his mail,
sovereign immunity applies and deprives the court of
has filed no opposition.
United States Postal Service (“USPS”) is an
“independent establishment of the executive branch of
the Government of the United States.” MB Fin.
Group, Inc. v. United States Postal Service, 545 F.3d
814, 816 (9th Cir. 2008). Accordingly, a suit against the
USPS is a suit against the United States. Anderson v.
United States Postal Service, 761 F.2d 527, 528 (9th
Cir. 1985). As a result, the USPS “enjoys sovereign
immunity absent a waiver.” MB Fin. Group, 545
F.3d at 816; see also Anderson, 761 F.2d at 528.
Although the USPS has the power to sue and be sued in its own
name, and the waiver provisions of the Federal Tort Claims
Act generally apply to the USPS, there is an important
qualification. See MB Fin. Group, 545 F.3d at 816.
The Federal Tort Claims Act excepts thirteen categories of
claims from its broad waiver of sovereign immunity.
See 28 U.S.C. § 2680; MB Fin. Group,
545 F.3d at 816. One of the categories that retains sovereign
immunity to “any claim arising out of the loss,
miscarriage, or negligent transmission of letters or postal
matter.” 28 U.S.C. § 2680(b); MB Fin.
Group, 545 F.3d at 816; Anderson, 761 F.2d at
528. Courts have no jurisdiction over claims falling under
§ 2680(b). See Anderson, 761 F.2d at 528.
the United States characterizes the Complaint as involving
claims that arise out of the negligent delivery or
non-delivery of mail. Weldon's Complaint is on a
pre-printed form and the allegations are sparse.
Nevertheless, this reading of the Complaint is reasonable. In
the absence of an opposition, the Court agrees with the
United States that Weldon is complaining about the
non-delivery, miscarriage, or negligent delivery of his mail.
Thus, Weldon's claims fit squarely within §
2680(b)'s retention of sovereign immunity. See
28 U.S.C. § 2680(b); Anderson, 761 F.2d at 528.
Because sovereign immunity applies, the Court lacks subject
matter jurisdiction and must dismiss this lawsuit. S ...