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Ezirim v. United States

United States District Court, D. Maryland, Southern Division

December 28, 2016

JOY EZIRIM, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          George J. Hazel United States District Judge

         Plaintiff Joy Ezirim brings this pro se action against the United States of America [1]for the alleged loss or negligent handling of a cell phone she ordered over the Internet. Plaintiff originally filed her Complaint in the District Court for Prince Georgess County on November 5, 2015. ECF NO.2. Defendant removed the action to this Court on February 1, 2016. ECF No. I. Now pending before the Court is the Defendant's Motion to Dismiss, ECF No. 14. No hearing is necessary. Local Rule 105.6 (D. Md.). For the following reasons, Defendant's Motion to Dismiss is granted.

         I. BACKGROUDD

         According to Plaintiff's Complain, Joy Ezirim purchased an iPhone 6 Plus[2] from a seller on www.eBay.com ("eBay").[3] ECF NO.2 at 1. Plaintiff paid $480.00 for the iPhone and $5.85 for shipping. Id. Plaintiff was expecting her package on October 8, 2015, but did not receive it. Id. When Plaintiff checked the tracking information of the package on the United States Postal Service ("USPS" or "Postal Service") website, the site indicated that the package was "undeliverabee as addressed." Id. Plaintiff contacted the sender, Adetayo Okupe. Okupe relayed that he had printed the shipping label from the USPS website, which apparently had omitted Plaintiffs apartment number. Id. at 2. Plaintiff then went to the local post office, where a clerk informed her that the package would be sent back to the sender. Id. After three weeks, however, Okupe had not received the package. Id.

         Okupe called USPS Customer Service, which assigned a case number, CA12515124.. ECF NO.2 at 2. Okupe also filed a claim on the package, identified as Claim No. 3772452. ECF No. 14-2 ¶ 4. On December 24, 2015, USPS denied Okupess claim. Id. In the denial letter, Okupe was notified that he could file an appeal of the claim denial within 30 days. Id. Neither Okupe nor Plaintiff has appealed the denial of Okupess claim. Id.

         Plaintiff alleges that when she returned to the Post Office, "there was no feedback." ECF NO.2 at 2. Plaintiff states in her Complaint that she "decided to file a claim to get [her] package or the value of [her] item." Id. According to a declaration submitted in support of Defendant's Motion to Dismiss, the internal database for USPS indicates that Plaintiff never initiated a claim on her own behalf with USPS Customer Service or USPS Accounting Services. ECF No. 14-2 ¶ 3.

         Plaintiff filed a Complaint with the District Court of Maryland for Prince Georgess County on November 5, 2015. ECF NO.2. In her Complaint, Plaintiff sought to recover the return of the property, plus $700.00 in damages, and attorney's fees of$5600.. Id. Defendant removed the case to this Court on February 1, 2016, ECF No. I, and has now filed a Motion to Dismiss based on a lack of subject matter jurisdiction, ECF No. 14-1. A letter advising Plaintiff of her rights under Federal Rules of Civil Procedure 12 and 56 was issued on April 12, 2016. ECF No. 14. Plaintiff has not responded.

         II. STANDARD OF REVIEW

         "It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court." Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. See Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003), aff'd, 85 F.App'x 960 (4th Cir 2004). Once a challenge is made to subject matter jurisdiction, the plaintiff bears the burden of proving that subject matter jurisdiction exists. See Evans v. B.F Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999); see also Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D. Md. 2010).

         The Court should grant a Rule 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law"" Evans, 166 F.3d at 647. In ruling on a motion to dismiss under Rule 12(b)(1), the Court "should regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Ferdinand-Davenport, 742 F.Supp.2d at 777 (quoting Evans, 166 F.3d at 647); see also Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         III. ANALYSIS

         Defendant moves to dismiss Plaintiffs claim for lack of subject matter jurisdiction based on Plaintiffs failure to exhaust her administrative remedies. ECF No. 14. Defendant contends that Plaintiff "did not attempt to comply with the administrative process administered by the USPS to resolve claims for lost packages, " and "both Plaintiff and Okupe have failed to follow the appeal procedures prior to filing the instant complain.." ECF No. 14-1 at 4. Thus, Defendant argues, the Court "lacks subject matter jurisdiction by reason of these failures to exhaust their administrative remedies." Id. The Court agrees that Plaintiff has failed to exhaust her administrative remedies, and Defendant's Motion to Dismiss is therefore granted.

         The Federal Tort Claims Act ("FTCA") confers jurisdiction on the district court to hear claims "for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission took place." 28 U.S.C. S 1346; see also Ferebee v. Temple Hills Post Office, GJH-14-02451, 2014 WL 5342845, at *2 (D. Md. Oct. 20, 2014), aff'd, 590 F.App'x 276 (4th Cir. 2015), cert. denied, 136 S.Ct. 252 (2015). Since Plaintiff states a cause of action based upon alleged negligence or a wrongful act or omission on the part of the Postal Service, the court will construe her claim as one under the FTCA. See 28 U.S.C. S 2679(a).

         To assert any claim against the United States or the Postal Service under the FTCA, a plaintiff is required to exhaust administrative remedies. See 28 U.S.C. S 2675(a); see also McNeil v. United States,508 U.S. 106, 113 (1993) (noting that the "FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies."). Specifically, a claimant must first present a claim to the appropriate federal agency and the claim must be "finally denied by the agency in writing" before instituting an action in federal court. 28 U.S.C. ยง 2675(a). This ...


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