Richter v. United States Postal Service

Filing 39

MEMORANDUM AND ORDER that plaintiff's motions for default judgment 8 , 12 , 13 , 14 , 18 , and 28 are denied. Plaintiff's Motion for Sanctions 23 liberally construed as a Motion to Supplement the Complaint, i s granted in part and denied in part in accordance with this Memorandum and Order. Defendant's 6 Motion to Dismiss for Failure to State a Claim is granted. All other pending motions are denied. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUTH RICHTER,
Plaintiff,
v.
UNITED STATES POSTAL
SERVICE,
Defendant.

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8:12CV428

MEMORANDUM
AND ORDER

This matter is before the court on Defendant’s Motion to Dismiss. (Filing No.
6.) Also pending are several other Motions filed by the parties. (See Filing Nos. 8,
12, 13, 14, 15, 17, 18, 22, 23, 27, 28, and 29.) The court entered an order setting this
matter for hearing. (Filing No. 35.) The plaintiff failed to appear for the hearing.
(See Minute Entry, Filing No. 37, text-only entry.) For the reasons discussed below,
Defendant’s Motion to Dismiss is granted.
I. BACKGROUND
Plaintiff filed this matter in the Small Claims Court for Douglas County,
Nebraska, against Defendant United States Postal Service (“USPS”), alleging
constitutional violations, discrimination, breach of contract, and negligence. (Filing
No. 1-1.) On December 17, 2012, Defendant filed a proper and timely Notice of
Removal of Plaintiff’s claims. (Filing No. 1.)
Plaintiff’s Complaint is her second attempt to raise claims against Defendant
related to an Express Mail International letter that Plaintiff sent to Great Britain. (See
Filing No. 1; Case No. 8:12CV82, Filing No. 1-1.) In Plaintiff’s prior case, Case No.
8:12CV82, the court dismissed her claims because Defendant was entitled to

sovereign immunity and because Plaintiff had failed to exhaust her administrative
remedies. (Case No. 8:12CV82, Filing No. 23.)
In this case, Plaintiff alleges:
[O]n Oct. 26, 2012 at ongoing and continuing USPS has violated my
U.S. constitutional rights, discriminated regarding disability, repeatedly
breached contract (IMM) failed due process of judicial law regarding an
insurance claim – consequences resulted in bodily injury to me in 2 all
USPS regulations, policies and procedures not followed by Defendant,
willful + deliberate negligence of admin. issues.
(Filing No. 1-1.) Plaintiff requests monetary relief in the amount of $3,500.00, or the
return of property valued at $3,500.00. (Id.)
On January 16, 2013, Defendant filed a Motion to Dismiss along with a Brief
in Support. (Filing Nos. 6 and 7.) Thereafter, Plaintiff filed a Brief in Opposition to
Defendant’s Motion to Dismiss. (Filing No. 9.) In her Brief, Plaintiff states that this
matter “is a continuation of” her previously filed case, Case No. 8:12CV82, and
should not be dismissed because new facts have emerged. (Id. at CM/ECF p. 2.)
Plaintiff elected not to specify any new facts in her Brief and argues that “her claim
is valid without extensive details at this point.” (Id.)
II. ANALYSIS
A.

Motions for Default Judgment & Motion to Strike

Between January 29, 2013, and May 14, 2013, Plaintiff filed a Motion for
Default Judgment and six additional, or “continued,” Motions for Default Judgment.
(Filing Nos. 8, 12, 13, 14, 18, and 28.) In her first Motion, Plaintiff argues that she
is entitled to default judgment because Defendants did not file an answer by January

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23, 2013. (Filing No. 8.) In Response, Defendant argues that it timely filed a Motion
to Dismiss in lieu of an answer. (Filing No. 10; see also Filing No. 6.) Defendant has
also moved to strike filings numbers 12, 13, and 14, three of Plaintiff’s five additional
Motions for Default Judgment, because Plaintiff failed to comply with the court’s
local rules. (Filing No. 15.)
The court agrees that Plaintiff’s Motion for Default Judgment should be denied.
Defendant filed a timely Motion to Dismiss in lieu of an answer on January 16, 2013.
(Filing Nos. 5 and 6.) Moreover, Plaintiff failed to request leave to file the additional
documents in support of her Motion for Default Judgment in accordance with
NECivR 7.0.1(c). NECivR 7.0.1(c) (providing that a moving party may reply to an
opposing brief, however neither party may “file further briefs or evidence without the
court’s leave”). Nevertheless, motions to strike are viewed with disfavor and
infrequently granted. Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977).
In light of this, and Plaintiff’s pro se status, the court will not strike Plaintiff’s
additional, or “continued,” Motions for Default Judgment. However, those Motions
are also denied.1
B.

Motion for Sanctions

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The court notes that along with its Response to Plaintiff’s Motion for Default
Judgment, Defendant filed an Index of Evidence which includes a sworn affidavit
from the USPS Accident Investigator/Tort Claims Coordinator for the Central Plains
District, which includes Nebraska. (Filing No. 11-2.) The Affidavit shows that
Plaintiff had not filed an administrative tort claim as of February 6, 2013. (Id.)
Although this record is outside of the pleadings, the court will consider it in
evaluating whether Plaintiff has exhausted her administrative remedies for a potential
claim under the Federal Tort Claims Act (“FTCA”). See Osborn v. United States, 918
F.2d 724, 728 n.4 (8th Cir. 1990) (stating district court has authority to consider
matters outside the pleadings when subject matter jurisdiction is challenged under
Rule 12(b)(1)).
3

On April 2, 2013, Plaintiff filed a Motion for Sanctions. (Filing No. 23.) In
this Motion, Plaintiff seeks sanctions against Defendant for, among other things,
stating that she did not follow administrative procedures regarding her mail insurance
claim. (Id. at CM/ECF p. 3.) More specifically, Plaintiff states that Defendants gave
her an exception to the filing deadline for making a mail indemnity claim and asked
her to fill out a form. (Id.) Plaintiff asserts this exception made “no difference” and
she refused to “rack[] up huge phone time charges and stamps cost to get a $55.45
simple insurance claim settled.” (Id.)
In Response, Defendant argues that Plaintiff’s Motion for Sanctions is really
just an attempt to add claims. (Filing No. 30.) The court agrees with Defendant, and
in light of Plaintiff’s pro se status, the court will consider the allegations contained
in Plaintiff’s Motion for Sanctions as supplemental to her original Complaint.
Indeed, Defendant anticipated that the court would take this approach and has
asserted arguments in support of dismissing Plaintiff’s additional allegations. (Id. at
CM/ECF p. 4.)
In short, to the extent Plaintiff requests sanctions, her Motion for Sanctions is
denied. However, the court liberally construes Plaintiff’s Motion for Sanctions as a
Motion to Supplement her Complaint. Because the court has elected to consider the
allegations in Plaintiff’s Motion for Sanctions as supplemental to her original
Complaint, the court will also consider Defendant’s Response (filing no. 30) and
Index of Evidence (filing no. 31) as supplements to Defendant’s Motion to Dismiss.
C.

Motion to Dismiss

In support of its Motion to Dismiss, Defendant argues, among other things, that
Plaintiff’s Complaint should be dismissed because Defendant is entitled to sovereign
immunity and because Plaintiff failed to exhaust her administrative remedies. (Filing
No. 7; Filing No. 30 at CM/ECF p. 5.) For the reasons discussed below, the court
agrees.
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1.

Motion to Dismiss Standard

A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
2.

Sovereign Immunity

“Under the doctrine of sovereign immunity, the United States is immune from
suit unless it consents to be sued . . . . This consent must be unequivocally expressed
in statutory text . . . and the scope of a sovereign immunity waiver is strictly
construed in favor of the sovereign.” Miller v. Tony and Susan Alamo Found., 134
F.3d 910, 915 (8th Cir. 1998). It is well established that, absent an express waiver,
the doctrine of sovereign immunity bars a plaintiff’s claim for money damages
against the United States, its agencies, and its officers in their official capacities. See,
e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Sherwood, 312 U.S.
584, 586 (1941). Further, “sovereign immunity is jurisdictional in nature.” Meyer,
510 U.S. at 475, citing United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is
axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.”).

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The United States has expressly retained its sovereign immunity for claims
“arising out of the loss, miscarriage, or negligent transmission of letters or postal
matter.” 28 U.S.C. § 2680(b). This section shows that the U.S. Postal Service
“specifically retained sovereign immunity as to lost postal matter” and “is designed
expressly to bar actions for losses occasioned by the handling of goods within the
postal system.” Allied Coin Invest., Inc. v. U.S. Postal Serv., 673 F. Supp. 982, 985987 (D. Minn. 1987); see also C.D. of NYC, Inc. v. United States Postal Serv., 157
F. App’x 428, 429 (2d Cir. 2005) (affirming district court’s dismissal on sovereign
immunity grounds under 28 U.S.C. § 2680(b) where Bureau of Customs employee
stole parcels and noting that stolen parcels were “lost” under provisions of 28 U.S.C.
§ 2680(b)).
The Eighth Circuit has squarely addressed the issue of
negligently-handled mail in Najbar v. United States, 649 F.3d 868, 870 (8th Cir.
2011). Citing Dolan v. U.S. Postal Serv., 546 U.S. 481, 483–84 (2006), the court
reiterated that the United States has sovereign immunity for matters “arising out of
the loss, miscarriage, or negligent transmission of letters or postal matter.” Id. at
870.
[I]t was “likely that Congress intended to retain immunity, as a general
rule, only for injuries arising, directly or consequentially, because mail
either fails to arrive at all or arrives late, in damaged condition, or at the
wrong address.” [Dolan, 546 U.S.] at 489, 126 S. Ct. 1252; see also id.
at 486–87, 126 S. Ct. 1252 (“[(“[M]ail is ‘lost’ if it is destroyed or
misplaced and ‘miscarried’ if it goes to the wrong address,” while
“‘negligent transmission’ does not go beyond negligence causing mail
to be lost or to arrive late, in damaged condition, or at the wrong
address.”) . . . . Claims for injuries stemming from certain consequences
(i.e., from “mail either fail[ing] to arrive at all or arriv[ing] late, in
damaged condition, or at the wrong address,” id. at 489, 126 S. Ct.
1252), are barred, while claims for other injuries are not.
Id.; see also Pruitt v. United States Postal Serv., 817 F. Supp. 807, 808 (E.D. Mo.
1993) (“[T]he United States is not subject to suit for the loss, miscarriage or negligent
transmission of letters or postal matter. . . . Claims for the loss, misdelivery or
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negligent transmission of letters or postal matter are one such type of claim excepted
from the FTCA’s waiver of sovereign immunity.”)
Plaintiff admits that her Complaint is a second attempt to assert claims against
Defendant related to Defendant’s mishandling of her mail. (See Filing No. 1-1 at
CM/ECF p. 1; Filing No. 9 at CM/ECF p. 2; see also Case No. 12cv82, Filing No. 11.) As the court previously informed Plaintiff, and as discussed above, the United
States enjoys sovereign immunity for the negligent transmission of postal matter,
including the failure to deliver the postal matter at all. Therefore, Plaintiff’s claims
relating to the mishandling of her mail must be dismissed because this court lacks
subject matter jurisdiction.
3.

Administrative Remedies

Even if Plaintiff’s claims were not barred by sovereign immunity, she has failed
to exhaust her administrative remedies. Before a plaintiff may bring an action under
the FTCA, she must first comply with the administrative claim requirement, which
is a prerequisite to filing a claim under the FTCA. As set forth in 28 U.S.C. §
2675(a):
An action shall not be instituted upon a claim against the United States
for money damages for injury or loss of property or personal injury or
death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office
or employment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). The record before the court shows that Plaintiff has not
produced a written denial of any claim from the U.S. Postal Service. (Filing No. 112.)

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To the extent that Plaintiff alleges a breach of contract claim regarding
insurance she had on her Express Mail International letter, her claim must also be
dismissed. “The postal regulations governing international mail indemnity claims and
payments are published in the USPS’s [Mailing Standards of the United States Postal
Service International Mail Manual (“IMM”)]. Ly v. U.S. Postal Service, 775 F. Supp.
2d 9, 12 (D.D.C. 2011); See 39 C.F.R. § 20.1; id. § 211.2(a)(2) (establishing that the
regulations of the Postal Service consist of the IMM and other manuals). The IMM
provides specific procedures for filing a claims and subsequent appeals. See USPS
IMM §§ 920, 930. “Although the laws and regulations governing the USPS do not
themselves expressly require the exhaustion of the administrative claims process for
contract claims against the USPS, when an administrative remedy process exists, the
exhaustion requirement may be waived in only the most exceptional circumstances.”
Ly, 775 F. Supp. 2d at 12 (quotations omitted). “The doctrine of exhaustion of
administrative remedies protects administrative agency authority and promotes
judicial efficiency, and ensures that agencies—and not the federal courts—take
primary responsibility for implementing the regulatory programs assigned by
Congress.” Id. (citations and quotations omitted).
The record before the court shows that Vanessa Williams (“Williams”), a USPS
Consumer and Industry Affairs employee, responded to a letter that Plaintiff sent to
the “Consumer Advocate” on October 3, 2012. (Filing Nos. 31-1 and 31-2.)
Williams investigated Plaintiff’s claim, determined that there was no record of
Plaintiff’s inquiry, and made a one-time exception to the administrative filing
deadlines set forth in the IMM. (Filing No. 31-2.) In doing so, Williams stated that
in order to initiate an inquiry, Plaintiff needed to fill out and return a form within 15
days. (Id.) Williams enclosed a postage paid envelope, for Plaintiff’s convenience,
and stated that as soon the required documentation was received, the inquiry would
be initiated. (Id.) In response, Plaintiff sent a letter, dated October 10, 2012, stating:
I am not about to fill out the “additional information sheet” you enclosed
as I shall repeat until the cows come home there has been a completed
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inquiry already thus I will not endure more wasting of my time which no
doubt would incur further cost to me (as in having to go out and make
even more photocopy’s [sic] and gobs of extra phone minutes[).]
(Filing No. 31-3 at CM/ECF p. 2.)2
Plaintiff has not shown that she timely instituted an appropriate claim and
appeal pursuant to the IMM. See IMM § 921.2. Indeed, the record before the court
shows that Plaintiff received a one-time exception to the administrative filing
deadlines set forth in the IMM. (Filing No. 31-2.) However, in order to take
advantage of this exception, Plaintiff needed to fill out and return a form within 15
days. (Id.) Plaintiff refused. (Filing No. 31-3 at CM/ECF p. 2.) For these separate
reasons, Plaintiff’s Complaint must be dismissed.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motions for Default Judgment (Filing nos. 8, 12, 13, 14, 18,
and 28) are denied.
2.
Plaintiff’s Motion for Sanctions (Filing no. 23), liberally construed as
a Motion to Supplement the Complaint, is granted in part and denied in part in
accordance with this Memorandum and Order.
3.

Defendant’s Motion to Dismiss (Filing no. 6) is granted.

2

Again, these records are outside of the pleadings, but the court will consider
them in evaluating whether Plaintiff has exhausted her administrative remedies. See
Osborn, 918 F.2d at 728 n.4; see also Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8th Cir. 1999) (“When considering . . . a motion to dismiss under Fed.
R. Civ. P. 12(b)(6)[ ], the court generally must ignore materials outside the pleadings,
but it may consider some materials that are part of the public record or do not
contradict the complaint, as well as materials that are necessarily embraced by the
pleadings.” (internal quotations omitted)).
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4.

All other pending motions are denied.

5.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 12th day of June, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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