California Fair Plan Association v. United States Department of Agriculture

• Court: District Court, S.D. California
• Decided: June 8, 2023
• Docket: 3:21-cv-02099
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CALIFORNIA FAIR PLAN Case No.: 21cv2099-LAB-KSC ASSOCIATION, 12 ORDER OF DISMISSAL Plaintiff, 13 v. 14 UNITED STATES DEPARTMENT 15 OF AGRICULTURE; et al., 16 Defendants. 17 18 Plaintiff California Fair Plan Association (“CFPA”), a California corporation, 19 brings this action against Defendants United States Department of Agriculture (the 20 “USDA”), a United States federal agency, and the Cleveland National Forest 21 (“CNF”), a United States National Forest administered by the United States Forest 22 Service, a government agency within the USDA (collectively, “Defendants”), for 23 claims of inverse condemnation, premises liability/dangerous condition, trespass, 24 private and public nuisance, and violation of the California Vehicle Code. 25 On December 21, 2021, following Defendants’ ex parte request for an order 26 establishing the date to respond to the Complaint, District Judge Roger Benitez, 27 who was previously assigned to this case, issued an order first advising CFPA 28 that in order to properly serve Defendants, it must deliver a copy of the summons 1 and complaint “to the agency” and “‘the United States attorney for the district 2 where the action is brought’ while also sending a copy of the summons and 3 complaint to the Attorney General of the United States by registered or certified 4 mail.” (Dkt. 4 at 4 (quoting Fed. R. Civ. P. 4(i)(1)–(2)). Defendants were instructed 5 to file a response to the Complaint sixty days from the date service of process is 6 effectuated on both Defendants. (Id. at 6). According to the docket, CFPA served 7 Defendants on February 25, 2022, by leaving copies of the summons and 8 complaint at the U.S. Attorney’s Office, located at 880 Front Street, Suite 6293, 9 San Diego, California 92101. (Dkt. 7, 9). 10 On November 2, 2022, following a considerable period of hardly any 11 movement in the case, the Court issued an Order to Show Cause why this case 12 shouldn’t be dismissed for failure to prosecute, instructing CFPA to either file a 13 memorandum explaining why its Complaint shouldn’t be dismissed or otherwise 14 indicate whether it intends to continue pursuing its claims against Defendants. 15 (Dkt. 17). CFPA then filed a memorandum explaining the cause of its delay, 16 (Dkt. 19), and also requested entry of default against Defendants for failure to 17 respond, explaining that CFPA served Defendants on February 25, 2022, at the 18 U.S. Attorney’s Office location, (Dkt. 18, 19). On November 9, 2022, the Clerk of 19 the Court entered default against Defendants. (Dkt. 21). However, because CFPA 20 makes no mention of mailing a copy of the summons and complaint to the Attorney 21 General, CFPA has failed to timely serve Defendants in accordance with the 22 Federal Rules and the Court’s instructions, and this case must be DISMISSED. 23 Moreover, even if Defendants had been timely served, this Court lacks 24 subject matter jurisdiction over this matter. “The defense of lack of subject matter 25 jurisdiction cannot be waived, and the court is under a continuing duty to dismiss 26 an action whenever it appears that the court lacks jurisdiction.” Augustine v. 27 United States, 704 F.2d 1074, 1077 (9th Cir. 1983). “If the court determines at any 28 time that it lacks subject-matter jurisdiction, the court must dismiss the action.” 1 Fed. R. Civ. P. 12(h)(3). Here, CFPA brings suit against the USDA and CNF—a 2 U.S. agency and a national forest under the administration of a U.S. agency, 3 respectively. Critically, however, “[a]n action can be brought by a party against the 4 United States only to the extent that the Federal Government waives its sovereign 5 immunity.” Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996). There 6 is no indication on the docket that Defendants have waived their sovereign 7 immunity here, and thus the Court must dismiss the case for lack of subject matter 8 jurisdiction. See Esquivel v. United States, 21 F.4th 565, 573 (9th Cir. 2021) (citing 9 FDIC v. Meyer, 510 U.S. 471, 475 (1994)); Cox v. U.S. Dep’t of Agric., 800 F.3d 10 1031, 1032 (9th Cir. 2015) (citing Neb. ex rel. Dep’t of Soc. Servs. v. Bentson, 146 11 F.3d 676, 679–80 (9th Cir. 1998)) (“Because the record contains no evidence that 12 USDA waived its sovereign immunity to the [Plaintiff’s] petition, the Nevada state 13 court lacked jurisdiction over the action.”). 14 And while the Federal Tort Claims Act (“FTCA”) may provide a limited waiver 15 of sovereign immunity, United States v. Orleans, 425 U.S. 807, 813 (1976), 16 plaintiffs bringing suit under the FTCA are only authorized to sue the United 17 States—not its agencies, see Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 18 (9th Cir. 1998) (“Because the United States is the only proper party defendant in 19 an FTCA action, the district court correctly dismissed her complaint as improperly 20 filed against the Postal Service and [the Postmaster General].”); Lance v. United 21 States, 70 F.3d 1093, 1095 (9th Cir. 1995) (“The United States is the only proper 22 defendant in an FTCA action.”). 23 This case is therefore DISMISSED, and all pending motions are DENIED 24 AS MOOT. The Clerk is directed to terminate this case. 25 IT IS SO ORDERED 26 Dated: June 8, 2023 27 Honorable Larry Alan Burns United States District Judge 28