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Cale v. United States

United States District Court, W.D. Washington, Seattle

April 3, 2017

EDWARD CALE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER OF DISMISSAL

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         On 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.)

         On 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.)

         Including 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).

         The United States now moves to dismiss this action under Federal Rule of Civil Procedure 12(b)(1). (Dkt. No. 5.)

         II. DISCUSSION

         A. Legal Standard

         Rule 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).

         B. Analysis

         The United States has sovereign immunity, meaning it is immune from suit unless it consents to be sued.[1] 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.)

         Cale 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).

         The 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 ...


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