The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge
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).
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
cannot be found liable for her loss since it had no duty of care
under state or federal law regarding non-mail.
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).
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
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.
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 ...