Tomko v. United States of America, No. 1:2018cv01029 - Document 18 (D. Md. 2018)
Court Description: MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 12/3/2018. (kw2s, Deputy Clerk)(c/m 12.6.18)
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Tomko v. United States of America Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT PAULA A TOMKO, * Plaintiff, * v. * STATES OF AMERICA, * UNITED * * Civil Action No. RD 13-I 8-1 029 * Defendant. * OF i\IARYLAND * * * * * * MEMORANDUM OPINION Pro Je Plaintiff Paula A Tomko ("Plaintiff' or "Tomko") Defendant United States of America ("United * * * * brings this action against the States" or "Defendant"), alleging that the United States Postal Service ("USPS") failed to timely deliver a package. (Comp!., ECF No. 2.) Currently Defendant's pending are the Plaintiffs Motion to Remand (ECF Motion to Dismiss (ECF No. 12). The parties' submissions and no hearing is necessary. that follow, Plaintiffs No. have been reviewed See Local Rule 105.6 (D. Md. Dec. 1, 2018). Motion to Remand (ECF No. 11) is DENIED 11) and the For the reasons and the Defendant's Motion to Dismiss (ECF No. 12) is GRANTED. BACKGROUND In ruling on a motion to dismiss, this Court "accept[sj as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." FONt/d. v. Nat'l Set: Agm€)', 857 F.3d 193, 208 (4th Cir. 2017) (citing 503, Duker (U.S.) Jm:, 801 F.3d 412, 422 (4th Cir. 2015». has "liberally construed" lf7ikimedia lie v. Blade & Further, as apro Je Plaintiff, this Court Tomko's pleadings and held them to "less stringent standards than 1 Dockets.Justia.com formal pleadings drafted v. Pardus, 551 U.S. 89, 94 (2007); A//ry I'. by lawyers." E,i,hon Yadkin County SheliffDept., No. 17-1249,698 l'. I\pp'X 141, 2017 WI. 4415771 (4th Cit. 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., ECl' 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 (ECl' No.1), and thereafter Defendant, filed a Motion to Substitute which this Court granted.' the United States of America as the proper (ECl' Nos. 6,7.) On April 24, 2018, the Plaintiff filed a Motion to Remand this case back to the District Court for Harford County. (ECl' No. 11.) On May 16, 2018, the Defendant filed a Motion to Dismiss. (ECl' No. 12.) STANDARD I. Motion A defendant OF REVIEW to Remand 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. ~ 1441 (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. Because the Plaintiff sues Hutchins for monetary damages related to alleged actions taken within the scope of Hutchins' employment for the United States, Plaintiffs exclusive remedy is against the United States. See 28 U.S.c. ~ 1346. 1 2 28 U.S.c. ~ 1447(c). The party seeking removal bears the burden of establishing jurisdiction Jobnson I'. Advan,'e Amerim, in the federal court. 549 F.3d 932, 935 (4th Cir. 2008). On a motion to remand, this Court must "strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court." Ricbardson v. Pbillip Moms, 1m:, 950 F. Supp. 700, 701-02 (D. ]\!d. 1997) (citation omitted); see also DL"< Onv. Coburg Dairy, 1m:, 369 F.3d 811, 815-16 (4th Cir. 2004). II. Motion to Dismiss The Defendant administrative moves to dismiss the Plaintiffs Complaint for failure to exhaust remedies under the Federal Tort Claims Act ("FTCN'), 28 U.S.c. ~ 1346, et seq., and because the United States has not waived its sovereign immunity claim. Because both arguments properly considered 844 F. Supp. administrative jurisdiction, this Court's ability to hear this case, they are under Federal Rule of Civil Procedure 2d 654, 663 (D. Md. 2012) ("[A) FICA claim deprives courts of subject-matter Amendment ... 12(b)(1). See J(!Jatami v. Compton, plaintiffs jurisdiction failure to file an over the claim."); see also RR Pamnger Corp., 569 F. Supp. 2d 542 (D. Md. 2008) ("[A]lthough Beckbam v. National Eleventh challenge for Plaintiffs immunity is nor a 'true the Court concludes limit' on this Court's that it is more appropriate subject matter to consider this argument under Fed. R. Civ. P. 12(b)(1) because it ultimately challenges this Court's ability to exercise its r\rticle III power."). A motion challenges to dismiss under Rule 12(b)(1) for lack of subject matter a court's authority to hear the matter brought by a complaint. jurisdiction See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). Under Rule 12(b)(1), the plaintiff bears the 3 burden of proving, by a preponderance jurisdiction. of the evidence, the existence of subject matter Demetres v. EaJt IVeJt ConJt., 1m:, 776 r.3d 271, 272 (4th Cir. 2015); Lovern v. EdlvardJ, 190 r.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." KenIJ v. United StateJ, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). ANALYSIS I. Motion to Remand The "well-pleaded question jurisdiction. complaint in determining federal-question the presence or absence of federal Caterpillar Inc. I'. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425 (1987). Under this rule, courts "ordinarily ... complaint rule" governs look no further than the plaintiff's [properly pleaded] whether a lawsuit raises issues of federal law capable of creating jurisdiction under 28 U.S.c. ~ 1331." Pinn!)' v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005) (quoting GlJter v. Sween!)', 89 F.3d 1156, 1165 (4th Cir. 1996). The sole ground for Plaintiff's Motion to Remand is that she is unfamiliar with Baltimore and would prefer to be in Harford Counry. (ECF No. 11.) Given that the Plaintiff brings this action against the United States of r\merica, and as explained below her claim is construed as being asserted under the Federal Tort Claims Act, 28 U.S.c. ~ 1346, et Jeq., this Court has federal question jurisdiction over Plaintiff's claim and her Motion DENIED. 4 to Remand (ECF No. 11) is II. Motion to Dismiss under Rule 12(b)(l) The Plaintiff Tomko alleges that a package she sent through the United States Postal Service was not delivered on time. Accordingly, this Court liberally construes her Complaint as alleging a cause of action under the Federal Tort Claims Act ("FTCA"), 28 U.S.c. ~ 1346, el seq., based upon the negligence and I or wrongful acts or omissions See 39 u.s.c. ~ 4090 (explaining that the FTCl\ on the part of USPS. "shall apply to tort claims arising out of activities of the Postal Services"). In the Motion to Dismiss, the Defendant Court does not ha,.e jurisdiction over the Plaintiffs administrative argues that this claim because she failed to exhaust her remedies under the FTCA and because the United States has not waived its sovereign immunity for Plaintiffs claim. a. Plaintiff Failed to Exhaust "It is well established from suit unless it consents Her Administrative Remedies that the United States Government, as sovereign, is immune to be sued." Khalami v. Complon, 844 F. Supp. 2d 654, 663 (D. Md. 2012) (quoting Gould v. U.S. Dep't of [-[ealth & Human Servs., 905 F.2d 738, 741 (4th Cir. 1990». Under permitting the FTCA, Congress suit if certain requirements created a limited of sovereign immunity, prescribed by Congress are met. [d. (citing Gould, 905 F.Supp.2d at 663; 28 U.S.c. ~~ 2671-80). One requirement his or her claim before the appropriate waiver administrative is that a plaintiff must "present" agency for determination before filing suit in court. 28 U.S.c. ~ 2675(a); Al,Neil v. United States, 508 U.S. 106 (1993). In this case, the appropriate administrative agency is the United States Postal Service ("USPS"). The Plaintiff, however, has not pled or otherwise offered evidence that she filed an administrative claim with the USPS prior to filing for suit in this Court. Rather, the 5 Defendant attached the declaration Claims Examiner/Adjudicator testified that she "conducted administrative of Kimberly A Herbst, who is the supervisor, with the USPS National Tort Center, a search of all Postal Selyice Law Department tort claims submitted for adjudication filed or on behalf of Paula A. Tomko ... local level ... information Herbst records of for evidence of an administrative [and] no such claim was discovered." Dec!., ECF No. 12-2 at" 4.) Herbst also testified that she conducted database that "contains in which on and tracks claims submitted [and] no such claim was discovered." Tort claim (Herbst a search of a separate for adjudication at the (Id. at ~ 5.) Therefore, since Plaintiff has not met her burden of showing that she filed an administrative filing this action, she has failed to exhaust her administrative claim with the USPS prior to remedies and her claim must be dismissed for lack of subject matter jurisdiction. b. Plaintiff's Claim is Barred by Sovereign Even if the Plaintiff had exhausted Immunity her administrative entitled to immunity under the Eleventh Amendment. remedies, the Defendant The Eleventh Amendment is provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. AMEND. XI. Under the Federal Tort Claims Act ("FTCA"), 28 U.S.c. ~ 1346, ef seq., Congress created a limited waiver of sovereign immunity subject to certain objections. One of those exceptions is the "postal matter exception," the loss, miscarriage, which bars claims against the United States "arising out of or negligent transmission 2680(b). 6 of letters or postal matter." 28 U.s.c. ~ Here, the Plaintiff claims that a package she sent through the USPS did not arrive in a timely manner. Accordingly, her claim relates to "the loss, miscarriage, or negligent transmission of letters or postal matter," and is barred by sovereign immunity. See lvf.,Dollald V. U.S. Pos/al Serv., No. ELH-12-2759, 2013 \'V'L 140914, at *2 (D. Md. Jan. 10, 2013), affd, 519 F. App'x 162 (4th Cit. 2013) ("To the extent this claim is construed as a tort claim for improper delivery of mail, it falls within the postal matters exception to the FTCA's waiver of immunity, and must be dismissed for lack of subject matter jurisdiction."); see also rerebee v. Temple Hills POJ/ 0fji,~,No. GJH-14-02451, 2014 \'V'L 5342845, at *3 (D. Md. Oct. 20, 2014), afJ'd, 590 F. App'x 276 (4th Cir. 2015) (holding that the plaintiffs her mail was lost, delivered late, and opened exception and were therefore barred immunity and the Defendant's and rescaled fell within the FTCA's postal by sovereign Plaintiff had exhausted her administrative claims that immunity). Accordingly, even if the remedies, her claim would be barred by sovereign Motion to Dismiss is GIV\NTED. CONCLUSION For the reasons DENIED stated and the Defendant's above, Plaintiffs Motion to Remand (ECF Motion to Dismiss (ECF No. 12) is GlV\NTED. A separate Order follows. Dated: December 3, 2018 Richard D. Bennett United States District Judge 7 No. 11) IS
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