United States District Court, E.D. New York
Henry Oliver Ford, Plaintiff, Pro se, West Palm Beach, FL.
For United States of America, Defendant: Marilynn Koonce Lindsey, LEAD ATTORNEY, United States Attorney's Office, Fort Lauderdale, FL; Rachel G. Balaban, U.S. Attorney's Office, EDNY, Brooklyn, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
Plaintiff Henry Ford brings the above-captioned action against Defendant United States of America (the " United States" ) for negligence and conversion in violation of the Federal Torts Claims Act (" FTCA" ). Plaintiff seeks damages for loss of his personal property seized by United States Immigration and Customs Enforcement, Department of Homeland Security (" ICE" ), in May 2010, at John F. Kennedy International Airport (" JFK" ). Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court grants Defendant's motion to dismiss.
In May 2010, Plaintiff was taken into custody at JFK by two ICE special agents. (Compl. ¶ 2.) Upon his arrest, Plaintiff's
property was seized. ( Id.) The property included Plaintiff's passport, telephone, wallet, eight luxury wrist watches, laptop computer, computer bag, business cards and " the only copy of land surveys and engineering plans." ( Id.) Plaintiff's attorney contacted the Department of Homeland Security (" Homeland Security" ) several times over an eleven month period to obtain Plaintiff's property. ( Id. ¶ 3.)
On April 4, 2012, the United States District Court for the District of Arizona " ordered Defendant to immediately return Plaintiff's personal property to Plaintiff, without the need to sign a Hold Harmless Agreement." ( Id. ¶ 7.) Defendant returned Plaintiff's wallet, business cards, and laptop computer. ( Id. ¶ 11.) Plaintiff contends that his computer was damaged beyond repair, and that Defendant failed to return his passport, telephone, computer bag, wrist watches, land surveys and engineering plans. ( Id.) On or about April 20, 2012, Plaintiff filed an administrative claim with Homeland Security seeking damages for the loss of his personal property. ( Id. ¶ 12.) On October 3, 2012, Homeland Security denied Plaintiff's administrative claim. ( Id.)
a. Standard of Review
" Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper 'when the district court lacks the statutory or constitutional power to adjudicate it.'" Burns v. City of Utica, 590 F.App'x 44, 2014 WL 5785554, at *2 (2d Cir. 2014) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (" [A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." (alteration in original) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005))). " '[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,' but 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (alteration in original) (citations omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Where the plaintiff's claim implicates the FTCA, the plaintiff " bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Haskin v. United States, 569 F.App'x 12, 15 (2d Cir. 2014) (citing Aurecchione, 426 F.3d 635 at 638); Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012); Yesina v. United States, 911 F.Supp.2d 217, 220 (E.D.N.Y. 2012). " As [the FTCA] creates a waiver of sovereign immunity, it is ...