UNITED STATES DISTRICT COURT FOR ONLINE EASTERN ..., Study notes of Remedies

Download UNITED STATES DISTRICT COURT FOR ONLINE EASTERN ... and more Study notes Remedies in PDF only on Docsity! UNITED STATES DISTRICT COURT FOR ONLINE EASTERN DISTRICT OF NEW YORK PUBLICATION ONLY ____________________________________________X FRANCIS LAM, Plaintiff, MEMORANDUM AND ORDER -against- 06-CV-0268 (JG) UNITED STATES POSTAL SERVICE, KENSINGTON POST OFFICE, Defendants. _______________________________________________X APPEARANCES: FRANCIS LAM 3845 18th Avenue, Apt. #6F Brooklyn, NY 11218-6161 Plaintiff, Pro se ROSLYNN MAUSKOPF United States Attorney Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, NY 11201 By: Margot P. Schoenborn Assistant United States Attorney Attorney for Defendants JOHN GLEESON, United States District Judge: Plaintiff Francis Lam, appearing pro se, filed the instant action on January 23, 2006, alleging that defendants failed to deliver two registered packages sent from China to his Brooklyn address. According to the complaint, the packages contained rare ancient Chinese currency that Lam purchased on E-Bay for $229.90. In spite of the purchase price, Lam alleges that the currency is worth more than $1,000. He now seeks damages of $1,000. Defendants Case 1:06-cv-00268-JG-LB Document 19 Filed 09/25/06 Page 1 of 8 PageID #: <pageID> The government also correctly contends that only the United States Postal Service -- not the 1 Kensington Post Office -- is a proper defendant. 2 move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons set forth below, the motion to dismiss is granted. A. Procedural Background By order dated February 26, 2006, I found that the “postal matters exception” to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et seq., does not apply to registered mail, thereby allowing subject matter jurisdiction to exist in the event that the FTCA’s other jurisdictional requirements -- such as exhaustion of administrative remedies -- have been met. Accordingly, I directed Lam to amend his complaint within 30 days to allege how he complied with all postal regulations in seeking recovery for loss of international inbound mail. Lam filed an amended complaint on March 24, 2006. Upon reviewing Lam’s submission, I concluded that he failed to comply with my prior order. In an order dated April 17, 2006, I held that in order to preserve his claim, Lam must amend his complaint to allege how he has exhausted all administrative remedies available to him under the postal regulations. I also directed Lam to submit a copy of the denial form issued by the International Claims and Inquiries Office (“ICIO”) in response to his alleged Form 542 postal claim. I granted Lam 30 days to amend his complaint. Lam did not request an extension of the 30-day time period. On May 18, 2006, after that time period had lapsed, the government filed the instant motion to dismiss, arguing lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. The papers in support of the motion include the Declaration1 of Stuart James, an attorney employed by the United States Postal Service (“USPS”) Law Case 1:06-cv-00268-JG-LB Document 19 Filed 09/25/06 Page 2 of 8 PageID #: <pageID> 5 In my order dated February 28, 2006, I found that the postal matter exception does not apply to bar lawsuits against the United States for damages caused by the loss of registered mail, and therefore does not categorically bar a negligence claim in this case. See Lam v. U.S. Postal Serv., No. 06-CV-0268, slip op. at 2 (JG) (E.D.N.Y. February 28, 2006)(citing the Court’s statement in Frank Mastoloni & Sons v. U.S. Postal Serv., 546 F. Supp. 415, 419 (S.D.N.Y. 1982), that “[r]egistered mail in essence is an exception to the Federal Tort Claims Act and allows post office liability to attach for negligent loss or damage to mail.”). Upon further examination, however, I conclude that I was wrong. The postal matter exception does in fact bar a negligence claim in this case, where the plaintiff alleges that the USPS lost two “registered parcels” sent to him from China. “In construing the exceptions to the FTCA's waiver of sovereign immunity, courts should look to the intent of Congress.” Raila v. U.S., 355 F.3d 118, 120 (2d Cir. 2004) (citing Smith v. United States, 507 U.S. 197 (1993)). The legislative history suggests that Congress created the postal matter exception to the waiver of sovereign immunity because “[i]t would be intolerable, of course, if in any case of loss or delay, the government could be sued for damages.” Hearings on S.2690 Before the S. Comm. on the Judiciary, 76th Cong. 3d Sess. 38 (1940)(testimony of A. Holtzoff, Special Assistant to Att’y. Gen. of the United States)(“Senate Hearings”). See also Suchomajcz v. United States, 465 F. Supp. 474, 476 (E.D. Pa. 1979) (interpreting § 2680(b) in light of Special Assistant Holtzoff’s remarks). Congress heard testimony that the potentially negative consequences of the exception are counter-balanced by the fact that “[e]very person who sends a piece of postal matter can protect himself by registering it, as provided by the postal laws and regulations.” Senate Hearings, 38. Case 1:06-cv-00268-JG-LB Document 19 Filed 09/25/06 Page 5 of 8 PageID #: <pageID> 6 However, by registering mail, patrons do not earn the right to bring suit against the United States in tort. Instead, they may obtain the right to protect their interest through the forms of indemnity that the postal laws and regulations provide. See Djordjevic v. Postmaster General, 957 F. Supp. 31, 34 (E.D.N.Y. 1997) (dismissing plaintiff’s tort claim for failure to deliver insured international package as barred by § 2680(b), but adding, “Plaintiff's claims against defendants for the value of the contents of the lost mail, however, may be maintained to the extent that the USPS consents to be liable, and the extent of its liability is defined by the postal laws and regulations.”) In my February 26, 2006 order, I cited the court’s conclusion in Mastoloni, 546 F. Supp. at 419, that “[r]egistered mail in essence is an exception to the Federal Tort Claims Act and allows post office liability to attach for negligent loss or damage to mail.” But the plaintiff in Mastoloni did not sue the USPS in tort. Rather, it sued the USPS in contract for the failure to fulfill a registered mail agreement. Id. at 418. The court determined that the USPS was liable only to the extent that it agreed to be liable pursuant to its Domestic Mail Manual (“DMM”), the postal regulations relevant to that case. Id. at 419. Thus, “[r]egistered mail in essence is an exception to the Federal Tort Claims Act and allows post office liability to attach for negligent loss or damage to mail,” at 419, only in the sense that the registered mail agreement provides an alternative to actions in tort, which are barred. My literal application of the Mastoloni court’s language was incorrect. Indeed, courts have dismissed FTCA claims that conflict with the postal matters exception, even where the postal matter at issue was registered or insured. See Marine Insurance Company, Ltd., 378 F. 2d 812 (2d Cir. 1967) (finding that § 2680(b) barred FTCA claim when Case 1:06-cv-00268-JG-LB Document 19 Filed 09/25/06 Page 6 of 8 PageID #: <pageID> 7 insured international mail was stolen by a customs employee); Djordjevic v. Postmaster General, 957 F. Supp. 31, 34 (E.D.N.Y. 1997) (FTCA claim arising from USPS’s failure to deliver insured international package barred by § 2680(b)); C.D. of NYC, Inc. v. U.S. Postal Service, 2004 WL 2072032 (S.D.N.Y. 2004) (FTCA claim barred by § 2680(b) where USPS employees arranged the theft of the packages belonging to diamond and jewel merchants). Therefore, pursuant to the FTCA’s postal matter exception, this Court lacks subject matter jurisdiction to hear a negligence claim against the USPS if it arises out of “loss, miscarriage or negligent transmission” of packages addressed to Mr. Lam. Lam’s claim does in fact arise out of the loss, miscarriage, or negligent transmission of the packages sent to him from China. Accordingly, I dismiss Lam’s negligence claim pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. I need not reach the additional question of whether Lam fully exhausted the administrative remedies available under the postal regulations. 3. Breach of Contract 28 U.S.C. § 1346(a)(2) provides that the district courts shall 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 . . ..” This section provides a sufficient basis for a court's subject matter jurisdiction over any contract claim that does not exceed $10,000. However, as discussed above, Lam’s complaint rests on a theory of negligence, and does not allege a breach of contract. See “Affidavit/Affirmation” ¶¶ 5, 6, 7, 8. Even if Lam had alleged a breach of contract, his claim would fail in light of the applicable postal regulations. As noted above, “claims against [USPS] for the value of the contents of the lost mail . . . may be maintained to the extent that the USPS consents to be liable, Case 1:06-cv-00268-JG-LB Document 19 Filed 09/25/06 Page 7 of 8 PageID #: <pageID>