ADU v. POST OFFICE

Filing 9

MEMORANDUM OPINION filed. Signed by Chief Judge Jerome B. Simandle on 1/3/12. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

AGNES ADU,

HON. JEROME B. SIMANDLE
Plaintiff,

Civil No. 11-2635 (JBS/JS)

v.
MEMORANDUM OPINION
POST OFFICE,
Defendant.

SIMANDLE, Chief Judge:
This matter is before the Court on the unopposed motion of
Defendant Post Office1 (hereafter, “United States Postal Service”
or “USPS”) to dismiss for lack of subject matter jurisdiction.
[Docket Item 8.]
1.

The Court finds as follows:

Plaintiff, proceeding pro se, filed this action in the

Superior Court of New Jersey, Law Division, Special Civil Part on
April 28, 2011.

[Docket Item 1, Ex. A.]

On May 9, 2011, the

action was removed to this Court by Defendant USPS, invoking this
Court’s removal jurisdiction of 28 U.S.C. § 1441(b) because the
action, which names the federal agency USPS as a defendant, is
founded on a claim or right arising under the laws of the United
States.

1

[Docket Item 1.]

Plaintiff’s Complaint named, as the sole defendant in this
action, “Post Office.” The Court construes Plaintiff’s Complaint
to name the United States Postal Service, an agency of the United
States federal government. See Dilg v. U.S. Postal Serv., 635 F.
Supp. 406, 407 (D.N.J. 1986) (“the Postal Service is clearly a
‘federal agency’ within the broad definition of that term in [28
U.S.C.] § 2671").

2.

Plaintiff’s Complaint, attached as Exhibit A to

Defendant’s notice of removal, is devoid of details regarding the
nature of her claims against the USPS.

The Court is only able to

determine, on the basis of the Complaint, that Plaintiff seeks to
recover $1,000 from the USPS because “the Phone got Lost.”
Compl. at 1, 2.
3.

On May 17, 2011, Defendant filed a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction.

[Docket Item 4.]

Defendants’ motion.

Plaintiff did not respond to

On November 1, 2011, the Court denied

Defendant’s motion without prejudice because Defendant’s motion
and notice of removal referred to details surrounding Plaintiff’s
claim that were not contained in Plaintiff’s pleadings and which
Defendant did not otherwise attribute to any source.

[Docket

Items 6 & 7.]
4.

On November 23, 2011, Defendant filed the instant

renewed motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
for lack of subject matter jurisdiction.

[Docket Item 8.]

In

its renewed motion, Defendant explains that the additional
information regarding Plaintiff’s claim was relayed to
Defendant’s counsel by USPS Consumer Affairs Representative
Kathleen Smith as a result of her investigation following a
complaint Plaintiff made to the USPS regarding her lost package.
The details supplied by Ms. Smith were included in Defendant’s

2

notice of removal to provide to the Court a short plain statement
of the grounds for removal as required under 28 U.S.C. § 1446(a).
Defendant attaches a declaration of Ms. Smith which contains a
detailed account of these additional facts.
5.

According to Ms. Smith, on April 5, 2011, Plaintiff

mailed a package via Express Mail allegedly containing an iPhone
from the Willingboro, New Jersey, Branch of the United States
Post Office, addressed to a recipient in New York.
¶¶ 3-5.

Smith Decl.

Plaintiff did not purchase additional insurance on the

Express mail package above the automatic insurance provided to
all Express Mail packages of $100.

Id. ¶ 5.

The package was

apparently not delivered to its intended recipient.

Id.

On

April 14, 2011, Plaintiff called the USPS Consumer Affairs
Department regarding the lost package and spoke with Ms. Smith.
Id. ¶ 6.

In that telephone call, Ms. Smith declares, Plaintiff

alleged that the USPS clerk who accepted her Express Mail package
“stated that the phone would get lost unless she insured it” but
that she did not purchase any additional insurance on the package
because she could not afford it.

Id.

Ms. Smith declares that

the postal service clerk denied Plaintiff’s account of this
exchange.
6.

Id. ¶ 7.

Defendant further includes with its motion to dismiss

the declaration of Kenneth Steele, Sr., a supervisor in the
Claims and Inquiry Section of the USPS Accounting Service Center.

3

Steele Decl. ¶ 1.

Mr. Steele reports that, according to USPS

records, Plaintiff filed an indemnity claim with the USPS for a
lost package on June 22, 2011.

Id. ¶ 6.

On June 29, 2011, the

USPS paid Plaintiff $100 under the automatic insurance provided
to all Express Mail packages.

Id.

Mr. Steele further reports

that USPS records indicate that on August 16, 2011, Plaintiff
cashed Defendant’s $100 check.

Id.

Mr. Steele also reports that

Plaintiff did not appeal the USPS decision to grant her indemnity
claim in the amount of $100.
7.

Id. ¶ 7.

Defendant moves to dismiss Plaintiff’s claim for lack of

subject matter jurisdiction.

Defendant argues that, regardless

whether Plaintiff’s Complaint is construed as seeking recovery
under a theory of tort or contract, the Court is without
jurisdiction to adjudicate the dispute.
8.

The Court agrees.

An attack on subject matter jurisdiction can be either

facial -- based solely on the allegations in the complaint -- or
factual -- looking beyond the allegations to attack jurisdiction
in fact.

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d

884, 891 (3d Cir. 1977).

Where, as here, the challenge to

subject matter jurisdiction is factual, the Court is free to
weigh the evidence and satisfy itself as to the existence of
jurisdiction.
9.

Id.

If Plaintiff’s Complaint is construed as seeking tort

damages from Defendant USPS, the Court concludes that it lacks

4

subject matter jurisdiction to hear the dispute because the
United States has not waived its sovereign immunity for
Plaintiff’s claim.

Defendant USPS, an “independent establishment

of the executive branch of the Government of the United States,”
“enjoys federal sovereign immunity absent a waiver.”
U.S. Postal Serv., 546 U.S. 481, 483-84 (2006).

Dolan v.

The federal

government has provided a limited waiver of immunity for tort
damages arising out of claims of the USPS in the form of the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1).
However, the FTCA does not waive sovereign immunity for “[a]ny
claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.”
Dolan, 546 U.S. at 485.

28 U.S.C. § 2680(b);

Thus, construing Plaintiff’s Complaint

to seek damages for the loss of Plaintiff’s mailed package, the
Court concludes that it lacks subject matter jurisdiction in this
matter because the sovereign Defendant has not consented to be
sued in this matter.
10.

If the Court were to construe Plaintiff’s complaint to

seek contractual damages from Defendant for the loss of her
package, the result is the same.

Defendant has provided evidence

that Plaintiff did not purchase insurance for her Express Mail
package, that she sought reimbursement for her lost package, and
that she was granted reimbursement in the amount of $100.
Decl. ¶¶ 6-7.

Steele

Defendant likewise has provided evidence that

5

Plaintiff did not appeal that determination.

Id.

The Court

therefore finds that, to the extent that Plaintiff states a claim
for breach of contract, it must be premised on a theory of
implied contract, as on the record before the Court, Defendant
USPS abided by any express contract to indemnify the loss of
Plaintiff’s package up to $100.

However, the Court finds that,

as with her claim for tort damages, the Court lacks subject
matter jurisdiction to hear such a claim against Defendant.
“[A]ssuming that an implied contract of bailment exists between
the government and the sender by virtue of a mailing, the
government is not liable for loss or damage to mail, except as
may be provided in the postal laws and regulations, and none
exist here.”

Blazavich v. United States, 29 Fed. Cl. 371, 375

(1993).
11.

The burden to prove subject matter jurisdiction is

Plaintiff’s.
Cir. 2009).

Lightfoot v. United States, 564 F.3d 625, 627 (3d
Plaintiff, by failing to respond to Defendant’s

motion, has not met her burden to prove that subject matter
exists in this case.

Moreover, as discussed above, the Court is

unaware of any plausible jurisdictional basis for this suit.
Therefore, the Court will grant Defendant’s motion to dismiss for
lack of subject matter jurisdiction.

6

12.

The accompanying Order will be entered

January 3, 2012
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

7