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GILDOR v. UNITED STATES POSTAL SERVICE

July 12, 2005.

ARIEH GILDOR, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Cobleskill, NY; DAVID DEGEORGE, of the Post Office in Cobleskill, NY; MARK HAREISON, of the Post Office in Cobleskill, NY; I.P. MINGO, Supervisor Postal Service, 4218th Avenue, Room 2029A, NY, NY., Defendants.



The opinion of the court was delivered by: LAWRENCE KAHN, District Judge

MEMORANDUM-DECISION and ORDER*fn1

I. INTRODUCTION

  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.

  II. FACTS

  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 negligent.

  III. DISCUSSION

  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).

  b. Sovereign Immunity

  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 ...


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