Newmark v. US Postal Service

Filing 7

Memorandum Opinion and Order granting 4 Motion to Dismiss filed by US Postal Service. This action is accordingly dismissed without prejudice for want of subject matter jurisdiction. (Ordered by Judge Sam A Lindsay on 6/27/2011) (dnc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEPHEN NEWMARK,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE,
Defendant.

§
§
§
§
§
§
§
§
§

Civil Action No. 3:11-CV-605-L

MEMORANDUM OPINION AND ORDER
Before the court is Defendant United States Postal Service’s Motion to Dismiss, filed March
31, 2011. After carefully reviewing the motion, record,1 and applicable law, the court grants
Defendant United States Postal Service’s Motion to Dismiss.
I.

Background
Plaintiff Stephen Newmark (“Newmark”), proceeding pro se, originally brought suit against

Defendant United States Postal Service (the “USPS”) in the Justice of the Peace Court, Precinct
Number 3, of Hunt County, Texas, on March 14, 2011. Newmark’s alleged in his Small Claims
Affidavit that the USPS failed to deliver parcels to him that had been properly cleared by United
States Customs, resulting in a loss of $2,250. The USPS removed the action to this court on March
24, 2011, pursuant to 28 U.S.C. § 1442, because the underlying state civil action was brought against
a United States agency.
The factual basis giving rise to this lawsuit is not fully developed. From the court’s best
understanding of the limited record before it, Newmark ordered certain products from the Ukraine

1

Stephen Newmark filed no response to Defendant United States Postal Service’s Motion to Dismiss.

Memorandum Opinion and Order – Page 1

to be delivered through the mail to his residence in Wolfe City, Texas. The products were shipped
from the Ukraine and arrived in the United States; however, when the products arrived at the United
States Post Office in Wolfe City, they were sent back to the Ukraine. Newmark contends that he
never received the deliveries from the Ukraine and that the parcels were returned to their sender
without his knowledge or consent. As a result, Newmark had no choice but to purchase the same
products locally at his personal expense of $3,000.
The USPS now moves to dismiss Newmark’s claim pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and for failure to state
a claim upon which relief could be granted. The USPS asserts that this court lacks jurisdiction to
consider Newmark’s claim because he failed to exhaust all administrative remedies and because any
claims arising out of loss, miscarriage, or negligent transmission of a postal matter is an exclusion
of liability under the Federal Tort Claims Act (the “FTCA”). Additionally, the USPS argues that
Newmark has set forth no plausible set of facts to support a claim for relief. Because the court, as
discussed below, finds the USPS’s subject matter jurisdiction arguments dispositive under Rule
12(b)(1), it does not analyze Newmark’s claim under Rule 12(b)(6).
II.

Legal Standard – Subject Matter Jurisdiction
A federal court has subject matter jurisdiction over civil cases “arising under the

Constitution, laws, or treaties of the United States,” or over civil cases in which the amount in
controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship
exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited
jurisdiction and must have statutory or constitutional power to adjudicate a claim. See Home
Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction

Memorandum Opinion and Order – Page 2

conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss
an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm’n, 138
F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th
Cir. 1994)). A federal court has an independent duty, at any level of the proceedings, to determine
whether it properly has subject matter jurisdiction over a case. See Ruhgras AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their
own initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir.
2005) (“federal court may raise subject matter jurisdiction sua sponte”).
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a
court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts
evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424
(5th Cir.), cert. denied, 534 U.S. 1127 (2002); see also Ynclan v. Dep’t of Air Force, 943 F.2d 1388,
1390 (5th Cir. 1991). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
district court is entitled to consider disputed facts as well as undisputed facts in the record. See Clark
v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint,
however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.
III.

Analysis
The USPS contends that Newmark’s claim is a tort that is rightfully captured under the

FTCA. The FTCA permits private parties to sue the United States and its agencies in a federal court
for most torts committed by persons acting on the government’s behalf, and the FTCA serves as a
limited waiver of sovereign immunity. See 28 U.S.C. § 2674. The court agrees that the FTCA

Memorandum Opinion and Order – Page 3

necessarily controls Newmark’s claim against the USPS. Although Newmark does not explicitly
invoke the FTCA in his Small Claims Affidavit, the court, taking into account Newmark’s pro se
status, construes Newmark’s claim as such. If Newmark were not advancing his tort claim under
the FTCA, sovereign immunity would prove an impassable hurdle and completely bar any claim
against the United States or its agencies.
The USPS argues that, under the FTCA, the court lacks subject matter jurisdiction to
consider Newmark’s claim because Newmark has not exhausted his administrative remedies. The
FTCA requires that “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 . . . .” 28
U.S.C. § 2675(a). In support of its contention that Newmark has never presented his claim to the
appropriate federal agency, the USPS provides the Declaration of Linda K. Crump as an attachment
to its motion to dismiss.
Linda Crump is the supervisor and tort claims examiner with the USPS. Def.’s App. ¶ 1.
She declares under penalty of perjury that she conducted a search of all USPS records of
administrative tort claims submitted for adjudication maintained at the local and national levels for
evidence of an administrative claim filed by or on behalf of Newmark. Id. ¶ 3. Her search revealed
nothing. Id. Moreover, Newmark has not volunteered any information or provided any records to
contradict the USPS’s contention that he never filed an administrative claim. The court therefore
determines that Newmark has failed to properly follow the procedures under the FTCA; the court
accordingly lacks subject matter jurisdiction to adjudicate Newmark’s claim until all administrative
remedies are exhausted.

Memorandum Opinion and Order – Page 4

Additionally, the USPS contends that Newmark’s claim is excluded from the FTCA’s waiver
of sovereign immunity. Specifically, the FTCA states that its provisions do 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). The court determines that this plain language directly captures the essence of
Newmark’s claim, which seeks relief for the USPS’s alleged mishandling of Newmark’s mail.
Accordingly, the court concludes that the government has not waived its sovereign immunity with
respect to Newmark’s claim in this case, and the court lacks subject matter jurisdiction to adjudicate
the matter.2
IV.

Conclusion
For the reasons stated herein, the court grants Defendant United States Postal Service’s

Motion to Dismiss. The court determines that it lacks subject matter jurisdiction to adjudicate
Newmark’s claim, and this action is accordingly dismissed without prejudice for want of subject
matter jurisdiction. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, the court will issue
a judgment by separate document.
It is so ordered this 27th day of June, 2011.

_________________________________
Sam A. Lindsay
United States District Judge

2

Furthermore, to the extent that Newmark’s claim alleges a violation of his constitutional rights, such
claim is also barred because the FTCA does not act as a waiver of sovereign immunity for constitutional
rights violations. McAfee v. Fifth Circuit Judges, 884 F.2d 221, 223 (5th Cir. 1989).
Memorandum Opinion and Order – Page 5