Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morillo v. Ebay

United States District Court, E.D. New York

December 28, 2017

RAMON E. MORILLO, Plaintiff,
v.
EBAY, PAYPAL, UNITED STATES POST OFFICE, Defendants.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, UNITED STATES DISTRICT JUDGE

         Ramon E. Morillo, [1] 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.)[2] 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.

         I. Background

         The 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.)

         II. Discussion

         a. Standard of review

         A 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)).

         b. Subject matter jurisdiction

         Federal 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.

         c. The Court lacks subject matter jurisdiction over the claims against eBay and PayPal

         Construing 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.[3] 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).

         The 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.

         d. Plaintiff's claim against the United States Post Office is barred by sovereign immunity

         The 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).[4]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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.