IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

AGNES ADU,

 Plaintiff,

v.

POST OFFICE,

 Defendant.

HON. JEROME B. SIMANDLE

Civil No. 11-2635 (JBS/JS)

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

 This matter is before the Court on the unopposed motion of

Defendant Post Office (hereafter, “United States Postal Service” 1

or “USPS”) to dismiss for lack of subject matter jurisdiction. 

[Docket Item 8.] The Court finds as follows:

1. Plaintiff, proceeding pro se, filed this action in the

Superior Court of New Jersey, Law Division, Special Civil Part on

April 28, 2011. [Docket Item 1, Ex. A.] On May 9, 2011, the

action was removed to this Court by Defendant USPS, invoking this

Court’s removal jurisdiction of 28 U.S.C. § 1441(b) because the

action, which names the federal agency USPS as a defendant, is

founded on a claim or right arising under the laws of the United

States. [Docket Item 1.] 

 Plaintiff’s Complaint named, as the sole defendant in this 1

action, “Post Office.” The Court construes Plaintiff’s Complaint

to name the United States Postal Service, an agency of the United

States federal government. See Dilg v. U.S. Postal Serv., 635 F.

Supp. 406, 407 (D.N.J. 1986) (“the Postal Service is clearly a

‘federal agency’ within the broad definition of that term in [28

U.S.C.] § 2671").

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2. Plaintiff’s Complaint, attached as Exhibit A to

Defendant’s notice of removal, is devoid of details regarding the

nature of her claims against the USPS. The Court is only able to

determine, on the basis of the Complaint, that Plaintiff seeks to

recover $1,000 from the USPS because “the Phone got Lost.” 

Compl. at 1, 2.

3. On May 17, 2011, Defendant filed a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction. [Docket Item 4.] Plaintiff did not respond to

Defendants’ motion. On November 1, 2011, the Court denied

Defendant’s motion without prejudice because Defendant’s motion

and notice of removal referred to details surrounding Plaintiff’s

claim that were not contained in Plaintiff’s pleadings and which

Defendant did not otherwise attribute to any source. [Docket

Items 6 & 7.]

4. On November 23, 2011, Defendant filed the instant

renewed motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)

for lack of subject matter jurisdiction. [Docket Item 8.] In

its renewed motion, Defendant explains that the additional

information regarding Plaintiff’s claim was relayed to

Defendant’s counsel by USPS Consumer Affairs Representative

Kathleen Smith as a result of her investigation following a

complaint Plaintiff made to the USPS regarding her lost package. 

The details supplied by Ms. Smith were included in Defendant’s

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notice of removal to provide to the Court a short plain statement

of the grounds for removal as required under 28 U.S.C. § 1446(a). 

Defendant attaches a declaration of Ms. Smith which contains a

detailed account of these additional facts. 

5. According to Ms. Smith, on April 5, 2011, Plaintiff

mailed a package via Express Mail allegedly containing an iPhone

from the Willingboro, New Jersey, Branch of the United States

Post Office, addressed to a recipient in New York. Smith Decl.

¶¶ 3-5. Plaintiff did not purchase additional insurance on the

Express mail package above the automatic insurance provided to

all Express Mail packages of $100. Id. ¶ 5. The package was

apparently not delivered to its intended recipient. Id. On

April 14, 2011, Plaintiff called the USPS Consumer Affairs

Department regarding the lost package and spoke with Ms. Smith. 

Id. ¶ 6. In that telephone call, Ms. Smith declares, Plaintiff

alleged that the USPS clerk who accepted her Express Mail package

“stated that the phone would get lost unless she insured it” but

that she did not purchase any additional insurance on the package

because she could not afford it. Id. Ms. Smith declares that

the postal service clerk denied Plaintiff’s account of this

exchange. Id. ¶ 7.

6. Defendant further includes with its motion to dismiss

the declaration of Kenneth Steele, Sr., a supervisor in the

Claims and Inquiry Section of the USPS Accounting Service Center. 

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Steele Decl. ¶ 1. Mr. Steele reports that, according to USPS

records, Plaintiff filed an indemnity claim with the USPS for a

lost package on June 22, 2011. Id. ¶ 6. On June 29, 2011, the

USPS paid Plaintiff $100 under the automatic insurance provided

to all Express Mail packages. Id. Mr. Steele further reports

that USPS records indicate that on August 16, 2011, Plaintiff

cashed Defendant’s $100 check. Id. Mr. Steele also reports that

Plaintiff did not appeal the USPS decision to grant her indemnity

claim in the amount of $100. Id. ¶ 7.

7. Defendant moves to dismiss Plaintiff’s claim for lack of

subject matter jurisdiction. Defendant argues that, regardless

whether Plaintiff’s Complaint is construed as seeking recovery

under a theory of tort or contract, the Court is without

jurisdiction to adjudicate the dispute. The Court agrees.

8. An attack on subject matter jurisdiction can be either

facial -- based solely on the allegations in the complaint -- or

factual -- looking beyond the allegations to attack jurisdiction

in fact. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d

884, 891 (3d Cir. 1977). Where, as here, the challenge to

subject matter jurisdiction is factual, the Court is free to

weigh the evidence and satisfy itself as to the existence of

jurisdiction. Id.

9. If Plaintiff’s Complaint is construed as seeking tort

damages from Defendant USPS, the Court concludes that it lacks

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subject matter jurisdiction to hear the dispute because the

United States has not waived its sovereign immunity for

Plaintiff’s claim. Defendant USPS, an “independent establishment

of the executive branch of the Government of the United States,”

“enjoys federal sovereign immunity absent a waiver.” Dolan v.

U.S. Postal Serv., 546 U.S. 481, 483-84 (2006). The federal

government has provided a limited waiver of immunity for tort

damages arising out of claims of the USPS in the form of the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1). 

However, the FTCA does not waive sovereign immunity for “[a]ny

claim arising out of the loss, miscarriage, or negligent

transmission of letters or postal matter.” 28 U.S.C. § 2680(b);

Dolan, 546 U.S. at 485. Thus, construing Plaintiff’s Complaint

to seek damages for the loss of Plaintiff’s mailed package, the

Court concludes that it lacks subject matter jurisdiction in this

matter because the sovereign Defendant has not consented to be

sued in this matter.

10. If the Court were to construe Plaintiff’s complaint to

seek contractual damages from Defendant for the loss of her

package, the result is the same. Defendant has provided evidence

that Plaintiff did not purchase insurance for her Express Mail

package, that she sought reimbursement for her lost package, and

that she was granted reimbursement in the amount of $100. Steele

Decl. ¶¶ 6-7. Defendant likewise has provided evidence that

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Plaintiff did not appeal that determination. Id. The Court

therefore finds that, to the extent that Plaintiff states a claim

for breach of contract, it must be premised on a theory of

implied contract, as on the record before the Court, Defendant

USPS abided by any express contract to indemnify the loss of

Plaintiff’s package up to $100. However, the Court finds that,

as with her claim for tort damages, the Court lacks subject

matter jurisdiction to hear such a claim against Defendant. 

“[A]ssuming that an implied contract of bailment exists between

the government and the sender by virtue of a mailing, the

government is not liable for loss or damage to mail, except as

may be provided in the postal laws and regulations, and none

exist here.” Blazavich v. United States, 29 Fed. Cl. 371, 375

(1993). 

11. The burden to prove subject matter jurisdiction is

Plaintiff’s. Lightfoot v. United States, 564 F.3d 625, 627 (3d

Cir. 2009). Plaintiff, by failing to respond to Defendant’s

motion, has not met her burden to prove that subject matter

exists in this case. Moreover, as discussed above, the Court is

unaware of any plausible jurisdictional basis for this suit. 

Therefore, the Court will grant Defendant’s motion to dismiss for

lack of subject matter jurisdiction.

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12. The accompanying Order will be entered

January 3, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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