TUNON v. GREY
Filing
19
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 12/12/2014. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JANILKA ABRAMS TUNON,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-2985 (JBS/JS)
v.
JOAN GREY,
MEMORANDUM OPINION
Defendant.
SIMANDLE, Chief Judge:
Before the Court is the Government’s motion to dismiss for
lack of subject matter jurisdiction.1 [Docket Item 14.] In this
action, Plaintiff seeks less than $200 in damages for mail the
Post Office allegedly mishandled or lost. Because Plaintiff’s
claims fall squarely within the “postal matter exception” to the
waiver of sovereign immunity under the Federal Torts Claims Act
(“FTCA”), the Court will grant Defendant’s motion. The Court
finds as follows:
1.
On or about January 30, 2014, Plaintiff filed this
action in the Superior Court of New Jersey, Law Division,
Atlantic County, Small Claims Section, Docket No. SC-158-14.
[Docket Item 1-1.]
1
The United States has been automatically substituted as the
proper defendant in place of Joanne Gray (improperly pleaded as
Joan Grey), an employee of the United States Postal Service,
pursuant to 28 U.S.C. §§ 2679(d)(1) and (4).
2.
Although her Complaint is mostly illegible, it is
apparent that Plaintiff alleges wrongdoing by the United States
Postal Service or her local Post Office in the handling of her
mail.
3.
On May 12, 2014, Defendant removed this case to the
District of New Jersey pursuant to 28 U.S.C. §§ 1442(a)(1),
2679(d)(2), and 39 U.S.C. § 409(a).
4.
The United States has been automatically substituted
as the proper defendant in place of Joanne Gray (improperly
pleaded as Joan Grey) pursuant to 28 U.S.C. §§ 2679(d)(1) and
(4).
5.
On June 6, 2014, the Government filed a motion for a
more definite statement, and the Honorable Joel Schneider heard
argument on this motion on September 19, 2014.
6.
During the hearing, Plaintiff clarified the basis of
her claims. Plaintiff explained that she maintains a post office
box in Atlantic City. Several years ago she ordered a number of
items over the phone to be delivered to her post office box. She
provided proper payment, but never received the items. Plaintiff
now seeks reimbursement from the Post Office of the cost of the
items that were never delivered totaling $196.2 Plaintiff stated
2
The Small Claims Summons and Return of Service form completed
by Plaintiff states a demand amount of $167.00. The demand
amount listed on Plaintiff’s Complaint is illegible.
2
that she not pursuing a claim related to the cost of her post
office box.
7.
Finding that Plaintiff had sufficiently clarified the
basis of her claim, Judge Schneider denied the Government’s
motion for a more definite statement.
8.
The Government then filed the instant motion to
dismiss [Docket Item 14], asserting that the Court lacks subject
matter jurisdiction because Plaintiff has failed to exhaust
administrative remedies as required under the FTCA and her claim
is barred by the FTCA’s postal matter exception. Plaintiff filed
opposition [Docket Item 17] and the Government filed a reply
[Docket Item 18].
9.
The FTCA provides a mechanism by which a state tort
action may be brought against the Government in federal court.
In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344,
362 (3d Cir. 2001). More specifically, the FTCA grants district
courts’ jurisdiction over:
civil actions on claims against the United States, for
money damages, accruing on and after January 1, 1945, 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, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1). Thus, the FTCA “waives the government’s
sovereign immunity with respect to tort claims against the
3
United States for money damages.” Fisher Bros. Sales, Inc. v.
United States, 46 F.3d 279, 284 (3d Cir. 1985).
10.
Conduct by the USPS and its employees are included
within the terms of the FTCA. Under 39 U.S.C. § 409(c), “all . .
. provisions of title 28 relating to tort claims shall apply to
tort claims arising out of activities of the USPS.” See also
Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006).
11.
A district court lacks jurisdiction over a federal
tort claim unless the claimant has first exhausted
administrative remedies. 28 U.S.C. § 2675(a); McNeil v. United
States, 508 U.S. 106, 113 (1993); Deutsch v. United States, 67
F.3d 1080, 1091 (3d Cir. 1995). Specifically, 28 U.S.C. §
2675(a) provides, in pertinent part:
An action shall not be instituted upon a claim against the
United States for money damages . . . 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.
This administrative exhaustion requirement “is jurisdictional
and cannot be waived.” White-Squire v. U.S. Postal Serv., 592
F.3d 453, 457 (3d Cir. 2010) (quoting Bialowas v. United States,
443 F.2d 1047, 1049 (3d Cir. 1971)).
12.
The waiver of sovereign immunity in the FTCA is not
unlimited and the bar on suits against the United States remains
for claims arising from the mishandling or loss of mail. “The
4
FTCA qualifies its waiver of sovereign immunity for certain
categories of claims (13 in all).” Dolan, 546 U.S. at 485. Of
particular relevance here is 28 U.S.C. § 2680(b): “The
provisions of this chapter and section 1346(b) of this title
shall not apply to . . . [a]ny claim arising out of the loss,
miscarriage, or negligent transmission of letters or postal
matter.” 28 U.S.C. § 2680(b). “As a consequence, the United
States may be liable if postal employees commit torts under
local law, but not for claims defined by this exception.” Dolan,
546 U.S. at 485.
13.
This exception to the waiver of sovereign immunity
clearly applies to Plaintiff’s case. Plaintiff alleges that she
ordered over the phone certain items to be delivered to her post
office box and, due to the negligence of the United States
Postal Service, she never received these items.3 The postal
matter exception in § 2680(b) applicable to claims “arising out
3
It remains unclear whether the items were to be delivered by
the United States Postal Service or UPS. Plaintiff attached to
her letter requesting an extension of time to oppose the
Government’s motion to dismiss a document from UPS indicating
the delivery of a parcel to Plaintiff at an address in Atlantic
City on October 6, 2011. [Docket Item 15 at 2.] Moreover, when
asked by Judge Schneider at oral argument on the Government’s
motion for a more definite statement whether she was sure that
the USPS delivered these items and not some other company like
UPS or Federal Express, Plaintiff responded, “Well, Ms. -- some
people work in the –- the Post –- como se –- Post Office –- told
me have to do with UPS, too.” (Hrg. Tr. [Docket Item 13] at
11:5-10.) The Court need not resolve this ambiguity to conclude
that Plaintiff’s claim against the Government must fail.
5
of the loss, miscarriage, or negligent transmission” of mail
plainly bars Plaintiff’s suit. Therefore, the Court will grant
the Government’s motion to dismiss.4 An accompanying order will
be entered.
December 12, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
4
There is thus no need to reach the Government’s argument
regarding Plaintiff’s failure to exhaust administrative
remedies.
6
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