TOKIO MARINE AMERICA INSURANCE COMPANY v. JAN PACKAGING et al
OPINION. Signed by Chief Judge Jose L. Linares on 12/4/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 17-7491 (JLL)
TOKIO MARINE AMERICA INSURANCE
a/s/o ITO CHULOGISTICS (USA)
JAN PACKAGING, eta!.,
LINARES, Chief District Judge.
This matter comes before the Court by way of Defendant Jan Packaging’s (“Defendant”)
Motion to Dismiss Plaintiff Tokio Marine American Insurance Company’s (“Plaintiff’) Amended
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 11).
Plaintiff has submitted Opposition, and Defendant submitted a reply. (ECF Nos. 1$, 19). The
Court has considered the parties’ submissions and decides this matter without oral argument
pursuant to Rule 7$ of the Federal Rules of Civil Procedure. For the reasons stated herein,
Defendant’s Motion to Dismiss Plaintiffs Amended Complaint is hereby denied.
This background is derived from Plaintiffs Complaint, which the Court must accept as tnie at this stage
of the proceedings. See Aiston v. Countrywide fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).
This case concerns the shipment of computer chip manufacturing
equipment”) which was damaged in transit. (ECF No. 7 (First Amended Complaint (“FAC”))
The equipment was sold by Intel Corporation to Hangzhou Silan Integrated Circuit
Company, Ltd. (“Silan”), a company headquartered in China.
Silan hired Kingpoint
Technology Limited (“KPT”) to oversee shipment of the equipment from the United States to
13). KPT in turn hired Itochu Logistics (USA) Corporation (“Itochu”) to arrange
shipment of the equipment from Massachusetts to New Jersey, and to arrange re-packaging of the
equipment in New Jersey prior to shipping the equipment to China. (Id.
14). Itochu assumed
KPT’s responsibility for ensuring that the equipment was delivered in good condition, and took
out an insurance policy with Plaintiff (Id.
15, 16). Pursuant to the insurance policy, Plaintiff
covered Itochu’s liability for any damage to the property caused by others who had assumed
responsibility for the delivery of the equipment in good condition. (Id.
Itochu hired Defendant to transport the equipment from Massachusetts to New Jersey, and
to then repackage the equipment for its shipment to China.3 (Id.
17, 25). Plaintiff asserts that
the equipment was delivered to the care, custody, and control of Defendant in good condition but
the equipment was damaged by the time it arrived in New Jersey. (Id.
asserts that the equipment was damaged while in Defendant’s care as a result of Defendant’s
KPT sued Itochu for the damage and, under Plaintiffs insurance policy,
Plaintiff paid KPT $504,840 to settle the claim. (Id.
30). Accordingly, Plaintiff brought
Plaintiff initially brought this action on September 26, 2017. (See ECF No. 1 (“Compl.”)). Subsequently,
Plaintiff amended the complaint on September 29, 2017. (See FAC). Therefore, the relevant pleadings
for this case will be taken from FAC.
As a preliminary matter, the Court notes that there are several defendants in this case who were hired to
transport the equipment and who allegedly committed the culpable conduct. (FAC at Count I, Count II).
However, this Opinion will discuss those facts only as they are relevant to the moving defendant.
this action under federal and state law to recover the settlement payments, as well as costs of suit
and other relief. Defendant now moves to dismiss Plaintiffs Amended Compliant.
To withstand a motion to dismiss for failure to state a claim. “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. v. Twonzblv, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal. 556 U.S. at 67$ (citing Twomblv. 550 U.S. at 556). ‘The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twomblv, 550 U.S. at 556).
To determine the sufficiency of a complaint under Twombly and Iqbal in the Third Circuit,
the court must take three steps: first, the court must take note of the elements a plaintiff must plead
to state a claim; second, the court should identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief Connelty v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (citations omitted). “In deciding a Rule 12(b)(6) motion, a court must consider only the
complaint, exhibits attached to the complaint, matters of the public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon these documents.” Mayer
Belicliick, 605 F.3d 223, 230 (3d Cir. 2010).
Both parties concede that Plaintiffs claims are controlled by the Carmack Amendment to
the Interstate Commerce Act (“Carmack Amendment”), codified in 49 U.S.C.
§ 14706. (ECF No.
11-1 at 3; ECF No. 1$ at 2). Under the Carmack Amendment, a carrier must receive formal written
notice of the damaged cargo within a tirneframe specified by the carrier but that cannot be less
than nine months. 49 U.S.C.
§ 14706. Here, Defendant’s tariff provided a notice requirement of
nine months. (ECF No. 11-2 at Ex. C). The parties agree that Plaintiff had until late September
2016 to provide Defendant with formal written notice of the damage caused to the equipment.
(ECF No. 11-1 at 14; ECF No. 18 at 5)4 In its brief, Defendant asserts that no notice was provided
and therefore Plaintiffs Amended Complaint is time barred.
(ECF No. 11-1 at 14—15).
Defendant’s assertion was based on the affidavit of its Chief Financial Officer who claimed
Defendant never received notice. (ECF No. 11-2 at
¶J 8—9). However, Plaintiff attached in its
Opposition a letter sent by Plaintiffs Counsel to Defendant which was dated June 1, 2016 and that
claimed to “place [Defendant] on formal notice of claim for all losses and claims associated with
the referenced shipment.” (ECF No. 18-4). Viewing these facts in a light most favorable to
Plaintiff, the Court concludes that Plaintiffs letter sufficiently shows that Defendant was provided
with timely formal notice.
Furthermore. Plaintiffs Amended Complaint provides sufficient factual allegations to
support a claim under the Carniack Amendment. “To establish a prima fade case against a
common carrier under the Carmack Amendment
a plaintiff must prove the following three
elements: ‘(1) delivery of the goods to the initial carrier in good condition, (2) damage of the goods
Plaintiffs Amended Complaint is devoid of the dates in which the alleged conduct underlying this action
occurred, but in the interest of expedient justice the Court refers to the parties’ declarations to determine
the appropriate timeframe Plaintiff had to provide notice.
before delivery to their final destination, and (3) the amount of damages.” Beta Spawn, Inc. v.
FFE Transp. Sen’s., 250 F.3d 218, 223 (3d Cir. 2001) (citing Conair Corp. v. Old Dominion
Freight Line, Inc., 22 F.3d 529, 531(3rd Cir. 1994)). Here, Plaintiffs Amended Complaint alleges
that Defendant was hired to transport cargo in interstate commerce, (FAC ¶ 17); that the cargo was
given to Defendant in good condition, (FAC
arrived in New Jersey, (FAC
1 8); that the cargo was damaged by the time it
19); and that Plaintiff was required to pay KPT a settlement of
At this stage in the litigation, these allegations are sufficient to withstand
Defendant’s Motion to Dismiss. See Hartford Fire Ins. Co. v. Dynamic Worldwide Logistics, Inc.,
No. 17-553, 2017 U.S. Dist. LEXIS 142926, at *5_6 (D.N.J. Sept. 5, 2017) (stating that the
dismissal of plaintiffs Carmack Amendment claims would be inappropriate when the complaint
identifies the defendant as a motor carrier who received the cargo in good condition but failed to
deliver the cargo to its destination in the same condition). Therefore, the Court denies Defendant’s
Motion to Dismiss Plaintiffs Amended Complaint.
Though Plaintiff has sufficiently alleged a claim under the Carmack Amendment, the Court
finds that Plaintiffs state law claims must be dismissed on preemption grounds. As previously
mentioned, Plaintiff concedes in its Opposition that its claims are controlled by the Cannack
Amendment. (ECF No. 18 at 2). Therefore, to the extent that Plaintiffs Amended Complaint
alleges state law claims, the Court concludes that same are hereby dismissed and that Plaintiff will
continue this litigation under the Carmack Amendment.
F or the aforementioned reasons, Defendant’s Motion to Dismiss is hereby denied. An
appropriate order follows this opinion.
United States District Court
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