In the Matter of a Mail Dispute Between

STEVE SIMMONS PUBLICATIONS
and
SHINE MEDIA GROUP
P.S. Docket No.  MD 05-148

APPEARANCE FOR DISPUTANT STEVE SIMMONS PUBLICATIONS:
Anthony B. Jeffries, Esq.
1424 Aliso NE
Albuquerque, NM  87110-5603

APPEARANCE FOR DISPUTANT SHINE MEDIA GROUP:
Shine Media Group
P.O. Box 3941
Albuquerque, NM  87190-3941

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution.  The mail in dispute is that addressed to CameraArts Magazine at P.O. Box 2328, Corrales, NM 87048-2328, and at 373 Windover, Corrales, NM 87048-7108.  The Corrales Postmaster is currently holding the mail.

           Mr. Simmons filed a sworn written statement, as required by the Rules of Practice, 39 C.F.R. §965.5, along with supporting documents.  Shine Media Group did not.  The following findings of fact are based on Mr. Simmons' affidavit and the material forwarded by the United States Postal Service Law Department, Southwest Office.

FINDINGS OF FACT

            1.  Steve Simmons is President of Steve Simmons, Inc. (SSI).  SSI formerly published a magazine known as CameraArts.  For two years prior to December 2004, Timothy Anderson worked as the managing editor of CameraArts.  (Simmons affidavit; Asset Acquisition Agreement attached).

            2.  On December 14, 2004, per an Asset Acquisition Agreement, and a Promissory Note, SSI sold CameraArts to Shine Media Group (SMG), a sole proprietor business owned by Mr. Anderson.  (Documents attached to Simmons affidavit).

            3.  The Agreement stated that SSI would transfer all assets listed on an Exhibit A, pertaining to CameraArts, to SMG.  Accounts receivable were not listed.  Another section of the Agreement states that “[A]s of date of closing, any and all new subscription and renewal subscription monies in regard to CameraArts shall be the property of SMG and shall be transferred to that party in a manner to be decided and approved by the parties.”  (Asset Acquisition Agreement, §1.1 and §1.1c).

            4.  The Agreement and Note required SMG to make monthly payments to SSI for a period of four years, beginning in March 2005.  (Documents attached to Simmons affidavit).

            5.  On December 21, 2004, Mr. Anderson issued a press release announcing his acquisition of CameraArts and informing the public that the new address for CameraArts would be P.O. Box 3941, Albuquerque, NM 87190.  The masthead of the February/March 2005 issue of the magazine also contained the new address.  (Documents attached to Law Department forwarding letter).

            6.  The practice of the parties from the date of the Agreement, December 14, 2004, until late April 2005 was that SSI continued to receive mail addressed to CameraArts at the disputed addresses, collected monies due the business before December 14, 2004, and forwarded the remainder to SSG.  (Simmons affidavit).

            7.  On April 11, 2005, Mr. Anderson submitted a PS Form 3575, Mail Forwarding Change of Address Order, to the Corrales Post Office, directing that mail addressed to CameraArts at P.O. Box 2328 be forwarded to P.O. Box 3941 in Albuquerque.  On April 28, 2005, Mr. Anderson submitted the same forwarding order for mail addressed to CameraArts at 373 Windover Lane in Corrales.  Mr. Simmons protested and this mail dispute arose.  (Forms 3575 included with Law Department forwarding letter).

            8.  SSI recently filed a lawsuit against Timothy Anderson, d/b/a Shine Media Group, in Thirteenth Judicial District Court, County of Sandoval, New Mexico, alleging breach of contract in that SMG has failed to make the required monthly payments.  The lawsuit also asks for a preliminary injunction that all mail addressed to CameraArts be delivered to Plaintiff (SSI).  (Complaint attached to Simmons affidavit).

DECISION

            In most cases involving the sale of a business, if the new owner is continuing to operate the business, the new owner is entitled to delivery of mail addressed to the business.  The fact that the seller may be owed money by the purchaser is a separate matter.  The Postal Service does not decide who owns the contents of any piece of mail and does not attempt to resolve financial disputes between the parties.

            In this case, however, Shine Media Group did not file the sworn statement required by 39 C.F.R. §965.5, or any other supporting documents, and is therefore in default.  Under our rules, 39 C.F.R. §965.7, that is a sufficient basis for awarding the mail to SSI.  In addition, Mr. Simmons’ evidence establishes that part of the parties’ sales agreement, and consistent practice until late April 2005, was that SSI would continue to receive the mail addressed to the former addresses (see Findings #3 and #6).

            This decision deals only with delivery of the mail.  It does not attempt to decide underlying financial disputes or any other dispute between the parties.  If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order.  POM §616.3. 

            The Judicial Officer should issue an Order to the Corrales, New Mexico Postmaster that mail addressed to CameraArts Magazine at P.O. Box 2328, Corrales, NM 87048-2328, and at 373 Windover, Corrales, NM 87048-7108, be delivered as directed by Steve Simmons.

                                                                                    Bruce R. Houston
                                                                                    Chief Administrative Law Judge