The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Alexander Kaplan ("Kaplan") brings this action against defendant United States Postal Service (the "USPS") seeking damages for a package he sent to Moscow, Russia that was allegedly lost by the defendant. According to the plaintiff, the defendant breached a contract by failing to deliver the package, and by failing to properly investigate the loss of the package.
The USPS moves for summary judgment against Kaplan claiming that it can not be held liable to him under a breach of contract theory. Rather, the defendant contends that Kaplan is limited to statutory damages set forth by the USPS in its regulations for the loss of his package, and contends that pursuant to those regulations, plaintiff is entitled to $43.73 for the loss of the package. Plaintiff opposes defendant's motion on grounds that the limitation of liability regulations cited by the USPS do not apply, and that there are material facts in dispute which preclude a grant of summary judgment. For the reasons set forth below, I grant defendant's motion for summary judgment, and dismiss the plaintiff's Complaint.
Plaintiff Alexander Kaplan was born in 1929 in Belorussia, and in 1994, emigrated from the Ukraine to the United States. In 2007, Kaplan, who is an Architect by training and who writes as a hobby, wrote a story entitled "Rhapsody of Life." Kaplan sought to have the story published in a Russian-language magazine, and in furtherance of this ambition, contacted the New York City office of Alef Magazine, ("Alef") a Russian-language magazine based in Moscow, Russia. According to Kaplan, he was advised by an Alef magazine representative that if he wished to have a story published, he should send the story directly to the magazine's Moscow office for its consideration. Kaplan, who has never had any story of his published in any magazine, admits that he was not promised that his story would be published, or that he would be paid for his story.
Prior to contacting Alef, Kaplan had hired a Russian-speaking typist to type out the story, which Kaplan had written by hand. According to Kaplan, the final typed version of the story was over 30 pages in length.
On November 27, 2007, Kaplan mailed the story to the Moscow headquarters of Alef via USPS first-class registered mail. He did not make a copy of the story prior to sending it to Alef.
Plaintiff declined to purchase insurance for the parcel, and listed the value of the parcel's contents as "[$]0". A few weeks after sending the manuscript to Alef, he contacted the editor-in-chief of the magazine to inquire whether or not she had received and considered his manuscript. She informed him that she had not received his story.
Thereafter, Kaplan made an inquiry to the post office regarding the whereabouts of his package. According to Kaplan, a postal employee took his name and information, but no USPS representative ever contacted him regarding the package. According to the USPS, Kaplan never made a claim for reimbursement based on the lost package.*fn1 The USPS further claims that postal records indicate that Kaplan's package was sent to Moscow via airmail on December 4, 2007, departing from John F. Kennedy Airport in New York, New York.
On April 2, 2008, plaintiff filed the instant action claiming that the USPS failed to deliver two "important" letters that he mailed to Moscow, Russia. He contended in his Complaint that he brought the action to "find out why [his] letters... were never delivered" and for compensation for "the negative impact these incidents have caused my health and for the loss of important documents." Complaint at p. 6. On October 30, 2008, the court assigned two attorneys to represent the plaintiff pro bono. On May 21, 2009, counsel filed an Amended Complaint claiming that the plaintiff was damaged as a result of the defendant's failure to properly deliver his parcel to Alef Magazine, in Moscow, Russia, and failure to properly investigate his claim regarding the lost parcel, all in breach of its contractual obligations to the plaintiff.
I. Summary Judgment Standard
Rule 56c of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that ...