United States District Court, D. Maryland, Southern Division
J. Hazel United States District Judge
Joy Ezirim brings this pro se action against the
United States of America 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.
to Plaintiff's Complain, Joy Ezirim purchased an iPhone 6
from a seller on www.eBay.com ("eBay"). 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.
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.
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.
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
STANDARD OF REVIEW
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).
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).
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
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).
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. § 2675(a). This ...