Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Haight v. United States

United States District Court, D. Oregon

September 21, 2017

TRISHA RENEE HAIGHT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.

         Plaintiff, Trisha Renee Haight, filed a civil action against the United States of America (“Government”) as an unrepresented litigant in Jackson County Circuit Court and received a default judgment in the amount of $337, 915.72. The Government subsequently removed the case to federal district court and moved to vacate the state court judgment and dismiss Plaintiff's claims. Magistrate Judge Mark D. Clarke recommended that I vacate the state court judgment and this Court adopted his recommendation in full on May 1, 2017. Magistrate Judge Clarke subsequently issued a Findings and Recommendation (“F&R”) on August 7, 2017, in which he recommended that I grant in part and deny in part the Government's motion to dismiss. The matter is now before this Court. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

         This Court reviews all portions of the F&R subject to objection de novo. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Plaintiff and Defendant both timely filed objections. Upon review, this Court adopts Magistrate Judge Clarke's F&R, with the exception that Plaintiff's breach of contract claim is dismissed due to a lack of subject matter jurisdiction and her claims for perjury, violation of the Privacy Act of 1974, and violations of the Fair Debt Collection Practices Act (“FDCPA”) are also dismissed for failure to state a claim upon which relief can be granted. Plaintiff is granted leave to file an amended complaint, in accordance with the Court's discussion below, with a more definite statement of her claims and the basis for this Court's jurisdiction.

         BACKGROUND

         The present dispute arises out of events surrounding a contract Plaintiff entered into with the United States Department of Agriculture - Rural Development (“USDA”) in March 2008 for a mortgage on a property located at 202 South Rose Street, Phoenix, Oregon 97535. From April 2008 through April 2013, Plaintiff received monthly payment assistance and unsuccessfully sought a payment moratorium on her mortgage with the USDA. In January 2015, after missing thirty consecutive payments, the USDA accelerated Plaintiff's loan due to monetary default. Plaintiff administratively appealed the USDA's notice of acceleration and, after exhausting her appeals, received an adverse final determination from the USDA on December 30, 2015.

         Plaintiff now alleges a litany of common law theories of civil liability, including fraud, negligence, theft, defamation, and breach of contract. She further alleges that the Government violated both the Privacy Act of 1974 and Fair Debt Collection Practices Act, as well as perjured itself on multiple occasions. Plaintiff originally filed her complaint in Jackson County Circuit Court, where she obtained a default judgment in the amount of $337, 915.72 on October 28, 2016 after the Government failed to enter an appearance in the case. Upon learning of the judgment, the Government removed the case to federal district court and moved to have it vacated. On April 28, 2017, Magistrate Judge Clarke recommended that this Court vacate the judgment based on Plaintiff's failure to properly serve the Government. I adopted Magistrate Judge Clarke's recommendation in full and vacated the state court judgment on May 1, 2017.

         The Government now moves to dismiss Plaintiff's complaint based on the state court's lack of subject matter jurisdiction and insufficient service of process. In his F&R, Magistrate Judge Clarke recommends that this Court dismiss all of Plaintiff's tort claims with leave to refile them in an amended complaint and allow “all other claims to remain.” Both parties filed timely objections to Magistrate Judge Clarke's recommendations. The matter is now before this Court.

         DISCUSSION

         This case presents four issues for review.[1] First, Defendant objects to Judge Clarke's recommendation that her tort claims be dismissed for failure to exhaust administrative remedies. Second, there is a question as to whether this Court has subject matter jurisdiction over Plaintiff's breach of contract claim. Third, there is a question as to whether Plaintiff has stated claims upon which relief can be granted for perjury and violations of both the Privacy Act and FDCPA. Finally, the Government objects to Judge Clarke's recommendation that Plaintiff's deficient service of process be excused. I address each issue in turn.

         I. The Court Adopts Magistrate Judge Clarke's Finding That Plaintiff Failed to Exhaust Administrative Remedies With Respect to Her Tort Claims.

         Plaintiff objects to Magistrate Judge Clarke's recommendation that her tort claims be dismissed for failure to exhaust administrative remedies. Under the Federal Tort Claims Act (“FTCA”), the United States may be held liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. To bring suit pursuant to the FTCA, however, a claimant must “first “present[ ] the claim to the appropriate Federal agency” within two years of the accrual of the claim and receive “a final denial of that claim . . . in writing.” 28 U.S.C. § 2675(a). A claim is “deemed to have been presented” when the relevant agency “receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.” 28 C.F.R. § 14.2. Under regulations promulgated by the USDA, the completed Form 95 must be filed with the agency's Office of General Counsel. See 7 C.F.R. § 2.31(a)(1).

         As Magistrate Judge Clarke notes in his F&R, Plaintiff's complaint and response brief contain no assertion that she previously filed her tort claims with the Office of General Counsel. In her objections to the F&R, Plaintiff states that she “presented [her] TORT claims upon multiple occasions to multiple departments, branches, [and] contracted affiliates of the [USDA], before filing suit.” She further asserts that, prior to filing suit, she contacted Nationwide Core Advisory Group (“NCAG”), a non-governmental consumer advocacy organization, and that NCAG “stated they would handle [her] complaints with all of the appropriate Federal Branches necessary.” Although Plaintiff administratively challenged and appealed the USDA's decision to accelerate her loan, she does not allege in her complaint, and there is no record to suggest, that she filed any formal tort claims with the Office of General Counsel. For purposes of the FCTA's administrative exhaustion requirement, it is insufficient to informally raise tort claims with the relevant agency or to present tort claims to a non-governmental entity.

         Nevertheless, as an unrepresented litigant, Plaintiff must be “given an opportunity to amend [her] complaint . . . unless it clearly appears that the deficiency cannot be overcome by amendment.” Gillespie v. Civiletti, 629 F.3d 637, 640 (9th Cir. 1980). To move past the pleadings stage, a litigant need only “allege generally that all conditions precedent, ” such as exhaustion of administrative remedies, “have occurred or been performed.” Fed.R.Civ.P. 9(c). This is a generous standard and it is possible that Plaintiff may non-frivolously allege present exhaustion of administrative remedies, or, in the alternative, that she may yet exhaust such remedies. Since this is Plaintiff's first complaint, and there is nothing to suggest that she will be unable to properly allege her FTCA claims after amendment, the Court adopts Magistrate Judge Clarke's recommendation and dismisses all tort claims with leave for Plaintiff to file an amended complaint clearly alleging exhaustion of her administrative remedies.[2]

         II. The Court Lacks Subject Matter Jurisdiction Over Plaintiff's Breach of Contract Claim and Dismisses it ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.