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Ehrlich v. United States

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

July 26, 2018

UNITED STATES OF AMERICA, et al., Defendants.



         This 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.

         I. BACKGROUND

         Plaintiff 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[1]. 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.

         Plaintiff 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.

         Plaintiff 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.


         Amendment 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).

         Against 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).

         Defendants 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).


         Defendant 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 barred.

         In 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[2].

         Plaintiff 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 ...

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