Guillot v. Ferrell

Decision Date03 October 2017
Docket NumberCASE NO. 1:16-CV-1307 AWI MJS
PartiesFRANK GUILLOT, Plaintiff v. TERRENCE FERRELL, THE UNITED STATES POSTAL SERVICE, and DOES 1-20 inclusive, Defendants
CourtU.S. District Court — Eastern District of California

ORDER ON DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

This is a Federal Tort Claims Act ("FTCA") case brought by Plaintiff Frank Guillot ("Guillot") against the United States Postal Services ("USPS") and one of its mailmen, Terence Ferrell ("Ferrell"). Guillot alleges a single claim of intentional infliction of emotional distress against Ferrell and the USPS. An entry of default was entered by the Clerk against Ferrell on August 22, 2017. The USPS moves to dismiss the Complaint due to lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Guillot has filed no opposition. For the reasons that follow, the motion to dismiss will be denied.

Federal Rules of Civil Procedure 12(b)(1) allows for a motion to dismiss based on lack of subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental precept that federal courts are courts of limited jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978); K2 Am. Corp. v. Roland Oil & Gas, 653 F.3d 1024, 1027 (9th Cir. 2011). Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equip., 437 U.S. 365, 374 (1978); Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984). "It is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); K2 Am., 653 F.3d at 1027. Rule 12(b)(1) motions may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the court determines whether the factual allegations are sufficient to invoke the court's subject matter jurisdiction. See Leite, 392 F.3d at 362; Meyer, 373 F.3d at 1039. When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Meyer, 373 F.3d at 1039; see Leite, 749 F.3d at 1121. The court need not presume the truthfulness of the plaintiff's allegations under a factual attack. Wood v. City of San Diego, 678 F.3d 1075, 1083 n.2 (9th Cir. 2011). The plaintiff must show by a preponderance of the evidence each requirement for subject-matter jurisdiction, and as long as the dispute is not intertwined an element of the plaintiff's cause of action, the court may resolve any factual disputes itself. Leite, 749 F.3d at 1121.

BACKGROUND

From the Complaint, in June 2015, Ferrell became acquainted with Guillot's common law wife, Maria,1 by delivering mail to Maria's mother. Maria's mother would watch the Guillot's five year old twins. In late 2015, Ferrell began a romantic affair with Maria. On information and belief, Ferrell and Maria engaged in sexual relations during Ferrell's USPS working hours and inside Ferrell's USPS mail truck during June and July 2015.

On September 23, 2015, the Madera County Superior Court ordered that the Guillot children have no contact with Ferrell. Ferrell repeatedly violated this order by delivering mail to the children's day care and to Maria's mother's residence. Ferrell also violated the court order by going to the children's school, having close personal contact with the children, and threatening Guillot. All of this conduct occurred while Ferrell was in his USPS uniform, while driving a USPS mail truck, and while he was supposed to be on his postal route.

Guillot obtained a Restraining Order against Ferrell. The Restraining Order was obtained out of fear that Ferrell would engage in a violent rage against Guillot or his children. The Restraining Order file contained a picture of the Guillot children inside of Ferrell's mail truck during working hours. Ferrell continued to violate this and other orders. A police file documents numerous instances of harassment and intentional and continuous instance of emotional distress.

On January 14, 2016, Guillot mailed an administrative claim (the "Claim") under the FTCA. See Complaint Ex. A. The Claim was received by the USPS on February 17, 2016. See id. at Ex. B.

By letter dated March 2, 2016, USPS denied the Claim. See id. at Ex. C.

On April 29, 2016, Guillot submitted a request for USPS to reconsider its denial of the Claim. See Beatty Dec. Ex. C.

Guillot filed suit in this Court on September 2, 2016. See Doc. No. 1.

DEFENDANT'S MOTION
Defendant's Argument

USPS argues that the Court lacks subject matter jurisdiction because Guillot filed a request for reconsideration of the denial of the Claim. Although the USPS has 6 months in which to decide a request for reconsideration, Guillot filed this case before the expiration of 6 months. Because Guillot did not receive a decision on his request for reconsideration before filing this lawsuit, Guillot filed suit prior to obtaining a final decision from the USPS. This is a violation of the FTCA. Because there was not compliance with the FTCA, sovereign immunity has not been waived and the Court lacks subject matter jurisdiction.

Legal Standard

"The FTCA waives the United States' sovereign immunity for tort claims against the federal government in cases where a private individual would have been liable under 'the law of the place where the act or omission occurred.'" Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 2017) (quoting 28 U.S.C. § 1346(b)). Before a plaintiff can file an FTCA action in federal court, he must exhaust the administrative remedies for his claim and file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a); D. L. v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017). "An administrative claim is deemed exhausted once the relevant agency finally denies it in writing, or if the agency fails to make a final disposition of the claim within six months of the claim's filing." D.L., 858 F.3d at 1244; Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992). The administrative exhaustion requirement is jurisdictional, must be strictly adhered to, and cannot be waived. See D.L., 858 F.3d at 1244; Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).

Discussion

There is no dispute that USPS received Guillot's administrative claim in February 2016, and that the USPS denied that claim on March 2, 2016. See Complaint ¶ 7; Beatty Dec. Exs. A, B. Further, there appears to be no dispute that Guillot requested reconsideration of that denial on April 29, 2016. See Beatty Dec. Ex. C. Per regulation, USPS had 6 months in which to decide the request for reconsideration. See 39 C.F.R. § 912.9(b). However, Guillot filed suit in this Court on September 2, 2016, prior to the expiration of 6 months from the April 29 request for reconsideration. See Doc. No. 1. The issue is whether Guillot exhausted his administrative remedies, despite filing suit prior to expiration of the 6 month reconsideration period.

Several courts that have examined the issue have concluded that the denial of an administrative claim exhausts administrative remedies, and that filing suit prior to expiration of the 6 month reconsideration period has no effect on § 2675(a)'s exhaustion requirement. See Atherton v. United States, 193 F.Supp.3d 2, 5 (D.D.C. 2016); State Farm Mut. Auto. Ins. Co. v. United States, 326 F.Supp.2d 407, 416 (E.D.N.Y. 2004); Bond v. United States, 934 F. Supp. 351, 355 (C.D. Cal. 1996).

Of particular note is Bond, which addressed the 6 month reconsideration period of 28 C.F.R. § 14.9. See Bond, 934 F.Supp. at 354. As in this case, the plaintiff in Bond received a formal denial of his claim, filed a timely request for reconsideration, and filed suit prior to the expiration of the 6 month "reconsideration period," or as Bond put it, "before a second 'final denial' occurred." Id. Bond found that the Ninth Circuit had given sufficient guidance in a case involving regulation 28 C.F.R. § 14.3 in order for it to conclude that there had been exhaustion. See id. The regulations under 28 C.F.R. § 14.1 et seq. "were not jurisdictional limitations on tort claims." Id. (citing Warren v. United States Dept. of the Interior - B.L.M., 724 F.2d 776, 778 (9th Cir. 1984) (en banc)). "[T]he relevant statutes and their legislative histories reveal that Congress did not intend to treat regulations promulgated pursuant to [28 U.S.C. § 2672] as jurisdictional prerequisites under [28 U.S.C. § 2675(a)]." Warren, 724 F.2d at 778; Bond, 934 F.Supp. at 355. The Ninth Circuit noted that if "Congress intended to authorize the promulgation of jurisdictional regulations, it would have created that authority directly. Congress has never delegated such authority under [28 U.S.C. §] 2675(a)." Warren, 724 F.2d at 778 (emphasis added); Bond, 934 F.Supp. at 355. According to Bond, "Warren's broad pronouncement that 'these regulations' are jurisdictionally impotent belies the Government's argument that § 14.9(b) dictates the occurrence or non-occurrence of a final denial." Bond, 934 F.Supp. at 355.

As indicated above, other courts have relied upon, and reached the same result as, Bond. Part of the rationale from these courts is that the agency informed the plaintiff that his "claim is denied," and that the written denial functioned as a "final denial." See Atherton, 193 F.Supp.3d at 5; State Farm, 326 F.Supp.2d at 416-17. Because of the...

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