United States District Court, E.D. New York
RAMON E. MORILLO, Plaintiff,
EBAY, PAYPAL, UNITED STATES POST OFFICE, Defendants.
MEMORANDUM & ORDER
K. BRODIE, UNITED STATES DISTRICT JUDGE
E. Morillo,  proceeding pro se, commenced the
above-captioned action on July 6, 2017 against Defendants
eBay, Paypal and the United States Post Office. Plaintiff
alleges that he ordered an accordion on eBay, an internet
auction website, from a seller in Germany, but the United
States Postal Service never delivered the package. (Compl. at
5-6, 12, Docket Entry No. 1.) The Court grants Plaintiff's
request to proceed in forma pauperis pursuant to
28 U.S.C. § 1915 solely for the purpose of this
Memorandum and Order. For the reasons set forth below, the
Court dismisses the Complaint.
Court assumes the truth of the factual allegations in the
Complaint for the purpose of this Memorandum and Order. On
February 18, 2017, Plaintiff purchased an accordion on eBay
for $325 from a seller located in Germany. (Compl. at 9, 12.)
In addition to the cost of the item, Plaintiff paid an
additional $80 in shipping costs. (Id. at 12.) The
accordion was shipped on February 21, 2017 from an address in
Germany (id. at 14); the United States Postal
Service received the accordion on March 16, 2017 and sent it
out for delivery on March 17, 2017, (id. at 24).
However, Plaintiff never received the item. Plaintiff has
contacted each of the three defendants repeatedly, (see
Id. at 8-23), but has not received any relief. Plaintiff
seeks $100 from each defendant. (Id. at 7.)
Standard of review
complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678. In
reviewing a pro se complaint, the court must be
mindful that a plaintiff's pleadings should be held
“to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); see Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even
after Twombly, the court “remain[s] obligated
to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua
sponte an in forma pauperis action if the Court
determines it “(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B);
see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007). In addition, if the Court “determines at any
time that it lacks subject-matter jurisdiction, the Court
must dismiss the action.” Fed.R.Civ.P. 12(h)(3);
see also Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d
Cir. 2015) (A district court may dismiss an action for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) when
the court “lacks the statutory or constitutional power
to adjudicate it . . . .” (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)).
Subject matter jurisdiction
courts are courts of limited jurisdiction and may not hear
cases if they lack subject matter jurisdiction over the
issues presented. Lyndonville Sav. Bank & Trust Co.
v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). The
statutory provisions for federal subject matter jurisdiction
are contained in 28 U.S.C. §§ 1331 and 1332.
Federal question jurisdiction provides federal courts
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
Bounds v. Pine Belt Mental Health Care Res., 593
F.3d 209, 215 (2d Cir. 2010) (quoting 28 U.S.C. § 1331).
A plaintiff properly invokes section 1331 jurisdiction when
he pleads a colorable claim “arising under” the
Constitution or laws of the United States. Under the
diversity jurisdiction statute, federal courts have subject
matter jurisdiction over state law claims where the plaintiff
and defendant are of diverse citizenship and “the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs.” 28 U.S.C. §
1332(a); see also Bayerische Landesbank, N.Y. Branch v.
Aladdin Capital Mgmt. LLC, 692 F.3d 42, 48 (2d Cir.
2012). For a federal court to exercise subject matter
jurisdiction based on diversity, there must be complete
diversity of citizenship between all plaintiffs and all
defendants. Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan
Stanley & Co., 772 F.3d 111, 117-18 (2d Cir. 2014)
(“Subject matter jurisdiction is based on 28 U.S.C.
§ 1332, which requires ‘complete diversity, '
i.e. all plaintiffs must be citizens of states diverse from
those of all defendants.”); Lovejoy v. Watson,
475 Fed.Appx. 792, 792 (2d Cir. 2012) (“The complaint
alleged that [the plaintiff] and the defendant resided in New
York, thereby precluding diversity jurisdiction.”). For
purposes of diversity of citizenship, a corporation is a
citizen of its state of incorporation and the state of its
principal place of business. 28 U.S.C. § 1332(c)(1);
see also Hertz Corp. v. Friend, 559 U.S. 77, 92-93
(2010) (holding that “‘principal place of
business' is best read as referring to the place where a
corporation's officers direct, control, and coordinate
the corporation's activities”); see
also Bayerische Landesbank, 692 F.3d at 48.
The Court lacks subject matter jurisdiction over the claims
against eBay and PayPal
Plaintiff's allegations to “raise the strongest
arguments they suggest, ” McLeod v. Jewish Guild
for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting
Bertin v. United States, 478 F.3d 489, 491 (2d Cir.
2007), the Court lacks subject matter jurisdiction over
Plaintiff's claims against eBay and PayPal. There is
nothing to suggest that these Defendants violated any federal
law, giving rise to the Court's jurisdiction under 28
U.S.C. § 1331. In addition, the Court lacks diversity
jurisdiction, because Plaintiff has not met his burden
“to a ‘reasonable probability' that the claim
is in excess of the statutory jurisdictional amount” of
$75, 000. Chase Manhattan Bank, N.A. v. Am.
Nat'l Bank and Tr. Co. of Chicago, 93 F.3d 1064,
1070 (2d Cir. 1996). At most, in light of the price paid for
the item and the cost of shipping, Plaintiff's damages
total less than $1000. Moreover, Plaintiff specifically
pleads that he is only seeking $100 from each of the three
defendants. (Compl. at 7.) In addition, according to the
addresses of Plaintiff and Defendant eBay stated in the
Complaint, (id. at 2), both are domiciled in New
York, and therefore, Plaintiff fails to establish complete
diversity, see Pa. Pub. Sch. Emps.' Ret. Sys.,
772 F.3d at 117-18 (“Subject matter jurisdiction is
based on 28 U.S.C. § 1332, which requires
‘complete diversity, ' i.e. all plaintiffs must be
citizens of states diverse from those of all
defendants.” (citation omitted)); Lovejoy, 475
Fed.Appx. at 792 (“The complaint alleged that [the
plaintiff] and the defendant resided in New York, thereby
precluding diversity jurisdiction.”); see also
Bayerische Landesbank, 692 F.3d at 48 (holding that
companies are residents of their states of incorporation and
principal places of business).
Court therefore dismisses the claim against Defendants eBay
and Paypal for lack of subject matter jurisdiction. See
Nachbaur v. Weiss, 19 Fed.Appx. 24, 26 (2d Cir. 2001)
(affirming dismissal where defendants resided in the same
state as the plaintiff and the plaintiff failed to state a
claim under a federal statute); see also Fed. R.
Civ. P. 12(h)(3). Plaintiff may wish to pursue his claims
against these entities in the Small Claims Part of Civil
Court, Queens County.
Plaintiff's claim against the United States Post Office
is barred by sovereign immunity
Court construes Plaintiff's claim against the United
States Post Office as a common law tort claim asserted
against the United States Postal Service
(“USPS”), and, as a result, one which must be
brought under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b).SeePrzespo v. U.S. Post Office, 177 F.Supp.3d 793, 796
(W.D.N.Y. 2016) (construing a claim for “gross
mishandling” of a fragile package as sounding in tort);
Brown v. eBay, No. 14-CV-2803, 2014 WL 7342898, at
*2 (E.D.N.Y. Dec. 23, 2014) (construing a cause of action
against USPS for failure to deliver a package as a tort
claim); Kuhner v. Montauk Post Office, No.
12-CV-2318, 2013 WL ...