Mohamed v. U.S. Postal Service et al

Filing 7

ORDER -- The 4 Motion to Dismiss is granted the Clerk of Court is directed to close this case. Plaintiff served via USPS. Signed by Senior Judge Neal P. McCurn on 7/22/09. (mnm)

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF NEW YORK ABDEL FATTAH MOHAMED, P l a i n ti f f , - v .1 :0 8 - C V - 0 0 8 9 5 (N P M /D R H )

U .S . POSTAL SERVICE, Schenectady 12301; and F ed Ex D e f e n d a n ts . APPEARANCES: F O R THE PLAINTIFF: A B D E L FATTAH MOHAMED 1 1 9 6 Coplon Avenue S ch en ectad y, New York 12309 p ro se O F COUNSEL:

F O R THE DEFENDANT, U .S . Postal Service: H O N . ANDREW T. BAXTER U n ited States Attorney for the Northern District of New York 4 4 5 Broadway 2 1 8 James T. Foley U.S. Courthouse A lb an y, New York 12207-2924 F O R THE DEFENDANT, F ed Ex: B A R B A R A D. COTTRELL A ssistan t United States Attorney

N o appearance

Neal P. McCurn, Senior District Judge M E M O R A N D U M -D E C IS IO N and ORDER I. Introduction P lain tiff, Abdel Fattah Mohamed ("Plaintiff"), appearing pro se, originally co m m en ced this action against defendant, U.S. Postal Service, Schenectady, 12301 ("D efen d an t") and Fed Ex1 in City Court of the City of Schenectady, County of S ch en ectad y, State of New York. Defendant thereafter removed the action to this co u rt, and subsequently filed a motion to dismiss the action for failure to state a claim upon which relief may be granted or for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c), respectively, or in the altern ativ e, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil P ro ced u re. Plaintiff has failed to oppose the motion, and consequently defendant h as not replied. The pending motion is decided on the papers submitted without o ral argument. II. Factual Background F o r purposes of deciding the pending motion, the court will, as it must, accep t the following factual allegations in Plaintiff's complaint as true. See supra at 3. Plaintiff traveled to Toronto, Ontario on May 1, 2008, and returned to the U n ited States four days later. See Dkt. No. 6. Plaintiff alleges that he had his wife "F ed Ex" medicine to him, but it "was not received until now[.]" Plaintiff's co m p lain t is dated June 24, 2008.

Although Fed Ex is named as a defendant to this action, there is no evidence that it has been served. 2

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Plaintiff names "U.S. Postal Services, Schenectady, NY 12301" and "Fed Ex - Liberty St." as defendants, from whom he seeks $90.50 in damages. III. Discussion D efen d an t seeks dismissal of this action because it has not been properly serv ed , and because Plaintiff has failed to exhaust his administrative remedies. Because the court finds that it lacks jurisdiction over Plaintiff's claim it need not ad d ress the issue of proper service. A. Legal Standard T o be sure, Defendant's motion to dismiss for failure to exhaust may more p ro p erly be brought as a motion to dismiss for lack of subject matter jurisdiction p u rsu an t to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Furman v. U n ited States Postal Serv., 349 F.Supp.2d 553, 556 (E.D.N.Y. 2004). Nonetheless, su ch a motion may certainly be raised as a motion for judgment on the pleadings u n d er Rule 12(c). See Cherry v. Hillside Manor Rehab. & Extended Care, No. 06C V -3 2 9 6 , 2008 WL 2559378, at *2 n.1 (E.D.N.Y. June 23, 2008). Moreover, m o tio n s pursuant to Rules 12(b)(1) and 12(c) are evaluated under the same standard to be applied when deciding a motion pursuant to Rule 12(b)(6). See id. See also S h ep p ard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the co u rt must accept the allegations of fact in the complaint as true, drawing all reaso n ab le inferences in the plaintiff's favor. See World Religious Relief, Inc. v. S iriu s Satellite Radio, Inc., No. 05-CV-8257, 2007 WL 2261549, at *1 (S.D.N.Y. A u g . 7, 2007) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the co m p lain t includes "enough facts to state a claim to relief that is plausible on its
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face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2 0 0 7 ). "A claim has facial plausibility when the plaintiff pleads factual content th at allows the court to draw the reasonable inference that the defendant is liable for th e misconduct alleged." Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 1949 (2 0 0 9 ) (citing Bell Atlantic, 550 U.S. at 556, 127 S.Ct. at 1965). In accordance w ith this standard, the plaintiff is required, "at a bare minimum, . . . [to] provide the g ro u n d s upon which his claim rests through factual allegations sufficient `to raise a rig h t to relief above the speculative level.'" Goldstein v. Pataki, 516 F.3d 50, 56 -5 7 (2d Cir. 2008) (citing ATSI Commc'ns., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 9 8 (2d Cir. 2007)) (quoting Bell Atlantic, 127 S.Ct. at 1965))). D efen d an t also alternatively seeks summary judgment pursuant to Fed. R. C iv . P. 56. However, because no matters outside the pleadings need be considered in order to decide the pending motion, it is more properly decided solely as a m o tio n for judgment on the pleadings under Rule 12(c). Cf. Pava v. Hartford Life & Accident Ins. Co., No. 03-CV-2609, 2005 WL 2039192, at *5-6 (E.D.N.Y. Aug. 2 4 , 2005). Finally, the court is mindful of the well-established principle that a pro se litig an t's papers are to be construed liberally. See Sealed Plaintiff v. Sealed D efen d an t, 537 F.3d 185, 191 ( 2d Cir. 2008) (internal citations omitted). Thus, "a p ro se complaint, however inartfully pleaded, must be held to less stringent stan d ard s than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F .3 d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551U.S. 89, 27 S.Ct. 2 1 9 7 , 2200 (2007) (per curiam)). Accordingly, the court must interpret Plaintiff's "su b m issio n s to raise the strongest arguments that they suggest." Diaz v. United S tates, 517 F.3d 608, 613 (2d Cir. 2008) (internal quotation and citation omitted).
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Further, "when reviewing pro se submissions, a district court should look at them `w ith a lenient eye, allowing borderline cases to proceed.'" Phillips v. Girdich, 408 F .3 d 124, 127 -128 (2d Cir. 2005) (quoting Fleming v. United States, 146 F.3d 88, 9 0 (2d Cir.1998) (per curiam). B. Failure to Exhaust T h ro u g h the Federal Tort Claims Act ("FTCA") the United States has waived its sovereign immunity from suit for damages "for harm caused by the negligent or w ro n g fu l conduct of Government employees, to the extent that a private person w o u ld be liable under the law of the place where the conduct occurred." In re A g en t Orange Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008) (quoting Boyle v. U n ited Techs. Corp., 487 U.S. 500, 511, 108 S.Ct. 2510 (1988) (citing 28 U.S.C. § 1 3 4 6 (b )). However, persons are required to exhaust administrative remedies prior to commencing an action against the United States under the FTCA. See 28 U.S.C. § 2675(a). A Notice of Claim must be presented to an administrative agency within tw o years of the date the action accrued. See Furman, 349 F.Supp.2d at 557 (citing 2 8 U.S.C. § 2401(b)). Here, there is no indication that Plaintiff filed the requisite claim with the United States Postal Service ("USPS") prior to bringing this action. Accordingly, this court does not have jurisdiction over Plaintiff's claim, and this actio n may be dismissed on that basis alone. However, Defendant's additional arg u m en t in support of its motion for judgment on the pleadings, to wit, that had P lain tiff brought his claim before the USPS, it would have been dismissed under th e postal matter exception to the FTCA, warrants discussion. C. The Postal Matter Exception T h e FTCA carves out certain exceptions to the waiver of sovereign im m u n ity, including the "Postal Matter Exception." See C.D. of NYC, Inc. v.
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United States Postal Serv., No. 03-CV-5055, 2004 WL 2072032, at *2 (S.D.N.Y. S ep t. 16, 2004) (aff'd, 157 Fed. Appx. 428, 2005 WL 3322993 (2d Cir. 2005)) (cert. denied, 549 U.S. 809, 127 S.Ct. 346 (2006)); 28 U.S.C. § 2680(b). Any claim s that fall within these exceptions must be dismissed for lack of subject matter ju risd ictio n . See id. Pursuant to the Postal Matter Exception, the United States d o es not waive its sovereign immunity regarding "[a]ny claim arising out of the lo ss, miscarriage, or negligent transmission of letters or postal matter." § 2680(b). Here, Plaintiff alleges Defendant's failure to timely deliver a package. See Dkt. N o . 6. As such, Plaintiff's claim clearly falls within the Postal Matter Exception. Consequently, even if Plaintiff had exhausted his administrative remedies, this court w o u ld nonetheless lack jurisdiction over his claim. Accordingly, Defendant's m o tio n for judgment on the pleadings is granted. IV . C o n c lu sio n In accordance with the foregoing analysis it is ORDERED that the motion for ju d g m en t on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) by d efen d an t, U.S. Postal Service, Schenectady 12301, against plaintiff, Abdel Fattah M o h am ed , see Dkt. No. 4, is GRANTED. The Clerk of the Court is directed to close the case accordingly.

IT IS SO ORDERED. DATED: Ju ly 22, 2009 S yracu se, New York

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