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Ayim v. United States

United States District Court, W.D. Louisiana, Monroe Division

September 5, 2018

MARTIN AYIM and EVELYN AYIM
v.
UNITED STATES OF AMERICA through UNITED STATES POSTAL SERVICES

          TERRY A. DOUGHTY MAG. JUDGE.

          REPORT AND RECOMMENDATION

          Karen L. Haye United States Magistrate Judge.

         Before the undersigned magistrate judge, on reference from the district court, is the United States' motion to dismiss the complaint without prejudice pursuant to Rules 12(b)(1), (4) and (5) of the Federal Rules of Civil Procedure [doc. # 3]. The motion is unopposed. For reasons assigned below, it is recommended that the motion be GRANTED.

         Background

          On April 9, 2018, Martin Ayim and Evelyn Ayim, husband and wife, filed the instant tort suit against the United States of America, through the United States Postal Services (“USPS”). According to the complaint, Evelyn Ayim traveled to Washington D.C. to obtain a travel visa from the Embassy of the Republic of South Africa (the “Embassy”). In order to process the visa, the Embassy required Evelyn Ayim to produce certain documents by April 7, 2018. Accordingly, on April 6, 2018, Martin Ayim sent the necessary documents to Evelyn, via the USPS, and paid a premium for guaranteed next day delivery. Unfortunately, the envelope and documents did not arrive in D.C., as scheduled. When Evelyn Ayim made inquiry at the local post office, she learned that the USPS had negligently misdirected the envelope and documents to San Diego, California.

         As a result of the delay, the Embassy denied Evelyn's visa application, which, in turn, caused Evelyn to miss a doctor's follow-up appointment, and necessitated another week's stay in Washington D.C. She seeks to recover $112, 380.70 in compensatory damages, costs, and attorney's fees stemming from the USPS's negligence.[1]

         On August 9, 2018, the United States filed the instant motion to dismiss for lack of subject matter jurisdiction because it did not waive its sovereign immunity for the type of claim asserted by plaintiffs.[2] It also urged dismissal for insufficient process and insufficient service of process under Rules 12(b)(4) and (5) of the Federal Rules of Civil Procedure.

         Plaintiffs did not file a response to the motion to dismiss, and the time to do so has lapsed. See Notice of Motion Setting [doc. # 4]. Thus, the motion is deemed unopposed. Id.

         Law and Analysis

         The United States, as sovereign, is immune from suit except in the manner and degree sovereign immunity is waived. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948 (1976). In the absence of an express congressional waiver of immunity, an action against the United States or its agencies does not fall within the judicial power of the federal courts. See Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (1962).

         Here, plaintiffs sued the United States, through the USPS, pursuant to 39 U.S.C. § 409(c), which provides that, “[t]he provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service.”[3] The “provisions” alluded to by § 409(c) are those that comprise the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 1346, 2671 et seq. Ins. Co. of N. Am. v. U.S. Postal Serv., 675 F.2d 756, 757-58 (5th Cir.1982).

         The FTCA represents a limited waiver of sovereign immunity; suits filed thereunder must be filed in exact compliance with its terms. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971). Under the FTCA,

the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States for money damages . . . for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be ...

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