United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS
JOHNSTON UNITED STATES MAGISTRATE JUDGE.
23, 2018, Defendants United States Department of Agriculture,
Rural Development (USDA) filed a Motion to Dismiss for Lack
of Subject Matter Jurisdiction and failure to state a claim
under Fed.R.Civ.P. 12(b)(1), (5), and (6). (Doc. 25).
Plaintiffs Sodjine Paul Anato and Sarah Anato
(“Plaintiffs”) did not file a response brief,
which was due on or before June 13, 2018. Based on the
reasoning set forth below, the motion should be granted.
Sodjine Paul Anato and Sarah Anato (collectively
“Plaintiffs”) filed a petition with the Ninth
Circuit seeking review of the order of the National Appeals
Division (“NAD”) of the United States Department
of Agriculture (“USDA”). On March 14, 2017, the
Ninth Circuit denied review and transferred Plaintiffs'
petition to the United States District Court for the District
of Montana. (Doc. 1). The petition requests that this Court
review the Director Review Determination of the National
Appeals Division “on the motion to Reconsider[sic] to
allow the USDA to foreclose on the plaintiffs' home
mortgage entered on November 02[, ] 2016.” (Doc. 2).
January 2, 2018, Plaintiffs filed a Complaint alleging six
causes of action against Defendant, alleging federal question
jurisdiction under 28 U.S.C. § 1331. (Doc. 15).
to Local Rule 7.1(d)(1)(B), a party is required to file a
response to a motion to dismiss “within 21 days after
the motion was filed.” A party's failure to file a
response brief “may be deemed an admission that the
motion is well-taken.” Id. Here, the USDA
filed a motion to dismiss on May 23, 2018, and indicated that
it unsuccessfully attempted to contact Plaintiffs by phone,
and that the phone message system indicated that the memory
was full. (Doc. 25 at 2). Plaintiffs do not list an email
address. To date, Plaintiffs have yet to file a response
document filed pro se is ‘to be liberally
construed,' and ‘a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.'
” Erickson, 551 U.S. at 94; cf. Fed.
Rule Civ. Proc. 8(e) (“Pleadings must be construed so
as to do justice”). Nevertheless, pro se
plaintiffs are still “bound by the rules of
procedure.” Ghazali v. Moran, 46 F.3d 52, 54
(9th Cir. 1995). As such, pursuant to the local rules, the
Court may consider Defendants' motion well-taken.
moved for the Court to dismiss Plaintiffs's action for
lack of subject matter jurisdiction. (Doc. 26 at 2). The USDA
first argues that it is not the proper party for
Plaintiffs' tort claims; the exclusive remedy is against
the United State, not against one of its agencies.
(Id. at 2). Furthermore, it argues that the
government has not waived sovereign immunity with respect to
Plaintiffs' § 1983 claims, and that such claims are
to be made against “persons acting under the color of
law, ” making the USDA an improper party. (Id.
at 4). Furthermore, it argues that all constitutional claims
against it are barred by res judicata in that they have been
adjudicated and dismissed by the District Court, which was
upheld by the Ninth Circuit. (Id. at 5-6 (see
Sodjine and Sarah Anato v. Lad Barney, et al., CV
Plaintiffs have not filed a response within the required time
and have not filed a motion seeking additional time in which
to file a response. As such, there is no good reason for the
Court to refrain on ruling on the USDA's motion. Based on
the unopposed motion to dismiss, the Court finds that the
USDA's arguments are meritorious and warrant dismissal of
Plaintiffs' claims. The USDA argues that the Court should
dismiss with prejudice Plaintiffs' claims under §
1983 and the constitutional claims which have already been
adjudicated, but it does not object to Plaintiffs being
allowed to re-file their claim to name the United States as a
proper party under the Federal Tort Claims Act.
the Court recommends that the USDA's motion be granted,
and Plaintiffs' Complaint (Doc. 15) be dismissed without