Tmt Marble & Tile, Inc. v. Interglobo USA Inc. et al

BRIEF in Opposition

D.N.J.January 23, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TMT MARBLE & TILE, INC., Plaintiff, v. INTERGLOBO USA INC., INTERGLOBO CUSTOMS BROKER, INC., MVS LOGISTICS LLC, UNITED ARAB SHIPPING COMPANY S.A., Defendants. CASE NO.: 16-2597-KSH-CLW Motion Return Date: February 6, 2017 PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS INTERGLOBO CUSTOMS BROKER INC. AND INTERGLOBO USA, INC.’S MOTIONS TO DISMISS TENAGLIA & HUNT, P.A. 395 W. Passaic Street- Suite 205 Rochelle Park, New Jersey 07662 TEL: (201) 820-6003 FAX: (201) 226-0795 Attorneys for Plaintiff TMT Marble & Tile, Inc. On the Brief: James T. Hunt, Jr. Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 1 of 9 PageID: 248 i TABLE OF CONTENTS TABLE OF AUTHORITIES …………………………………………………………………. ii I INTRODUCTION ...................................................................................................................... 1 II. ARGUMENT ............................................................................................................................ 1 A. Legal Standard for Motion to Dismiss…………………………………………………………..................................1 B. The Court Should Not Consider the Document Containing the Alleged Forum Selection Clause Because It Is Unauthenticated And There Is No Proof That It Was Presented To Plaintiff For Review And Agreement………………………….2 C. Even if the Court Upholds the Forum Selection Clause, The Case Should Only Be Dismissed Without Prejudice With The Stipulation That Plaintiff’s Claims Are Timely……………………………………………………………………………3 III. Interglobo USA Inc.’s Motion To Dismiss Should Be Denied Because Service Was Properly Effectuated In May 2016…………………………………………………………4 CONCLUSION ............................................................................................................................. 6 Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 2 of 9 PageID: 249 TABLE OF AUTHORITIES Cases D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984) ... 2 Durukan America, LLC v. Rain Trading, Inc., 787 F.3d 1161, 1163 (7 th Cir. 2015) ..................... 6 Garley v. Waddington, 177 N.J.Super. 173, 180-81 (App.Div.1981) ............................................ 5 Goldfarb v. Roeger, 54 N.J.Super. 85, 89-90 (App.Div.1959) ....................................................... 5 Korvettes, Inc. v. Brous, 617 F.2d 1021, 1024 (3d Cir. 1980) ........................................................ 5 Lum v. Bank of Am., 361 F.3d 217, 222 (3d Cir. 2004) .................................................................. 3 Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) ....................................... 2 O'Brien v. R.J. O'Brien & Assocs. Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) ............................... 6 Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002) ................. 5 Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993) ......... 3 Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir. 2002) ......................................................................... 3 Ramada Worldwide Inc. v. Shriji Krupa, LLC, 2013 U.S. Dist. LEXIS 65655, (D.N.J. Apr. 17, 2013) ........................................................................................................................................... 6 Sahara Sam’s Oasis, LLC v. Adams Cos., 2010 U.S. Dist. LEXIS 82034 (D.N.J. 2010). ............. 5 Rules Federal Rule of Civil Procedure 12(b)(6) ....................................................................................... 2 New Jersey Rule 4:4-4(a)(6) ........................................................................................................... 6 ii Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 3 of 9 PageID: 250 1 I. INTRODUCTION Defendants Interglobo are somewhat late to the dance. This matter was removed on May 9, 2016. Only now, some eight months later, have Defendants Interglobo USA Inc. and Interglobo Customs Broker Inc. moved to dismiss this matter. Defendants complain that Plaintiff ignores contractual agreements. This is the height of hypocrisy, as Defendants ignore contractual obligations. Plaintiff, TMT Marble & Tile, Inc., trusted Defendants to transport and deliver valuable goods that Plaintiff had purchased pursuant to Defendants’ contractual obligations. Instead of fulfilling their obligations, Defendants botched the transport and delivery, resulting in Plaintiff in New Jersey receiving totally destroyed marble slabs and a concomitant loss of almost $50,000. Now, Defendants attempt to squirm and weasel out of their contractual obligations to Plaintiff. The Court should deny both (1) Defendant Interglobo USA Inc.’s (Docket #28) motion to dismiss for lack of service, and (2) Interglobo Customs Broker Inc.’s (Docket #29) motion to dismiss Plaintiff’s Complaint based on an alleged forum selection clause. II. ARGUMENT A. Legal Standard for Motion to Dismiss When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the courts must accept all allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The motion to dismiss should only be granted if it appears with certainty that no relief could be granted under any set of facts which could be proved. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 4 of 9 PageID: 251 2 B. The Court Should Not Consider the Document Containing the Alleged Forum Selection Clause Because It Is Unauthenticated And There Is No Proof That It Was Presented To Plaintiff For Review And Agreement “In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 222 (3d Cir. 2004). Documents whose contents are alleged in the complaint but which are not physically attached to the pleading may be considered, provided that no party questions their authenticity. Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir. 2002); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[a] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss…”). In this case, the Court should not consider the so-called “Terms and Conditions” (Exhibit B to Farina Decl.) which appears on a completely separate document than the so-called Customs Power of Attorney (Exhibit A to Farina Decl.). It was not attached to the complaint, is not authenticated by Interglobo, and Plaintiff questions its authenticity. Indeed, there is no signature line of Plaintiff on the so-called Terms and Conditions. (Exhibit B to Farina Decl.). There is no proof that the Terms and Conditions containing the alleged forum selection clause was presented to Plaintiff for review and approval. The only document signed by Plaintiff that Interglobo can muster is a Customs Power of Attorney that makes no mention whatsoever of a forum selection clause. (Exhibit A to Farina Decl.). Importantly, Interglobo has not alleged that (1) Timothy McDougall signed the “Terms and Conditions” containing an alleged forum selection clause; (2) Timothy McDougall read, reviewed or had the opportunity to read and review the “Terms and Conditions,” or (3) that Timothy McDougall had any notice that such “Terms and Conditions” would apply to the subject Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 5 of 9 PageID: 252 3 transaction. The proof is in the pudding: Interglobo attaches the two documents as separate exhibits – Exhibit A and Exhibit B. The two documents clearly were not presented together because they have been submitted as separate exhibits. If the documents were inter-related and relied upon each other, they would be attached together as a cohesive document and submitted as such. The two documents are not even similar in look, style or font. Here, there is no authentication that the document attached as Exhibit B was ever presented to Timothy McDougall for review. Clearly a party such as Plaintiff cannot be bound by a provision that was never presented to them or was never read, reviewed or agreed upon. Plaintiff is a New Jersey corporation that would not have agreed to resolve any disputes in a forum other than New Jersey in the event the cargo was damaged. Plaintiff should not be constrained to litigate its case in a forum for which it did not negotiate, and the forum selection clause should not be enforced. At the bottom of the Terms and Conditions, the following language is found: “Approved by the National Customs Brokers and Forwarders Association of America.” (Exhibit B to Farina Decl.). It is telling that the document does not anywhere indicate it was approved by Plaintiff TMT Marble & Tile, Inc. Because Defendants cannot establish that Plaintiff ever was presented with or read the terms and conditions containing the forum selection clause, the motion should be denied. C. Even if the Court Upholds the Forum Selection Clause, The Case Should Only Be Dismissed Without Prejudice With The Stipulation That Plaintiff’s Claims Are Timely Even if the Court were to enforce the forum selection clause, the matter cannot be dismissed with prejudice. The matter should be dismissed without prejudice with the stipulation protecting Plaintiff’s rights related to the statute of limitations, since this matter was initially Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 6 of 9 PageID: 253 4 filed timely. Defendants should not be permitted to file a motion on a procedural point not related to the merits of the underlying substantive matter, and then turn around and argue Plaintiff’s claims are untimely when in fact they were initially filed in a timely manner. The Third Circuit has also recognized that “[a]s a general matter, it makes better sense, when venue is proper but the parties have agreed upon a not-unreasonable forum selection clause that points to another federal venue, to transfer rather than dismiss.” Id., 246 F.3d at 299. Therefore, if the Court finds that the forum selection clause is enforceable, the case should be transferred rather than dismissed. Alternatively, if the Court is inclined to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6), then the dismissal should be without prejudice to the rights of Plaintiff to bring its claims in New York with the specific stipulation that Plaintiff’s claims are timely. Sahara Sam’s Oasis, LLC v. Adams Cos., 2010 U.S. Dist. LEXIS 82034 (D.N.J. 2010). The dismissal should be without prejudice because there has been no adjudication of the merits to bar further litigation of Plaintiff’s claims. Korvettes, Inc. v. Brous, 617 F.2d 1021, 1024 (3d Cir. 1980). III. Interglobo USA Inc.’s Motion To Dismiss Should Be Denied Because Service Was Properly Effectuated In May 2016 Interglobo USA Inc. was properly served with the summons and complaint by private process server pursuant to state court rules on May 13, 2016, prior to the case being removed to District Court. Hunt Decl., Exhibit A. In New Jersey, an affidavit of service is entitled to presumption that the facts stated therein regarding service on a defendant are true. Garley v. Waddington, 177 N.J.Super. 173, 180-81 (App.Div.1981) (general rule in New Jersey is that a sheriff's return of service is part of record and raises presumption of facts therein); Goldfarb v. Roeger, 54 N.J.Super. 85, 89-90 (App.Div.1959) (sheriff's return of service is part of record and Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 7 of 9 PageID: 254 5 raises presumption that facts recited therein are true). Federal courts agree that an affidavit of service is entitled to presumption that service was proper. Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002) (stating process server's affidavit of service establishes prima facie case of service, and presumption defendant was properly served with complaint); Durukan America, LLC v. Rain Trading, Inc., 787 F.3d 1161, 1163 (7 th Cir. 2015) (holding process server's affidavit identifying the recipient and when and where service occurred is prima facie evidence of valid service); O'Brien v. R.J. O'Brien & Assocs. Inc., 998 F.2d 1394, 1398 (7th Cir. 1993) (same). “Where a plaintiff acts in good faith, but fails to effect proper service of process, courts are reluctant to dismiss an action.” Ramada Worldwide Inc. v. Shriji Krupa, LLC, 2013 U.S. Dist. LEXIS 65655, (D.N.J. Apr. 17, 2013). "Rather, courts will elect to quash service and grant plaintiff additional time to properly serve the defendant." Id. Here, Plaintiff not only acted in good faith but also properly served Interglobo USA Inc. Interglobo USA Inc. was properly served via a managing agent of that company at its location pursuant to New Jersey Rule 4:4- 4(a)(6), and therefore the motion should be denied. As the matter was removed from state court, and was not originally filed in District Court, the affidavit of service was inadvertently not e-filed with the Court at the time, because the matter was still in state court. The affidavit of service on Interglobo USA Inc. was recently e- filed and provided to Interglobo’s counsel. Therefore, the Court possesses personal jurisdiction over Interglobo USA Inc. as service was proper under state court rules. Accordingly, the motion should be denied. Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 8 of 9 PageID: 255 6 IV. CONCLUSION For the foregoing reasons, Plaintiff TMT Marble & Tile, Inc., respectfully requests that the motions of Defendants Interglobo USA Inc. (Docket #28) and Interglobo Customs Broker Inc. (Docket #29) to dismiss Plaintiff’s Complaint be denied, or in the alternative, the Complaint be dismissed without prejudice to Plaintiff’s right to re-file this action in the appropriate forum. Dated: January 20, 2017 TENAGLIA & HUNT, PA. By: /s James T. Hunt, Jr. JAMES T. HUNT, JR. Attorneys for Plaintiff TMT Marble & Tile, Inc. 395 W. Passaic Street- Suite 205 Rochelle Park, New Jersey 07662 TEL: (201) 820-6003 FAX: (201) 226-0795 jhunt@tenagliahunt.com Case 2:16-cv-02597-KSH-CLW Document 40 Filed 01/23/17 Page 9 of 9 PageID: 256 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TMT MARBLE & TILE, INC., Plaintiff, v. INTERGLOBO USA INC., INTERGLOBO CUSTOMS BROKER, INC., MVS LOGISTICS LLC, UNITED ARAB SHIPPING COMPANY S.A., Defendants. CASE NO.: 16-2597-KSH-CLW DECLARATION OF JAMES T. HUNT, JR. I, James T. Hunt, Jr., of full age and capacity, do hereby declare the following, under the penalty of perjury and in lieu of an affidavit as permitted by 28 U.S.C. § 1746: 1. I am an attorney admitted to practice before this Court and the courts of the State of New Jersey, and a partner in the law firm of Tenaglia & Hunt, P.A., attorneys for Plaintiff TMT Marble & Tile, Inc. I make this Declaration based upon my personal knowledge, to the facts set forth in this Declaration. 2. Attached hereto as Exhibit A is a true and accurate copy of the Affidavit of Service on Defendant Interglobo USA Inc. indicating service was made on May 13, 2016. 3. I declare under the penalty of perjury and in lieu of an affidavit as permitted by 28 U.S.C. § 1746 that the foregoing is true and correct. Executed on: January 20, 2017 ___/s/ James T. Hunt, Jr.______ James T. Hunt, Jr. Case 2:16-cv-02597-KSH-CLW Document 40-1 Filed 01/23/17 Page 1 of 1 PageID: 257 EXHIBIT A Case 2:16-cv-02597-KSH-CLW Document 40-2 Filed 01/23/17 Page 1 of 2 PageID: 258 Case 2:16-cv-02597-KSH-CLW Document 40-2 Filed 01/23/17 Page 2 of 2 PageID: 259 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TMT MARBLE & TILE, INC., Plaintiff, v. INTERGLOBO USA INC., INTERGLOBO CUSTOMS BROKER, INC., MVS LOGISTICS LLC, UNITED ARAB SHIPPING COMPANY S.A., Defendants. CASE NO.: 16-2597-KSH-CLW CERTIFICATION OF SERVICE I, James T. Hunt, Jr., of full age and capacity, do hereby declare the following, under the penalty of perjury and in lieu of an affidavit as permitted by 28 U.S.C. § 1746: 1. On this date I caused Plaintiff’s Memorandum of Law in Opposition to Defendants Interglobo USA Inc.’s and Interglobo Customs Broker, Inc.’s motions to dismiss, and the Declaration of James T. Hunt, Jr., to be served on Defendants electronically via ECF e- filing. 2. Under 28 U.S.C. 7687, I declare under penalty of perjury that the foregoing is true and correct. I declare under the penalty of perjury and in lieu of an affidavit as permitted by 28 U.S.C. § 1746 that the foregoing is true and correct. Executed on: January 23, 2017 ___/s/ James T. Hunt, Jr.______ James T. Hunt, Jr. Case 2:16-cv-02597-KSH-CLW Document 40-3 Filed 01/23/17 Page 1 of 1 PageID: 260