TOKIO MARINE & NICHIDO FIRE INSURANCE CO. LTD. v. FLASH EXPEDITED SERVICES, INC.
Filing
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OPINION filed. Signed by Judge Mary L. Cooper on 11/15/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOKIO MARINE & NICHIDO FIRE
INSURANCE CO. LTD.,
CIVIL ACTION NO. 11-6109 (MLC)
O P I N I O N
Plaintiff,
v.
FLASH EXPEDITED SERVICES, INC.,
Defendant.
THE PLAINTIFF, Tokio Marine & Nichido Fire Insurance Co. Ltd.
(“Tokio Marine”) brings this action as subrogree for its insured,
Nikon, Inc. (“Nikon”), against the defendant, Flash Expedited
Services, Inc. (“Flash”).
(See generally dkt. entry no. 1, Compl.)
The action is governed by the Carmack Amendment to the Interstate
Commerce Act, 49 U.S.C. § 14706, et seq. (“Carmack Amendment”).
(See id. at ¶ 3.)
See also 49 U.S.C. § 14706(a)(1).
THE COURT earlier ordered the parties to show cause why the
action should not be transferred to the United States District
Court for the Southern District of Ohio.
(See dkt. entry no. 20,
10-24-12 Order to Show Cause (“OTSC”) at 5.)
Both parties have
responded to the OTSC; only Tokio Marine opposes transfer.
(See
dkt. entry no. 21, Flash Resp. to OTSC; dkt. entry no. 22, Tokio
Marine Resp. to OTSC.)
papers.
The Court now resolves the OTSC on the
See L.Civ.R. 78.1(b).
THE COURT earlier recited the facts relating to the resolution
of the OTSC.
(See OTSC at 2-3.)
Nikon retained a property broker,
Ground Freight Expeditors LLC (“GFE”), and instructed GFE to
transport a truckload of digital cameras (“the Load”) from
Louisville, Kentucky to Jamesburg, New Jersey.
GFE brokered the
Load to a second property broker, Forward Air, Inc. (“FAI”).
FAI,
in turn, brokered the Load to a motor carrier, Flash.
FLASH, acting through certain truck drivers (“the Drivers”),
accepted and transported the Load to a truck stop in Jefferson,
Ohio (“the Truck Stop”).
The Drivers left the Load unattended at
the Truck Stop for approximately two hours.
Load was stolen from the Truck Stop.
During that time, the
Tokio Marine alleges that the
Load was not recovered and it thus compensated Nikon for the full
value of the Load, i.e., $361,864.32.
FLASH moved for summary judgment in its favor and against
Tokio Marine, arguing that its liability is limited to $1,566.00.
(See dkt. entry no. 12, Mot. for Summ. J.; see also dkt. entry no.
12-1, Br. in Supp.)
Before addressing the Motion, the Court sua
sponte reviewed the record to ensure that venue was proper.1
1
As noted in the OTSC, the Court earlier reviewed the action
to ensure that venue was proper. But the Court’s review was
hampered by the Complaint, wherein Tokio Marine failed to allege
that the Load was stolen in Ohio. The Court first learned that
action related to a venue other than the District of New Jersey
when reviewing the papers filed upon the Motion.
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THE COURT notes than an action brought pursuant to the Carmack
Amendment may be brought in federal district court in a judicial
district: (1) through which the defendant motor carrier operates,
if the defendant motor carrier is the “delivering carrier”; or (2)
where the loss or damage occurred, if the defendant motor carrier
is the “carrier responsible for loss.”
(2).
49 U.S.C. § 14706(d)(1)-
Tokio Marine here alleges that Flash is both the delivering
carrier and the carrier responsible for loss.
Marine Resp. to OTSC at 3, 5.)
(See, e.g., Tokio
Venue in this action is thus
appropriate in the judicial district where the loss occurred, i.e.,
the Southern District of Ohio.
See 49 U.S.C. § 14706(d)(2);
Donaldson Tech. Grp. LLC v. Landstar Ranger, Inc., 347 F.Supp.2d
525, 527 (S.D. Ohio 2004) (venue appropriate in Carmack Amendment
action in judicial district where damage or loss occurs).
Venue is
also appropriate in any judicial district where Flash operates,
such as the District of New Jersey.
See 49 U.S.C. § 14706(d)(1).
(See also Tokio Marine Resp. to OTSC at 3 (noting that Flash
contracted to transport the Load to New Jersey and is licensed to
do business in New Jersey).)
BUT A PLAINTIFF’S unfettered choice of forum under 49 U.S.C.
§ 14706(d)(1), in any forum where a defendant carrier operates,
“could lead to an absurd result, such as a carrier being sued in a
state that otherwise bears no connection to the parties or the
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shipments at issue”.
See RLI Corp. v. FedEx Ground Package Sys.,
No. 10-2161, 2012 U.S. Dist. LEXIS 58400, at *7 (D.N.J. Apr. 26,
2012) (citation omitted) (internal quotation marks omitted).
District courts thus have “broad discretion to determine, on an
individualized, case-by-case basis, whether convenience and
fairness considerations weigh in favor of transfer” of venue.
Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995)
(discussing district court powers under 28 U.S.C. § 1404(a)); see
RLI Corp., 2012 U.S. Dist. LEXIS 58400, at *3, 7.
District courts
may “in the interests of justice . . . transfer any civil action to
any other district or division where it might have been brought.”
28 U.S.C. § 1404(a); see Jumara, 55 F.3d at 875, 877 n.3, 883.
When determining whether to transfer venue, the Court should
consider, inter alia, the plaintiff’s original choice of venue, the
defendant’s preference, whether the claim arose elsewhere, the
convenience of the parties, the extent to which witnesses may be
unavailable for trial, the location of books and records, and “the
local interest in deciding local controversies at home”.
Jumara,
55 F.3d at 879.
THE COURT has considered the Jumara factors and has concluded
that the action would more properly have been brought before the
United States District Court for the Southern District of Ohio.
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In reaching this conclusion, the Court notes but gives little
weight to Tokio Marine’s choice of forum because Tokio Marine is
not a citizen of the forum state.
(See Compl. at ¶ 1 (showing that
Tokio Marine is a corporation deemed to be a citizen of New York).)
See also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981);
Windt v. Qwest Commc’ns Int’l, Inc., 529 F.3d 183, 190 (3d Cir.
2008); Hoffer v. InfoSpace.com, Inc., 102 F.Supp.2d 556, 573
(D.N.J. 2000) (“The choice of forum by a plaintiff is simply a
preference; it is not a right.”).
The Court also notes that Flash
does not oppose transfer of the action to the Southern District of
Ohio.
(See Flash Resp. to OTSC at 1-2.)
See also Jumara, 55 F.3d
at 879.
THE COURT also gives little weight to Tokio Marine’s choice of
forum because it appears that Tokio Marine’s claims arose in Ohio.
See Nat’l Prop. Investors VIII v. Shell Oil Co., 917 F.Supp. 324,
327 (D.N.J. 1995) (stating that plaintiff’s venue choice is
entitled to less deference “when the central facts of a lawsuit
occur outside of the chosen forum”).
The action concerns Flash’s
liability for loss of the Load, which was transported only so far
as and then stolen in Ohio.
(See generally Compl.)
SEVERAL OTHER of the Jumara factors weigh neither in favor or
nor against transfer.
“The convenience of witnesses and the
location of books and records are a non-issue; discovery was
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completed without undue burden on either party.
Further . . . no
witnesses are located in Ohio and an inspection of the truck stop
in Jefferson, Ohio is not required.”
at 5.)
(Tokio Marine Resp. to OTSC
But it nonetheless appears that the United States District
Court for the Southern District of Ohio has the stronger interest
in deciding the action, based upon “the local interest in deciding
local controversies at home”.
See Jumara, 55 F.3d at 879.
THE COURT, for good cause appearing, will grant the OTSC and
issue an appropriate Order.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
November 15, 2012
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