The opinion of the court was delivered by: JOHN W. BISSELL
On March 5, 1991, pursuant to 28 U.S.C. § 1446(b), defendant 3M filed a notice of removal to federal district court. On January 23, 1992, plaintiff filed an amended complaint adding as a defendant Roadway Package Systems, Inc. ("RPS"), the carrier service which defendant 3M had entrusted with plaintiff's photographs. This complaint alleged that RPS was negligent in failing to ensure safe delivery of the photographs to plaintiff.
On February 20, 1992, 3M filed a cross-claim against RPS, alleging that RPS's negligence in attempting to return plaintiff's property was the direct and proximate cause of the loss or non-delivery to plaintiff that is the basis for the instant action and demanding that RPS indemnify 3M for all costs and expenses associated with the instant action. (Defendant 3M's Cross-claim at 1, 2). RPS made an offer of judgment to plaintiff in the amount of $ 100.00 on April 28, 1992. (Aff. of Paul Stritmatter, RPS Claims Manager, Defendant RPS's motion for summary judgment dismissing the amended complaint, Exh. E). Plaintiff rejected the offer on May 11, 1992. (Id., Exh. F).
On August 27, 1992, plaintiff filed a motion seeking permission to file a second amended complaint adding as defendants N. Ciardiello, an independent contractor from whom RPS had rented a delivery truck, and Nate Gordon, whom Ciardiello had hired as a temporary driver.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, based on diversity of citizenship of the parties and the fact that the amount in controversy exceeds $ 50,000.00. Presently before the Court is defendant RPS's motion for summary judgment.
Plaintiff first met Lorin Robinson, 3M's Marketing Communications Supervisor in the PhotoColor Systems Division, through business contacts with the National Institute for Exploration ("NIE"). (Plaintiff's Interrog. Answers, P 21). At that time, Mr. Robinson suggested plaintiff should send him some samples of his work, which plaintiff did. (Id., P 2). Upon reviewing the samples, Mr. Robinson sent plaintiff a letter, dated September 20, 1989, containing an offer to have plaintiff do some work for defendant in conjunction with the contemplated marketing of a new print film, ScotchColor Film ISO 100 print film. (Plaintiff's Br., Exh. A). 3M was commissioning various photographers to take pictures with the new film and was intending to use the resulting photos at a Photo Marketing Association ("PMA") Show in Las Vegas in February 1990. The terms of the letter stated that plaintiff would be provided with film and that 3M would pay for processing and printing. The letter further provided that the photos would remain property of plaintiff, but that 3M would have the right to purchase as many of the photographs as it wished at a mutually agreeable price. (Id.)
Pursuant to the offer contained in the letter, plaintiff hired models and traveled to various sites where he shot photographs using nine rolls of the new film supplied by defendant 3M. Sometime between receiving the offer in September and the date of the PMA Show in February, plaintiff sent the exposed film to 3M, which developed the film and made the images into photographs. (Id., P 8). 3M used seven of these photographs at the PMA Show in Las Vegas. (Id.) When plaintiff spoke with Lorin Robinson at the show, Robinson indicated to him that 3M was considering using the photographs and images in other forms of advertisement for their new product line. (Id.)
On March 8, 1990, 3M gave plaintiff's photos to an agent of RPS for delivery to plaintiff. (Plaintiff's Br., Exh. E). RPS had contracted with H. Ciardiello, an independent contractor in the trucking business, to deliver the photographs to plaintiff. Ciardiello had in turn hired Nate Gordon to drive the delivery truck. (Second Am. Compl., PP 2-3). RPS' Delivery Record for March 14, 1990 indicates that a package containing the photographs was left at 133 Hamilton Street, an address at which plaintiff no longer resided. (Plaintiff's Br., Exh. E). There is no signature indicating that the package was left with any person at that address, despite the fact that the Delivery Record contains signatures for all other packages delivered on that date. (Id.)
At the time the package was delivered to 133 Hamilton Boulevard, South Plainfield, New Jersey, plaintiff had already moved from that address to a new address at 20B South Plainfield Avenue, South Plainfield, New Jersey. (Exh. B, Plaintiff's Answers to Interrogs., P 28). 3M did not attempt to contact plaintiff to confirm a delivery address prior to giving the package of photographs to RPS for delivery. (Plaintiff's Br. at 2). Instead, records show, 3M indicated that delivery should be to plaintiff's old address, a building which was unoccupied at the time. (Id. at 3). Nate Gordon left the package at plaintiff's old address despite the fact that the building, according to plaintiff, was clearly unoccupied, as evidenced by the overgrown grass surrounding it.
As a result of these events, plaintiff never received the package of photographs from defendant. Plaintiff asserts that he first became aware that 3M had attempted to return the photographs when he called in June or July 1990 to inquire as to the whereabouts of the images and was informed by Mr. Robinson that 3M had returned them. (Exh. B, Plaintiff's Answers to Interrogs., P 8). According to plaintiff, when he informed Mr. Robinson that he had not received the package, Robinson told him that the images were worth at least $ 1,500.00 apiece and advised him to put an ad in the local newspaper offering a reward for return of the photos. (Id., P 15). Robinson stated that 3M would pay the cost of the ad and would supply the reward money for the photos. Plaintiff placed the ad but never received a response. (Id.)
Plaintiff maintains that he is entitled to damages in the amount of $ 324,000.00, the cost of 216 images at $ 1,500.00 per image. (Id., P 47(a)). In addition to relying on Mr. Robinson's valuation of the images, plaintiff submits evidence from a book by Michal Heron, whom plaintiff asserts is an expert in the field of photography. (Id., Exh. B). The proffered excerpt from Heron's ...