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ABDUL-ALEEM v. UNITED STATES POSTAL SERVICE

March 1, 2004.

NASIRA ABDUL-ALEEM, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, ET AL., Defendants



The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge

DISMISSAL

Introduction

Before the Court is the motion by Defendant United States Postal Service ("Postal Service") to dismiss the complaint of Plaintiff Nasira Abdul-Aleem. Plaintiff appeared pro se. Special Assistant U.S. Attorney Katherine Dowling appeared for the Postal Service. Both parties consented to this Court's jurisdiction as required by 28 U.S.C. § 636(c).

  Order

  The Court considered the written pleadings and the arguments of the parties and hereby grants the motion to dismiss. Plaintiff asserts a claim for lost mail, when in fact she accidentally dropped her bank deposit into the mailbox in an envelope without postage. Plaintiff's deposit into the mailbox was not mail. The Postal Service as a matter of law Page 2 cannot be found liable for her loss since it had no duty of care under state or federal law regarding non-mail.

  Factual Background

  On Saturday May 24, 2003, Plaintiff placed several pieces of mail into a public mail box at the corner of Dwight and Shattuck Avenues in Berkeley and then realized that she had inadvertently included with the mail an envelope containing a bank deposit for $180 in cash. The cash was in an envelope marked with her name, address and telephone number, but no postage. Plaintiff concedes that "there was no question that it was not a piece of mail." (Plaintiff's pleading filed September 25, 2003). This occurred at 6:30 p.m., after the last daily pick-up. She examined the mailbox and read the posted time for the next pick-up, which was 11:00 a.m. on Tuesday, since Monday was Memorial Day and there was no time listed for a Sunday or holiday pick-up time.

  She arrived at the mailbox at 10:55 a.m. on Tuesday and waited until after the time had passed but no one came to pick up the mail. She then contacted the Berkeley Post Office and was told that the mail had already been picked up earlier as the Postal Service was on a holiday schedule that day. She asked why this wasn't on the label on the box and the clerk told her that the label was going to be updated. She checked back a few months later but the label had not been updated.

  She tried to contact the individual letter carrier, the supervisor and any number of employees of the Postal Service on several occasions to attempt to trace her deposit envelope. She was unable to receive any information on the whereabouts of the mail from that particular mail box, even after checking with the lost and found.

  At the hearing before this Court on October 15, 2003, Plaintiff admitted that she had no verifiable record of the deposit; it was all cash, with no checks and she did not have a copy of the deposit slip. (Reporter's Transcript at 7:18-24).

  Procedural History

  Plaintiff filed suit on August 5, 2003 in Alameda County Small Claims Court, requesting a total of $280; $180 for the return of her money and $100 for "trouble Page 3 recouping my money." (Ex. A to Notice of Removal). Defendant removed the case to this Court on September 3, 2003. The procedural defect of Plaintiffs failure to file an administrative claim was cured. She filed her claim, which was denied by the Postal Service; and she then re-filed her complaint in this Court and served the United States.

  Background

  The Postal Service moves for dismissal for lack of subject matter jurisdiction, that Plaintiff failed to serve the United States and that there is no cause of action under the Federal Tort Claims Act, 28 U.S.C. § 2672 et seq. ("FTCA") for lost mail. The Government, as the sovereign, is immune from suit except as it consents to be sued, and the Postal Service does not consent to be sued for ...


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