United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION TO
E. KOBAYASHI, UNITED STATES DISTRICT JUDGE.
the Court is Defendant United States Postal Service's
(“USPS” or “Defendant”) Motion to
Dismiss (“Motion”), filed on October 20, 2017.
[Dkt. no. 13.] Pro se Plaintiff Randy Rabe Gomabon, Jr.
(“Plaintiff”) did not file a response to the
Motion. On January 4, 2018, an entering order was issued
finding the Motion suitable for disposition without a
hearing, pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District
of Hawai`i (“Local Rules”). [Dkt. no. 17.] The
Motion is hereby granted for the reasons set forth below.
August 2, 2017, Plaintiff filed a “Statement of Claim
and Notice [General Form]” in the State of Hawai`i
Small Claims Division of the District Court of the First
Circuit, Honolulu Division (“small claims
court”). This document is considered Plaintiff's
“Complaint” in the instant case. [Notice of
Removal of Civil Action (“Notice of Removal”),
filed 8/21/17 (dkt. no. 1), Exh. A (Complaint).]
removed the case pursuant to 28 U.S.C. §
1442(a)(1). [Notice of Removal at ¶ 4.] Plaintiff
states he dropped off two packages at the USPS's Kapalama
office, but a couple of days later - apparently on November
9, 2016 - a USPS employee told him the packages were not
received. On November 12, 2016, Plaintiff asked a USPS mail
carrier about the packages, and she confirmed the packages
had been returned. She told Plaintiff she left them on his
neighbors' porch. Plaintiff argues this was a violation
of USPS policies, which state that a mail carrier must leave
a note and return packages to the post office if the intended
recipient is not available to receive them. Plaintiff alleges
the two packages were lost and seeks $1, 008.00 in damages
from Defendant. [Complaint at 1.]
instant Motion, Defendant argues Plaintiff's Complaint
must be dismissed because: pursuant to 28 U.S.C. §
2680(b), the United States, its agencies, and its officials
are immune from such claims; this Court lacks jurisdiction
over the case because Plaintiff did not exhaust his
administrative remedies, as required by the Federal Tort
Claims Act (“FTCA”); and, even if Defendant's
first two arguments are rejected, Plaintiff's Complaint
fails to state a claim upon which relief can be granted.
Defendant also asserts the dismissal should be with prejudice
- in other words, Plaintiff should not be allowed to try to
fix the defects in his Complaint by filing an amended
Exhaustion of Administrative Remedies
district court has stated:
The United States, as a sovereign state, is immune from suit
unless it specifically consents. United States v.
Mitchell, 445 U.S. 535, 538 (1980); Reed v. U.S.
Dep't of Interior, 231 F.3d 501, 504 (9th Cir.
2000). Any waiver of sovereign immunity must be unequivocally
expressed. Block v. North Dakota, 461 U.S. 273, 287
(1983). When a statute waives sovereign immunity, the Court
must strictly construe the statute in favor of the United
States. Brady v. United States, 211 F.3d 499, 502
(9th Cir. 2000). If there has not been an express waiver of
sovereign immunity, then the Court lacks subject matter
jurisdiction over the case and it must be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(1). Orff v.
United States, 358 F.3d 1137, 1142 (9th Cir. 2004)[.]
The Federal Tort Claims Act (“FTCA”) provides for
a broad waiver of the United States' sovereign immunity.
Schoenfeld v. Quamme, 492 F.3d 1016, 1019 (9th Cir.
2007). The FTCA manifests the United States' consent to
be sued “in the same manner and to the same extent as a
private individual under like circumstances[.]” 28
U.S.C. § 2674. The FTCA waives sovereign immunity for
the negligence of “any employee of the Government while
acting within the scope of his office or employment.”
28 U.S.C. § 1346(b)(1).
The FTCA bars claimants from seeking damages against the
United States in court until they have exhausted their
administrative remedies. 28 U.S.C. § 2675(a); McNeil
v. United States, 508 U.S. 106, 113 (1993). A
plaintiff's administrative remedy is exhausted pursuant
to the FTCA if:
(1) the agency has denied the claim in writing; or,
(2) the agency has failed to issue a final disposition of the
claim six months ...