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DJORDJEVIC v. POSTMASTER GEN.

December 14, 1995

SINISA DJORDJEVIC, Plaintiff, against POSTMASTER GENERAL, U.S. POSTAL SERVICE, Defendant.


The opinion of the court was delivered by: JOHNSON

 JOHNSON, District Judge:

 Before the Court is Defendant's motion to dismiss Plaintiff's claim for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. Also before the Court is Defendant's motion to strike Plaintiff's jury demand.

 BACKGROUND

 On November 19, 1993, Plaintiff, Sinisa Djordjevic, mailed a package to Margarita Dmitrieva in Moscow, Russia via Express Mail, a service of the United States Postal Service (the "Postal Service"). Plaintiff alleges that the package contained four $ 100 bills and various legal documents which had been issued by the General Consul of Russia in New York.

 The package was never received by Ms. Dmitrieva in Moscow, prompting Plaintiff to contact the Postal Service's International Express Mail Service Inquiry Center ("Inquiry Center") on December 7, 1993. After an initial investigation, the Inquiry Center learned that the Russian postal administration had no record of ever receiving Plaintiff's package. The Inquiry Center subsequently sent Plaintiff the required forms for refund of postage and fees, and for claims of indemnity, with instructions that Plaintiff submit the forms to the local post office in order to receive compensation for his losses.

 Plaintiff submitted the refund and indemnity forms to his local post office, claiming losses in the amount of $ 400 for the lost currency, $ 600 for reconstruction of the legal documents, and $ 157.10 for telephone calls to the Postal Service Headquarters in Washington, D.C. and to Ms. Dmitrieva in Russia.

 Plaintiff then resubmitted duplicate copies of the refund and indemnity claim forms, including a copy of his original customer receipt, to the local post office on November 1, 1994. On November 8, 1994, the local post office sent Plaintiff a postal money order in the amount of $ 14.00 for the postage paid on the undelivered mail. The indemnity claim was forwarded to the New York International Claims and Inquiries Office (ICIO) for processing, as required by IMM § 931.22. By letter dated November 22, 1994, the ICIO advised Plaintiff that the four $ 100 bills were not reimbursable, and requested that Plaintiff submit additional documentation, as required by postal service regulations, to support his claim of $ 600 as the reasonable cost of replacing the lost documents. Plaintiff has not yet responded to the ICIO's request for additional documentation.

 On December 22, 1994, Plaintiff filed the present action seeking money damages against the Postal Service. Specifically, Plaintiff seeks $ 600.00 for the lost legal documents, $ 400.00 for the lost currency, $ 2500.00 for personal suffering, $ 2,200.00 in punitive damages, $ 120.00 for filing fees and $ 15.00 for postage fees.

 DISCUSSION

 I. Subject Matter Jurisdiction

 Defendant, the Postal Service, contends that this Court does not have subject matter jurisdiction over Plaintiff's claim. A motion questioning the Court's subject matter jurisdiction must be considered before other challenges since the Court must have jurisdiction before it can properly determine the merits of a claim. See, e.g., Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946).

 When deciding whether to dismiss for lack of subject matter jurisdiction, the court must accept the material allegations of the complaint as true. See, e.g., Atlantic Mutual Insurance Co. v. Balfour MaClaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). The court may refer to evidence outside the pleadings in resolving disputed jurisdictional fact issues on a Rule 12(b)(1) motion challenging subject matter jurisdiction. Antares Aircraft v. ...


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