United States District Court, D. Utah, Central Division
LONNIE J. WASHBURN, Plaintiff,
UNITED STATES POSTAL SERVICE, Defendant.
MEMORANDUM DECISION & ORDER ADOPTING REPORT AND
WADDOUPS UNITED STATES DISTRICT COURT JUDGE.
action was assigned to United States District Court Judge
Clark Waddoups, who then referred it to United States
Magistrate Judge Brook Wells pursuant to 28 U.S.C. §
636(b)(1)(B). (ECF. No. 4.) On February 13, 2019, Judge Wells
issued a Report and Recommendation, recommending that
“this case be dismissed for lack of subject matter
jurisdiction as Defendant is immune from suit under these
circumstances . . . .” (ECF No. 7 at 3.) After careful
review of the record, applying a de novo standard of review,
the court adopts Magistrate Judge Wells’
January 14, 2019, Plaintiff filed a Complaint against the
United States Postal Service. In this Complaint, Plaintiff
wrote that “[o]n June 7, 2018 and October 26,
2018,” in “Salt Lake City, UT,” a:
Mail carrier fraudulently signed as customer for receipt of
package, and then either stole the package, Or left the
package in a public area, where it was stolen. The package
containing the gold coin was sent Registered mail and
insured. The package was slit Open and the coin was stolen
during the time it was in the [c]ustody of the USPS.
(ECF No. 3 at 4.)
undersigned referred this case to Magistrate Wells on January
17, 2019. On January 29, 2019, the court received proof of
service of Plaintiff’s complaint on the United States
Postal Service. (See ECF No. 6 at 2.)
February 13, 2019, Magistrate Judge Wells entered a Report
and Recommendation, recommending that “this case be
dismissed for lack of subject matter jurisdiction as
Defendant is immune from suit under these
circumstances.” (ECF No. 7 at 3.) In support of this
conclusion, Judge Wells provided:
Plaintiff’s claims against the USPS is a suit against
the government of the United States. The United States, as
sovereign, is “immune from suit save as it consents to
be sued ... and the terms of its consent to be sued in any
court define that court’s jurisdiction to entertain the
suit.” A plaintiff’s rights are thus limited to
the terms of the government’s consent to be sued.
“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” One
such waiver is the Federal Tort Claims Act. The court broadly
construes Plaintiff’s claims to fit within the Federal
Tort Claims Act, but this still cannot save them. Under 28
U.S.C. § 2680(b), the United States retains sovereign
immunity for tort claims against it for ‘loss,
miscarriage, or negligent transmission of letters or postal
matter.” Therefore, Plaintiff’s claims against
the USPS for loss of his package is barred by sovereign
immunity and this case should be dismissed for lack of
subject matter jurisdiction.
(ECF No. 7 at 2–3 (citations omitted).)
February 22, 2019, Plaintiff filed an objection, arguing that
this “Court has jurisdiction based on 39 U.S. Code S
409.” (ECF No. 8 at 1.) Plaintiff also argued that
“the defendant is not immune from this civil action . .
. .” (ECF No. 8 at 1.) On April 1, 2019, Plaintiff
filed a request for clerk’s entry of default for the
Postal Service’s failure to plead or otherwise defend.
(ECF No. 9 at 1.) On April 1, 2019, Plaintiff also filed a
Motion for Default Judgment. (ECF No. 10 at 1.) In this
Motion, Plaintiff wrote, in relevant part:
It may be argued that this claim should have been dismissed
under 28 U.S.C. S 2680(b) because the United States retains
sovereign immunity for tort claims against it for
‘loss, miscarriage, or negligent transmission of
letters or postal matter.’ That would be true if either
of these items were los[t], or if the postal employees were
negligent. These items were purposefully stolen, and are
therefore not covered under this exception.
(ECF No. 10 at 1.) On April 1, 2019, Plaintiff also submitted
a detailed affidavit in support of the motion for default
judgment. On April 23, 2019, Plaintiff filed two addendums.
(ECF Nos. 12 & 13.) On May 6, 2019, Plaintiff ...