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Richter v. United States Postal Service

United States District Court, Eighth Circuit

November 14, 2013

RUTH RICHTER, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on plaintiff's motion to transfer, Filing No. 13; motion to strike, Filing No. 14; findings and recommendation ("F&R") of the magistrate judge, Filing No. 19, denying the motion to transfer and the motion to strike; objection, Filing No. 28, to the F&R; motion to dismiss, Filing No. 25, filed by the defendant; and plaintiff's objection Filing No. 40, to the magistrate judge's order (Filing No. 39) denying plaintiff's motion to compel. The plaintiff is pro se, and under those circumstances, the court will liberally construe the pleadings.

BACKGROUND

Plaintiff brought this case in Douglas County District Court in Nebraska alleging discrimination by the plaintiff for delaying her mail and refusing to deliver the mail to her and similar claims under the Federal Tort Claims Act ("FTCA"). Thereafter, the defendant removed to federal court pursuant to 28 U.S.C. § 1441(a) and § 1346(b)(1) and 39 U.S.C. § 409(a). Filing No. 1.

On February 1, 2012, plaintiff filed case number one in Douglas County Small Claims Court, which was removed to Federal District Court, 8:12CV82, Richter v. United States Postal Service, Filing No. 1, which became known as "Richter I." Plaintiff claimed that her mail was not sent to Flybe Limited Trading in Great Britain, but defendant stated it was delivered in a timely manner. Richter I, Filing No. 9-2. On March 30, 2012, defendant filed a motion to dismiss Richter I, which this court granted on June 18, 2012. The dismissal was without prejudice because the court lacked subject matter jurisdiction, as the plaintiff failed to exhaust under the FTCA. Richter I, Filing No. 23 and Filing No. 24. Plaintiff was offered an opportunity to file her claim out of time, but she did not do so.

Instead, on November 27, 2012, she filed a second case against the defendant in Douglas County Small Claims Court, now known as "Richter II." The United States removed this case to Federal District Court and is the case 8:12CV428. Plaintiff claimed in Richter II that the defendant discriminated against her based on her disability, breached a contract regarding an insurance claim, and was negligent towards plaintiff. On January 15, 2013, defendant filed a motion to dismiss. In the interim plaintiff had complaints about packages not being delivered, carriers on her lawn and other complaints. The court held a hearing on these issues and plaintiff failed to appear. On June 12, 2013, the court granted the motion to dismiss and Richter II was dismissed without prejudice for lack of subject matter jurisdiction and failure to exhaust. Richter II, Filing No. 39 and Filing No. 40.

The plaintiff has now filed her third complaint, "Richter III, " against the defendant in Douglas County Small Claims Court, which the defendant removed to this court. Her complaint alleges:

Starting 10-24-11, ongoing Elmwood Station - on 10-24-11 Defendant failed to give Flybe signature to Pl. (SC-11-1071), on 10-26-11 Defendant begun an "inquiry" which ended 1-9-12 - inquiry was uneeded, Defendant had "inquiry" in their system and withholds it and denies an inquiry took place - defendant in 2-13 and 5-13 discriminated against Pl. by singlrly [sic] delaying her mail and refusing to deliver her mail. Defendant on 5-30-13 violated DMM-508:3:1.3. FTCA.

Filing No. 1. The plaintiff once again did not file an administrative claim with the United States Postal Service ("USPS").

DISCUSSION

1. Motion to Transfer or Remand, Motion to Strike, F&R of the Magistrate Judge, Objections, Filing Nos. 13, 14, 19 and 28

They magistrate judge reviewed the motion to transfer and determined that with regard to that motion, jurisdiction under these statutes exists in this court, as the USPS is a named defendant and because the Federal Tort Claims Act is listed as a basis for the lawsuit. The court agrees with the analysis of the magistrate judge and finds the motion to transfer or remand is denied and removal is appropriate.

The magistrate judge next reviewed the motion to strike wherein the plaintiff alleges the removal should be stricken as there exists no Douglas County Court seal on the Notice of Removal. The magistrate judge concluded that the defendant complied with all of the removal requirements set forth in 28 U.S.C. § 1446(a). The court agrees with the magistrate judge and finds the defendant properly removed this action to federal court. ...


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