The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION and ORDER*fn1
Plaintiff Arieh Gildor commenced the instant action against
Defendants asserting claims for breach of contract and negligence
arising out of the Postal Service's loss of a package containing
gold rings. Presently before the Court are: (1) Defendants'
motion to dismiss the Complaint pursuant to FED. R. CIV. P.
12(b)(6) or, in the alternative, for summary judgment pursuant to
FED. R. CIV. P. 56; and (2) Plaintiff's cross-motion for leave to
file an amended complaint asserting a cause of action for fraud.
On March 20, 2004, Plaintiff went to the United States Post
Office at Cobleskill, New York to mail a package to an individual
in France via international Express Mail. (Def.'s Stmnt. of Mat.
Facts at ¶ 1.) In furtherance of this transaction, Plaintiff
completed a mailing label and completed the PS Form 2976-A
Customs Declaration and Dispatch Notice. (Compl. at Ex. 2; Def.'s
Stmnt. of Mat. Facts at ¶¶ 3-5.) Plaintiff handed the package to
United States Postal Service employee Edward DeMagistris. (Def.'s
Stmnt. of Mat. Facts at ¶ 6.) Plaintiff inquired whether the
package could be insured. (Id. at ¶ 8.) DeMagistris advised
that the package could be insured up to $5,000. (Id. at ¶ 9.)
In addition to shipping charges, Plaintiff paid an insurance
fee of $49.00 to provide insurance coverage up to $5,000. (Id.
¶ 5). This was indicated on the face of the mailing label. The
Postal Service accepted the package for delivery. Plaintiff was
given the customer copy of the mailing label. (Id. at ¶ 3.)
Ultimately, the package was returned to Plaintiff empty. (Id. at ¶ 15). Plaintiff filed a claim for
indemnity with the Postal Service. (Id. at ¶¶ 18-19.) The
International Claims and Inquiries Office denied the claim on the
ground that the contents of the package were prohibited items for
Express Mail to France for which there could be no indemnity.
(Id. at ¶ 25.) Plaintiff appealed this decision. (Id. at ¶
26.) Upon review, the denial was upheld. (Id. at ¶ 27.) Further
appeal was taken to International Indemnity Claims, International
Business at the United States Postal Service headquarters in
Washington, D.C. (Id. at ¶¶ 28-29.) The denial was again
upheld. (Id. at ¶ 29.).
Plaintiff then filed a claim with the Postal Service pursuant
to the Federal Tort Claims Act. This claim was denied based on
the exception found at 28 U.S.C. § 2680(b). (Id. at ¶ 31.)
Plaintiff then commenced the instant lawsuit claiming that the
Postal Service is in breach of contract and was otherwise
a. Summary Judgment Standard
The Court will treat Defendants' motion as made pursuant to
Federal Rule of Civil Procedure 56 because Defendants submitted
materials outside of the pleadings, Plaintiff has been given
notice of Defendants' intention to seek summary judgment,
Plaintiff has been given notice of the consequences of failing to
properly respond to a motion for summary judgment, and Plaintiff
also has submitted materials outside of the pleadings and
otherwise responded to the motion for summary judgment.
Federal Rule of Civil Procedure 56 provides that summary
judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this
standard, courts must "`resolve all ambiguities, and credit all
factual inferences that could rationally be drawn, in favor of
the party opposing summary judgment.'" Brown v. Henderson,
257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co.,
252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets
its initial burden by demonstrating that no material fact exists
for trial, the nonmovant "must do more than simply show that
there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (citations omitted). Rather, the nonmovant "must
come forth with evidence sufficient to allow a reasonable jury to
find in her favor." Brown, 257 F.3d at 251 (citation omitted).
Bald assertions or conjecture unsupported by evidence are
insufficient to overcome a motion for summary judgment. Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins.
Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
As a general rule, the United States enjoys sovereign immunity.
Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005), petition
for cert. filed, 73 U.S.L.W. 3570 (U.S. Mar. 22, 2005). This
immunity extends to federal agencies and officers acting in their
official capacities. Id. The Federal Tort Claims Act ("FTCA")
waives sovereign immunity for certain types of actions. See
generally 28 U.S.C. § 1346(b); see also Syms v. Olin
Corp., 408 F.3d 95, 107 (2d Cir. 2005). The FTCA also contains
provisions expressly retaining sovereign immunity for certain
claims against the government. See 28 U.S.C. § 2680. The Court
will now address the applicability of the FTCA to the claims
asserted in this case. 1. Misdelivery of the Package
Defendants move to dismiss the claim for misdelivery and/or
negligence on the ground that the Postal Service is entitled to
sovereign immunity. The FTCA expressly retains sovereign immunity
for "[a]ny claim arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter."
28 U.S.C. § 2680(b); see Dolan v. United States Postal Serv., 377 F.3d.
285 (3d Cir. 2004), cert. granted, 125 S. Ct. 1928 (2005);
Raila v. United States, 355 F.3d 118, 120-21 (2d Cir. 2004);
Marine Ins. Co., Ltd. v. United States, 378 F.2d 812 (2d Cir.
1967). To the extent Plaintiff's damages (direct and
consequential) are attributed to the loss, miscarriage, or
negligent transmission of the package, the Court ...