United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY MAG. JUDGE.
REPORT AND RECOMMENDATION
L. Haye United States Magistrate Judge.
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.
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,
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.
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. 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
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.
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).
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.” 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).
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 ...