Opinion
04 CV 1854 (JG).
November 5, 2004
KRYSTYNA A. GMYREK, Rockaway Beach, New York, Petitioner Pro Se.
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Steven M. Warshawsky, Assistant United States Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Plaintiff Krystyna Gmyrek, appearing pro se, has filed this action against the United States Postal Service ("Postal Service"), alleging that her insurance claim under the terms of an international Express Mail package agreement was wrongfully denied. Gmyrek also seeks compensation for pain and suffering she experienced in her efforts to pursue this claim. The Postal Service now moves to dismiss the claim for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). For the reasons set for below, I hereby grant the motion in part and deny the motion in part.
BACKGROUND
Gmyrek sent a package to Poland using the Postal Service's Express Mail service on January 12, 2002. (Compl. at 6.) Gmyrek alleges that this package was not delivered. There is some confusion with respect to the items that were in the package for which Gmyrek is making the present claims. In her first claim form, Gmyrek listed the following items as missing: (1) one "driver license NY Ewa Gmyrek" valued at $200, (2) ten "stamps," described as "old," valued at $800, (3) one photograph, described as "old," valued at $500, and (4) three "documents" valued at $450. ( Id. at 9.) The total amount claimed was $1950. She also filed a "Domestic Claim or Registered Mail Inquiry" the next day listing the same items.
Almost one year later, Gmyrek sent a fax to the Postal Service. In that fax, she stated that she had paid $560.50 for "reconstruction translation my diploma," and included a receipt for such translation. ( Id. at 18) She also reiterated a claim for the driver's license as well as a claim for the stamps and the photo. ( Id.)
At oral argument, Gmyrek described the translated document as an index, not a diploma.
In her complaint filed with this Court, Gmyrek makes specific reference to the reconstruction of a translation of a document that was in the lost package, for which she provided the Postal Service with a receipt. ( Id. at 2.) For the purposes of this motion, I will assume the package contained a driver's license, the stamps, an old photograph, and three documents, at least one of which was a translation from Polish to English.
Based on the complaint and attached exhibits, Gmyrek corresponded with the Postal Service from January 29, 2002, when she filed the first inquiry regarding her package, through April 22, 2004. The first correspondence Gmyrek received was in response to her inquiry of January 29, 2002. The Postal Service sent Gmyrek a letter dated March 14, 2002, along with a form labeled "Global Express Mail Service Inquiry." (Compl. at 8, 11.) On that form, the Postal Service stated that there was "No trace" of the package. ( Id. at 8). The explanation stated: "No record of receipt of item. RS customer contacted. Case closed KG 2/20/02 Claim forms sent. CS. 3/14/2002." The letter explained the procedure for filing a claim. It stated that if a claim concerns merchandise, the claimant must provide evidence of the value of merchandise, and if the claim concerns nonnegotiable documents, the claimant must provide "documentation showing reasonable costs incurred to reconstruct exact duplicates of the nonnegotiable documents." ( Id. at 11.)
Gmyrek filed a claim for the lost package on March 18, 2002, itemizing merchandise and documents valued at $1950 in total. ( Id. at 9.) She sent a letter, dated August 19, 2002, inquiring about the status of her indemnity claim and demanding "$517 immediately plus interest from January 12, 2002." (Compl. at 15.) Gmyrek received correspondence from the Postal Service requesting various forms, her mailing receipt and evidence of the value of the contents of the package by letter dated September 27, 2002. ( Id. at 12.) She received another letter from the Postal Service, dated November 14, 2002, stating that it was unable to approve her indemnity claim because Gmyrek had failed to submit the required documentation regarding reconstruction costs and evidence of the value of the merchandise for which she was seeking indemnification.
On January 30, 2003, Gmyrek faxed a letter to the Postal Service demanding payment. ( Id. at 16.) On March 12, 2003, she faxed another letter demanding the indemnity payment for the items that were in the package. ( Id. at 18, 19.) In this fax, she also included a receipt for the cost of "reconstruction translation my diploma." ( Id. at 18.) The Postal Service responded by letter dated March 28, 2003, stating that "[t]he reconstruction cost receipt that you sent showed a fee for translation and we do not pay for translation fee in International Express mail." ( Id. at 14.) The Postal Service sent another letter, dated April 6, 2004, which is presumably in response to a letter that has not been presented to the Court. (Compl. at 23.) The letter states that "there appears to be a discrepancy in the description of the items lost between your original claim documents and your latest correspondence" because Gmyrek's claim changed somewhat over the course of her correspondence with the Postal Service. ( Id.) Originally, she made a claim for three lost documents valued at $450, and now she was claiming $560 for the translation of one document. In her response to this motion, Gmyrek explains that her initial claim was based on her own estimate of the cost of translation because the document was originally translated in Poland. (Pl. Resp. at 6.)
In the same letter, dated April 6, 2004, the Postal Service denied Gmyrek's claim, stating that:
indemnity coverage for document reconstruction is limited to reasonable costs incurred by customers to reconstruct the exact nonnegotiable document mailed. Accordingly, it does not provide reimbursement for the expenses you seek, particularly where a copy of the document could have been made before mailing and eliminated the need to undertake an additional translation. You have not demonstrated that a photocopy of the English version is not a satisfactory substitute for the original one that was mailed. . . . Your apparent failure to make a copy of the English translation prior to mailing does not justify the $560.00 you are claiming for the cost of another translation of the original document. Accordingly, we find that [your claim] . . . is unreasonable.
(Compl. at 25.) Gmyrek responded to that letter via fax on April 19, 2004, stating that she provided a receipt valuing her claim, and that the terms of the insurance coverage on the back of her Express Mail receipt did not state the requirement of photocopying originals that are sent. In the last correspondence in the record, a letter dated April 22, 2004, the Postal Service reiterated its determination of nonpayment for the claim, and noted that "[t]his is our final agency decision and your claim is considered closed." (Compl. at 28.)
On April 29, 2004, Gmyrek filed this complaint to recover the indemnity amount, the original cost of sending the Express Mail Package, and interest accrued on the payment of the indemnity amount since January 12, 2004. She also seeks $10,000 for pain and suffering in the process of pursuing her indemnity claims with the Postal Service.
DISCUSSION
A. The Standard for a Motion to Dismiss Under Rule 12(b)(6)
Dismissal under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (quotation marks omitted). A federal court's task in determining the sufficiency of a complaint is "necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The appropriate inquiry is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id.; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56.") (quotations and citation omitted).
B. Contract Claim based on Service Agreement
Gmyrek asserts that she has a valid claim for reimbursement of the costs she incurred to reconstruct the lost translation under the terms and conditions of the insurance coverage provided on the back of the Express Mail receipt. Reading her complaint liberally, she also makes a claim for reimbursement of the cost of the driver's license, the stamps, the photo as well as interest (from the date she mailed the package) on the $500 maximum reimbursement amount under Postal Service policy.
1. The Translated Document
Gmyrek's claim for breach of the insurance agreement is governed by both the terms of the insurance agreement on the Express Mail receipt and the provisions of the applicable postal regulations. Marco v. U.S. Postal Service, No. 98 Civ. 876, 1998 WL 296367, *2 (N.D.Cal. June 1, 1998). The receipt, in relevant part, states:
Items defined by Postal Indemnity regulations as nonnegotiable documents are insured against loss, damage or rifling up to $500 per shipment for document reconstruction. . . . Document reconstruction insurance provides reimbursement for the reasonable costs incurred in reconstructing duplicates of negotiable documents mailed. Document reconstruction insurance coverage above $500 per shipment is NOT available, and attempts to purchase additional document insurance are void.
(Compl. at 7.) It also states that "[i]nsurance coverage is provided only in accordance with . . ., for international shipments, the International Mail Manual (IMM)." ( Id.) (emphasis in original) The regulations of the Postal Service incorporate the IMM by reference. See 39 C.F.R. §§ 20.1, 211.2.
The IMM § 935, Payments for Global Express Mail, governs the claims presented by Gmyrek. See IMM § 935.1 (Jan. 2002) ("Global Express Mail (EMS) shipments are covered by document reconstruction and merchandise insurance in case of loss, damage, or rifling. Indemnity will be paid by the Postal Service as specified in DMM [Domestic Mail Manual] S010 and S500 and IMM 221.3 and 935.2."). According to the IMM, document reconstruction indemnity is available
The current issue of the IMM is Issue 30 published on August 1, 2004. Here, I reference Issue 26, published on January 1, 2002, as it governs Gmyrek's package and claims.
[f]or payments made (or which are payable) for reasonable costs incurred in the reconstruction of the exact duplicate of a lost or damaged nonnegotiable document. Indemnity is not paid for the cost of preparing the document mailed, or for the mailer's time in preparing the document mailed or reconstructed. Except for the per page copying cost, indemnity is not paid for documents if copies of the lost document are available or if they could have been made before mailing.See IMM § 935.1 (Jan. 2002) (incorporating by reference the Domestic Mail Manual § S010, including § S010.2.12 quoted here) (emphasis added).
Based on this regulation, the Postal Service argues, and I agree, that to the extent Gmyrek she seeks indemnity for the costs of document translation, she fails to state a claim upon which relief can be granted. The regulation is clear. Although Gmyrek notes that the original translation was done in Poland, she was in possession of that document here in the United States before she tried to send it back to Poland. Thus, she had ample opportunity to copy the document before placing it in the Express Mail package. Accordingly, Gmyrek cannot recover the cost of the translation.
However, the regulation does allow for indemnification for the per page copying cost of a lost document. Id. The Postal Service argues that Gmyrek does not seek copying costs in her complaint, and that I, therefore, must dismiss the claim for failure to exhaust administrative remedies. (Def. Mem. Law at 8 n. 3.) I disagree. Gmyrek appears pro se; her claims cannot be dismissed as long as "a liberal reading of the complaint gives any indication that a valid claim might be stated." McEachin, 357 F.3d at 200 (quotation marks omitted). At the heart of this matter, Gmyrek is seeking some form of relief for the loss of items in the Express Mail package she tried to send to Poland. The record shows considerable effort on her part to obtain such relief, in any form possible. While it might be clear that she was not specifically seeking the cost of copying her document, she was clearly seeking indemnification for the cost of reconstruction. Based on the Postal Service regulation, reconstruction in this case is defined as a photocopy of the document.
Accordingly, I grant the Postal Service's motion to dismiss this claim, pursuant to Fed.R.Civ.P. 12(b)(6), to the extent Gmyrek seeks indemnity for the cost of a new translation. I find that Gmyrek states a claim for relief in the form of indemnity for the per-page cost of copying the nonnegotiable document(s) lost in the package.
2. Other Items in the Package
Gmyrek also claims that she should recover the value of the other items, i.e., a photograph, stamps, a driver's license and perhaps two other documents, under the insurance agreement. The Postal Service does not address this claim. I believe a liberal reading of Gmyrek's complaint, along with the attached exhibits, puts forth the claim.
The same provision of the IMM governs here. See IMM § 935.1 (Jan. 2002). With respect to these items, Gmyrek must "submit acceptable evidence to establish the cost or value of the article at the time it was mailed." Id. (incorporating by reference the DMM, § S010, including § S010.2.6 quoted here).
The regulation provides examples of evidence that may be used in making a determination of the value of the items in a package, and notes specifically that "[o]ther evidence may be requested to help determine an accurate value." Id. Although a sales receipt, or other forms or written verification are first in the list of acceptable evidence, the regulation also states that
[f]or items valued up to $100, the customer's own statement describing the lost or damaged article and including the date and place of purchase, the amount paid, and whether the item was new or used (only if a sales receipt or invoice is not available). If the article mailed is a hobby, craft, or similar handmade item, the statement must include the cost of the materials used in making the item. The statement must describe the article in sufficient detail to determine whether the value claimed is accurate.Id. (incorporating by reference the DMM, § S010, including § S010.2.6(a) and (b) referenced and quoted here); see also IMM § 925.2. The regulation contradicts a direction given to Gmyrek by the Postal Service. In a letter dated September 27, 2002, the Postal Service requested the following for a complete claim: "Evidence of Value — Invoice or paid receipt required. Handwritten statements are not acceptable. " (Compl. at 12.) (emphasis in original); ( see also Compl. at 13.) ("Statements of value are not acceptable for International Express Mail claims.")
Gmyrek alleges that the package contained items of value and may provide acceptable evidence under the regulations, at the least in the form of her own statement, of the value of those items. Accordingly, I deny the Postal Service's motion to dismiss this claim for failure to state a claim for relief.
B. Tort Claims
An action against the Postal Service is treated as an action against the United States. See Djordjevic v. Postmaster General, 911 F. Supp. 72, 74-75 (E.D.N.Y. 1995), citing Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir. 1985). The United States may not be sued unless it consents to be sued by explicitly waiving its sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941); Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994). Such a waiver is a jurisdictional prerequisite to obtaining relief. United States v. Mitchell, 463 U.S. 206, 212 (1983).
Under the Federal Tort Claims Act (FTCA), the United States has waived sovereign immunity in certain cases. 28 U.S.C. § 1346(b). However, the statute specifically excludes from the waiver "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b).
Here, Gmyrek specifically states that
$10,000.00 is regarding pain which I suffer from US Postal Services when for the 28 months I was being humiliated, offended, misled, when this International Claims and Inquiry Office was acting against me servicing me very badly.
(Compl. at 5.) Her claim for pain and suffering is based on her contention that the Postal Service was "handling [her] administrative claim improper [sic]." (Pl. Resp. at 4.) In essence, Gmyrek was dissatisfied with the service she received from the Postal Service in relation to her Express Mail package. Thus, her claim arises out of the "loss, miscarriage, or negligent transmission" of the package, and is barred by the doctrine of sovereign immunity.
Moreover, Gmyrek also fails to state a claim for relief in tort on the merits. The Postal Service correctly characterizes her request for relief for pain and suffering as a claim of either negligent or intentional infliction of emotional distress. Under FTCA, New York law governs Gmyrek's tort claim. 28 U.S.C. § 1346(b). To survive a motion to dismiss, she must allege that the Postal Service's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Sheilea C. v. Povich, 781 N.Y.S.2d 342, 351 (1st Dep't 2004) (quotation marks and citations omitted). Additionally, although physical injury is not a necessary element to recover for a cause of action under negligent infliction of emotional distress, a plaintiff can only recover if the duty breached by a defendant "unreasonably endangers a plaintiff's physical safety or causes him or her to fear for his or her safety." E.B. v. Liberation Publications, Inc., 777 N.Y.S.2d 133, 135 (2d Dep't 2004) (citations omitted).
The Postal Service's conduct, construed in the light most favorable to Gmyrek, does not support a claim for relief. While the Postal Service may have been unhelpful and even misleading to Gmyrek, their actions by no means would be regarded as "atrocious, and utterly intolerable." Sheila C., 781 N.Y.S.2d at 351. Moreover, Gmyrek alleges no conduct that either endangered her safety or caused her to fear for her safety. She clearly felt frustrated, "humiliated" and "offend[ed]," ( see, e.g., Compl. at 3, 5, 25), but this is insufficient to sustain her claim for relief under New York law.
Accordingly, I grant the Postal Service's motion to dismiss Gmyrek tort claims, both for lack of subject matter jurisdiction and for failure to state a claim.
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted with respect to Gmyrek's claims regarding (1) indemnification for reconstruction based on the cost of translation and (2) any claim seeking recovery for pain and suffering. The motion dismiss is denied with respect to Gmyrek's claims regarding (1) indemnification for the items other than the translation; and (2) indemnification for the cost of copying the document(s) in the package. As mentioned at oral argument, the amount of recovery by Gmyrek may not exceed $500.
A status conference will be held on November 10, 2004 at 10:00 a.m. Both sides must attend.
So Ordered.