(PS) Perez v. United States Postal Service, No. 2:2021cv02028 - Document 11 (E.D. Cal. 2021)
Court Description: FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 12/13/2021 RECOMMENDING that unopposed motions 5 , and 9 be granted and this action be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these F & R's.(Reader, L)
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(PS) Perez v. United States Postal Service Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PRINESSIA PEREZ, 12 13 14 15 No. 2:21-CV-2028-KJM-DMC Plaintiff, v. FINDINGS AND RECOMMENDATIONS UNITED STATES POSTAL SERVICE, Defendant. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 Court are Defendant’s unopposed motion to dismiss, ECF No. 5, and request to vacate, ECF No. 19 9. Through these motions, Defendant argues that Plaintiff fails to state a claim upon which this 20 court can grant relief and that the notice of removal should be “vacated” because Plaintiff 21 voluntarily dismissed her state court action prior to removal to this Court. 22 State court records, which this Court may judicially notice, see Kasey v. 23 Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir. 1964), reflect that Plaintiff 24 voluntarily dismissed the underlying state court action on October 14, 2021 – before Defendant 25 filed its notice of removal on November 3, 2021. See ECF No. 9, pgs. 4-5. Because there was no 26 state action to remove at the time the notice of removal was filed, the state court action having 27 been voluntarily dismissed, the Court agrees with Defendant that the notice of removal filed on 28 the Court’s docket no November 3, 2021, is a nullity. 1 Dockets.Justia.com 1 The Court also agrees with Defendant that Plaintiff fails to state a claim. Here, 2 Plaintiff alleges that Defendant United States Postal Service (USPS) is liable because she never 3 received a federal stimulus check. See ECF No. 1. This claim is foreclosed by statute providing 4 that USPS is not liable for any claims arising out of the “loss, miscarriage, or negligent 5 transmission of letters or postal matter.” 28 U.S.C. § 2680(b). 6 7 Based on the foregoing, the undersigned recommends that Defendant’s unopposed motion, ECF No. 5, and request, ECF No. 9, be granted and that this action be dismissed. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 10 after being served with these findings and recommendations, any party may file written objections 11 with the Court. Responses to objections shall be filed within 14 days after service of objections. 12 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 Dated: December 13, 2021 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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