The opinion of the court was delivered by: John Gleeson, United States District Judge
Plaintiff Francis Lam, appearing pro se, filed the instant action on January 23, 2006, alleging that defendants failed to deliver two registered packages sent from China to his Brooklyn address. According to the complaint, the packages contained rare ancient Chinese currency that Lam purchased on E-Bay for $229.90. In spite of the purchase price, Lam alleges that the currency is worth more than $1,000. He now seeks damages of $1,000. Defendants move to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons set forth below, the motion to dismiss is granted.
By order dated February 26, 2006, I found that the "postal matters exception" to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, et seq., does not apply to registered mail, thereby allowing subject matter jurisdiction to exist in the event that the FTCA's other jurisdictional requirements -- such as exhaustion of administrative remedies -- have been met. Accordingly, I directed Lam to amend his complaint within 30 days to allege how he complied with all postal regulations in seeking recovery for loss of international inbound mail.
Lam filed an amended complaint on March 24, 2006. Upon reviewing Lam's submission, I concluded that he failed to comply with my prior order. In an order dated April 17, 2006, I held that in order to preserve his claim, Lam must amend his complaint to allege how he has exhausted all administrative remedies available to him under the postal regulations. I also directed Lam to submit a copy of the denial form issued by the International Claims and Inquiries Office ("ICIO") in response to his alleged Form 542 postal claim. I granted Lam 30 days to amend his complaint. Lam did not request an extension of the 30-day time period.
On May 18, 2006, after that time period had lapsed, the government filed the instant motion to dismiss, arguing lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.*fn1 The papers in support of the motion include the Declaration of Stuart James, an attorney employed by the United States Postal Service ("USPS") Law Department in New York. On June 26, 2006, nearly 70 days after I ordered Lam to amend his complaint within 30 days, Lam filed a motion pursuant to Fed. R. Civ. P. 15 and attached an "Affidavit/Affirmation," which I construed as a second amended complaint. On the same day, Lam also filed an "Affirmation in Opposition" to the Motion to Dismiss.
On August 1, 2006, Lam filed a "Notice of Discovery and Inspection," describing records the USPS turned over to him through discovery. The records appear to show that both packages in question were delivered to, and signed for by, recipients in the United States other than Mr. Lam.*fn2
I heard oral argument on the motion to dismiss as well as on Lam's motion to amend on September 15, 2006.
"In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)( 1), the defendant may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001). Under Rule 12(b)(1), the court must accept as true all material factual allegations in the complaint. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). However, when jurisdictional facts are called into question, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Id. In a case brought pursuant to the FTCA, "[t]he party asserting jurisdiction has the burden of pleading and proving compliance with the procedural requirements of the FTCA." Furman v. U.S. Postal Service, 349 F. Supp. 2d 553 (E.D.N.Y. 2004)(citing In re Agent Orange Product Liability Litigation, 818 F.2d 210, 214 (2d Cir.1987)).
A complaint should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In deciding a motion to dismiss under Rule 12(b)(6), a district court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the ...