United States District Court, W.D. Washington, Seattle
RICHARD A. JONES UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs Motion for Leave
to File Second Amended Complaint (Dkt. # 33) and
Defendants' Motion to Dismiss the case pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. #
16). For the reasons set forth below, the Court
DENIES Plaintiffs Motion for Leave to File
Second Amended Complaint and GRANTS
Defendants' Motion to Dismiss.
Randall Ehrlich filed his original Complaint against
Defendants, United States of America, the United States
Postal Service ("USPS"), Sonja Etta Voisine, John
Bell, Mike Fletcher, and Does 1-10, on August 16,
2017. Dkt. # 1. Plaintiff filed a
First Amended Complaint ("FAC") on August 22, 2017.
Dkt. # 6. Defendant United States of America filed a Motion
to Dismiss on December 17, 2017. Dkt. # 16. The other
Defendants joined Defendant United States of America's
Motion. Dkt. ## 22, 23. On May 18, 2017, Plaintiff filed a
motion requesting leave to file a Second Amended Complaint
("SAC"). Dkt. # 45.
lives in Seattle, Washington. Dkt. # 6 at ¶ 25.
Plaintiff's mailbox is situated on his porch near the
front door and is set back from the sidewalk by approximately
20 feet. Id. at ¶¶ 27, 28. Defendant
Voisine has been the designated USPS letter carrier for
Plaintiffs route for several years. Id. at ¶
29. Plaintiff alleges that the USPS improperly put a
"dog hold" on his home mail delivery service after
Voisine had an encounter with his dog while delivering mail
to his home. Id. at ¶¶ 32-39. Plaintiff
was asked to move his mailbox to the sidewalk on several
occasions but did not do so. Id. at ¶¶ 39,
50, 54, 56, 69. Plaintiff made several complaints to his
local post office, the Ballard Postal Annex to complain about
the "dog hold", often calling several times a day.
Plaintiff eventually spoke with a representative from USPS
Consumer Affairs. Id. at ¶ 42. Plaintiff also
contacted the Postal Regulatory Commission and sent three
letters to the Postmaster General regarding Voisine and his
issues receiving his mail. Id. at ¶¶ 46,
58-68. However, Plaintiff continued to have difficulty
receiving his mail and currently does not receive mail at his
street address. Id. at ¶ 70.
now seeks to amend his FAC to allege claims under the Federal
Tort Claims Act ("FTCA") for outrage, intentional
infliction of emotional distress, trespass to chattels, and
conversion. Dkt. #33.
to pleadings is governed by Federal Rule of Civil Procedure
15(a). Rule 15(a) "provides that a party's right to
amend as a matter of course terminates 21 days after service
of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier."
Fed.R.Civ.P. 15(a)(1)(B). "In all other cases, a party
may amend its pleading only with the opposing party's
written consent or the court's leave. The court should
freely give leave when justice so requires." Civ. P.
15(a)(2). "In exercising this discretion, a court must
be guided by the underlying purpose of Rule 15 to facilitate
a decision on the merits, rather than on the pleadings or
technicalities." Roth v. Garcia Marquez, 942
F.2d 617, 628 (9th Cir. 1991); United States v.
Webb, 655 F.2d 977, 979 (9th Cir. 1981). Further, the
policy of favoring amendments to pleadings should be applied
with "extreme liberality." DCD Programs, Ltd.
v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
this extremely liberal standard, the Court may deny leave to
amend after considering "the presence of any of four
factors: bad faith, undue delay, prejudice to the opposing
party, and/or futility." Owens v. Kaiser Foundation
Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).
But "[n]ot all of the factors merit equal weight... it
is the consideration of prejudice to the opposing party that
carries the greatest weight." Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
"Absent prejudice, or a strong showing of any of the
remaining [ ] factors, there exists a presumption under Rule
15(a) in favor of granting leave to amend." Id.
The party opposing amendment bears the heavy burden of
overcoming this presumption. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
moved to dismiss this case for lack of subject matter
jurisdiction and for failure to state a claim upon which
relief can be granted. Plaintiff bears the burden of
establishing that the Court has subject matter jurisdiction.
See, e.g., Stock West, Inc. v. Confederated Tribes,
873 F.2d 1221, 1225 (9th Cir. 1989). In evaluating a 12(b)(6)
motion, the Court must liberally construe the complaint in
favor of the plaintiff and take its factual allegations as
true. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir.
2007). "[W]hen allegations in a complaint, however true,
could not raise a claim of entitlement to relief, this basic
deficiency should be exposed at the point of minimum
expenditure of time and money by the parties and the
court." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(internal citation and quotation omitted).
United States of America argues that the Court should deny
Plaintiff leave to amend his FAC because his proposed claims
are barred and allowing him to amend would be futile.
Defendant's Response in opposition of Plaintiff s Motion
makes essentially the same argument made in its pending
motion to dismiss, namely, that this Court lacks subject
matter jurisdiction over Plaintiff's claims. Defendant
further argues that Plaintiff's proposed FTCA claims are
barred by the postal-matter exception to the FTCA, and that
even if Plaintiff's proposed FTCA claims were proper,
they cannot be brought against the USPS or the individual
Defendants. Dkt. # 35. Defendant contends that further
amendment would be futile based on its argument that
Plaintiffs FAC should be dismissed and that the proposed
amendments would merely be adding claims that are also
enacting the Postal Accountability and Enforcement Act of
2006 ("PAEA"), Congress gave jurisdiction to the
Postal Regulatory Commission ("PRC") to hear
complaints regarding postal rates and services. The PAEA
provides a detailed procedure by which an interested party
may lodge a complaint with the PRC. 39 U.S.C. § 3662.
After those procedures have been followed, the party may file
a petition for review with the United States Court of Appeals
for the District of Columbia. 39 U.S.C. § 3663. The PAEA
provides that district courts have jurisdiction to enforce,
and to enjoin and restrain the USPS from violating, any order
issued by the PRC. 39 U.S.C. § 3664. Read together,
these provisions demonstrate that this Court lacks
jurisdiction to consider service-related complaints in the
first instance. McDermott v. Potter, No.
C09-0776RSL, 2009 WL 2971585, at *3 (W.D. Wash. Sept. 11,
2009), affdsub nom. McDermott v. Donahue, 408
Fed.Appx. 51 (9th Cir. 2011); see also LeMay v. United
States Postal Serv., 450 F.3d 797, 801 (8th Cir. 2006)
(finding that the PRC has exclusive jurisdiction over
complaints about unsatisfactory service). Plaintiff's
claims are based on his allegations that Defendants
improperly placed a "dog hold" on his home mail
delivery service, returned his mail to sender, and
temporarily suspended his home delivery service. These are
clearly service-related complaints, therefore this Court does
not have jurisdiction over them.
argues that he alleges violations of his First, Fourth and
Fifth Amendment rights and tort claims pursuant to the FTCA,
and as such, the Postal Regulatory Commission has no
jurisdiction over them. Plaintiff alleges that Voisine, in
the course of her employment as a USPS mail carrier,
improperly issued a "dog hold" on Plaintiff's
mail and stopped his home mail delivery until Plaintiff moved
his mailbox to a different location. Plaintiff argues that
these actions constitute a violation of his First Amendment
rights, but provides no legal authority or persuasive
argument that Plaintiff has a constitutional right to have
mail delivered to a mailbox located at a particular location
at his home. While it is undisputed that certain restrictions
upon the use of the mail system can implicate the First
Amendment, Plaintiff fails to establish that his use of the
mail system was restricted to any significant degree, only
that he was ...