Blinc Inc. v. AZ Miami Corp.
ORDER GRANTING MOTION TO REMAND granting 5 Motion to Remand to State Court. Closing Case. Motions Terminated: 20 Plaintiff's MOTION to Compel Discovery filed by Blinc Inc., 5 Plaintiff's MOTION to Remand to State Court Motion for Attorney's Fees and Costs and Memorandum of Law filed by Blinc Inc., 25 Plaintiff's MOTION for Summary Judgment on Liability filed by Blinc Inc., 3 MOTION TO DISMISS 1 Notice of Removal ( State Court Complaint) FOR FAILURE TO STATE A CLAIM filed by AZ Miami Corp., 27 MOTION for Summary Judgment to Limit Liability filed by AZ Miami Corp.. Signed by Judge Marcia G. Cooke on 6/30/2015. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-23998-COOKE/TORRES
AZ MIAMI CORP.,
ORDER GRANTING MOTION TO REMAND
THIS MATTER is before me on Plaintiff Blinc Inc.’s fully briefed Motion to Remand to
State Court (ECF Nos. 5, 8, 12, 13, and 14) and Defendant AZ Miami Corp.’s fully briefed
Motion to Dismiss (ECF Nos. 3, 9, 10). For the reasons stated in this Order, the Motion to
Remand is granted and the Motion to Dismiss is denied as moot.
This case was originally filed in the Circuit Court of the Eleventh Judicial Circuit of
Florida in and for Miami-Dade County. Plaintiff Blinc, Inc. (“Blinc”) and Defendant AZ Miami
Corp. (“AZ”) are Florida corporations.1 (ECF 1-2 at ¶¶ 2, 3). Blinc is a manufacturer and
distributor of makeup products in the luxury cosmetic sector. (Id. at ¶ 6). AZ operates a
warehouse facility in Medley, Florida. (Id. at ¶ 8).
On April 5, 2014, a shipment of 67,040 units of Blinc mascara and eyeliner (the
“Merchandise”) was shipped from the manufacturer’s facility in Japan to Blinc in Boca
Raton, Florida aboard the Sea-Land Comet, V. 1406. (Id. at ¶ 10). The shipment traveled
under Fedex Trade Networks Uniform Straight Bill of Lading No. 64-2888393/001. (Id. at ¶
11). On April 16, 2014 the shipment arrived at the Port of Los Angeles, California. ( Id. at ¶
14). “The shipment was subsequently transported from the Port of Los Angeles to
Defendant AZ’s warehouse in Medley Florida where the shipment arrived in good order
and condition, without exception, on May 2, 2014, pending customs approval.” ( Id. at ¶ 15).
All background facts are taken from Plaintiff’s Complaint (ECF No. 1-2).
On May 6, 2014, the shipment was cleared by U.S. Customs and scheduled for delivery. (Id.
at ¶ 16).
That same day, the Merchandise was released by AZ warehouse personnel to
“criminals who had been made aware of the arrival and pending release” of the
merchandise. Some of the Merchandise was recovered on May 19, 2014, but the recovered
product had to be destroyed because of contamination and preservation issues. ( Id. at ¶¶
28, 29). The unrecovered Merchandise has since been offered for sale on secondary
markets at prices below those which Blinc charges its legitimate customers. (Id. at ¶ 30).
Plaintiff brings claims of negligent bailment and negligence.
Defendant removed this case to this Court on October 27, 2014. (ECF No. 1).
Defendant argued that this Court had jurisdiction to hear this case because Plaintiff’s state
law causes of action were preempted either by the Carmack Amendment to the Interstate
Commerce Act, Title 49, United States Code, Section 14706 (the “Carmack Amendment”), or
the Carriage of Goods by Sea Act (“COGSA”), Title 46, United States Code, Sections 13001315. Defendant’s Motion to Dismiss seeks dismissal on the same preemption grounds.
Plaintiff, on the other hand, seeks to remand this case back to state court on the grounds
that Defendant has failed to prove that this Court has federal question jurisdiction.
“[T]he burden of proving jurisdiction lies with the removing defendant.” Williams v.
Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). “Federal courts are courts of
limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction,
such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.”
Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). “[R]emoval
statutes are construed narrowly.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.
“A party may remove state law claims to federal court when Congress expressly so
provides or when a federal statute wholly displaces the state-law cause of action through
complete pre-emption.” Eurosistemas, S.A. v. Antillean Marine Shipping, Inc. , No. 11-21546,
2011 WL 3878357, at *2 (S.D. Fla. Sept. 1, 2011).
Defendant AZ removed this action on the basis that this Court has original
jurisdiction pursuant to 28 U.S.C. Section 1337, which provides that, “The district courts
shall have original jurisdiction of any civil action or proceeding arising under any Act of
Congress regulating commerce….” While Plaintiff only asserted state causes of action –
negligent bailment and negligence – Defendant argues that Plaintiff’s claims are exclusively
governed by the Carmack Amendment. Alternatively, Defendant argues that the cargo is
subject to COGSA to the extent that the ocean bill of lading referenced in paragraph 10 of
the Complaint contains a “Himalaya”2 clause extending the ocean bill’s privileges and
immunities to land-based contractors, such as AZ. If a “Himalaya” clause is contained in the
ocean bill of lading, Defendant argues, the preemptive effect of COGSA would extend to AZ.
Regardless of whether the claims are preempted by the Carmack Amendment or COGSA,
Defendant moves to dismiss the Complaint on preemption grounds.
In response to Plaintiff’s First Set of Interrogatories, Defendant stated that, “Based
upon discovery to date, it has been clarified that the Carmack Amendment does not apply
to this shipment.” (ECF No. 26-3 at 4). Thus, the only potential remaining grounds for this
Court’s jurisdiction is Defendant’s argument that Plaintiff’s causes of action are preempted
by COGSA. I now turn to that issue.
COGSA governs all foreign trade contracts for the carriage of goods by sea to or from
U.S. ports. COGSA § 13, 46 U.S.C. § 30701. COGSA governs a carrier’s duties from the time
cargo is loaded onto a ship until it is discharged. COGSA §§ 2 – 3, 46 U.S.C. § 30701. With
respect to cargo, the carrier must “properly and carefully load, handle, stow, carry, keep,
care for, and discharge the goods carried.” COGSA § 2. “Under COGSA, claims made
pursuant to a bill of lading completely preempt state law causes of action and confer
jurisdiction to federal district courts; plaintiffs are entitled to a single remedy and all other
tort claims are excluded.” Eurosistemas, S.A. v. Antillean Marine Shipping, Inc., Case No. 1121546, 2011 WL 3878357, at *2 (S.D. Fla. Sept. 1, 2011) (citing Polo Ralph Lauren v.
Tropical Shipping & Constr., 215 F.3d 1217, 1220 (11th Cir. 2000)). Although COGSA
expressly applies duties to carriers during the sea transport, the parties may agree to
“Bill of lading provisions which extend defenses and protections to the carrier’s
agents and contractors are known in admiralty law as Himalaya clauses.” Certain
Underwriters at Lloyds’ v. Barber Blue Sea Line, 675 F.2d 266, 269 (11th Cir. 1982).
extend the applicability of the Act to the pre-loading and post-discharge period. COGSA § 7.
When the parties extend COGSA to pre-loading and post-discharge periods, however, they
must comport with the Harter Act, which was codified into COGSA in 1936. 46 U.S.C. §
30701 (indicating that “[t]his chapter codifies the Act of February 13, 1893…(commonly
known as the Harter Act)”).
Since the time of filing the Motion to Dismiss and the Motion to Remand, the parties
have obtained certain responses to discovery. Defendant submitted the Combined
Transport Bill of Lading, including terms and conditions, obtained from Panda Logistics
USA, Inc. pursuant to a subpoena duces tecum. (ECF No. 14-1).3 Paragraph 2(B) on the
terms and conditions states, “If this Bill of Lading covers goods moving to or from ports of
the United States in foreign trade, then carriage of such goods shall be subject to the
provisions of the [COGSA], the terms of which shall be incorporated herein. Paragraph 1(B)
of the terms and conditions defines “Inland Carrier” to include “carriers…by
land…participating in combined transport of the Goods, whether acting as carrier or
bailee.” (Id.). Paragraph 1(C) defines “Combined Transport” as carriage…from place of
receipt…to place of delivery…by the Ocean Carrier plus one or more Inland Carriers.” ( Id.).
Paragraph 1(J) defines “Subcontractor” to include warehousemen “or other legal entity
which performs services incidental to the carriage of the Goods.” (Id.). Paragraph 5(C)
provides that “every Subcontractor…shall have the benefit of all provisions in this Bill of
Lading for the benefit of the Ocean Carrier as if such provisions were expressly for the
These terms clearly extend COGSA to the pre-loading and post-discharge periods.
However, this bill of lading does not prove that COGSA applies to the parties’ relationship.
On its face, the bill of lading provides that the “Place of Delivery By On Carrier” is “Miami
CFS.” Paragraph 10 of Plaintiff’s Complaint, however, states that the shipment was from the
port of Tokyo, Japan to Blinc in Boca Raton, Florida. The goods were allegedly lost after
Defendant obtained the Merchandise in good condition in their warehouse in Miami, and
subsequently released them to thieves with falsified documents. It is unclear from the
“[A] document outside the four corners of the complaint may still be considered if
it is central to the plaintiff’s claims and is undisputed in terms of authenticity.” Maxcess,
Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005)
evidence presented by Defendant whether the bill of lading’s terms and conditions
continued to apply after the goods were delivered in Miami to Defendant.
Given the uncertainty as to whether COGSA was extended to encompass the final leg
of the shipment – from Miami to Boca Raton – Defendant has not carried its burden of
demonstrating that COGSA preempts Plaintiff’s causes of action, and that this Court has
federal question jurisdiction. Accordingly, remand is warranted. Russell Corp. v. Am. Home
Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (“Federal courts are courts of limited
jurisdiction, and there is a presumption against the exercise of federal jurisdiction, such
that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.”).
For the foregoing reasons, it is ORDERED and ADJUDGED that
Plaintiff’s Motion to Remand (ECF No. 5) is GRANTED. However, given the
uncertainties involved, Plaintiff’s Motion for Attorneys’ Fees and Costs is DENIED.
Defendant’s Motion to Dismiss (ECF No. 3) is DENIED as moot.
This matter is therefore remanded to the Circuit Court of the Eleventh
Judicial Circuit in and for Miami-Dade County, Florida.
The Clerk of Court is directed to CLOSE this case.
All pending motions not otherwise ruled upon are DENIED as moot.
DONE and ORDERED in chambers at Miami, Florida, this 30th day of June 2015.
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record
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