Drayage Express, Llc v. International First Service USA et al

BRIEF in Opposition

D.N.J.August 25, 2016

-1- REGER RIZZO DARNALL LLP John M. Cinti, Esq.- NJ I.D. No. 028811990 700 East Gate Drive, Suite 101 Mount Laurel, New Jersey 08054 Telephone: (856) 778-8950 Fax: (856) 778-8940 Attorneys for Plaintiff, Drayage Express, LLC Our File No.: 14-682 ______________________________________________________________________________ UNITED STATES DISTRICT COURT for the DISTRICT OF NEW JERSEY Plaintiff, DRAYAGE EXPRESS, LLC v. Defendants, INTERNATIONAL FIRST SERVICE USA dba GLOBAL WINE LOGISTICS, et al. : : : : : : : : : : : : : : : Civil Action No.: 3:15-cv-03597-FLW-LHG _____________________________________________________________________________ PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION PURSUANT TO FED. R. 12(b)(2) AND/OR FAILURE TO STATE A CLAIM PURSUANT TO FED. R. 12(b)(6) _____________________________________________________________________________ August 25, 2016 Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 1 of 14 PageID: 317 -2- PLAINTIFF’S RESPONSE TO MOVANT’S PRELIMINARY STATEMENT Considerations of advocacy and hyperbole aside, Movant’s preliminary statement inaccurately casts Plaintiff’s claims in this matter as a “bad deal” [Movant’s Memorandum of Law, Preliminary Statement, p. 1, ¶1]. Rather, as the Amended Complaint makes abundantly clear, this litigation arises out of transactions in which Plaintiff was hired to perform services, which services it did in fact perform, and for which it has yet to be paid. PLAINTIFF’S RESPONSE TO MOVANT’S ‘RELEVANT FACTS’ Movant admits in its motion that it is a logistics company that conducts “some business” through ports located in New Jersey, and has offices located in New York, New York [Movant’s Memorandum of Law, Preliminary Statement, p. 2, ¶1]. Further, Movant admits that it “may have” retained Codefendant Global Wine to “handle the domestic leg of the importation of goods.” [Movant’s Memorandum of Law, Preliminary Statement, p. 2, ¶2]. Despite the half- hearted admission of its connection to Global Wine, Movant concedes unreservedly that it “…was aware that Global Wine retained the Plaintiff to furnish transportation services.” [Movant’s Memorandum of Law, Preliminary Statement, p. 2, ¶2]. Finally, Movant admits that Codefendant Anita McNeil has represented that Plaintiff’s invoices remain paid because Global Wine had not been paid. [Movant’s Memorandum of Law, Preliminary Statement, p. 2, ¶3]. Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 2 of 14 PageID: 318 -3- ANALYSIS I. THIS COURT HAS PERSONAL JURISDICTION OVER MOVANT A. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2). "A federal court sitting in New Jersey has jurisdiction over parties to the extent provided under New Jersey state law." Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004). "New Jersey's long-arm statute provides for jurisdiction coextensive with the due process requirements of the United States Constitution." Id. (citing N.J. Ct. R. 4:4-4(c)). A district court sitting in New Jersey may therefore exercise personal jurisdiction over a non-resident defendant if the defendant has "certain minimum contacts with [New Jersey] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Henry Heide, Inc. v. WRH Prods. Co., Inc., 766 F.2d 105, 108 (3d Cir. 1985) quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). A motion to dismiss for lack of personal jurisdiction is governed by Federal Rule of Civil Procedure 12(b)(2). The plaintiff has the burden to prove facts sufficient to establish personal jurisdiction by a preponderance of the evidence. Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992); Pro Sports Inc. v. West, 639 F. Supp. 2d 475, 478 (D.N.J. 2009); Ameripay, LLC v. Ameripay Payroll, Ltd., 334 F. Supp. 2d 629, 632 (D.N.J. 2004). However, "[i]n the preliminary stages of the litigation . . . that burden is light." Covelman v Hotel St. Regis, 2016 US Dist. LEXSIS 22821 at *3 (D.N.J. February 25, 2016) citing Doe v. National Services, 974 F. 2d 143, 145 (10th Cir. 1992). In deciding a Rule 12(b)(2) motion, "when the court does not hold an evidentiary hearing on the motion to dismiss, the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor." Miller Yacht Sales, 384 Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 3 of 14 PageID: 319 -4- F.3d at 97; see also Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003). Additionally, "[i]f the contents of the plaintiff's complaint conflict with the defendant's affidavits, the district court must construe all reasonable inferences that can be drawn from the papers in the plaintiff's favor." Haffen v. Butler Specialties, Inc., No. 10-cv-2833, 2011 U.S. Dist. LEXIS 21581 at *7 (D.N.J. Mar. 3, 2011) [quoting 4 Wright & Miller, Federal Practice and Procedure: Civil 3d 1067.6 (3d ed. 2002)]. "The plaintiff meets this burden and presents a prima facie case for the exercise of personal jurisdiction by 'establishing with reasonable particularity sufficient contacts between the defendant and the forum state." Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) quoting Provident Nat'l Bank v. California Fed. Sav. & Loan Assoc., 819 F.2d 434 (3d Cir. 1987). "If the moving party fails to submit evidence contravening the allegations of the complaint, the court is bound to accept plaintiff's allegations regardless of whether plaintiff presents further evidence in support thereof." In re Chocolate Confectionary Antitrust Litig., 674 F. Supp. 2d 580, 596 n.21 (M.D. Pa. 2009) cited with approval by Fesnick v. Equifax, 2015 U.S. Dist. LEXSIS 66238 (D.N.J. May 20, 2015). It should be noted that in the present matter, Movant has submitted no affidavits or certifications supporting the instant motion. A court may exercise either ‘specific’ or ‘general’ personal jurisdiction over a non-resident defendant. Specific jurisdiction exists over a defendant "when that defendant has 'purposefully directed [its] activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities.'" Miller Yacht Sales, 384 F.3d at 96, quoting Burger Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 4 of 14 PageID: 320 -5- King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). Specific jurisdiction is such that a single contact can support the exercise of personal jurisdiction over a defendant provided that the contact creates a "substantial connection with the forum" and does not upset traditional "notions of fair play and substantial justice." Id. at 96. A defendant has established minimum contacts when it purposefully avails itself of the privilege of conducting activities within the forum State, thereby invoking the benefits and protections of the forum State's laws. Asahi Metal Indus. Co., Ltd. v. Sup. Ct. of California, 480 U.S. 102, 109-110 (1987) quoting Burger King Corp., 471 U.S. at 475. This ‘purposeful availment’ requirement assures that the defendant could reasonably anticipate being hauled into court in the forum and is not hauled into a forum as a result of random, fortuitous or attenuated contacts with the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); see also Burger King Corp., 471 U.S. at 475. Conversely, "[g]eneral jurisdiction results from, among other things, 'systematic and continuous' contact between a non-resident defendant and the forum state." Spuglio v. Cabaret Lounge, 344 F. App'x 724, 725 (3d Cir. 2009) (unpublished) (quoting Int'l Shoe, 326 U.S. at 319), where those contacts render the defendant essentially “at home” in the forum State. Daimler AG v. Bauman, 134 S.Ct. 746 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). B. This Court Has Specific Jurisdiction Over Movant In the present matter, Plaintiff’s Amended Complaint [at ¶11-12] alleges that Movant reached into New Jersey and hired Global Wine, a New Jersey company [Amended Complaint ¶2] to facilitate the transportation of goods, and that Global Wine in turn retained Plaintiff to Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 5 of 14 PageID: 321 -6- provide those transportation services [Amended Complaint ¶14]. Further, the Amended Complaint [at ¶40-44] alleges that plaintiff provided the services for which it was retained, but was not paid. McNeil of Global Wine has asserted that this failure to pay Plaintiff was and is the result of her customers’ failure to pay Global Wine. Movant has not contested any of these allegations. As set forth above, "[s]pecific jurisdiction is established when a non-resident defendant has 'purposefully directed' his activities at a resident of the forum and the injury arises from or is related to those activities." GE v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001) quoting Burger King, 471 U.S. at 472. In other words, specific jurisdiction exists where the "cause of action arises out of [t]he defendant's forum-related activities, such that the defendant should reasonably anticipate being haled into court in that forum." Abel v. Kirbaran, 267 F.App'x 106, 108 (3d Cir. 2008). Three elements must be met to establish specific jurisdiction. HS Real Co., LLC et al. v. Sher, 526 F. App'x 203, 206 (3d Cir. 2013). First, the defendant must have purposefully availed itself of the privilege of conducting activities within the forum. Id.; O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007). A defendant is said to have "purposely availed" itself if its contacts "amount to 'a deliberate targeting of the forum.'" D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 103 (3d Cir. 2009). Under these circumstances, "because [the defendants] activities are shielded by 'the benefits and protections' of the forum's laws it is presumptively not unreasonable to require him to submit to Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 6 of 14 PageID: 322 -7- the burdens of litigation in that forum as well." Burger King,471 U.S. at 476; Deutz AG, 270 F.3d at 150. Parties who "'reach out beyond [their] state and create continuing relationships and obligations with citizens of another state' are subject to the regulations of their activity in that undertaking." Id. The defendant need not have physically entered the forum to establish specific jurisdiction, but must have deliberately targeted the forum. O'Connor, 496 F.3d at 317. In Zippo Mfg. Co. v. Zippo Dot Com. Inc., 952 F. Supp. 1119 (W.D.Pa. 1997) the court stressed the importance of the defendant's intentional choice to conduct business with the residents of the forum state. Several Courts of Appeals, including the Third Circuit have adopted the Zippo rationale. See Toys R. Us, 318 F.3d at 454. Here, Movant purposely and intentionally contracted with a New Jersey entity, Global Wine, to facilitate transportation services. By so doing, Movant placed their contract and the activities which relate to and arise out of that agreement under the aegis of the “benefits and protections” of New Jersey law. They should not now be heard to argue that a New Jersey court lacks personal jurisdiction over them. Second, the litigation must 'arise out of or relate to' at least one of those activities. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 (1984): "When a controversy is related to or 'arises out of' a defendant's contacts with the forum" specific jurisdiction will rest. Id. That “relationship among the defendant, the forum, and the litigation is the essential foundation of in personam jurisdiction." Id. Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 7 of 14 PageID: 323 -8- The present litigation is directly related to, and arises directly out of, Movant’s hiring of the New Jersey entity Global Wine to facilitate its transportation needs, and the subsequent failure to pay for services rendered. Third, the exercise of jurisdiction must comport with traditional notions of fair play and substantial justice. O'Connor, 496 F.3d at 317. If minimum contacts exist, jurisdiction is presumptively constitutional and the defendant "must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Id. These include: the burden on the defendant; the forum State's interest in adjudicating the dispute; the plaintiff's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies. Gourmet Video, Inc. v. Alpha Blue Archives, Inc., 08-2158, 2008 U.S. Dist. LEXIS 87645, *8 (D.N.J. Oct. 29, 2008) quoting Miller Yacht Sales, 384 F.3d at 97. At its heart, the Court's inquiry is focused on whether it is "reasonable to require the defendant to defend the suit in the forum state." Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743, 746 (D.N.J. 1999). Moreover, where, as here, a defendant has engaged in forum activities, the "minimum requirements inherent in the concept of fair play and substantial justice" will only serve as a basis for defeating jurisdiction in "rare cases." Id. quoting Asahi Metal, 480 U.S. at, 116. As set forth above, sufficient contacts directly related to the present cause of action exist to sustain this Court’s exercise of specific jurisdiction. No “rare” circumstances militate to the contrary. The present litigation arises directly out of Movant’s agreement with a New Jersey Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 8 of 14 PageID: 324 -9- entity; Movant has offices in New York City, just across the Hudson River from the forum jurisdiction; and Movant does business in the forum jurisdiction. C. Dismissal Is the Inappropriate Remedy If General Jurisdiction Is Considered As set forth above, Plaintiff maintains that this Court has specific jurisdiction over the Movant. If however considerations of general jurisdiction are required, dismissal is an inappropriate remedy at this time. "For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home." Goodyear Dunlop Tires Operations, 564 U.S. 915. Courts have considered a corporation to be "at home" where it has its "place of incorporation and principal place of business." Daimler AG, 134 S.Ct. 746. An exception to these bases occurs when a corporation's "affiliations with the State are so 'continuous and systematic' as to render it essentially “at home” in the forum State.” Id. at 762. At issue are whether Movant’s New Jersey operations are central to its overall business; whether Movant maintains business offices in New Jersey; employs personnel in New Jersey; owns real property in New Jersey; pays taxes in New Jersey; maintains bank accounts in New Jersey; participates in New Jersey trade shows; and/or targets New Jersey residents to solicit business. All that is known at this point is that at least in the instant case, Movant purposely hired a New Jersey entity to facilitate its transportation needs, and that it does “some” business through the ports in New Jersey. Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 9 of 14 PageID: 325 -10- “[W]here issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978); Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 336 (3d Cir. 2009). If "the plaintiff's claim is not clearly frivolous [as to the basis for personal jurisdiction], the district court should ordinarily allow discovery on jurisdiction in order to aid the plaintiff in discharging that burden." Metcalfe, 566 F.3d at 336 (citing Compagnie Des Bauxites de Guinee v. L'Union Atlantique S.A. D'Assurances, 723 F.2d 357, 362 (3d Cir. 1983)). "[J]urisdictional discovery particularly appropriate where the defendant is a corporation." Id. It is submitted that if Plaintiff’s position on specific jurisdiction is determined by this Court to be insufficient, then jurisdictional discovery should be permitted. Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 10 of 14 PageID: 326 -11- II. PLAINTIFF HAS SET FORTH A CLAIM AGAINST MOVANT UPON WHICH RELIEF CAN BE GRANTED A. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim "for failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss, courts must first separate the factual and legal elements of the claims, and accept all of the well- pleaded facts as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All reasonable inferences must be made in the plaintiff's favor. In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). In order to survive a motion to dismiss, the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This standard requires the plaintiff to show "more than a sheer possibility that a defendant has acted unlawfully," but does not create as high of a standard as to be a "probability requirement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Third Circuit has required a three-step analysis to meet the plausibility standard mandated by Twombly and Iqbal. First, the court should "outline the elements a plaintiff must plead to a state a claim for relief." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Next, the court should "peel away" legal conclusions that are not entitled to the assumption of truth. Id.; see also Iqbal, 556 U.S. at 678-679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). It is well-established that a proper complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Finally, the court should assume the veracity of all well-pled factual allegations, and then "determine whether they plausibly give Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 11 of 14 PageID: 327 -12- rise to an entitlement to relief." Bistrian, 696 F.3d at 365; quoting Iqbal, 556 U.S. at 679. A claim is facially plausible when there is sufficient factual content to draw a "reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The third step of the analysis is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. In its motion, Movant itself identifies at least one valid cause of action directed against them set forth in Plaintiff’s Amended Complaint – that of unjust enrichment [Movant’s Memorandum of Law, p.11, ¶1]. "The doctrine of unjust enrichment rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another." Goldsmith v Camden County, 408 N.J. Super 376, 382 (App. Div. 2009) citing Assocs. Commercial Corp. v. Wallia, 211 N.J. Super. 231, 243, (App.Div.1986). As has been long held: The key words are enrich and unjustly. To recover on the theory of quasi-contract the plaintiffs must prove that defendant was enriched, viz., received a benefit, and that retention of the benefit without payment therefor would be unjust. Callano v. Oakwood Park, 91 N.J. Super. 105, 109 (App. Div. 1966) More recently, the elements of a claim for unjust enrichment have been stated thusly: "[a] cause of action for unjust enrichment requires proof that 'defendant[s] received a benefit and that retention of that benefit without payment would be unjust.'" Goldsmith, supra. at 382, citing County of Essex v. First Union Nat. Bank, 373 N.J. Super. 543, 549-550 (App. Div. 2004). Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 12 of 14 PageID: 328 -13- In the instant matter, Plaintiff has alleged that: it transported goods for Movant through the intermediary of Global Wine, an entity hired by Movant. This establishes the required element of the claim that the Defendant receive a benefit from the Plaintiff. Further, Plaintiff has alleged that it has not been paid for the services, and specifically that it has not been paid because the intermediary, Global Wine, has asserted that it has not been paid. The reasonable, almost unavoidable, inference is that Global Wine has not been paid by the entity which hired it – Movant. This establishes the remaining elements of Plaintiff’s cause of action of unjust enrichment against Movant. Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 13 of 14 PageID: 329 -14- CONCLUSION For the reasons set forth above, it is respectfully submitted that Movant’s instant motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. 12(b)(2), and for failure to state a claim pursuant to Fed. R. 12(b)(6) both be denied. REGER RIZZO DARNALL LLP John Cinti John M. Cinti, Esq 700 East Gate Drive, Suite 101 Mount Laurel, New Jersey 08054 Telephone: (856) 778-8950 Fax: (856) 778-8940 jcinti@regerlaw.com Attorneys for Plaintiff, Drayage Express, LLC Case 3:15-cv-03597-FLW-LHG Document 54 Filed 08/25/16 Page 14 of 14 PageID: 330