Oliver v. Mihelic

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS OLIVER, Case No.: 21cv1807-LL-DEB 12 Plaintiff, ORDER GRANTING MOTIONS TO 13 v. DISMISS WITH PREJUDICE [ECF Nos. 5, 9] 14 KRISTIN TAVIA MIHELIC, et al., 15 Defendants. 16 17 18 Presently before the Court are two Motions to Dismiss. ECF Nos. 5, 9. The first 19 motion is Defendant “United States’ Motion to Dismiss Claims One and Three Through 20 Seven of the Removed Amended Complaint for Lack of Subject Matter Jurisdiction and 21 Failure to Allege a Cognizable Claim” (hereinafter “United States’ Motion to Dismiss”). 22 ECF No. 5. Plaintiff, Thomas Oliver, proceeding pro se, filed an “Objection” in response 23 to the United States’ Motion (hereinafter “Opposition to United States’ Motion to 24 Dismiss”) [ECF No. 11], and Defendant United States filed a Reply [ECF No. 13]. The 25 second motion is the “Individual Defendants’ Motion to Dismiss Claim Two of the 26 Removed Amended Complaint for Failure to Allege a Cognizable Claim” (hereinafter 27 “Individual Defendants’ Motion to Dismiss”). ECF No. 9. Plaintiff filed an “Objection” in 28 response to the United States’ Motion (hereinafter “Opposition to Individual Defendants’ 1 Motion to Dismiss”) [ECF No. 18], and the Individual Defendants filed a Reply [ECF No. 2 19]. The motions are fully briefed, and the Court deems them suitable for submission 3 without oral argument. For the reasons set forth below, the Court grants the Motions to 4 Dismiss with prejudice. 5 I. Background 6 Plaintiff, proceeding pro se, filed this lawsuit in San Diego County Superior Court, 7 and the operative first amended complaint (“FAC”) was filed on September 15, 2021. ECF 8 No. 1-2 at 2-8. The FAC alleges that the Defendants Bankruptcy Court Judge Louise Adler, 9 Region 15 Acting United States Trustee Tiffany Carroll, and Trial Attorney Kristin Mihelic 10 caused injury to Plaintiff through negligent or other wrongful acts, and specifically alleges 11 the following causes of action: (1) perjury, (2) violation of constitutional rights, (3) falsified 12 judicial and public records, (4) falsified evidence, (5) fraud, (6) lost earning capacity, and 13 (7) intentional infliction of emotional distress. Id. Plaintiff’s allegations against Defendants 14 arise from a bankruptcy proceeding in which Defendant Judge Adler entered an order 15 imposing terminating sanctions and entering default against Plaintiff. See United States 16 Trustee v. Oliver, United States Bankruptcy Court for the Southern District of California 17 Case No. 20-90093-LA (the “Adversary Proceeding”).1 The Adversary Proceeding is 18 related to Oliver’s voluntary petition filed under Chapter 7 of the Bankruptcy Code in the 19 United States Bankruptcy Court for the Southern District of California in Bankruptcy Case 20 No. 20-01053-LA7. 21 On October 22, 2021, the United States filed a notice of substitution for Defendants 22 Mihelic, Carroll, and Adler with respect to claims one and three through seven in the FAC. 23 ECF No. 2. In the notice of substitution, the Assistant U.S. Attorney Katherine Parker 24 25 26 1 Under Federal Rule of Evidence 201, a court may take judicial notice of court filings and other matters of public record. Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (noting that a court may 27 take judicial notice of “undisputed matters of public record”); see also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of pleadings, memoranda, and 28 1 certified that at the time of the conduct alleged the Defendants were acting in the scope of 2 their employment, respectively for the Office of the United States Trustee and as an 3 employee of the United States Courts, invoking the Federal Tort Claims Act (“FTCA”). Id. 4 at 2-3. On October 22, 2021, Defendants removed the complaint to this court based on 5 original jurisdiction under 28 U.S.C. § 1331. ECF No. 1 at 2-3. Defendants also removed 6 the case under 28 U.S.C. §§ 1441, 1442 and 1446 because the United States is a Defendant 7 in the action. Id. at 3. On October 28, 2021, Defendant United States filed a Motion to 8 Dismiss Plaintiff’s claims one and three through seven in the FAC (hereinafter “FTCA 9 claims”). ECF No. 5. On November 22, 2021, Individual Defendants Bankruptcy Court 10 Judge Louise Adler, United States Trustee Trial Attorney Kristin Mihelic, and Acting 11 United States Trustee Tiffany Carroll filed a Motion to Dismiss Claim Two in the FAC. 12 ECF No. 9. On November 22, 2021, Plaintiff filed a Motion to Remand [ECF No. 10], 13 which this Court denied on February 8, 2022. ECF No. 21. 14 The gravamen of the allegations in Plaintiff’s FAC is that Plaintiff is unhappy with 15 the outcome of his bankruptcy court proceedings and the manner in which Defendant Judge 16 Adler handled his case. The specificities of the FAC are not relevant at this time because 17 the United States moves to dismiss the Complaint under Federal Rule of Civil Procedure 18 12(b)(1), alleging a lack of subject matter jurisdiction. “[A] federal court generally may 19 not rule on the merits of a case without first determining that it has jurisdiction.” Sinochem 20 Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430, 31 (2007). 21 II. Legal Standards 22 A party may file a motion pursuant to Federal Rule of Civil Procedure 12(b)(1) 23 alleging the court lacks subject matter jurisdiction over the matter. A party may seek a Rule 24 12(b)(1) dismissal based “either on the face of the pleadings or by presenting evidence.” 25 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). “In a facial 26 attack, the challenger asserts that the allegations contained in a complaint are insufficient 27 on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 28 1039 (9th Cir. 2004). In a factual attack, the challenger presents evidence and “the district 1 court may review evidence beyond the complaint without converting the motion to dismiss 2 into a motion for summary judgment.” Id. 3 “It is well settled that the FTCA . . . provides the exclusive statutory remedy for torts 4 committed by employees of the United States who act within the scope of their 5 employment, that the United States is the only proper defendant in an action under the 6 FTCA and that a plaintiff may not file a suit under the FTCA unless he first exhausts his 7 administrative remedies under the FTCA.” Salcedo-Albanez v. United States, 149 F. Supp. 8 2d 1240, 1243 (S.D. Cal. 2001) (citing 28 U.S.C. § 2675). Specifically, the FTCA provides 9 that: 10 An action shall not be instituted upon a claim against the United States for money damages - unless the claimant shall have first presented the claim to 11 the appropriate Federal agency and his claim shall have been denied by the 12 agency in writing and sent by certified or registered mail. The failure of an agency to make a final disposition of a claim within six months after it is filed 13 shall, at the option of the claimant any time thereafter, be deemed a final denial 14 of the claim for purposes of this section.

15 28 U.S.C. § 2675(a). The requirement that a plaintiff exhaust his administrative remedies 16 is jurisdictional in nature, may not be waived, and “must be strictly adhered to.” Jerves v. 17 United States, 966 F.2d 517, 521 (9th Cir. 1992). The timely filing of an administrative 18 claim, as a jurisdictional prerequisite to bringing a lawsuit under the FTCA, should be 19 affirmatively alleged in the complaint. Gillespie v. Civilette, 629 F.2d 637, 640 (9th Cir. 20 1980). 21 A motion to dismiss pursuant to 12(b)(6) tests the legal sufficiency of the claims 22 asserted in the complaint Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 23 (9th Cir. 2001). To avoid dismissal, a complaint must plead with enough facts to state a 24 claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 25 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows 26 the court to draw the reasonable inference that the defendant is liable for the misconduct 27 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 28 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 1 more than labels and conclusions, and a formulaic recitation of the elements of a cause of 2 action will not do.” Twombly, 550 U.S. at 555 (citation omitted). “[W]here the well-pleaded 3 facts do not permit the court to infer more than the mere possibility of misconduct, the 4 complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” 5 Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). 6 III. Discussion 7 The Court will first address the United States’ Motion to Dismiss [ECF No. 5], and 8 then will address individual Defendants’ (Bankruptcy Judge Adler, United States Trustee 9 Carroll, and United States Trustee Trial Attorney Mihelic) Motion to Dismiss [ECF No. 9] 10 as set forth below. 11 A. United States’ Motion to Dismiss Plaintiff’s FTCA Claims (Claims One 12 and Three Through Seven in the FAC) 13 1. Plaintiff Failed to Administratively Exhaust His FTCA Claims 14 (Claims One and Three Through Seven in the FAC)

15 The United States moves to dismiss on the basis that the court lacks subject matter 16 jurisdiction as to the United States because Plaintiff did not file an administrative claim 17 prior to filing suit. United States’ Motion to Dismiss at 22-24. Specifically, the United 18 States argues in relevant part: 19 Plaintiff’s Amended Complaint does not [allege the exhaustion of the 20 administrative claim process] (which is not surprising since Plaintiff brought his suit against individual federal employees in state court). Therefore, the 21 Court lacks subject matter jurisdiction over Plaintiff’s claims against the 22 United States.

23 Id. at 23. Plaintiff argues in his Opposition to the United States’ Motion to Dismiss that 24 the FTCA does not apply in the instant action. See e.g., Oppo. at 6, 7, 9, 10. Specifically, 25 Plaintiff argues in relevant part: 26 [Defendants] once again center their motion around the FTCA. The case at bar has not yet reached relevant law for the reasons already given. If my 27 complaint was based upon the FTCA - even though it makes no mention of it 28 – none of its exceptions would apply. . . . [T]he United States is not a 1 defendant, and the FTCA does not apply. 2 Id. at 9-10 (emphasis in original). Plaintiff further argues that he “reported the misconduct 3 and crime to the DOI, the Office of the Inspector General, and the Office of Professional 4 Responsibility – in addition to filing complaints with the State Bar of California and the 5 Ninth Circuit. . . . Thus far, nobody has lifted a toxic finger to bring [Defendants] to 6 justice.” Id. at 11. 7 The Court finds that the United States has properly certified that at the time of the 8 conduct alleged in Plaintiff’s Amended Complaint, Defendants Mihelic and Carroll were 9 acting within the scope of their employment as employees of the Office of the United States 10 Trustee, and Defendant Adler was acting within the scope of her employment as an 11 employee of the United States State Courts. ECF No. 2 at Exhibit 1. See U-Haul In’tl, Inc. 12 v. Est. of Albright, 626 F.3d 498, 501 (9th Cir. 2010) (“[C]ertification is ‘prima facie’ 13 evidence that a federal employee was acting in the scope of [her] employment at the time 14 of the incident.”). Accordingly, the FTCA provides the exclusive statutory remedy for 15 Plaintiff on his FTCA claims, the United States is the only proper Defendant on Plaintiff’s 16 FTCA claims, and Plaintiff must allege that he exhausted his administrative remedies. See 17 28 U.S.C. § 2675; see also Salcedo-Albanez, 149 F. Supp. 2d at 1243; Jackson v. Tate, 648 18 F.3d 729, 735 (9th Cir. 2011) (Once the United States certifies that an individual was acting 19 within the scope of her employment as a federal employee at the time of the alleged conduct 20 at issue, the United States must be substituted as the defendant and “must remain the federal 21 defendant in the action unless and until the District Court determines that the employee, in 22 fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his 23 employment”) (emphasis in original) (internal quotation omitted). Here, Plaintiff fails to 24 present any evidence that Defendants Mihelic, Carroll and Adler were acting outside the 25 scope of their employment at the time of the alleged conduct. Additionally, Plaintiff’s 26 cursory allegation that he reported the alleged “misconduct and crime” to certain entities 27 and filed complaints with the State Bar, does not satisfy the administrative exhaustion 28 requirement set forth in 28 U.S.C. § 2675(a). 1 Thus, the Court finds it does not have subject matter jurisdiction over Plaintiff’s 2 FTCA claims (claims one and three through seven). Accordingly, it is hereby ORDERED 3 that Defendant United States’ Motion to Dismiss for lack of subject matter jurisdiction for 4 Plaintiff’s failure to administratively exhaust his claims is GRANTED. 5 Further, Plaintiff’s Opposition makes it clear that he cannot allege that he exhausted 6 his administrative remedies under the FTCA.2 Although generally a court should give a 7 plaintiff the opportunity to cure any pleading defect, in this case, the Court DISMISSES 8 WITH PREJUDICE Plaintiff’s FTCA claims against the United States. See Schreiber 9 Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (providing 10 leave to amend may be denied when “the court determines that the allegations of other facts 11 consistent with the challenged pleading could not possibly cure the deficiency”). 12 2. Judicial and Quasi-Judicial Immunity Bar Plaintiff’s FTCA Claims (Claims One and Three Through Seven in the FAC) 13 14 The United States also moves to dismiss Plaintiff’s FAC on the basis of absolute 15 judicial immunity for Judge Adler and quasi-judicial immunity for United States Trustee 16 Carroll and United States Trustee Trial Attorney Mihelic. United States’ Motion to Dismiss 17 at 16-8. It is well established that “judges or courts of superior or general jurisdiction are 18 not liable to civil actions for their judicial acts, even when such acts . . . are alleged to have 19 been done maliciously or corruptly.” Stump v. Starkman, 435 U.S. 349, 355 (1978) (internal 20 quotation marks omitted). “[Judicial] immunity reflects the long-standing ‘general 21 principle of the highest importance to the proper administration of justice that a judicial 22 officer, in exercising the authority vested in him, shall be free to act upon his own 23 convictions, without apprehension of personal consequences to himself.’” Olsen v. Idaho 24 State Bd. Of Med., 363 F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 25 335, 347 (1871)). Consistent with this principle, “[a] judge will not be deprived of 26 27 2 Additionally, for the reasons set forth in the next section regarding judicial and quasi-judicial immunity 28 1 immunity because the action he took was in error, was done maliciously, or was in excess 2 of his authority; rather he will be subject to liability only when he acted in the clear absence 3 of all jurisdiction.3” Stump v. Starkman, 435 U.S. at 356-57 (internal quotation marks and 4 citation omitted); see also Forrester v. White, 484 U.S. 219, 227 (1988) (a judicial act “does 5 not become less judicial by virtue of an allegation of malice or corruption of motive”). 6 “Like other forms of official immunity, judicial immunity is an immunity from suit, not 7 just from ultimate assessment of damages.” Mireless v. Waco, 502 U.S. 9, 11 (1991). 8 Under the FTCA, the United States is “entitled to assert any defense based upon 9 judicial . . . immunity which otherwise would have been available to the employee of the 10 United States whose act or omission gave rise to the claim.” 28 U.S.C. § 2674; see also 11 Buck v. Stewart, 2008 WL 901716, at *4 (D. Utah Mar. 31, 2008) (“Thus, under § 2674, 12 the United States possesses judicial immunity as to [a] plaintiff’s claims under [the] FTCA 13 because the judicial defendants whose alleged acts form the basis for the claims have 14 judicial immunity.”). 15 Despite Plaintiff’s allegations to the contrary, all of the actions of which he 16 complains were judicial in nature and performed during the course of bankruptcy 17 proceedings over which Judge Adler had subject matter jurisdiction. Judge Adler was 18 acting in a judicial capacity as a Bankruptcy Judge on Plaintiff’s Chapter 7 bankruptcy 19 petition and the United States Trustee’s adversary proceeding. Notwithstanding Plaintiff’s 20 dissatisfaction with Judge Adler’s rulings, Plaintiff’s FTCA claims against Judge Adler are 21 barred by judicial immunity. See, e.g., Mullis v. U.S. Bankr. Court for Dist. of Nev., 828 22 F.2d 1385, 1389 (9th Cir. 1987) (affirming the district court’s ruling that bankruptcy judges 23 had absolute judicial immunity from money damages). Accordingly, Defendant United 24 States is entitled to absolutely judicial immunity from Plaintiff’s FTCA claims (claims one 25 and three through seven) in the FAC against Judge Adler. 26 27 3 The phrase “clear absence of all jurisdiction” is interpreted to mean “a clear lack of all subject matter 28 1 Similarly, Plaintiff’s FTCA claims against United States Trustee Carroll and United 2 Trustee Trial Attorney Mihelic are barred by quasi-judicial immunity. “Bankruptcy 3 trustees are entitled to broad immunity from suit when acting within the scope of their 4 authority and pursuant to court order.” Bennett v. Williams, 892 F.2d 822, 823 (9th Cir. 5 1989). “[C]ourt appointed officers who represent the estate are the functional equivalent of 6 a trustee.” In re Harris, 590 F.3d at 730, 742 (9th Cir. 2009). Because trustees “perform 7 many of the functions that had been assigned previously to the bankruptcy judge,” they are 8 eligible for derived quasi-judicial-immunity.” See Balser v. Dept. of Justice, Office of the 9 United States Trustee, 327 F.3d 903, 910 (9th Cir. 2003) (“In light of the fact that United 10 States trustees assume the judicial functions historically vested in bankruptcy and district 11 courts, the actions of the United States trustees logically must be cloaked in the same 12 immunity.”). 13 Here, Plaintiff alleges that Defendants Carroll and Mihelic committed fraudulent 14 acts in connection with the adversary proceeding. ECF No. 2-1 at 3-8. Notably, the FAC 15 lacks any specific allegations of actions by Defendants Carroll and Mihelic, let alone any 16 allegations that are unrelated to their employment as a trustee and trial attorney, 17 respectively. The entirety of the allegations in the FAC concern the judicial process, so any 18 basis for holding Carroll and Mihelic liable necessarily arise out of tasks that are part of 19 that judicial process. Notwithstanding Plaintiff’s dissatisfaction with the bankruptcy 20 proceedings, the Court finds that Defendants Carroll and Mihelic were acting within the 21 scope of their employment, and Plaintiff’s FTCA claims against them are barred by quasi- 22 judicial immunity. In re Castillo, 297 F.3d 940, 950 (9th Cir. 2002), as amended (Sept. 6, 23 2002) (internal citations omitted) (concluding Chapter 13 trustee and her assistant enjoyed 24 absolutely quasi-judicial immunity related to decisions about scheduling bankruptcy 25 confirmation hearing, including failing to give notice of the hearing); see also Carillo v. 26 Wieland, 527 F.App’x 754, 757 (10th Cir. 2013) (U.S. Trustee’s immunity extends to 27 attorneys in her office). Defendant United States is entitled to immunity from Plaintiff’s 28 1 FTCA claims (claims one and three through seven) in the FAC against Defendants Carroll 2 and Mihelic. 3 Thus, because Plaintiff’s claims against Judge Adler, United States Trustee Carroll 4 and United States Trustee Trial Attorney Mihelic are barred by absolute or quasi-judicial 5 immunity, Defendant United States’ Motion to Dismiss is GRANTED. Further, because 6 any amendment to overcome this immunity would be futile, Plaintiff’s FTCA claims 7 against the Defendant United States are DISMISSED WITH PREJUDICE. 8 Further, having dismissed Plaintiff’s FTCA claims against the United States on the 9 basis of subject matter jurisdiction, the Court need not address the United States’ 10 alternative arguments under the FTCA’s misrepresentation exception or whether the 11 Complaint should be dismissed under Rule 12(b)(6). 12 B. Individual Defendants’ Motion to Dismiss Claim Two of the FAC 13 1. Judicial and Quasi-Judicial Immunity Bar Plaintiff’s 14 Constitutional Claims Against the Individual Defendants 15 The individual Defendants, Bankruptcy Judge Adler, United States Trustee Carroll, 16 and United States Trustee Trial Attorney Mihelic, move to dismiss Plaintiff’s second cause 17 of action for “violation of constitutional rights” on the basis of judicial and quasi-judicial 18 immunity. ECF No. 9 at 12-17. Plaintiff’s second cause of action alleges that “Defendant 19 has intentionally ignored. . . the U.S. Constitution – specifically the Due Process Clause of 20 the Fifth Amendment and the Assistance of Counsel Clause of the Sixth Amendment – and 21 has committed crimes against Plaintiff.” ECF No. 1-2 at 4, ¶ 7. Plaintiff alleges that he 22 was “coerced to pay [a $335 filing fee] as a result of Defendant’s actions, which is a 23 violation of his right to Due Process under the Fifth Amendment of the U.S. Constitution.” 24 Id. at ¶ 8. Plaintiff further alleges that the individual Defendants violated his Fifth 25 Amendment rights by blocking his motions filed in the bankruptcy suit, and also because 26 “Plaintiff’s filings in the separate action were not read by the court…” Id. at ¶¶ 9-10. 27 Finally, Plaintiff alleges that the individual Defendants violated his Sixth Amendment right 28 by denying his motion to appoint him counsel. Id. at ¶ 11. 1 In Bivens, the Supreme Court “recognized for the first time an implied private action 2 for damages against federal officers alleged to have violated a citizen’s constitutional 3 rights.” Western Radio Serv. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir.2009) 4 (quotation omitted). The Court in Bivens allowed a damages action against individual 5 federal officials for violating the Fourth Amendment. Bivens v. Six Unknown Federal 6 Agents, 403 U.S. 388 (1971). Since then, courts have found that bankruptcy judges’ acts 7 that are “judicial in nature and [] not done in clear absence of all jurisdiction” are “immune 8 from Bivens-type liability.” Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th 9 Cir. 1986); see also Mullis v. U.S. Bankr. Court for Dist. of Nev., 828 F.2d at 1394. With 10 respect to Plaintiff’s constitutional claims against Defendant Bankruptcy Judge Adler, the 11 Court finds that she was acting in a judicial capacity within her judicial jurisdiction for the 12 same reasons as set forth in the preceding Section III(A)(2). Accordingly, Plaintiff’s 13 individual claims against Defendant Bankruptcy Judge Adler are barred by judicial 14 immunity. 15 With respect to Plaintiff’s constitutional claims against the individual Defendants 16 Carroll and Mihelic, the Court finds that they are also barred due to quasi-judicial immunity 17 for the reasons set forth in the preceding Section III(A)(2). 18 Accordingly, the Individual Defendants’ Motion to Dismiss is GRANTED. Further, 19 because any amendment to overcome this immunity would be futile, Plaintiff’s 20 constitutional claims against the individual Defendants are DISMISSED WITH 21 PREJUDICE. 22 Further, having dismissed Plaintiff’s constitutional claims against the individual 23 Defendants on the basis of judicial and quasi-judicial immunity, the Court need not address 24 the United States’ alternative arguments. 25 C. Plaintiff’s Objections Regarding Timeliness Are Overruled 26 The Court also overrules Plaintiff’s objections that the pending Motions to Dismiss 27 were untimely and otherwise inappropriately filed. See Opposition to the United States’ 28 Motion to Dismiss at 13; see also Opposition to the Individual Defendants’ Motion to 1 |}Dismiss at 13. For example, Plaintiff argues that “F.R.Civ.P. 12 requires a motion to 2 || dismiss be filed within twenty-one days of service” and that “Criminals filed their motion 3 || to dismiss on October 28, 2021, which is seven days late.” Opposition to the United States’ 4 || Motion to Dismiss at 13. Similarly, Plaintiff argues that the individual Defendants’ Motion 5 ||to Dismiss is “at least twenty-four days late.” Opposition to the Individual Defendants’ 6 || Motion to Dismiss at 13. 7 Pursuant to Fed. R. Civ. P. 12(a)(3), the individual Defendants, as federal employees 8 || sued in their individual capacities, had sixty days after service on both themselves and the 9 || United States Attorney, whichever is later, to respond to the FAC. The Court has reviewed 10 || the docket in this case and finds that both Motions to Dismiss were appropriately and timely 11 || filed. Plaintiff's objections on this issue are overruled. 12 IV. Conclusion 13 For the foregoing reasons, the Court GRANTS the United States’ Motion to Dismiss 14 || with prejudice and also GRANTS the Individual Defendants’ Motion to Dismiss with 15 || prejudice. ECF Nos. 5, 9. 16 IT IS SO ORDERED. 17 Dated: February 8, 2022 NO 18 QF 19 Honorable Linda Lopez 30 United States District Judge 21 22 23 24 25 26 27 28