Rector v. United States Postal Service

Filing 4

MEMORANDUM & ORDER: The Court grants Plaintiff's 2 application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 solely for the purpose of this Memorandum and Order. Accordingly, because the Court lacks subject matter ju risdiction over Plaintiff's tort claim, the Complaint is dismissed for lack of subject matter jurisdiction. Any amendment of Plaintiff's tort claim would be futile because of the postal matter exception to the waiver of sovereign immunit y. However, the Court grants Plaintiff 30 days from the date of this Memorandum and Order to file an amended complaint based on a contract claim. If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgme nt dismissing this action for the reasons set forth above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 5/24/2017. (Copy of this Order sent to pro se Plaintiff along with the attached copies of all unreported cases cited herein.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------REBECCA RECTOR,
Plaintiff,
v.

NOT FOR PUBLICATION
MEMORANDUM & ORDER
17-CV-708 (MKB)

UNITED STATES POSTAL SERVICE,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Rebecca Rector, proceeding pro se, filed this action against Defendant United
States Postal Service (“USPS”) on February 6, 2017, alleging that USPS lost a laptop that she
mailed. (See generally Compl., Docket Entry No. 1.) The Court grants Plaintiff’s application to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915 solely for the purpose of this
Memorandum and Order. For the reasons discussed below, the Court dismisses the Complaint
but grants Plaintiff leave to amend the Complaint to allege a contract claim.
I.

Background
The Court assumes the truth of the facts set forth in the Complaint for the purpose of this

Memorandum and Order. Plaintiff mailed her laptop computer on July 27, 2016 through USPS
to Dell Corporation by Priority Mail and, as a result, the laptop was automatically insured up to
fifty dollars. (Compl. 5, 10, 24.)1 The computer did not arrive at its destination. (Id. at 5.)
Plaintiff received confirmation from USPS that her laptop computer was not delivered to Dell

1

Because Plaintiff attached documents to the Complaint that are not marked as separate
exhibits or paginated, all citations to the Complaint and the attached documents refer to the
electronic document filing system (ECF) pagination and are referred to as the “Complaint.”

Corporation, and USPS did not recover the laptop computer. (Id. at 21, 24.) Plaintiff filed an
insurance claim with USPS Accounting Services but Accounting Services denied the claim on
October 7, 2016 because it was not timely filed. (Id. at 23.) Plaintiff appealed the denial of her
claim to the USPS Consumer Advocate but the appeal was denied on November 21, 2016
because the initial claim was not timely filed. (Id. at 26.) Although the Complaint does not
explicitly allege a cause of action, Plaintiff seeks $1287 in damages. (Id. at 6.) Based on the
facts alleged, the Court construes Plaintiff’s claim as a tort and contract claim.
II. Discussion
a.

Standard of review

A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if
the Court determines it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
In addition, if the Court “determines at any time that it lacks subject-matter jurisdiction, the
Court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery Corp.
v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (A district court may
dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court
“lacks the statutory or constitutional power to adjudicate it . . . .” (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000))).
b.

Plaintiff’s tort claim is barred by sovereign immunity

Under the Postal Reorganization Act, 39 U.S.C. § 101, et seq., the USPS is “an
independent establishment of the executive branch of the Government of the United States.”
39 U.S.C. § 201. Accordingly, USPS, like the United States, is generally immune from suit.
United States v. Bormes, 568 U.S. ---, ---, 133 S. Ct. 12, 16 (Nov. 13, 2012) (“Sovereign
immunity shields the United States from suit absent a consent to be sued that is ‘unequivocally
expressed.’” (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992))); Dolan
v. USPS, 546 U.S. 481, 484 (2006).
The Federal Tort Claims Act (“FTCA”), “waived the United States’ sovereign immunity
for claims arising out of torts committed by federal employees.” Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 217–18 (2008). However, Congress created certain exceptions to its waiver of
sovereign immunity, including the “postal matter exception,” which explicitly retains sovereign
immunity with regard to “any claim arising out of the loss, miscarriage, or negligent transmission
of letters or postal matter.” 28 U.S.C. § 2680(b); see generally Dolan, 546 U.S. at 485.
Here, to the extent Plaintiff’s claim is that USPS failed to deliver or recover her mailed
package, her claim sounds in tort. See Przespo v. U.S. Post Office, 177 F. Supp. 3d 793, 796

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(W.D.N.Y. 2016) (construing a claim for “gross mishandling” of a fragile package as sounding
in tort); Brown v. eBay, No. 14-CV-2803, 2014 WL 7342898, at *2 (E.D.N.Y. Dec. 23, 2014)
(construing a cause of action against USPS for failure to deliver a package as a tort claim);
Kuhner v. Montauk Post Office, No. 12-CV-2318, 2013 WL1343653, at *2 (E.D.N.Y. Apr. 4,
2013) (construing a claim for a mis-delivered package as a claim under the FTCA). As a tort
claim, Plaintiff’s allegations fall within the postal matter exception. See Dolan, 546 U.S. at 489
(noting that Congress intended to retain immunity “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.”). Therefore, Plaintiff’s tort claim is barred by sovereign immunity and the
Court lacks subject matter jurisdiction over the claim. See, e.g., Gildor v. U.S. Postal Serv., 179
F. App’x 756, 758–59 (2d Cir. 2006) (dismissing tort claims alleging negligence by USPS in
“mis-delivering” a package); Przespo, 177 F. Supp. 3d at 796 (dismissing a tort claim against
USPS for “gross mishandling” of a fragile package because the claim was barred by sovereign
immunity); Brown, 2014 WL 7342898, at *2 (dismissing a claim sounding in tort against USPS
for failure to deliver a package because the suit was barred by sovereign immunity).
Accordingly, Plaintiff’s tort claim is dismissed.
c.

Plaintiff is granted leave to file an amended complaint

To the extent Plaintiff’s claim is that she entered into a contract with USPS because her
package was insured up to fifty dollars, her claim sounds in contract. See, e.g., Simat USA, Inc.
v. U.S. Postal Serv., 218 F. Supp. 2d 365, 366 (S.D.N.Y. 2002) (construing as a contract claim a
plaintiff’s attempt to seek insurance recovery for lost mail sent via Express Mail, which is
automatically insured up to $500); see also Coley v. U.S. Postal Serv., No. 11-CV-986, 2013 WL
2474357, at *1 (M.D.N.C. 2013) (construing a claim for insurance recovery on priority mail sent

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internationally as a contract claim because the plaintiff “obtained insurance for his package
subject to the terms, conditions, and law by which USPS agreed to be sued”).
Sovereign immunity does not categorically bar contract claims against USPS. See 28
U.S.C. § 1346(a)(2) (federal district courts have jurisdiction over “[a]ny . . . civil action or claim
against the United States, not exceeding $10,000 in amount, founded . . . upon any express or
implied contract with the United States.”). Rather, USPS may be sued in its official name. See
39 U.S.C. § 401(1) (USPS has the general power “to sue and be sued in its official name”).
USPS is liable to the extent that it agrees to be liable as identified in postal laws and regulations,
including the Domestic Mail Manual (“DMM”), which is issued pursuant to the USPS’ power to
adopt regulations and incorporated by reference in the Code of Federal Regulations. See
Gelbfish v. U.S. Postal Serv., 51 F. Supp. 2d 252, 254 (E.D.N.Y. 1999) (citing Frank Mastoloni
& Sons, Inc. v. U.S. Postal Serv., 546 F. Supp., 415, 419 (S.D.N.Y. 1982)). The DMM provides
that USPS Accounting Services adjudicates and determines whether to uphold an insurance
claim. DMM § 609.6. A customer who is not pleased with the determination of Accounting
Services may appeal a claim within thirty days from the date of the original decision. Id. If
Accounting Services sustains the denial of a claim, the customer may submit an additional
appeal with the Consumer Advocate within thirty days for final review. Id.
Thus, “[i]n order for USPS to be liable for loss of mail, a party seeking to recover for the
loss of registered mail must exhaust all ‘administrative remedies available under the postal
regulations” before bringing suit in federal court. See Blanc v. U.S. Postal Serv., No. 14-CV1404, 2014 WL 931220, at *2 (E.D.N.Y. Mar. 10, 2014) (citations and internal quotation marks
omitted); McBride v. U.S. Postal Serv., No. 7-CV-0446, 2007 WL 1965337, at *2 (E.D.N.Y.
June 29, 2007) (“In order for the USPS to be liable under a contract theory, a party seeking to

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recover for the loss of registered mail must exhaust all “administrative remedies available under
the postal regulations before commencing [his] action [in district court].” (quoting Djordjevic v.
Postmaster Gen. U.S. Postal Serv., 911 F. Supp. 72, 75 (E.D.N.Y. 1997))); Gelbfish,
51 F. Supp. 2d at 255 (dismissing contract claim against USPS for lack of subject matter
jurisdiction where plaintiff failed to exhaust his administrative remedies); Djordjevic,
911 F. Supp. at 75 (“To the extent that Plaintiff’s claim sounds in contract, Plaintiff must first
exhaust her administrative remedies available under the postal regulations before commencing
her action in the present forum.” (citation omitted)).
Here, Plaintiff alleges facts supporting a contract claim against USPS. Plaintiff sent her
laptop computer by Priority Mail and automatically received insurance coverage up to fifty
dollars. (Compl. 10, 24.) According to the DMM, an insurance claim for Priority Mail insured
up to fifty dollars must be filed between fifteen and sixty days after the date of mailing. See
DMM §§ 503.4.2, 609.1, 609.6. Plaintiff filed an insurance claim and appealed the denial of her
claim to the highest USPS appeal authority. (Compl. 23, 26.) Both appeals were denied based
on findings that Plaintiff did not file her initial claim in a timely manner but the Complaint does
not include any indication of when Plaintiff filed her initial claim. (Id.) Accordingly, Plaintiff is
granted leave to amend the Complaint to include a contract claim. In any amended complaint,
Plaintiff must specify the dates she filed her initial claim. If Plaintiff’s claim was not filed within
the required time period, Plaintiff should also include any facts to explain why her claim was not
timely filed.2

2

If Plaintiff filed a late claim, her contract claim may not be exhausted because she did
not comply with the exhaustion procedures in the DMM. See, e.g., Cascio v. U.S. Postal Serv.,
No. 05-CV-3033, 2005 WL 2862584, at *3 (E.D. Pa. Oct. 31, 2005) (granting summary
judgment for USPS because the plaintiff did not file her initial insurance claim in a timely
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III. Conclusion
Accordingly, because the Court lacks subject matter jurisdiction over Plaintiff’s tort
claim, the Complaint is dismissed for lack of subject matter jurisdiction. 28 U.S.C. §
1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3). Any amendment of Plaintiff’s tort claim would be futile
because of the postal matter exception to the waiver of sovereign immunity. However, the Court
grants Plaintiff thirty days (30) from the date of this Memorandum and Order to file an amended
complaint based on a contract claim. Plaintiff is advised that the amended complaint will
completely replace the original complaint, must be captioned “Amended Complaint,” and must
bear the same docket number as this Memorandum and Order. If Plaintiff fails to file an
amended complaint within the time allowed, the Court will enter judgment dismissing this action
for the reasons set forth above.

manner, even though she made all the necessary appeals, and no reasonable juror would accept
the reasons for the delay); see also Simat USA, Inc. v. U.S. Postal Serv., 218 F. Supp. 2d 365,
366 (S.D.N.Y. 2002) (noting that there are “four established exceptions to the general rule
requiring exhaustion” in the context of a contract claim against USPS); Nisnick v. U.S. Postal
Serv., No. 16-CV-4002, 2017 WL 945016, at *7 (D.N.J. Mar. 10, 2017) (noting that “the greater
number of relevant cases either explicitly or implicitly assume that exhaustion (i.e., strict
compliance with the D.M.M. or [International Mail Manual]) may be excused under certain
circumstances.” (collecting cases)).
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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore in forma pauperis status
is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45
(1962).
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: May 24, 2017
Brooklyn, New York

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