Gildor v. U.S. Postal Service

• Decision Date: 12 July 2005
• Docket Number: No. 04-CV-1320.,04-CV-1320.
• Parties: 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.
• Court: U.S. District Court — Northern District of New York

Page 284

376 F.Supp.2d 284

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.

No. 04-CV-1320.

United States District Court, N.D. New York.

July 12, 2005.

Arieh Gildor, Summit, Pro Se.

Office of the United States Attorney, James T. Foley U.S. Courthouse, Albany, NY, for Defendants, Barbara Cottrell, AUSA, of Counsel.

MEMORANDUM-DECISION and ORDER¹

KAHN, District Judge.

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, ___ U.S. ___, 125 S.Ct. 1928, 161 L.Ed.2d 772 (2005); Raila v. United States, 355 F.3d 118, 120-21 (2d Cir.2004); Marine Ins. Co. 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 lacks jurisdiction and the Complaint must be dismissed. Raila, 355 F.3d at 121 (noting that there is sovereign immunity for claims for "the postal material itself and consequential damages therefrom").

2. The Insurance Provision

The evidence in the record is that Defendants informed Plaintiff that his package could be insured up to $5,000. As a general matter, insurance up to $5,000 is available. However, the International Mail Manual ("IMM")² provides that there will be no indemnity on claims concerning Global Express Mail shipments where the contents are prohibited. (IMM at 935.2 Def.'s Ex. J.) The IMM expressly provides that jewels and jewelry are "not mailable in Global Express Mail (EMS) shipments." (IMM at 134.1, Def.'s Ex. J; see also IMM at 221.2 ("The following items are prohibited in all EMS shipments: coins; banknotes; currency notes (paper money); securities of any kind payable to bearer; traveler's checks; platinum, gold, and silver (manufactured or not); precious stones; jewelry; and other valuable articles."). Moreover, the back of the mailing label provided to Plaintiff at the time of shipment read

Insurance is provided only in accordance with postal regulations in the ... International Mail Manual. The ... IMM set[s] forth the specific types of losses that are covered [and] the limitations on coverage.... The ... IMM consist[s] of federal regulations, and USPS personnel are NOT authorized to change or waive these regulations or grant exceptions.... Indemnity is not paid for items containing ... gold, ... jewelry, and other valuable or prohibited items.

(Def.'s Stmnt. of Mat. Facts at ¶ 13.) Accordingly, pursuant to the IMM and the shipping label provided to Plaintiff, he cannot be indemnified for his package because it constituted a prohibited item for which indemnity was not available.³

Plaintiff contends that Defendants wrongfully sold insurance for the package. In short, Plaintiff asserts that Defendants told him that insurance was available for his package and charged him $49.00 for such insurance when, in fact, jewelry is a prohibited item for express mail to France and insurance will not pay on prohibited items. According to Plaintiff, this is a breach of contract. This also is the basis of Plaintiff's application to file an amended complaint sounding in fraud.

Plaintiff's claims that Defendants misrepresented the insurability of the package are barred. The FTCA expressly retains sovereign immunity for claims of intentional or negligent misrepresentation.⁴ 28 U.S.C. § 2680(h); see United States v. Neustadt, 366 U.S. 696, 702, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961) (holding that 28 U.S.C. § 2680(h) "comprehends claims arising out of negligent, as well as willful, misrepresentation."); Ingham v. E. Air Lines, Inc., 373 F.2d 227, 239 (2d Cir.1967). This similarly applies to any claims of fraud. See Edelman v. Fed. Hous. Admin., 382 F.2d 594, 597 (2d Cir.1967); see also Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91, 96 (3d Cir.1995) (and cases cited therein); Owyhee Grazing Ass'n. Inc. v. Field, 637 F.2d 694, 697 (9th Cir.1981) ("[C]laims against the United States for fraud ... are absolutely barred by 28 U.S.C. § 2680(h)."). Thus, any claims sounding in misrepresentation or fraud must be dismissed and Plaintiff's motion for leave to file an amended...