GACHAU v. RLS COLD STORAGE et al
Filing
20
OPINION. Signed by Judge Noel L. Hillman on 4/24/18. (dd, ) n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EMMANUEL W. GACHAU,
Plaintiff,
No. 1:17-cv-6595 (NLH/JS)
OPINION
v.
RLS COLD STORAGE and CHOPTANK
TRANSPORT,
Defendants.
APPEARANCES:
EMMANUEL W. GACHAU
1691 GRANDFLORA AVE
CLERMONT, FL 34711
Appearing pro se
HARRIS NEAL FELDMAN
PARKER MCCAY P.A.
9000 MIDLANTIC DRIVE
SUITE 300
P.O. BOX 5044
MOUNT LAUREL, NJ 08054
On behalf of Defendant RLS Cold Storage
ERIC SCOTT THOMPSON
FRANKLIN & PROKOPIK
300 DELAWARE AVENUE
SUITE 1200
WILMINGTON, DE 19801
On behalf of Defendant Choptank Transport
HILLMAN, District Judge
Pro se Plaintiff Emmanuel Gachau brings this action under
the Federal Trade Commission Act, 15 U.S.C. §§ 41-58 (FTCA).
Before the Court are Defendant RLS Cold Storage’s and Choptank
Transport’s Motions to Dismiss.
The Court finding it lacks
federal question jurisdiction and that Plaintiff has not
properly pleaded diversity jurisdiction, the Court will grant
Defendants’ Motions to Dismiss for lack of subject matter
jurisdiction.
I.
The Court takes its facts from Plaintiff’s August 31, 2017
Complaint.
On September 18, 2015, Plaintiff was hired by
Choptank Transport to transport frozen strawberries from Texas
to New Jersey.
On September 21, 2015, Plaintiff arrived as
scheduled at the New Jersey location at 7:00 AM to deliver the
load at the RLS Cold Storage facility.
Plaintiff checked in and
was instructed to unload at door sixteen.
Before Plaintiff
backed the trailer in, an RLS Cold Storage employee took a
picture of the temperature of the refrigerated unit at 3.4
degrees Fahrenheit, of the seal before opening the trailer
doors, and of the cargo after opening the cargo doors.
The
employee then instructed Plaintiff to back the trailer in to be
unloaded.
After waiting 1-1.5 hours, the employee told Plaintiff that
the shipment was being rejected due to the high temperature of
the product.
According to Plaintiff, door sixteen was not a
refrigerated part of the warehouse.
Plaintiff pleads he later
discovered that this part of the building was where RLS Cold
2
Storage stored cardboard boxes and was maintained at room
temperature.
Plaintiff alleges that, after he complained,
[t]he same RLS staff member who rejected the load then
grabbed the bill of lading out of [his] hand and hand
wrote with an ink pen “quality” but the original
rejection due to high temperature was a photocopy.
[T]his was another deliberate act when she realized she
got exposed to what she had done.
Now she wanted to
blame the claim on quality but forgot the bill she handed
me was a photocopy.
Plaintiff pleads that an inspection later occurred, in
which Defendants failed to provide necessary evidence to the
inspection company.
Plaintiff argues: “[C]hoptank Transport
vice president and legal affairs boss consealed [sic] and
colluded with RLS to holding all the evidence I provided.”
As a result, Plaintiff alleges his filing of a claim with
his insurance company over this incident resulted in his
insurance being cancelled and him having to obtain more
expensive insurance.
Plaintiff further claims this incident
required him “to start all over as a new company,” resulting in
“all brokerage companies view[ing him] as new.”
He then pleads
that he could not pass a Department of Transportation
inspection, that he was unable to maintain his equipment, and
that, on May 8, 2017, he lost his insurance and his operating
authority was revoked by the Department of Transportation.
Plaintiff argues this resulted in two months of no income.
3
Plaintiff filed his Complaint in this matter on August 31,
2017.
On October 12, 2017, Choptank Transport filed a Motion to
Dismiss.
On October 30, 2017, RLS Cold Storage also filed a
Motion to Dismiss.
Defendant RLS Cold Storage moves to dismiss, in part for
lack of subject matter jurisdiction. 1
The Court begins there.
II.
Federal Rule of Civil Procedure 12(b)(1) permits a court to
dismiss a case for lack of subject matter jurisdiction.
There
are two types of motions that fall under Rule 12(b)(1):
“12(b)(1) motions that attack the complaint on its face and
12(b)(1) motions that attack the existence of subject matter
jurisdiction in fact, quite apart from any pleadings.”
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1977).
A facial attack, as the adjective indicates, is an
argument that considers a claim on its face and asserts
that it is insufficient to invoke the subject matter
jurisdiction of the court, because, for example, it does
not present a question of federal law, or because there
is no indication of a diversity of citizenship among the
parties, or because some other jurisdictional defect is
present. . . . A factual attack, on the other hand, is
an argument that there is no subject matter jurisdiction
because the facts of the case – and here the District
Court may look beyond the pleadings to ascertain the
1
Choptank Transport argues the same basis for the lack of
this Court’s subject matter jurisdiction. While both parties
frame their argument as one made under Rule 12(b)(6), the Court
considers this portion of their argument to be a grounds for
dismissal pursuant to Rule 12(b)(1).
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facts – do not support the asserted jurisdiction. . . .
In sum, a facial attack “contests the sufficiency of the
pleadings,” “whereas a factual attack concerns the
actual failure of a [plaintiff’s] claims to comport
[factually] with the jurisdictional prerequisites.”
Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir.
2014) (alterations in original) (citations omitted) (first
quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243
(3d Cir. 2012); and then quoting CNA v. United States, 535 F.3d
132, 139 (3d Cir. 2008)).
This is a facial 12(b)(1) motion.
Thus, “the court must
only consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff.”
Plough, 678 F.3d at 243).
Id. (quoting In re Schering
The Court applies “the same standard
of review it would use in considering a motion to dismiss under
Rule 12(b)(6), i.e., construing the alleged facts in favor of
the nonmoving party.”
Id.
III.
Plaintiff asserts federal question as the basis for this
Court’s jurisdiction.
arise in two ways.”
“’[F]ederal question’ jurisdiction may
Goldman v. Citigroup Global Mkts., Inc.,
834 F.3d 242, 249 (3d Cir. 2016).
First, “a case arises under
federal law when federal law creates the cause of action
asserted.”
(2013)).
Id. (quoting Gunn v. Minton, 133 S. Ct. 1059, 1064
“However, even if the cause of action is based on
5
state law, there is a ‘special and small category of cases in
which arising under jurisdiction still lies.’”
Gunn, 133 S. Ct. at 1064).
Id. (quoting
“[F]ederal jurisdiction over a state
law claim will lie if a federal issue is (1) necessarily raised,
(2) actually disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the federal-state
balance approved by Congress.”
1065).
Id. (quoting Gunn, 133 S. Ct. at
Jurisdiction under this scenario is based on the Supreme
Court’s decision in Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 545 U.S. 308 (2005).
Under either scenario, “the party asserting jurisdiction
must satisfy the ‘well-pleaded complaint rule,’ which mandates
that the grounds for jurisdiction be clear on the face of the
pleading that initiates the case.”
Id. (citing Franchise Tax
Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S.
Cal., 463 U.S. 1, 9-11 (1983)).
“In short, ‘a well-pleaded
complaint establishes either that federal law creates the cause
of action or that the plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal
law.’”
Id. (quoting Franchise Tax Bd., 463 U.S. at 27-28).
In considering Plaintiff’s Complaint, the Court takes into
account Plaintiff’s pro se status.
Courts “tend to be flexible
when applying procedural rules to pro se litigants, especially
when interpreting their pleadings.”
6
Mala v. Crown Bay Marina,
Inc., 704 F.3d 239 (3d Cir. 2013).
Indeed, this is an
“obligation” for district courts, “driven by the understanding
that ‘[i]mplicit in the right of self-representation is an
obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent
forfeiture of important rights because of their lack of legal
training.’”
Higgs v. Attorney Gen. of the U.S., 655 F.3d 333,
339 (3d Cir. 2011) (alteration in original) (quoting Tristman v.
Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)).
Just
“because it is difficult to interpret a pro se litigants
pleadings” does not mean “it is not necessary to do so.”
Id.
Plaintiff pleads the Court has jurisdiction under the FTCA.
However, “a private right of action does not exist under the
FTCA.”
Kim v. Genesis Co., Ltd., No. 15-8556, 2017 WL 4861669,
at *4 (D.N.J. Oct. 26, 2017) (“Courts have almost uniformly
rejected an implied right of action under the FTCA.” (citing
authorities)); accord Copeland v. Newfield Nat’l Bank, No. 1717, 2017 WL 6638202, at *3 (D.N.J. Dec. 29, 2017) (“Federal
courts across the country have consistently held that the FTCA
does not permit a private cause of action, and such claims are
routinely dismissed.”).
Plaintiff pleads no other federal cause
of action, nor any other substantial federal issue which this
Court can use as a basis for this Court’s jurisdiction.
7
The
most liberal reading of Plaintiff’s Complaint does not provide a
basis for federal question jurisdiction.
Plaintiff’s other submissions to the Court further seem to
assert violations of federal antitrust laws, homeland security
laws, and food and drug administration laws.
Plaintiff further
advises the Court of purported criminal activity by Defendants. 2
While the Court must liberally construe Plaintiff’s Complaint,
there are no factual allegations sufficient to support causes of
action under other federal laws in Plaintiff’s Complaint.
Further, Plaintiff’s claims of criminal acts by Defendants
cannot be resolved by the Court in this civil action.
Finding no federal question jurisdiction, the Court
considers whether diversity jurisdiction is appropriate.
Broadly construing Plaintiff’s pro se complaint, interpreted in
light of later filings, the Court can discern purported state
law claims for breach of contract, fraud, and conspiracy to
commit fraud.
As Plaintiff has not pleaded diversity, this
Court cannot assert diversity jurisdiction over this matter at
this time. 3
The Court also notes it has serious doubts that the
2
Choptank Transport asks the Court to strike Plaintiff’s
December 4, 2017 submission, which asserts the purported
criminal activity of Defendants. The Court will not strike the
submission.
3
In the event Plaintiff decides to file a motion to reopen
attaching an amended complaint pleading diversity jurisdiction,
Plaintiff is reminded of the federal standards in pleading
8
amount in controversy requirement is satisfied.
Complaint asks for $2,500,000 in damages.
Plaintiff’s
Defendants argue
there is no basis for this amount of damages.
The rule governing dismissal for want of jurisdiction in
cases brought in the federal court is that, unless the
law gives a different rule, the sum claimed by the
plaintiff controls if the claim is apparently made in
good faith. It must appear to a legal certainty that
the claim is really for less than the jurisdictional
amount to justify dismissal. The inability of plaintiff
to recover an amount adequate to give the court
jurisdiction does not show his bad faith or oust the
diversity. See McCann v. Newman Irrevocable Tr., 458 F.3d 281,
286 (3d Cir. 2006) (“Citizenship is synonymous with domicile,
and ‘the domicile of an individual is his true, fixed and
permanent home and place of habitation. It is the place to
which, whenever he is absent, he has the intention of
returning.’” (quoting Vlandis v. Kline, 412 U.S. 441, 454
(1973))); Vanz, LLC v. Mattia & Assocs., No. 13-1392, 2016 WL
3148400, at *3 (D.N.J. May 17, 2016) (“The citizenship of a
natural person is determined by their domicile, not their
residence(s). That is because a natural person may have many
residences, but only one domicile. Domicile is the location of
a person’s ‘true fixed home . . . to which, whenever he is
absent, he has the intention of returning.’” (alterations in
original) (footnote omitted) (first citing Zambelli Fireworks
Mfg. Co., 592 F.3d at 419; and then quoting Palazzo ex rel.
Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000))), adopted by
Vanz, LLC v. Mattia & Assocs., No. 13-1392, 2016 WL 3148386
(D.N.J. June 1, 2016); Witasick v. Hambrecht, No. 12-3755, 2013
WL 1222680, at *2 (D.N.J. Mar. 25, 2013) (“[A]n individual may
only have one domicile, and thus may only be a citizen of one
state for diversity jurisdiction purposes. Residence and
domicile are not the same for legal purposes, as residency alone
does not establish citizenship.” (citation omitted) (citing
Williamson v. Osenton, 232 U.S. 604, 614 (1914))); see also S.
Freedman & Co. v. Raab, 180 F. App’x 316, 320 (3d Cir. 2006)
(explaining that, “[i]n order to adequately establish diversity
jurisdiction, a complaint must set forth with specificity a
corporate party’s state of incorporation and its principal place
of business,” and affirming dismissal of complaint alleging that
corporation maintained “a principal place of business,” rather
than “its principal place of business”).
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jurisdiction.
Nor does the fact that the complaint
discloses the existence of a valid defense to the claim.
But if, from the face of the pleadings, it is apparent,
to a legal certainty, that the plaintiff cannot recover
the amount claimed, or if, from the proofs, the court is
satisfied to a like certainty that the plaintiff never
was entitled to recover that amount, and that his claim
was therefore colorable for the purpose of conferring
jurisdiction, the suit will be dismissed.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89
(1938).
Courts “assess the amount in controversy as of ‘the
time that the complaint was filed . . . .’”
Breeman v.
Everingham (In re Paulsboro Derailment Cases), 704 F. App’x 78,
84 (3d Cir. 2017) (quoting Auto-Owners Ins. Co. v. Stevens &
Ricci Inc., 835 F.3d 388, 395 (3d Cir. 2016)).
“If during the
course of pretrial proceedings, however, facts come to light
making it apparent that the threshold amount of damages simply
was never available as a matter of law, that discovery may be
deemed a ‘revelation’ of facts as they existed at the time of
filing.”
Id. (citing Huber v. Taylor, 532 F.3d 237, 244 (3d
Cir. 2008)).
While
courts
generally
rely
on
the
plaintiff’s
allegations of the amount in controversy as contained in
the complaint, “where a defendant or the court
challenges the plaintiff’s allegations regarding the
amount in question, the plaintiff who seeks the
assistance of the federal courts must produce sufficient
evidence to justify its claims.”
Suber v. Chrysler Corp., 104 F.3d 578, 583 (3d Cir. 1997)
(quoting Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d
538, 541 (3d Cir. 1995)).
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In responding to Defendants’ Motion to Dismiss, Plaintiff
provides no basis for his demand of $2,500,000 in damages.
The
Court has serious doubts that this figure was pleaded in good
faith. 4
In any event, as Plaintiff has not pleaded diversity of
citizenship, this Court is unable to conclude it has diversity
jurisdiction at this time.
Finding this Court lacks both
federal question jurisdiction and diversity jurisdiction at this
time, the Court will grant Defendants’ Motions to Dismiss.
An appropriate Order will be entered.
Date: April 24, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
4
The Court notes that it appears the September 2015 shipment
was for payment of only $3,000.
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