United States District Court, S.D. Ohio, Eastern Division
Elizabeth Preston Deavers Magistrate Judge
OPINION AND ORDER
D. MORRISON UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant United States
Postal Service's Motion to Dismiss Plaintiff's
Complaint for lack of subject matter jurisdiction and for
failure to state a claim (ECF No. 4), Plaintiff's
Response to Defendant's Motion to Dismiss (ECF No. 8),
and Defendant's Reply in Support of its Motion to Dismiss
(ECF No. 11). For the reasons that follow, the Court
GRANTS Defendant's Motion and
DISMISSES Plaintiff's Complaint.
Hakimah Jabbar alleges that beginning in January 2018, she
has been repeatedly accosted and badgered by Defendant United
States Postal Service (“USPS”) in different
forms, “ranging from mail theft to leaving mail not in
[the] designated box.” (Compl., p. 1, ECF No. 2).
Specifically, Plaintiff makes the following allegations of
wrongdoing: (1) delayed delivery of a “baptism record
and a envelope containing will and trust” for
approximately 30 days; (2) a returned green card to the wrong
address, “ignoring protocol;” (3) a USPS
mailhandler threw a green card on the ground near
Plaintiff's residence; (4) deleted tracking data from
USPS's website verifying delivery; (5) a USPS mailhandler
crossed Plaintiff's lawn, ignoring signs and barriers;
(6) several missing pieces of mail; (7) harassment; (8) mail
placed on Plaintiff's porch and other locations not
designated to receive mail; and (9) delayed delivery of
several additional pieces of mail for approximately three
weeks. (Compl., ¶¶ 1-9).
February 5, 2019, Plaintiff filed a pro se complaint
in the Court of Common Pleas in Franklin County reciting the
above factual allegations. (ECF No. 1-1). Plaintiff sought
damages “in excess of [$]10, 000 for loss of
consortium, punitive damages and reimbursement for monies
lost.” (Id. at p. 4). On March 27, 2019,
Defendant removed the case to this Court pursuant to 28
U.S.C. §§ 1442 and 2679(d)(2). (ECF No. 1). On the
same day, Defendant moved to dismiss the Complaint for lack
of subject matter jurisdiction and failure to state a claim
upon which relief can be granted. (ECF No. 4). Plaintiff
filed her Response on April 15. (ECF No. 8). Defendant filed
its Reply on April 29. (ECF No. 11). Defendant's Motion
to Dismiss is now ripe for review.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) provides for dismissal when
the court lacks subject matter jurisdiction. Without subject
matter jurisdiction, a federal court lacks authority to hear
a case. Thornton v. S.W. Detroit Hosp., 895 F.2d
1131, 1133 (6th Cir. 1990). Motions to dismiss for lack of
subject matter jurisdiction fall into two general categories:
facial attacks and factual attacks. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial
attack under Rule 12(b)(1) “questions merely the
sufficiency of the pleading[, ]” and the trial court
therefore takes the allegations of the complaint as true.
Wayside Church v. Van Buren Cty., 847 F.3d 812, 816
(6th Cir. 2017) (internal quotations omitted). To survive a
facial attack, the complaint must contain a short and plain
statement of the grounds for jurisdiction. Rote v. Zel
Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). A
factual attack is a challenge to the factual existence of
subject matter jurisdiction. No. presumptive truthfulness
applies to the factual allegations. Glob. Tech., Inc. v.
Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806,
810 (6th Cir. 2015). This case involves the former.
subject matter jurisdiction is challenged, “the
plaintiff has the burden of proving jurisdiction in order to
survive the motion.” Moir v. Greater Cleveland
Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.
1990); Roulhac v. Sw. Reg'l Transit Auth., No.
07CV408, 2008 WL 920354, at *2 (S.D. Ohio Mar. 31, 2008).
Motion, Defendant argues that the Complaint should be
dismissed for lack of subject matter jurisdiction because (1)
the USPS is immune from suit absent Congress' express
waiver of sovereign immunity; and (2) Plaintiff has failed to
exhaust her administrative remedies as to any tort claims not
arising from the transmission of mail. (Mot. Dismiss, 3-4,
ECF No. 4). The Court agrees.
to 39 U.S.C. § 201, the USPS is “an independent
establishment of the executive branch of the Government of
the United States[.]” As such, the USPS “enjoys
federal sovereign immunity absent a waiver.” Dolan
v. USPS, 546 U.S. 481, 484 (2006). “Sovereign
immunity is jurisdictional in nature . . . [and] the terms of
[the United States'] consent to be sued in any court
define that court's jurisdiction to entertain the
suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475
(1994) (internal quotations omitted). Although the Federal
Tort Claims Act (“FTCA”)-which applies to tort
claims arising out of activities of the USPS-provides a
waiver of sovereign immunity as to the USPS in some cases, it
also qualifies 13 categories of claims for which the United
States may never be sued. 28 U.S.C. §§ 1346, 2674,
2680. One of these categories includes “[a]ny claim
arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.” Id.
instant case, the Court construes the majority of
Plaintiff's claims (Compl., ¶¶ 1-4, 6, 8-9) as
tort actions against the USPS for the “loss,
miscarriage, or negligent transmission of letters or postal
matter.” Id. As set forth above, the United
States, and consequently the USPS, maintains sovereign
immunity for the alleged negligent mishandling of mail. There
is nothing before the Court to suggest the United States has
waived its grant of sovereign immunity.
before a Plaintiff may bring an action under the FTCA against
the United States that does not arise from the transmission
of mail, she must first comply with the ...