Choi v. Consulate General of Japan

Filing 39

ORDER Granting Motion To Dismiss re 35 .The USPS's motion to dismiss the Amended Complaint is granted. While the court normally freely grants pro se litigants leave to filed amended pleadings, the court declines to do so in the present case because any such amended pleading would be futile. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) ("Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the compl aint could not be cured by amendment." (quotation marks and citation omitted)).The Clerk of Court is directed to enter judgment in favor of Defendant USPS and to close this case.Signed by JUDGE SUSAN OKI MOLLWAY on 3/6/2019. (cib, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
UNITED STATES POSTAL SERVICE, )
)
Defendant.
)
)
HYE JA CHOI,

CIVIL NO. 18-00051 SOM/RLP
ORDER GRANTING MOTION TO
DISMISS

ORDER GRANTING ORDER GRANTING MOTION TO DISMISS
I.

INTRODUCTION.
Plaintiff Hye Ja Choi mailed five parcels to herself

from Japan to Hawaii.
reach her.

She says one of the parcels failed to

After unsuccessfully seeking compensation from the

Consulate General of Japan in her original Complaint, Choi filed
an Amended Complaint seeking $4,981 from Defendant United States
Postal Service (“USPS”) under the Universal Postal Union’s
Universal Postal Convention.

Because Choi has no private right

of action under the Universal Postal Union’s Universal Postal
Convention, the court dismisses the Amended Complaint.

The court

issues this decision without a hearing pursuant to Local Rule
7.2(d), under which this court has the discretion to decide any
motion without a hearing.

II.

BACKGROUND.
On June 30, 2016, Choi mailed five parcels in Japan to

herself to Hawaii.

Choi says she did not receive one of the

parcels, No. CD264193304JP, which she says had a value of $1,400.
See Amended Complaint at 1-2, ECF No. 27, PageID #s 203-04.

The

shipping label for that parcel, however, lists its value as $30
or ¥3,000.

See ECF No. 27-1, PageID # 206.
In her original Complaint, Choi blamed the loss of the

parcel on the Japan Post.

Choi filed a claim for the value of

the missing parcel with the Japan Post, but the claim was
rejected because the parcel had supposedly been given to the
USPS.

See ECF No. 1-2, PageID # 11.
On April 25, 2018, this court dismissed Choi’s original

Complaint, ruling that the sole Defendant named in it, the
Consulate General of Japan, could not be liable for the loss of a
parcel by the Japan Post.

The court dismissed the original

Complaint for lack of jurisdiction, but gave Choi leave to file
an Amended Complaint against a different defendant.

ECF No. 21.

On June 29, 2018, Choi filed an Amended Complaint,
naming Defendant USPS.

See ECF No. 27.

The amended pleading

says the USPS is responsible for losing Choi’s parcel.
PageID # 205.

Id.,

Choi seeks damages under the “UNIVERSAL POSTAL

UNION (Universal Postal Treaty).”

Id., PageID # 205.

The United

States is currently a member of the Universal Postal Union.
2

See

http://www.upu.int/en/the-upu/member-countries.html#u (last
visited March 5, 2019).1
The Universal Postal Union’s Acts of the 26th Congress
(Istanbul 2016) sets forth a consumer’s rights when a member
country’s postal service loses a parcel.

See

http://www.upu.int/uploads/tx sbdownloader/actsActsOfThe26ThCongr
essIstanbul2016En.pdf at 154-56 (last visited March 5, 2019).
Under Article 22, section 3.1, when an ordinary parcel is lost,
the sender shall be entitled to an indemnity
of an amount set in the Regulations. If the
sender has claimed an amount less than the
amount set in the Regulations, designated
operators may pay that lower amount and shall
receive reimbursement on this basis from any
other designated operators involved.
Under Article 22, section 8, the sender or the addressee “shall
also be entitled to repayment of the charges and fees paid for
posting the item with the exception of the registration or
insurance charge.”

But under Article 23, section 2.7, member

countries and “designated operators” are not liable for lost
parcels “when the sender has made no inquiry within six months
from the day after that on which the item was posted.”
The USPS explains how to exercise these rights in its
International Mail Manual, defining an “inquiry” as including a

1

The United States has announced an intention to withdraw
from the Universal Postal Union. See
https://www.reuters.com/article/us-usa-postoffice-trump/trump-pul
ling-out-of-pact-that-discounted-foreign-postal-deliveries-idUSKC
N1MR2XZ (last visited March 5, 2019).
3

request “concerning the disposition of an item mailed to or from
a foreign country” and a complaint or report “concerning the
loss, damage, missing contents, or improper delivery or return of
an item mailed to or from a foreign country.”
https://mailomg.files.wordpress.com/2018/01/imm-international-mai
l-manual-2018-united-states-postal-service1.pdf#G12.1052609 at
239.

The manual describes how to initiate an inquiry and

requires inquiries for “Priority Mail International or Registered
Mail” to be filed no later than six months from the mailing date.
Id. at 240-41.

The manual also describes the claim process.

Before filing a claim for an ordinary parcel, a
consumer must complete the inquiry process.

Id. at 242-44.

Indemnity payments with respect to claims arising out of the
sending of ordinary parcels from foreign origins “are adjudicated
by Accounting Services in St. Louis, Missouri.”

Id. at 245.

That office’s decision may be appealed to the International
Claims Appeals, Accounting Services, within 60 days of the
decision.

Id.

If the International Claims Appeals sustains the

original decision, “the customer may submit an additional appeal
within 60 days for final review and decision to the Consumer
Advocate, International Claim Appeals.”

Id. at 246.

Neither the Manual nor the Universal Postal Union’s
Acts of the 26th Congress (Istanbul 2016) provides for the filing
of a lawsuit in this court.

4

According to Leslie Hill, the Supervisor, Claims
Accounting Branch of the USPS Accounting Service Center, Choi has
not submitted any claim for the loss of her package.

See Decl.

of Leslie Hill, ECF No. 35-2. PageID #s 249-50.
III.

MOTION TO DISMISS STANDARD.
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court’s review of claims is generally limited to
the contents of a complaint.

Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).

However, the court may take judicial

notice of and consider matters of public record without
converting a Rule 12(b)(6) motion to dismiss into a motion for
summary judgment.

See Lee v. City of Los Angeles, 250 F.3d 668,

688 (9th Cir. 2001); Emrich v. Touche Ross & Co., 846 F.2d 1190,
1198 (9th Cir. 1988).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted
5

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.
6

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal,

556 U.S. at 678.
IV.

ANALYSIS.
Choi’s Amended Complaint seeks damages from the USPS

under the “UNIVERSAL POSTAL UNION (Universal Postal Treaty).”
See ECF No. 27, PageID # 205.
Amended Complaint.

The USPS seeks dismissal of Choi’s

Because English is not Choi’s native language

and because Choi is proceeding pro se, the court liberally
construes Choi’s Opposition to the dismissal motion.
38.

See ECF No.

Even with liberal construction, the Amended Complaint cannot

proceed.

Accordingly, the court dismisses the Amended Complaint

without holding a hearing.
Under Articles 22 and 23 of the Universal Postal
Union’s Acts of the 26th Congress (Istanbul 2016), the sender of
a lost ordinary parcel shall be indemnified and reimbursed for
charges and fees paid as long as the sender makes an “inquiry”
within six months of posting the parcel.

See

http://www.upu.int/uploads/tx sbdownloader/actsActsOfThe26ThCongr
essIstanbul2016En.pdf at 154-56.

The International Mail Manual

provides instructions on how to proceed.

See

https://mailomg.files.wordpress.com/2018/01/imm-international-mai
7

l-manual-2018-united-states-postal-service1.pdf#G12.1052609 at
239-46.

An action in this court is not included as a remedy in

either the Manual or the Universal Postal Union’s Acts of the
26th Congress (Istanbul 2016).
The USPS argues that Choi has no private right of
action for a violation of the Universal Postal Union’s Acts of
the 26th Congress (Istanbul 2016).

This court agrees.

See

Cornejo v. Cty. of San Diego, 504 F.3d 853, 859 (9th Cir. 2007)
(stating that international agreements generally do not provide
for private causes of action in domestic courts (citing
Restatement (Third) of Foreign Relations Law § 907)).
Comment A to the Restatement (Third) of Foreign
Relations Law § 907 explains:
Whether an international agreement provides a
right or requires that a remedy be made
available to a private person is a matter of
interpretation of the agreement. Where a
remedy was intended, suit against a foreign
state (or the United States) might
nonetheless be barred by principles of
sovereign immunity, unless such immunity is
found to have been waived.
Nothing in the multi-national postal agreement suggests any
intent to provide a private right of action against the USPS or
any other member country’s postal agency for a lost international
parcel.

This court concludes that, under the Universal Postal

Union’s Acts of the 26th Congress (Istanbul 2016), Choi has no

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private right of action allowing her lawsuit against the USPS for
the lost parcel she says she mailed to herself from Japan.
Choi’s lawsuit skips International Mail Manual
procedures for seeking indemnification with respect to a lost
international parcel.

Accordingly, the court dismisses her

Amended Complaint.2
IV.

CONCLUSION.
The USPS’s motion to dismiss the Amended Complaint is

granted.
While the court normally freely grants pro se litigants
leave to filed amended pleadings, the court declines to do so in
the present case because any such amended pleading would be

2

The court does not construe the Amended Complaint as
asserting a claim under the Federal Torts Claims Act (“FTCA”).
In the order dismissing the original Complaint, this court
discussed the FTCA. See ECF No. 21, PageID # 184. Choi
therefore knew about the possibility of asserting a claim under
the FTCA. Despite that knowledge, Choi’s Amended Complaint fails
to mention the FTCA. Choi’s Opposition also appears to recognize
that she is not bringing a claim under the FTCA. The USPS argues
that it is entitled to summary judgment with respect to any FTCA
claim because Choi has failed to raise a genuine issue of fact as
to whether she met the FTCA’s requirement that she exhaust her
administrative remedies. See 28 U.S.C. § 2675(a). While the
court notes that Choi submits no evidence demonstrating that she
exhausted her administrative remedies, this court does not read
Choi’s pleading as encompassing an FTCA claim. At most, her
Opposition might be arguing that, if she asserted an FTCA claim,
the USPS should be estopped from arguing that she needed to
timely exhaust her administrative remedies because the USPS told
Choi that it did not receive her parcel. While that argument
might excuse an untimely assertion of administrative rights, it
would not excuse the failure to even attempt to exhaust the
administrative process.
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futile.

See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.

2007) (“Dismissal of a pro se complaint without leave to amend is
proper only if it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.” (quotation marks
and citation omitted)).
The Clerk of Court is directed to enter judgment in
favor of Defendant USPS and to close this case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 6, 2019.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Choi v. U.S. Postal Service, CIVIL NO. 18-00051 SOM/RLP; ORDER GRANTING ORDER
GRANTING MOTION TO DISMISS

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