Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tomko v. United States

United States District Court, D. Maryland

December 6, 2018

PAULA A. TOMKO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         Pro se Plaintiff Paula A. Tomko ("Plaintiff or "Tomko") brings this action against the Defendant United States of America ("United States" or "Defendant"), alleging that the United States Postal Service ("USPS") failed to timely deliver a package. (Compl., ECF No. 2.) Currendy pending are the Plaintiffs Motion to Remand (ECF No. 11) and the Defendant's Motion to Dismiss (ECF No. 12). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. Dec. 1, 2018). For the reasons that follow, Plaintiffs Motion to Remand (ECF No. 11) is DENIED and the Defendant's Motion to Dismiss (ECF No. 12) is GRANTED.

         BACKGROUND

         In ruling on a motion to dismiss, this Court "accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." Wikimedia Found v. Nat'/ Sec: Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). Further, as a pro se Plaintiff, this Court has "liberally construed" Tomko's pleadings and held them to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. tardus, 551 U.S. 89, 94 (2007); Alley v. Yadkin County Sheriff Dept., No. 17-1249, 698 Fed.Appx. 141, 2017 WL 4415771 (4th Or. Oct. 5, 2017).

         On January 22, 2018, Tomko mailed a package containing a book to Romulus, Michigan via United States Postal Service ("USPS") two-day priority mail. (CompL, ECF No. 2.) Despite paying for two-day priority mail, she asserts that the book did not arrive at its intended destination until January 29, 2018. (Id.) On March 5, 2018, Plaintiff filed the instant action in the District Court for Harford County, Maryland against Wendy M. Hutchins, Post Master for USPS's Abington Post Office, asserting that she was not able to teach a class because the book arrived late. (Id.) Hutchins removed the case to this Court (ECF No. 1), and thereafter filed a Motion to Substitute the United States of America as the proper Defendant, which this Court granted.[1] (ECF Nos. 6, 7.) On April 24, 2018, the Plaintiff filed a Motion to Remand this case back to the District Court for Harford County. (ECF No. 11.) On May 16, 2018, the Defendant filed a Motion to Dismiss. (ECF No. 12.)

         STANDARD OF REVIEW

         I. Motion to Remand

          A defendant in a state civil action may remove the case to federal court only if the federal court can exercise original jurisdiction over at least one of the asserted claims. 28 U.S.C. § l44l(a)-(c). Once an action is removed to federal court, the plaintiff may file a motion to remand the case to state court if there is a contention that jurisdiction is defective. 28 U.S.C. § 1447(c). The party seeking removal bears the burden of establishing jurisdiction in the federal court. Johnson v. Advance America, 549 F.3d 932, 935 (4th Cir. 2008). On a motion to remand, this Court must "stricdy construe the removal statute and resolve all doubts in favor of remanding the case to state court." Richardson a. Phillip Morris, Inc., 950 F.Supp. 700, 701-02 (D. Md. 1997) (citation omitted); see also Dixon p. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004).

         II. Motion to Dismiss

         The Defendant moves to dismiss the Plaintiffs Complaint for failure to exhaust administrative remedies under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, et seq., and because the United States has not waived its sovereign immunity for Plaintiffs claim. Because both arguments challenge this Court's ability to hear this case, they are properly considered under Federal Rule of Civil Procedure 12(b)(1). See Khatami v. Campion, 844 F.Supp.2d 654, 663 (D. Md. 2012) ("[A] FTCA plaintiffs failure to file an administrative claim deprives courts of subject-matter jurisdiction over the claim."); see also Beckham v. National HR Passenger Corp., 569 F.Supp.2d 542 (D. Md. 2008) ("[A]lthough Eleventh Amendment immunity is not a 'true limit' on this Court's subject matter jurisdiction, ... the Court concludes that it is more appropriate to consider this argument under Fed.R.Civ.P. 12(b)(1) because it ultimately challenges this Court's ability to exercise its Article III power.").

         A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction. Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). A challenge to jurisdiction under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted).

         ANALYSIS

         I. Motion to Remand

          The "well-pleaded complaint rule" governs the presence or absence of federal question jurisdiction. Caterpillar Inc. v. Williams,482 U.S. 386, 392, 107 S.Ct. 2425 (1987). Under this rule, courts "ordinarily . . . look no further than the plaintiffs [properly pleaded] complaint in determining whether a lawsuit raises issues of federal law capable of creating federal-question jurisdiction under 28 U.S.C. § 1331." Pinney v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005) (quoting Custer p. Sweeney,89 F.3d 1156, 1165 (4th Cir. 1996)). The sole ground for Plaintiffs Motion to Remand is that she is unfamiliar with Baltimore and would prefer to be in Harford County. (ECF No. 11.) Given that the Plaintiff brings this action against die United States of America, and as explained below her claim is construed as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.