Yagudayev v. USPS Coney Island Station

Filing 14

MEMORANDUM & JUDGMENT: Defendant's 7 Motion to Dismiss is granted, without costs or disbursements. The case is dismissed. Ordered by Senior Judge Jack B. Weinstein, on 3/3/2011. Judgment Clerk cc-ed. (Barrett, C)

IN CLERK'S OFFICE U.S. ClISTRICT COURT ED.N.Y.

FilED

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK MIKHAIL Y AGUDAYEV, Plaintiff, 10-CV-3698 - againstUNITED STATES POSTAL SERVICE, Defendant.

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MEMORANDUM & JUDGMENT

MAR 0 7 2011

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BROOKLYN OFFICE

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JACK B. WEINSTEIN, Senior United States District Judge:
Pro se plaintiff sued for $69 under the Federal Tort Claims Act ("FTCA") against United States Postal Service alleging that defendant failed to deliver a package to plaintiffs home address. Defendant moved to dismiss under Fed. R. Civ. P. 12(b)(l) and 12(b)(6) alleging that plaintiffs claim for lost and/or negligently handled mail is barred under FTCA and that the Court lacks subject matter jurisdiction to adjudicate plaintiff s claim since he failed to exhaust administrative remedies. At a hearing in March 3, 20 II plaintiff conceded that he had not exhausted administrative remedies. He had failed to file a claim. Under 28 U.S.c. § 2680(b) the United States does not waive its sovereign immunity with regard to "[a]ny claim arising out of the loss, miscarriage, or negligent transmission ofletters or postal matter." See Dolan v. United States Postal Serv., 546 U.S. 481, 485 (2006); Anderson v. United States Postal Service, 761 F.2d 527 (9th Cir. 1985). The Court lacks subject matter jurisdiction.

Even if plaintiffs claim was actionable under the FTCA, it is dismissed for failure to exhaust administrative remedies. See 28 U.S.c. § 2675(a). Defendant's motion to dismiss is granted, without costs or disbursements. The case is dismissed.

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Date: March 3, 2011 Brooklyn, New York , ack B. Weinstein Senior United States District Judge

Se> ORDERED.