Millsape v. United States Postal Service, Office of Inspector General
Memorandum Opinion and Order: This matter is before the Court upon defendant's Motion to Dismiss (Doc. 5 ). Defendant's Motion to Dismiss is granted. Judge Patricia A. Gaughan on 6/18/14. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
United States Postal Service,
CASE NO. 1:13 MC 110
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon defendant’s Motion to Dismiss (Doc. 5). For the
following reasons, the motion is GRANTED.
Plaintiff Gregory Millsape filed this case against the United States Postal Service as a
Motion for Order Pursuant to Customer Challenge Provisions of the Electronic Communications
Privacy Act. Plaintiff alleged that he was a customer of Verizon Wireless and that his records
were being requested by the Government. Plaintiff stated that the electronic communications
being sought were not relevant to the legitimate law enforcement inquiry stated in the Customer
Notice that was sent to him because the Postal Service had failed to provide any evidence to
support the allegation that the electronic communications were involved in any criminal activity.
Special Agent Craig Austin provides a declaration stating the following. He is employed
by the United States Postal Service Office of Inspector General as a Special Agent to investigate
cases for the Postal Service. He provided plaintiff with the customer challenge provisions
related to United States Postal Service Office of Inspector General Subpoena Number 140149 on
December 19, 2013. After providing notice to plaintiff, but prior to serving the subpoena on
Verizon Wireless, Special Agent Austin determined that the subpoena was no longer necessary
in the course of his investigation. Subpoena Number 140149 was never actually served on
Verizon Wireless. No demand for plaintiff’s phone records was served on any entity. (Doc. 5
This matter is before the Court upon defendant’s Motion to Dismiss.1
Standard of Review
“Dismissal is appropriate when a plaintiff fails to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). We assume the factual allegations in the complaint are true and
construe the complaint in the light most favorable to the plaintiff.” Comtide Holdings, LLC v.
Booth Creek Management Corp., 2009 WL 1884445 (6th Cir. July 2, 2009) (citing Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008) ). In construing the complaint
This Court need not hold the Motion to Dismiss for further response from
plaintiff. 18 U.S.C. § 2704(b)(3) (“If the court is unable to determine the motion
or application on the basis of the parties initial allegations and response... the
court may conduct such additional proceedings as it deems appropriate. All such
proceedings shall be completed and the motion or application decided as soon as
practicable after the filing of the governmental entity’s response.”)
in the light most favorable to the non-moving party, “the court does not accept the bare assertion
of legal conclusions as enough, nor does it accept as true unwarranted factual inferences.”
Gritton v. Disponett, 2009 WL 1505256 (6th Cir. May 27, 2009) (citing In re Sofamor Danek
Group, Inc., 123 F.3d 394, 400 (6th Cir.1997). As outlined by the Sixth Circuit:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
statement need only give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.”Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, “[f]actual allegations must be
enough to raise a right to relief above the speculative level” and to “state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 555, 570. A plaintiff must “plead[ ]
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.2012). Thus, Twombly and Iqbal require that
the complaint contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face based on factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.. Twombly, 550 U.S. at 570;
Iqbal, 556 U.S. at 678. The complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Plaintiff filed his motion pursuant to the Stored Communications Act, 18 U.S.C. §§ 2701
et seq., which permits a governmental entity to compel a service provider to disclose the contents
of electronic communications in certain circumstances. A customer may file a challenge under
the statute. 18 U.S.C. § 2704(b) states:
(b) Customer challenges.--(1) Within fourteen days after notice by the governmental
entity to the subscriber or customer under subsection (a)(2) of this section, such
subscriber or customer may file a motion to quash such subpoena or vacate such court
order, with copies served upon the governmental entity and with written notice of such
challenge to the service provider. A motion to vacate a court order shall be filed in the
court which issued such order. A motion to quash a subpoena shall be filed in the
appropriate United States district court or State court. Such motion or application shall
contain an affidavit or sworn statement--
Defendant has demonstrated, however, that the Postal Service never served the subpoena on
Verizon. Special Agent Austin shows that although he was planning to issue the administrative
subpoena to obtain plaintiff’s Verizon Wireles telephone records and provided notice thereof, he
never actually served the subpoena on Verizon because he determined it was no longer
necessary. Therefore, plaintiff’s customer challenge is moot as he suffered no injury.
For these reasons, defendant’s Motion to Dismiss is granted.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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