United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant United States'
motion to dismiss (Dkt. No. 5). Having thoroughly considered
the briefing and the relevant record, the Court finds oral
argument unnecessary and hereby GRANTS the motion for the
reasons explained herein.
January 5, 2017, Plaintiff Edward Cale petitioned for an
order of protection in King County District Court against
Kiran Chawla, a fellow United States Postal Service (USPS)
employee. (See Dkt. No. 1-2 at 1, 4.) Cale alleged
that Chawla improperly marked his attendance as “AWOL,
” yelled at him, threatened to fire him, harassed him,
and allowed other employees to harass him. (Id. at
4.) Cale requested an order of protection that would require
Chawla to “refrain from yelling, refrain from physical
threats and acts of harm such as assault, and forcing,
mandating/causing to drive unsafe vehicles, [and] refrain
from gaslighting.” (Id. at 7.)
January 27, 2017, Chawla removed the matter to this Court.
(Dkt. No. 1 at 1.) The United States subsequently filed a
notice substituting itself as the appropriate Defendant for
all claims sounding in tort. (Dkt. No. 4 at 1-2.)
this case, Cale has filed three lawsuits against federal
defendants arising out of an assault allegedly committed
against him by another USPS employee. See also Cale v.
USPS, et al., C16-1922-JCC (W.D. Wash. 2016)
(Coughenour, J.); Cale v. Dhaliwal, C17-0095-RSM
(W.D. Wash. 2017) (Martinez, J.). This Court dismissed the
first suit for lack of subject matter jurisdiction. Cale
v. USPS, C16-1922-JCC (Dkt. No. 9). There is a motion to
dismiss pending in the second case. Cale v.
Dhaliwal, C17-0095-RSM (Dkt. No. 7).
United States now moves to dismiss this action under Federal
Rule of Civil Procedure 12(b)(1). (Dkt. No. 5.)
12(b)(1) provides that a complaint must be dismissed if the
Court lacks subject matter jurisdiction. Jurisdiction is a
threshold issue; if the Court lacks jurisdiction, it cannot
hear the case. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94-95 (1998). A motion to
dismiss for lack of jurisdiction may be facial or factual.
See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
2000). In reviewing a facial attack, the Court assumes all
material allegations in the complaint are true. Thornhill
Publ'g Co. v. General Tel. Elec., 594 F.2d 730, 733
(9th Cir. 1979).
United States has sovereign immunity, meaning it is immune
from suit unless it consents to be sued. United States
v. Mitchell, 445 U.S. 535, 538 (1980). The United States
argues that this case should be dismissed because Cale has
not identified any waiver of sovereign immunity allowing him
to obtain an order of protection against a fellow federal
government employee. (Dkt. No. 5 at 4.)
failed to respond to the United States' motion. Thus,
while the Court addresses the merits of the United
States' motion, it also considers Cale's failure to
respond “as an admission that the motion has
merit.” W.D. Wash. Local Civ. R. 7(b)(2).
Federal Tort Claims Act (FTCA) is a limited waiver of
sovereign immunity that permits claims to be brought against
the United States for the “negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment.” 28
U.S.C. § 1346(b)(1). Given the conduct alleged, it may
be that Cale intended his claims to overcome ...