Ezirim v. United States of America

Filing 16

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/28/2016. (c/m 12/28/2016 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

Southern Division

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.JOY EZIRIM,

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Plaintiff,

Case No.: GJH-I6-0289

v.

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UNITED STATES OF AMERICA,

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Defendant.

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MEMORANDUM

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OPINION

Plaintiff Joy Ezirim brings this pro se action against the United States of America

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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 George's 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.

BACKGROUND
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According to Plaintiff's Complaint, Joy Ezirim purchased an iPhone 6 Plus from a seller
on www.eBay.com ("eBay,,).3 ECF NO.2 at I. Plaintiff paid $480.00 for the iPhone and $5.85

1 Plaintiff originally brought her suit against the United States Postal Service. ECF NO.2. The United States moved
to "be substituted for Defendant United States Post Service Headquarters in this action. pursuant to the Federal Tort
Claims Act, 28 U.S.C. ~ 2671 e/ seq." ECF NO.7. The motion was granted on February 25, 2016. ECF No. 13.
2 An iPhone is an Internet-enabled smartphone developed by Apple. Inc. iPhone,
http://www.webopedia.comffERM/lIiPhone.html(last
visited Nov. 28. 2016). The iPhone 6 Plus was released in or
around October 2014./Phone 6 & iPhone 6 Plus Arrive in 36 More Countries and Terri/aries This Month. Apple
(Oct. 13, 2014), https://www.apple.com/prllibrary/201411
0113iPhone-6-iPhone-6-Plus-Arrive-in-36-MoreCountries-and- T erritories- This- Month.htm!.

for shipping. Id. Plaintiff was expecting her package on October 8, 2015, but did not receive it.
ld. 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
"undeliverable as addressed." ld. 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.ld. 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. ld. After three weeks, however,
Okupe had not received the package. ld.
Okupe called USPS Customer Service, which assigned a case number, CA125151243.
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 Okupe's claim.ld. 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 Okupe's claim. ld.
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." ld. 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 George's
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$56.00. Id. Defendant

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eBay is an e-commerce company and online marketplace providing consumer-to-consumer and business-to-

consumer sales. See eBay, http://www.webopedia.comffERM/E/eBay.html(last

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visited Nov. 23, 2016).

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 CiT.
2006). Federal Rule of Civil Procedure 12(b)(l) 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 CiT. 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 Stand ex Int'l Corp .. 166 F.3d 642, 647 (4th CiT. 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 oflaw." Evans, 166 F.3d
at 647. In ruling on a motion to dismiss under Rule 12(b)(I), 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,
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 CiT. 1991).

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742 F.

III.

ANAL YSIS
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 complaint." 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." ld. 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.

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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

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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 administrative exhaustion requirement is jurisdictional and may not be waived.
Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994).
USPS regulations are set forth in its Domestic Mail Manual ("DMM"), which is
incorporated into the Code of Federal Regulations by reference. 39 C.F.R. ~ 111.1; see also
Dosso v. United States Postal Serv., Civil Action No. CCB-IO-1703, 2010 U.S. Dis!. LEXIS
124914, at *7 (D. Md. Nov. 24, 2010).4 In relevant part, the DMM provides an initial
administrative procedure for filing claims and two levels of appellate process. Either the mailer
or the addressee may file a claim for lost or damaged articles. See DMM 609, Section 1.3.
Claims may be filed online or sent by mail to the USPS Accounting Services Center
("Accounting Services"), the agency's adjudicatory body.ld., Section 1.5; ECF No. 14-2 ~ 2.
Once a decision has been rendered, "a customer may appeal a claim decision within 30 days
from the date of the original decision." ld., Section 6.2. Further, "[i]f Accounting Services
sustains the denial of a claim, the customer may submit an additional appeal within 30 days for
final review." ld., Section 6.3.
In her brief, handwritten complaint, Plaintiff alleges that she "decided to file a claim to
get my package or the value of my claim." ECF NO.2 at 2. It is unclear whether the "claim" she
refers to is an administrative claim with the Postal Service or the Complaint filed in this Court. It
would appear to be the latter, as Defendants have submitted a declaration indicating that, based
upon a search of their internal database, no such claim was filed with the Postal Service on or on
behalf of the Plaintiff. ECF No. 14-2 ~ 3. Okupe, the sender, did file a claim, but neither he nor
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The DMM is also available online at http://pe/usps.gov/DMM300/lndex

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(last visited Nov. 28, 2016).

the Plaintiff appealed the denial of his claim. Because Plaintiff has not complied with the
procedures set forth in the Domestic Mail Manual to pursue a claim for lost articles, she has
failed to exhaust her administrative remedies. Moreover, by not filing an opposition to
Defendant's Motion to Dismiss and, thus, failing to respond to Defendant's argument regarding
exhaustion, Plaintiff has conceded this point. See Ferebee, 2014 WL 5342845, at *3; FerdinandDavenport, 742 F. Supp. 2d at 777 (finding that plaintiff abandoned her claim by failing to
respond to defendant's argument in motion to dismiss). The Court is therefore without subject
matter jurisdiction, and Plaintiffs claim must be dismissed.
IV.

CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss, ECF No. 14, is granted

without prejudice. A separate Order follows.

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Date: DecemberIDOl6

George J. Hazel
United States District Judge

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