United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on three motions. The plaintiff, Ruth Richter, who is proceeding pro se, filed a Motion to Strike Defendant's Notice of Filing Notice of Removal Document (Filing No. 10) and a Motion to Remand (Filing No. 11). The defendant, United States Postal Service (USPS), filed a Motion to Dismiss (Filing No. 7).
In 2011, the plaintiff used the defendant to send a service of process on Flybe in Great Britain. See Filing No. 12 - Response ¶ 5. The plaintiff alleges the defendant said she could receive a copy of the Flybe signature of receipt to satisfy the process service requirements for her then pending lawsuit against Flybe. Id. ¶ 4. The plaintiff attempted to obtain a signature card but was unable to do so, and her Flybe lawsuit was allegedly dismissed for failure to serve process. Id. ¶ 9.
On February 1, 2012, the plaintiff filed a lawsuit against the defendant for damages of $55.95, the price to mail the Flybe service of process and the filing fee for the Flybe lawsuit, in Douglas County, Nebraska's Small Claims Court. See Richter v. United States Postal Service, No. 8:12CV82 (D. Neb. June 18, 2012) (Richter I) - Filing No. 1-1. After removal to this court, the lawsuit was dismissed for lack of subject matter jurisdiction because "the United States enjoys sovereign immunity for negligent transmission of postal matters, including the failure to deliver the postal matter at all. Further, there is nothing before the court showing that the United States has waived this grant of sovereign immunity." Richter I - Filing No. 23 - Memorandum and Order p. 5. Moreover, this court found the plaintiff's claims, in absence of sovereign immunity, would have failed because she did not exhaust the administrative remedies required to bring suit under the Federal Tort Claims Act (FTCA). Id. at 5-6.
Following the dismissal of Richter I, the defendant's employee Vanessa Williams mailed notice to the plaintiff that no record of a properly initiated inquiry existed but granted a one-time fifteen day extension to the filing deadline to submit a proper inquiry. See Richter v. United States Postal Service, No. 8:12CV428 (D. Neb. June 12, 2013) (Richter II) - Filing No. 31-2. The plaintiff refused to file the inquiry because she insisted an inquiry had already occurred. Richter II - Filing No. 31-3.
On November 27, 2012, the plaintiff again filed suit against the defendant in Douglas County, Nebraska's Small Claims Court. Richter II - Filing No. 1-1. The plaintiff alleged the lawsuit was a continuation of her $55.95 claim from Richter I but included an additional $3, 444.05 in damages for the defendant's acts of retaliation against her for suing the defendant. Richter II - Filing No. 9; Filing No. 12 - Response ¶ 14. After proper removal by the defendant, the plaintiff sought to prove she had initiated an inquiry into the Flybe signature card from October 26, 2011, until January 9, 2012, to satisfy the exhaustion of administrative remedies. Id. at ¶ 10. The defendant offered Vanessa Williams' declaration stating the defendant had no record of an inquiry being initiated. See Richter II - Filing No. 31-1, 2. Thereafter, the court held a hearing on the plaintiff's motions pending in Richter II, which she failed to attend. Id. - Filing No. 37. This court dismissed the claims because the "[p]laintiff admits that her Complaint is a second attempt to assert claims against Defendant related to Defendants mishandling of her mail. As the court previously informed Plaintiff[ ]... the United States enjoys sovereign immunity for the negligent transmission of postal matters." Richter II - Filing No. 23 - Memorandum and Order p. 7 (internal citations omitted). Again, this court reiterated the plaintiff's claims, in absence of sovereign immunity, would have failed because she did not exhaust the administrative remedies for her complaint. Id. at 7-9.
On June 24, 2013, the plaintiff filed her third suit against the defendant in Small Claims Court in Douglas County, Nebraska. See Richter v. United States Postal Service, No. 8:13CV212 (D. Neb. Nov. 14, 2013) (Richter III) - Filing No. 1-1. The plaintiff's pleading again focused on the Flybe signature card at issue in Richter I and Richter II. Id. Additionally, the plaintiff argued she had in fact exhausted her administrative remedies by initiating an October 26, 2011, inquiry, which ceased on January 9, 2012, when she received a copy of the Flybe signature card. Id.; Filing No. 12 - Response ¶ 11. She also claimed the post office discriminated against her by withholding her mail. See Richter III - Filing No. 1-1. Finally, the plaintiff claimed the defendant violated Domestic Mail Manual (DMM) 508.3.1.1-3 on May 30, 2013, when a postage-less 4056 form ("Your Mailbox Needs Attention" notice), signed by the defendant's employee, was allegedly placed in the mail slot at the plaintiff's home. Id.; Filing No. 12 - Response ¶ 23.
The defendant again removed the lawsuit to this court. See Richter III - Filing No. 1. However, the plaintiff moved to strike the notice of removal because it did not bear a seal from the Douglas County Court. See Richter III - Filing No. 14. This court determined the notice of removal complied with 28 U.S.C. § 1446(a). See Richter III - Filing No. 41 - Memorandum and Order p. 3. On the substantive claims, this court ruled even if the alleged inquiry by the plaintiff had taken place, it would not have constituted evidence of administrative exhaustion without a final notice of her claim's denial. Richter III - Filing No. 39 - Order p. 3. This court dismissed the remaining claims on the same reasoning of Richter I and Richter II: the defendant had sovereign immunity and the plaintiff did not exhaust administrative remedies. Richter III - Filing No. 41 - Memorandum and Order p. 5, 8. Additionally, the claims were barred by collateral estoppel and improperly plead under Federal Rule of Civil Procedure 8. Id.
On February 3, 2014, the plaintiff filed the instant claim against the defendant in Small Claims Court in Douglas County, Nebraska. See Filing No. 6-1. Using a standard Plaintiff's Claim Form, the plaintiff alleges she is owed $3, 500 because:
1. On May 30, 2013, the defendant violated DMM 508.3.1.1-3 at the plaintiff's residence when an employee deposited a 4056 form not bearing proper postage in her mail slot. See Filing No. 12 - Response ¶ 23.
2. On May 14, 2013, the defendant committed perjury by claiming the plaintiff had not initiated a claim or inquiry. In relation to claim six, this claim asserts the defendant was lying in previous lawsuits by stating it had no record the plaintiff had initiated inquires about the Flybe signature with the defendant. See Filing No. 12 - Response p. 10.
3. On October 24, 2011, the defendant refused to give the plaintiff a copy of a signature by Flybe. The plaintiff seeks $55.95. See Filing No. 12 - Response p. 9. This claim is the same as Richter I, Richter II, and Richter III by facts and reference.
4. The defendant failed to act on the plaintiff's July 26, 2012, and August 1, 2012, "appeals."
5. The defendant failed to get a Douglas County Court seal on its notice of removal. This claim appears to be a reference to her motion to strike notice of removal in Richter III.
6. Evidence tampering, suppression, and cover-up of the plaintiff's 2011 inquiry as a part of her claim for services not rendered.
7. Administrative mismanagement of USPS leading to slander and the endangerment of the plaintiff's life. The defendant endangered her life by necessitating she traverse the icy sidewalks to inquire about the cessation of her mail in her eighth claim. See Filing No. 12 - Response p. 14.
8. A second instance of discrimination against the plaintiff when the defendant withheld the plaintiff's mail without notice from February 5, 2014, until February 8, 2014. Id.
The plaintiff seeks damages of $3, 444.05, the maximum amount allowed in Douglas County, Nebraska's Small Claims Court, for the defendant's retaliatory acts against her. See Filing No. 12 - Response p. 9. The plaintiff does not directly link the damages to any of her other claims but does assert specific instances of retaliation or discrimination by the defendant in several of her claims. Id.
On March 5, 2014, the defendant removed the action to the United States District Court for the District of Nebraska, under 28 U.S.C. §§ 1346(b)(1), 1441(a), and 39 U.S.C. § 409(a). See Filing No. 6 - Notice of Removal. After removing the case, the defendant filed a motion to dismiss (Filing No. 7) and a brief (Filing No. 9) and index of evidence (Filing No. 8) in support of its motion. The plaintiff filed a brief in opposition of the motion (Filing No. 12). The plaintiff then filed an additional brief in opposition of the motion (Filing No. 15) without the court's permission.
On March 17, 2014, the plaintiff filed a motion to remand (Filing No. 11) and a motion to strike the notice of removal (Filing No. 10). The defendant filed a brief in opposition of both motions (Filing No. 13) and the plaintiff responded to the defendant's brief (Filing No. 14). In light of the plaintiff's pro se status, the court will liberally construe the plaintiff's motion to strike the notice of removal as a motion to remand the case back to state court and consider the plaintiff's reply brief as her initial brief in support of her motions.
For the reasons set forth below, the undersigned magistrate judge recommends the plaintiff's Motion to Remand and Motion to Strike Defendant's Notice of Filing Notice of Removal be denied. Additionally, the undersigned magistrate judge recommends the defendant's motion to dismiss be granted.
A. Motion to Remand
The plaintiff argues the state court has original jurisdiction over her claims because the claims resulted from her interactions with the defendant's Elmwood Branch, which operates and is located solely in Douglas County, Nebraska, and allegedly receives no direct support from tax payers. See Filing No. 11 - Motion to Remand; Filing No. 14 - Response p. 1. Furthermore, the plaintiff alleges her claims deal with contract violations, discrimination, and trespass which do "not involve postal service matters" and, therefore, are not subject to 28 U.S.C. § 1346(b)(1) or 39 U.S.C. § 409(a). See Filing No. 11 - Motion to Remand; Filing No. 14 - Response p. 1-2. Accordingly, the plaintiff believes this court should remand her action to state court. See Filing No. 11 - Motion to Remand. The defendant ...