United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
JANIE S. MAYERON, Magistrate Judge.
This matter came before the undersigned on defendant's Motion for Substitution and to Dismiss [Docket No. 3]. This matter was decided on the parties' written submissions pursuant to this Court's Order. [Docket No. 9].
This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and Local Rule 72.1(c).
Plaintiff Henry Martens sued defendant Deb Sjostrom, a Postmaster with the United States Postal Service ("USPS"), in conciliation court in Minnesota state district court. Notice of Removal, p. 1 [Docket No. 1]. Martens' Statement of Claim stated that he had a forwarding address change dated December 7, 2012, but his mail was not forwarded until January 10, 2013. Id., Ex. A (Statement of Claims and Summons) [Docket No. 1-1]. Martens alleged that because of the delay, he incurred a late fee in the amount of $499.75. Martens sought to recover the late fee and his court filing fees, for a total of $574.75. Notice of Removal, p. 2. The United States, acting on Sjostrom's behalf, removed the matter to federal district court on November 1, 2013. The United States filed a Certification by John Marti, Esq. ("Marti Cert."), the acting United States Attorney for the District of Minnesota. [Docket No. 1-4]. Marti certified that with respect to the incidents referenced in Martens' Statement of Claims, Sjostrom was acting within the scope of her employment as a Postmaster for the USPS, an agency of the United States, and was therefore, an employee of the United States at the time of the conduct alleged in Marten's complaint. Id.
The United States removed the matter pursuant to 28 U.S.C. §1442(a)(1), which provides that a civil action commenced in state court against any agency of the United States or officer of the United States acting under color of office may be removed to federal district court. Notice of Removal, p. 2. The United States also removed the case pursuant to 28 U.S.C. §§1346(b), 2672 and 2679(b), which provide that the exclusive remedy for negligent or wrongful acts or omissions of an United States employee acting within the scope of her employment is an action against the United States pursuant to the Federal Tort Claims Act ("FTCA"). Id., pp. 2-3. Because the matter had to be deemed a suit against the United States, it was removable pursuant to 28 U.S.C. §2679(d)(2). Id., p. 3.
Immediately after removing the suit, the United States moved to substitute itself as defendant in Sjostrom's place and to dismiss the lawsuit. Memorandum in Support of Defendant's Motion for Substitution and to Dismiss ("Def. Mem."), p. 1 [Docket No. 4].
The United States moved to dismiss the matter pursuant to Rule 12(b)(1) and (b)(6) on the following grounds: First, the district court lacked subject matter jurisdiction to hear the matter because the real defendant in interest, the United States, had not waived its sovereign immunity from suits regarding injuries alleged as a result of misdelivered mail. Id., pp. 3-6. Second, even assuming that Martens could sue the United States under the FTCA, he failed to exhaust his administrative remedies as required by the FTCA. Id., p. 6 (citing 28 U.S.C. 2675(a)). In support of this argument, the United States filed the declaration of John Sigmon, a Consumer Relations Specialist for the USPS. Declaration of John Sigmon [Docket No. 6]. Sigmon stated that he searched for and could not locate any complaint filed by Martens with a USPS Consumer Advocate. Id., ¶3.
Third, Martens' complaint failed to state a claim for which relief could be granted and should be dismissed pursuant to Rule 12(b)(6). Assuming that the claim sounded in tort, it had to be dismissed pursuant to the FTCA's exhaustion requirement. Def. Mem., p. 8. If the claim sounded in contract, it was still subject to dismissal. The Little Tucker Act partially waives the United States' sovereign immunity for certain contract claims, but Martens did not plead jurisdiction under the Little Tucker Act, and even if he did, such jurisdiction does not exist. The Domestic Mail Manual ("DMM") does not create a contractual relationship between Martens and the USPS, and the USPS regulations do not promise consumers a date on which their mail will be forwarded. Id . (citing DMM 507.2.1-2.3).
The United States moved to substitute itself as the proper defendant, noting that pursuant to 28 U.S.C. 2679(d)(1):
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district Court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
The United States argued that substitution and dismissal of Sjostrom as a defendant was appropriate "unless the Plaintiff presents sufficient evidence that Ms. Sjostrom was not acting within the scope of her employment." Id., p. 10.
II. LEGAL STANDARDS
A. Standard of Review for Rule ...