REPORT AND RECOMMENDATION

KAREN L. HAYES, Magistrate Judge.

Before the undersigned magistrate judge, on reference from the district court, is the United States' motion to dismiss the complaint without prejudice pursuant to Rules 12(b)(1), (4) and (5) of the Federal Rules of Civil Procedure [doc. # 3]. The motion is unopposed. For reasons assigned below, it is recommended that the motion be GRANTED.

Background

On April 9, 2018, Martin Ayim and Evelyn Ayim, husband and wife, filed the instant tort suit against the United States of America, through the United States Postal Services ("USPS"). According to the complaint, Evelyn Ayim traveled to Washington D.C. to obtain a travel visa from the Embassy of the Republic of South Africa (the "Embassy"). In order to process the visa, the Embassy required Evelyn Ayim to produce certain documents by April 7, 2018. Accordingly, on April 6, 2018, Martin Ayim sent the necessary documents to Evelyn, via the USPS, and paid a premium for guaranteed next day delivery. Unfortunately, the envelope and documents did not arrive in D.C., as scheduled. When Evelyn Ayim made inquiry at the local post office, she learned that the USPS had negligently misdirected the envelope and documents to San Diego, California.

As a result of the delay, the Embassy denied Evelyn's visa application, which, in turn, caused Evelyn to miss a doctor's follow-up appointment, and necessitated another week's stay in Washington D.C. She seeks to recover $112,380.70 in compensatory damages, costs, and attorney's fees stemming from the USPS's negligence.1

On August 9, 2018, the United States filed the instant motion to dismiss for lack of subject matter jurisdiction because it did not waive its sovereign immunity for the type of claim asserted by plaintiffs.2 It also urged dismissal for insufficient process and insufficient service of process under Rules 12(b)(4) and (5) of the Federal Rules of Civil Procedure.

Plaintiffs did not file a response to the motion to dismiss, and the time to do so has lapsed. See Notice of Motion Setting [doc. # 4]. Thus, the motion is deemed unopposed. Id.

Law and Analysis

The United States, as sovereign, is immune from suit except in the manner and degree sovereign immunity is waived. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948 (1976). In the absence of an express congressional waiver of immunity, an action against the United States or its agencies does not fall within the judicial power of the federal courts. See Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (1962).

Here, plaintiffs sued the United States, through the USPS, pursuant to 39 U.S.C. § 409(c), which provides that, "[t]he provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service."3 The "provisions" alluded to by § 409(c) are those that comprise the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346, 2671 et seq. Ins. Co. of N. Am. v. U.S. Postal Serv., 675 F.2d 756, 757-58 (5th Cir.1982).

The FTCA represents a limited waiver of sovereign immunity; suits filed thereunder must be filed in exact compliance with its terms. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971). Under the FTCA,

28 U.S.C. § 1346(b)(1).

The FTCA establishes the exclusive remedy for tort claims arising out of the actions of the federal government and its employees. 28 U.S.C. § 2679. The Act subjects the United States to tort liability if a private person would be liable for the same act under state law. Life Partners Inc. v. United States, 650 F.3d 1026, 1030-31 (5th Cir.2011) (citations omitted).

The FTCA's limited waiver of sovereign immunity includes exceptions that, if applicable, bar suit against the government. Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). These exceptions must be strictly construed in favor of the government. Id. One such exception to the government's waiver of immunity is for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b). By this exception, "Congress intended to retain immunity only for injuries arising because mail either fails to arrive or arrives late, in damaged condition, or at the wrong address . . ." Dolan v. U.S. Postal Serv., 546 U.S. 481, 482, 126 S.Ct. 1252, 1254 (2006).

Here, it is uncontroverted that plaintiffs are seeking damages for injuries sustained as a result of the USPS's negligent failure to timely deliver a priority mail express envelope, i.e., the mail. Accordingly, plaintiffs' claim falls within an express exception to the FTCA's limited waiver of sovereign immunity. In the absence of a cognizable waiver of sovereign immunity, the court does not enjoy subject matter jurisdiction to hear plaintiffs' claim against the government. Dismissal is required. Ins. Co. of N. Am., supra; Scie v. United States, No. 14-1570, 2015 WL 711819 (E.D. La. Feb. 18, 2015); Chiles v. Craig, No. 15-0012, 2015 WL 541699 (S.D. Miss. Feb. 10, 2015).4

Conclusion

IT IS RECOMMENDED that the motion to dismiss for lack of subject matter jurisdiction [doc. # 3] filed by the United States, through the United States Postal Service, be GRANTED, and that plaintiffs' suit be dismissed without prejudice, in its entirety. Fed.R.Civ.P. 12(b)(1).

Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.

A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.