Guru Kripa Foods, Inc. v. Inter, Inc.
Filing
99
ORDER denying 79 Motion to Strike ; granting 82 Motion for Summary Judgment; granting in part and denying in part 91 Motion for Summary Judgment -- 1) Inter's and MCL's motions for summary judgment are granted; 2) MCL's motion for summary judgment as to Inter's cross-claims is denied as moot; and 3) Plaintiff's cross-motion for summary judgment is denied in its entirety. Responding Defendants' requests for notations of default as to Neil and Devan Patel (D oc. Entry Nos. 67, 71, 78) are denied as moot and the corresponding Clerk's entry of notation of defaults are vacated. (Doc. Entry Nos. 70, 74, 78.) The action is thus dismissed against Third Party Defendant Neil Patel. The remaining claim again st non-appearing defendant, Devan Patel, is also dismissed. Thus, Plaintiff's motion for entry of default as to D. Patel is denied as moot (Doc. Entry No. 71) and the corresponding Clerk's entry of notation of default is vacated. (Doc. Entry No. 74.) The entire complaint is DISMISSED and the Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 8/10/2012. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x
GURU KRIPA FOODS, INC.,
:
:
Plaintiff,
:
:
-against:
:
INTER, INC. and MIDWEST COAST
:
LOGISTICS, LLC and DEVAN PATEL,
:
:
Defendants.
:
_____________________________________________ :
MIDWEST COAST LOGISTICS, LLC,
:
:
Third-Party Plaintiff,
:
:
-against:
:
DEVAN PATEL and NEIL PATEL,
:
:
Third-party Defendants.
:
_____________________________________________:
INTER INC.,
:
:
Second Third-Party Plaintiff,
:
:
-against:
:
DEVAN PATEL and NEIL PATEL,
:
:
Second Third-Party Defendants. :
--------------------------------------------------------------------x
DORA L. IRIZARRY, United States District Judge:
OPINION AND ORDER
10-CV-0229 (DLI) (SMG)
On November 24, 2009, Plaintiff Guru Kripa Foods, Inc. (“Plaintiff”) commenced this
action against Inter, Inc. (“Inter”) by filing a summons and complaint in New York State
Supreme Court, Queens County. On January 20, 2010, Inter properly removed the action to this
court pursuant to 28 U.S.C. §§ 1332 and 1441(a). (See Notice of Removal, Doc. Entry No. 1.)
On May 11, 2011, by way of an amended complaint, Plaintiff also commenced this action
against Midwest Coast Logistics, LLC (“MCL,” together with Inter, “Responding Defendants”)
and Devan Patel (“Patel”), 1 claiming, as to Responding Defendants, that they breached the terms
of certain bills of lading 2 covering sixteen (16) truckloads of basmati rice that Plaintiff shipped
interstate allegedly for sale to Whole Foods Market, Inc. (“Whole Foods”) and Trader Joe’s
Company (“Trader Joe’s”). (See Second Am. Verified Compl. (“Compl.”), Doc. Entry No. 58.)
In its answer to Plaintiff’s complaint, Inter asserted cross-claims against MCL seeking,
inter alia, indemnification from MCL, if Inter is found liable to Plaintiff. (See Doc. Entry No.
61.) Responding Defendants also filed separate third-party complaints against Patel and his
brother Neil Patel. 3 (Doc. Entry Nos. 54, 56.) Responding Defendants now make separate
motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure
(“Rule 56”) against Plaintff.
(Doc. Entry Nos. 82, 91.)
Plaintiff opposes Responding
Defendants’ motions and cross-moves for summary judgment pursuant to Rule 56, “striking the
answers” of Responding Defendants. (See Pl.’s Cross Mot. to Strike Answers of the Defendants
(“Pl.’s Mot.”), Doc. Entry No. 79.) For the reasons set forth below, Responding Defendants’
motions are granted and Plaintiff’s motion is denied. 4
1
Patel has not appeared in this action.
2
A bill of lading is a contract between a shipper and a carrier that sets forth the carrier’s
obligations for delivering certain goods. See GSI Group, Inc. v. Zim Integrated Shipping
Services, Ltd., 562 F. Supp. 2d 503, 506 (S.D.N.Y. 2008) (citation omitted).
3
On June 13, 2011 and June 29, 2011, respectively, MCL moved for entry of default against
Neil Patel and Devan Patel. (Doc. Entry Nos. 67, 71.) On June 24, 2011, and July 26, 2011,
respectively, the Clerk of the Court entered MCL’s notations of default against Neil and Devan
Patel. (Doc. Entry Nos. 70, 74.) On September 8, 2011, Inter moved for entry of default against
Devan Patel and Neil Patel and on September 9, 2011, the Clerk of the Court entered Inter’s
notations of default. (Doc. Entry Nos. 77, 78.)
4
MCL also moved for summary judgment against the cross-claims filed by Inter. As
Responding Defendants’ motions are granted as to Plaintiff’s complaint, Inter’s cross-claims
2
BACKGROUND
I.
The Parties’ Local Civil Rule 56.1 Statements
As a threshold matter, while all parties in this case made submissions purporting to
comply with Local Civil Rule 56.1, Plaintiff’s submission in response to Responding
Defendants’ Joint Statement of Material Facts is wholly deficient. 5 (See Pl.’s Stmt. of Material
Facts (“Pl.’s 56.1 Stmt.”); 6 Defs.’ Joint Stmt. of Material Facts (“Defs.’ 56.1 Stmt.”), annexed to
MCL’s Mot. for Summ. J., Doc. Entry No. 82; Pl.’s Stmt. of Material Facts (“Pl.’s 56.1(b)
Stmt.”), Doc. Entry Nos. 81, 83; MCL’s Counterstatement of Facts in Opp’n to Pl.’s Cross-Mot.
for Summ. J. (“MCL’s 56.1(b) Stmt.”), Doc. Entry No. 88; Inter’s Resp. to Pl.’s Stmt. of
Material Facts (“Inter’s 56.1(b) Stmt.”), Doc. Entry No. 89.)
Local Civil Rule 56.1 of the United States District Courts for the Southern and Eastern
Districts of New York requires a party moving for summary judgment to submit a “separate,
short and concise statement, in numbered paragraphs, of the material facts as to which the
moving party contends there is no genuine issue to be tried.” LOCAL CIV. R. 56.1(a). Moreover,
the party opposing the motion must “include a correspondingly numbered paragraph responding
against MCL are moot. Consequently, MCL’s summary judgment motion against Inter also is
denied as moot and need not be addressed herein.
5
Plaintiff’s counsel has filed two virtually identical versions of Plaintiff’s Rule 56.1(b)
statement. The version filed under Doc. Entry No. 81 is dated September 26, 2011 while the
version filed under Doc. Entry No. 83 is dated August 26, 2011. Plaintiff’s counsel only
provided the court with a hard copy of the Rule 56.1(b) statement dated September 26, 2011.
Nonetheless, out of an abundance of caution, the court has reviewed both versions of the 56.1(b)
statement. There is a slight variation in responses in the two versions. However, neither version
is remotely compliant with Local Civil Rule 56.1. To the extent the court cites to Plaintiff’s
56.1(b) statement, it will cite to the version with the more recent date.
6
Plaintiff’s counsel did not file an electronic version of Plaintiff’s 56.1(a) statement on the
court’s Electronic Case Filing (“ECF”) system, as is required by Rule I.A. of this court’s
Individual Motion Practice and Rules.
3
to each numbered paragraph in the statement of the moving party . . .” LOCAL CIV. R. 56.1(b).
In addition, “[e]ach statement by the movant or opponent . . . including each statement
controverting any statement of material fact, must be followed by citation to evidence which
would be admissible, set forth as required by FED. R. CIV. P. 56(c).” LOCAL CIV. R. 56.1(d)
(emphasis added). Finally, the facts submitted in the movant’s statement “will be deemed to be
admitted for purposes of the motion unless specifically controverted by” the opposing party’s
statement. LOCAL CIV. R. 56.1(c); see also FED. R. CIV. P. 56(e)(2) (“If a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the
motion[.]); Paolercio v. Allstate Ins. Co., 2011 WL 4628748, at *1 (E.D.N.Y. Sept. 30, 2011)
(citations omitted) (A party’s failure to contest facts set forth in the opposing party’s Rule 56.1
statement “constitutes an admission of those facts, and those facts are accepted as being
undisputed.”).
Each purportedly undisputed fact set forth in Responding Defendants’ Joint Statement of
Material Facts is amply supported by multiple citations to the record. (See Defs.’ 56.1 Stmt.)
Plaintiff attempts to place a substantial portion of Responding Defendants’ Joint Statement of
Material Facts in controversy; however, Plaintiff’s entire Rule 56.1(b) statement is conclusory,
fails to address Responding Defendants’ record-based assertions, and is entirely devoid of
citations to the record. (See Pl.’s 56.1(b) Stmt.) Accordingly, for purposes of the instant motion,
Responding Defendants’ factual assertions that are supported by the record and not controverted
by Plaintiff in accordance with Rule 56 and Local Civil Rule 56.1 are deemed admitted. See
Vinson v. City of New York, 2007 WL 965338, at *2 (S.D.N.Y. Mar. 30, 2007) (deeming facts
supported by the record and uncontroverted by plaintiff admitted for purposes of Rule 56
4
motion); Sterbenz v. Attina, 205 F. Supp. 2d 65, 68 (E.D.N.Y. 2002) (“Where plaintiff has not
responded to defendants’ factual assertions—all of which are established by documentary
evidence and/or the deposition testimony of plaintiff or her counsel—this Court has deemed
those facts to be uncontroverted.”). In light of the foregoing discussion, the following facts are
undisputed.
II.
Undisputed Facts
A. The Parties
Plaintiff is a food importation and distribution company organized in 2004 and located in
Maspeth, Queens County, New York. (Defs.’ 56.1 Stmt. ¶ 1; Pl.’s 56.1(b) Stmt. ¶ 1; Nov. 4,
2010 Dep. of Vijay Kumar Arora (“Arora Dep.”) at 10, annexed as Ex. A to Jeff Gillespie Aff.
(“Gillespie Aff.”), Doc. Entry No. 82.) Plaintiff’s principal is Vijay Kumar Arora (“Arora”),
who operated a rice distribution business in India before moving to the United States in 2001.
(Defs.’ 56.1 Stmt. ¶¶ 2-3; Pl.’s 56.1(b) Stmt. ¶¶ 2-3; Arora Dep. at 8-9, 12.) Between 2004 and
2009, Plaintiff sold rice locally to customers in New York and New Jersey and Plaintiff
transported the rice in its own van from its Queens warehouse to the local purchasers. (Defs.’
56.1 Stmt. ¶ 4; Pl.’s 56.1(b) Stmt. ¶ 4; Arora Dep. at 23-24.) Prior to February 2009, Plaintiff
had never conducted business with a food broker. (Defs.’ 56.1 Stmt. ¶ 6; Pl.’s 56.1(b) Stmt. ¶ 6;
Arora Dep. at 49.) Prior to April 2009, Plaintiff had never conducted business with Whole
Foods or Trader Joe’s. (Defs.’ 56.1 Stmt. ¶ 5; Pl.’s 56.1(b) Stmt. ¶5; Arora Dep. at 30-31.)
MCL is a property broker licensed by the Federal Motor Carrier Safety Administration
(“FMCSA”) and is located in Sioux Falls, South Dakota. (Defs.’ 56.1 Stmt. ¶ 35; Pl.’s 56.1(b)
Stmt. ¶ 35; Gillepsie Aff. ¶ 4.) As an FMCSA-licensed property broker, MCL procures and
arranges for transportation services by motor carriers at the request of MCL’s customers;
5
however, MCL does not directly handle or transport goods itself. (Defs.’ 56.1 Stmt. ¶¶ 36-37;
Pl.’s 56.1(b) Stmt. ¶¶ 36-37; Gillespie Aff. ¶ 5; Dep. of Dan King (“King Dep.”) at 3, annexed as
Ex. E to Gillespie Aff.)
Inter is an interstate motor carrier licensed by the FMCSA and located in Addison,
Illinois. (Defs.’ 56.1 Stmt. ¶ 67; Pl.’s 56.1(b) Stmt. ¶ 67; Decl. of Danny Petrovic (“Petrovic
Decl.”) ¶ 2, Doc. Entry No. 92; Dep. of Zorica Petrovic (“Petrovic Dep.”) at 6, annexed as Ex. C
to Gillespie Aff.)
B. Food Broker Transaction
In February 2009, Arora received a phone call from an individual named Devan Patel
during which Patel identified himself as a food broker from Chicago who was interested in
purchasing rice from Plaintiff. (Defs.’ 56.1 Stmt. ¶ 8; Pl.’s 56.1(b) Stmt. ¶ 8; Arora Dep. at 51.)
Between February and June of 2009, Arora engaged in a series of additional telephone
conversations with Patel and another individual who identified himself as Anthony Smith
(“Smith”). (Defs.’ 56.1 Stmt. ¶ 9; Pl.’s 56.1(b) Stmt. ¶ 9; Arora Dep. at 30-33.) Smith told
Arora that he and Patel were both food brokers for Whole Foods and Trader Joe’s, which Arora
believed to be true. (Defs.’ 56.1 Stmt. ¶¶ 10, 11; Pl.’s 56.1(b) Stmt. ¶¶ 10, 11; Arora Dep. at 45,
61-62.)
As a result of the conversations Arora had with Patel and Smith, Plaintiff purchased and
imported the sixteen (16) rice shipments identified in the complaint 7 from a seller named SRSS
Agro Pvt., Ltd., located in Delhi, India, which he believed would be purchased by Whole Foods
and Trader Joe’s from Plaintiff. (Compl. ¶¶ 2-67; Defs.’ 56.1 Stmt. ¶¶ 7, 10; Pl.’s 56.1(b) Stmt.
¶¶ 7, 10; Pl.’s 56.1 Stmt. ¶ 1; Arora Dep. at 19.)
7
Complaint refers to the Second Amended Verified Complaint, filed May 11, 2011. (See Doc.
Entry No. 58.)
6
Plaintiff did not enter into any written agreements with Patel or Smith regarding the rice
purchases, and all of Arora’s communications with them were conducted by telephone. (Defs.’
56.1 Stmt. ¶ 14; Pl.’s 56.1(b) Stmt. ¶ 14; Arora Dep. at 49-50.) Moreover, Patel never provided
Plaintiff with any purchase orders from Whole Foods or Trader Joe’s and Plaintiff never
requested any purchase orders from Patel for the rice shipments. (Defs.’ 56.1 Stmt. ¶ 24; Pl.’s
56.1(b) Stmt. ¶ 24; Arora Dep. at 141-43.) In addition, Plaintiff never sent Patel or Smith any
invoices covering Plaintiff’s intended sales of the rice shipments to Whole Foods and Trader
Joe’s because Patel and Smith “never demanded” such invoices from Plaintiff. (Defs.’ 56.1
Stmt. ¶ 25; Arora Dep. at 86.) Although Arora had never heard of or communicated with Patel
prior to receiving the initial phone call from him in February 2009, Arora neither investigated
Patel nor requested or obtained any personal references from him before or during the execution
of the rice shipments. (Defs.’ 56.1 Stmt. ¶ 15; Pl.’s 56.1(b) Stmt. ¶ 15; Arora Dep. at 54-55.)
Arora believed that Patel and Smith would share commissions on Plaintiff’s expected rice
sales to Whole Foods and Trader Joe’s. (Defs.’ 56.1 Stmt. ¶ 12; Pl.’s 56.1(b) Stmt. ¶ 12; Arora
Dep. at 45.) Smith had informed Arora that Whole Foods and Trader Joe’s would send their own
trucks to pick up the rice shipments from Plaintiff. (Defs.’ 56.1 Stmt. ¶ 13; Pl.’s 56.1(b) Stmt. ¶
13; Arora Dep. at 45, 48.) It also was Arora’s understanding that Smith and Patel would control
the rice shipments once they were loaded into the trucks at Plaintiff’s Queens warehouse.
(Defs.’ 56.1 Stmt. ¶ 16; Arora Dep. at 167.) Moreover, Arora testified that he understood, from
the beginning of Plaintiff’s relationship with Patel and Smith, that Plaintiff would not know the
delivery address or final destination of the rice shipments. (Defs.’ 56.1 Stmt. ¶ 29; Arora Dep. at
148.) It was Plaintiff’s understanding that the rice shipments could possibly be delivered to
7
different destinations than those Plaintiff placed on its invoices 8 because Plaintiff believed that
Whole Foods and Trader Joe’s told the trucking company where to send the rice and that the rice
could have been sent to any of four-hundred different Whole Foods stores alone. (Defs.’ 56.1
Stmt. ¶ 88; Arora Dep. at 147-148, 173). Arora expected that Patel or Smith would eventually
advise him of the shipments’ final destinations. (Defs.’ 56.1 Stmt. ¶ 30; Arora Dep. at 173.)
Plaintiff had no role in arranging for the transportation of the subject shipments. (Defs.’
56.1 Stmt. ¶ 21; Pl.’s 56.1(b) Stmt. ¶ 21; Arora Dep. at 136.) Based on Arora’s conversations
with Patel, Smith, and MCL representative Dan King (“King”), Arora believed that: 1) MCL
would make the transportation arrangements for the subject shipments on behalf of Whole Foods
and Trader Joe’s; 2) Inter’s trucking services would be used to transport some of the subject
shipments; and 3) Whole Foods and Trader Joe’s having hired MCL and Inter would pay them.
(Defs.’ 56.1 Stmt. ¶¶ 18-20; Pl.’s 56.1(b) Stmt. ¶¶ 18-20; Arora Dep. at 48-49, 72-73, 136-37.)
C. MCL’s Property Broker Transaction
In early April 2009, MCL representative King received a phone call from Bob Patel, one
of MCL’s sub-contractor truck fleet operators in the Chicago, Illinois area, who advised King
that an individual named Devan Patel was seeking trucking services for a series of rice shipments
that were to be picked up from Plaintiff in New York. (Defs.’ 56.1 Stmt. ¶¶ 38, 39; Pl.’s 56.1(b)
Stmt. ¶¶ 38, 39; King Dep. at 6-7.) King testified that he does not know whether Bob Patel is
related to Devan Patel. (King Dep. at 6.) On April 14, 2009, Bob Patel sent a one-page
handwritten fax to MCL, addressed to King, summarizing Devan Patel’s transportation and
delivery instructions to MCL for the rice shipments. (Defs.’ 56.1 Stmt. ¶ 40; Pl.’s 56.1(b) Stmt.
8
While Plaintiff never sent Patel or Smith any invoices covering the rice shipments, Plaintiff did
create invoices that it purportedly unsuccessfully remitted to Whole Foods and Trader Joe’s.
(Defs.’ 56.1 Stmt. ¶ 25; Arora Dep. at 86; Pl.’s 56.1 Stmt. ¶ 16; Ex. T (“Pl.’s Invoices”), annexed
to Vijay Arora Aff. (“Arrora Aff.”), Doc. Entry No. 79.)
8
¶ 40; Pl.’s 56.1 Stmt. ¶ 5; King Dep. at 18; Ex. H (the “Fax”), annexed to Gillespie Aff.) Devan
Patel’s instructions requested the goods be transported on a “blind shipment” basis from New
York to a facility in Elk Grove Village, Illinois. (Defs.’ 56.1 Stmt. ¶ 41; Pl.’s 56.1(b) Stmt. ¶ 41;
King Dep. at 18; Ex. H.) Specifically, the Fax stated, in pertinent part:
- BLIND SHIPMENT ***
Ship to: Whole Foods, Inc 550 Bowie Austin TX 78703
Actual shipment going to Elk Grove Village, IL
Address to be given after pickup
***
Shipper should not know that shipment is going to Elk Grove Village, IL
Driver should only say load going to Austin TX for Whole Foods
(Pl.’s 56.1 Stmt. ¶ 6; MCL’s 56.1(b) Stmt. ¶ 6; Inter’s 56.1(b) Stmt. ¶ 6; Ex. H.)
A blind shipment is one in which the shipment’s place of origin and/or place of delivery
is not disclosed by the carrier to the consignor or consignee. (Defs.’ 56.1 Stmt. ¶ 42; Pl.’s
56.1(b) Stmt. ¶ 42; Petrovic Dep. at 21, 24; King Dep. at 19; Petrovic Decl. ¶ 12.) Blind
shipment is defined by the United States Department of Transportation (“US DOT”), Maritime
Administration, as, “A B/L [bill of lading] wherein the paying customer has contracted with the
carrier that shipper or consignee information is not given.” (Defs.’ 56.1 Stmt. ¶ 43 (citing US
DOT,
Maritime
Administration,
Glossary
of
Shipping
Terms,
19
(2008),
http://www.marad.dot.gov/documents/Glossary_final.pdf.); Pl.’s 56.1(b) Stmt. ¶ 43.) Blind
shipments are a common practice in the trucking industry. (Defs.’ 56.1 Stmt. ¶ 44; Petrovic Dep.
at 69; Petrovic Decl. ¶¶ 15-17.) Devan Patel’s transportation and delivery instructions also
requested MCL to send its invoices for the transportation freight charges to Devan Patel at his
address in Skokie, Illinois. (Defs.’ 56.1 Stmt. ¶ 45; Pl.’s 56.1(b) Stmt. ¶ 45; Ex. H.)
9
Sometime in April 2009, after Devan Patel’s handwritten instructions were faxed to
MCL, King and Patel engaged in a series of phone calls wherein MCL accepted shipping orders
from Patel and MCL, in turn, sub-contracted with Inter to provide the transportation of some of
the subject rice shipments from plaintiff’s Queens warehouse to a warehouse designated by Patel
in Elk Grove Village, Illinois. (Defs.’ 56.1 Stmt. ¶ 46; Pl.’s 56.1(b) Stmt. ¶ 46; King Dep. at 1112.) In the telephone calls between King and Patel, Patel requested MCL to have Inter’s truck
drivers tell Plaintiff that they were picking up the shipments for Whole Foods or Trader Joe’s.
(Defs.’ 56.1 Stmt. ¶ 48; Pl.’s 56.1(b) Stmt. ¶ 48; King Dep. at 11-12.) King believed Patel’s
instructions were meant to help the truck drivers identify the correct shipments to Plaintiff for
pick-up from Plaintiff’s facility. (Defs.’ 56.1 Stmt. ¶ 49; King Dep. at 39-40.) From his
discussions with Devan Patel, King understood that MCL was required to arrange for the
transportation of the shipments from New York to the Chicago area, as a relay point, and that
Patel would take over the shipments once they arrived in Illinois. (Defs.’ 56.1 Stmt. ¶ 50; King
Dep. at 12, 75-76.)
King discussed Patel’s delivery instructions with MCL’s Director of Logistics, John
Krolikowski (“Krolikowski”), and together they concluded that Patel likely requested that the
goods be transported as a blind shipment to protect Patel’s own sales by not disclosing his buyers
to Plaintiff. (Defs.’ 56.1 Stmt. ¶¶ 51, 52; Pl.’s 56.1(b) Stmt. ¶ 51; King Dep. at 4, 19, 32-33.)
Moreover, King was not concerned by Patel’s request for blind shipments because he previously
had received similar requests from other MCL customers. (Defs.’ 56.1 Stmt. ¶ 53; Pl.’s 56.1(b)
Stmt. ¶ 53; King Dep. at 33.) MCL forwarded its freight charge invoices for each of the
shipments to Patel at his Skokie, Illinois address and all of MCL’s invoices to Patel were paid.
(Defs.’ 56.1 Stmt. ¶ 55; Pl.’s 56.1(b) Stmt. ¶ 55; King Dep. at 25; Ex. J, annexed to Gillespie
10
Aff.)
D. Inter’s Transportation of the Rice Shipments
Commencing on or about April 14, 2009 until on or about June 17, 2009, MCL faxed a
series of Load/Rate Confirmation sheets (“Rate Sheet” or “Rate Sheets”) to Inter regarding the
rice shipments. It was MCL’s and Inter’s regular practice for MCL to fax Rate Sheets to Inter
and for Inter to follow the instructions on the Rate Sheets for any loads accepted by Inter from
MCL. (Defs.’ 56.1 Stmt. ¶¶ 72, 73; Pl.’s 56.1(b) Stmt. ¶¶ 72, 73; Petrovic Dep. at 31, 42; King
Dep. at 34; Petrovic Decl. ¶ 23; Rate Sheet, annexed as Ex. I to Gillespie Aff.) Each of the Rate
Sheets faxed by MCL to Inter covering the subject shipments contains a clause reciting: “This
Load/Rate Confirmation sheet is an Addendum to the Broker/ Carrier Agreement between
Midwest Coast Logistics, LLC, and Inter, Inc.” (Defs.’ 56.1 Stmt. ¶ 74; Pl.’s 56.1(b) Stmt. ¶ 74;
Rate Sheet, Ex. I.)
Pursuant to Patel’s instructions to MCL, the April 14, 2009 Rate Sheet faxed to Inter also
contain directions stating: “Blind will give address in Elk Grove Village IL when driver calls us
loaded. Must tell shipper goes to Whole Foods in Austin TX.” (Rate Sheet, Ex. I; Pl.’s 56.1
Stmt. ¶ 7; MCL’s 56.1(b) Stmt. ¶ 7; Inter’s 56.1(b) Stmt. ¶ 7; Defs.’ 56.1 Stmt. ¶ 77; Pl.’s
56.1(b) Stmt. 77; King Dep. at 81.)
The Rate Sheet was then signed by an authorized
representative for Inter. (Pl.’s 56.1 Stmt. ¶ 8; MCL’s 56.1(b) Stmt. ¶ 8; Inter’s 56.1(b) Stmt. ¶
8.) MCL expected, and so instructed Inter, that the shipments were to be delivered blind,
meaning that the shipper at the pick-up location, in this case Plaintiff, would not be advised of
the actual destination. (Defs.’ 56.1 Stmt. ¶ 78; Pl.’s 56.1(b) Stmt. ¶ 78; King Dep. at 36;
Petrovic Decl. ¶ 28.) Accordingly, because the shipments were blind, Inter was not informed of
the actual delivery address until after it had received the goods and called MCL for further
11
instructions. (Defs.’ 56.1 Stmt. ¶ 79; King Dep. at 36; Petrovic Decl. ¶ 29.) Furthermore,
because the shipments were blind, Inter directed Plaintiff to contact MCL if Plaintiff required
any additional information and Inter provided Plaintiff with MCL’s contact information. (Defs.’
56.1 Stmt. ¶ 85; Petrovic Dep. at 35-36; Petrovic Decl. ¶ 30.)
MCL never transported or maintained physical possession of any of the rice shipments
but arranged for Inter’s trucks to go to Plaintiff’s warehouse to pick up the rice shipments; the
first shipment was picked up by Inter on or about April 14, 2009 and the last shipment was
picked up on or about June 17, 2009. (Defs.’ 56.1 Stmt. ¶¶ 22, 23, 47, 75; Pl.’s 56.1(b) Stmt. ¶¶
22, 23, 47, 75; King Dep. at 9; Arora Dep at 68-70; Gillespie Aff. ¶ 11.) Plaintiff prepared the
bills of lading covering the sixteen (16) rice shipments and gave copies to the truck drivers,
which the drivers signed. (Defs.’ 56.1 Stmt. ¶ 27; Pl.’s 56.1(b) Stmt. ¶ 27; Arora Dep at 89-90;
Dep. of Rohit Satia (“Satia Dep.”) at 79-81, annexed as Ex. B to Gillespie Aff.) Arora also
testified that Plaintiff mailed copied of its bills of lading to Smith in Austin, Texas. (Defs.’ 56.1
Stmt. ¶ 28; Pl.’s 56.1(b) Stmt. ¶ 28; Arora Dep. at 90-92.) King at MCL did not receive copies
of the Bills of Lading issued by Plaintiff. (Defs.’ 56.1 Stmt. ¶ 54; Pl.’s 56.1(b) Stmt. ¶ 54; Arora
Dep. at 37.)
Pursuant to Patel’s instructions, MCL directed Inter to deliver the subject shipments to
the Elk Grove Village warehouse designated by Patel, which is a cross-dock facility where
shipments are eventually reloaded onto other trucks for delivery to an end user. (Defs.’ 56.1
Stmt. ¶¶ 76, 89; Pl.’s 56.1(b) Stmt. ¶¶ 76, 89; Petrovic Dep. at 80; King Dep. at 12, 46, 75-76.)
All of Inter’s freight charge invoices were remitted to MCL for the subject shipments that it was
assigned and accepted, and those invoices were paid by MCL. (Defs.’ 56.1 Stmt. ¶ 81; Pl.’s
56.1(b) Stmt. ¶ 81; Pl.’s 56.1 Stmt. ¶ 10; MCL’s 56.1(b) Stmt. ¶ 10; Inter’s 56.1(b) Stmt. ¶ 10;
12
Petrovic Dep. at 16, 48.) Moreover, Inter did not communicate with MCL’s customer, Patel, or
with Smith regarding the subject shipments. (Defs.’ 56.1 Stmt. ¶ 82; Pl.’s 56.1(b) Stmt. ¶ 82;
Petrovic Dep. at 52; Petrovic Decl. ¶ 33.)
E. Plaintiff’s Relationship with Responding Defendants
Plaintiff neither hired nor paid MCL or Inter for their services with respect to the rice
shipments. (Defs.’ 56.1 Stmt. ¶ 56; Arora Dep. at 139-140, 160-61; Gillespie Aff. ¶ 12; Petrovic
Dep. at 16, 48, 71; King Dep. at 25, 68.) Rather, MCL was hired, instructed, and paid by Patel
and MCL, in turn, hired, instructed and paid Inter to transport the rice shipments from New York
to Illinois in accordance with Patel’s instructions to MCL. (Defs.’ 56.1 Stmt. ¶ 57; Pl.’s 56.1(b)
Stmt. ¶ 57; Pl.’s 56.1 Stmt. ¶ 4; Gillespie Aff. ¶ 13.) Moreover, Plaintiff did not receive any
documents from MCL relating to the shipments and Plaintiff did not transmit any documents to
MCL. (Defs.’ 56.1 Stmt. ¶ 58; Pl.’s 56.1(b) Stmt. ¶ 58; Arora Dep. at 160.)
Before the first rice shipment was sent in mid-April, 2009, MCL contacted Plaintiff and
advised Arora that MCL would be arranging the shipments for Patel and Smith. (Defs.’ 56.1
Stmt. ¶ 59; Arora Dep. at 48-49.) When Arora asked MCL about the ultimate destination of a
shipment, MCL advised Arora to contact Patel for that information. (Defs.’ 56.1 Stmt. ¶ 60;
King Dep. at 12.) MCL did not inform Arora for whom MCL worked and Arora did not ask
MCL about MCL’s customer. (Defs.’ 56.1 Stmt. ¶ 61; Arora Dep. at 48.) Arora testified that he
did not ask MCL whether MCL was working for Trader Joe’s or Whole Foods because Arora
was not concerned or worried about whom MCL was working for; moreover, Arora testified that
“it never occurred in my mind” to think about MCL’s role in the shipments. (Defs.’ 56.1 Stmt.
¶¶ 62, 63; Arora Dep. at 65, 162-163.) However, Smith told Arora “several times” that MCL
was working for Smith. (Defs.’ 56.1 Stmt. ¶ 64; Arora Dep. at 72.) Arora assumed that Inter
13
was Trader Joe’s and Whole Foods’ trucking company. (Defs.’ 56.1 Stmt. ¶ 65; Pl.’s 56.1(b)
Stmt. ¶ 65; Arora Dep. at 73.)
F. End Users
At the time the last shipment was sent on June 17, 2009, Plaintiff had not received any
payment from Whole Foods or Trader Joe’s for any of the shipments. (Defs.’ 56.1 Stmt. ¶ 31;
Pl.’s 56.1(b) Stmt. ¶ 31; Arora Dep. at 38.)
After the last shipment was released, Arora
contacted Whole foods and Trader Joe’s regarding payment and both companies denied placing
any order for the rice shipments. (Defs.’ 56.1 Stmt. ¶ 31; Pl.’s 56.1(b) Stmt. ¶ 31; Arora Dep. at
39-44.) Arora now believes that he was deceived by Patel and Smith. (Defs.’ 56.1 Stmt. ¶ 33;
Pl.’s 56.1(b) Stmt. ¶ 33; Arora Dep. at 141-44.)
The shipments are no longer at the warehouse in Elk Grove Village, Illinois. (Defs.’ 56.1
Stmt. ¶ 90; Pl.’s 56.1(b) Stmt. ¶ 90; Petrovic Decl. ¶ 39.) Neither Inter nor MCL know where the
shipments went after they were delivered to the warehouse in Elk Grove Village, Illinois –
including whether or not they were ultimately delivered to Whole Foods or Trader Joe’s, or later
resold on behalf of Whole Foods or Trader Joe’s. (Defs.’ 56.1 Stmt. ¶¶ 91, 94; Pl.’s 56.1(b)
Stmt. ¶¶ 91, 94; King Dep. at 45-46; Petrovic Dep. at 55; Petrovic Decl. ¶ 40.) Eventually, the
Federal Bureau of Investigation (“FBI”) conducted an investigation to search for the missing rice
shipments. (Pl.’s 56.1 Stmt. ¶ 18; MCL’s 56.1(b) Stmt. ¶ 18; Inter’s 56.1(b) Stmt. ¶ 18; Ex. U,
annexed to Vijay Arora Aff. (“Arrora Aff.”), Doc. Entry No. 79.) Sometime after the FBI
investigation commenced, Plaintiff filed the instant suit contending it incurred an obligation to its
wholesaler, SRSS Agro Pvt., Ltd, in the amount of $392,108.48 for the loss of the goods shipped
by Inter at the direction of MCL. (See Compl.; Pl.’s 56.1 Stmt. ¶ 17.)
14
DISCUSSION
I.
Legal Standard
Summary judgment is appropriate where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The court
must view all facts in the light most favorable to the nonmoving party, but “only if there is
a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007).
“When
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. A genuine issue of material fact
exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party,
however, may not rely on “[c]onclusory allegations, conjecture, and speculation,” Kerzer v.
Kingly Mfg., 156 F. 3d 396, 400 (2d Cir. 1998), but must affirmatively “set out specific facts
showing a genuine issue for trial.” FED. R. CIV. P. 56(e). “When no rational jury could find in
favor of the nonmoving party because the evidence to support its case is so slight, there is no
genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential
Residential Servs., Ltd. P’ship., 22 F. 3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont’l
Group, Inc., 859 F. 2d 1108, 1114 (2d Cir. 1988)).
II.
Basis of the Parties’ Summary Judgment Motions
The gravamen of Inter’s summary judgment motion is that the Carmack Amendment to
the Interstate Commerce Act of 1887, 49 U.S.C. § 14706 (“the Carmack Amendment”) preempts
Plaintiff’s sixteen state or common law breach of contract claims, and, as a result, Plaintiff’s
15
complaint should be dismissed in its entirety. Inter additionally argues that, even under the
Carmack Amendment, Plaintiff has failed to establish a prima facie case and, consequently, the
complaint should be dismissed on this alternative ground. (See Inter’s Mem. of Law in Supp. of
Mot. for Summ. J. (“Inter’s Mem.”), Doc. Entry No. 93.)
The basis of MCL’s summary judgment motion is that Section 14501(c)(1) of the
Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101 et seq.
(“ICCTA”) preempts all state or common law claims against MCL, other than breach of contract
claims, and, because MCL is not in privity of contract with Plaintiff, the sixteen breach of
contract claims against MCL should be dismissed. (See MCL’s Mem. of Law in Supp. of Mot.
for Summ. J. (“MCL’s Mem.”), Doc. Entry No. 82.)
For reasons this court simply cannot discern, Plaintiff’s counsel has utterly failed to
contest, much less even acknowledge, a substantial majority of Responding Defendants’ legal
arguments. In particular, Plaintiff’s memorandum in support of its cross-motion and in
opposition to Responding Defendants’ motions simply ignores Responding Defendants’
preemption and privity arguments and does not otherwise seriously respond to the additional
legal arguments made by Responding Defendants in their motion papers. (See Pl.’s Mem. of
Law (“Pl.’s Mem.”), Doc. Entry No. 80.) Instead, Plaintiff’s memorandum, in small part,
attempts to indirectly raise a Carmack claim, which it never alleged in its complaint. In addition,
Plaintiff focuses the majority of its cross-motion on an entirely new theory of liability not alleged
in the complaint.
Specifically, Plaintiff now argues Responding Defendants engaged in a
conspiracy with Devan Patel to defraud Plaintiff of its property. (See Pl.’s Mem. at 7-15.)
Moreover, Plaintiff now seeks to hold Responding Defendants jointly and severally liable for the
purported conspiracy. (Pl.’s Mem. at 11.)
16
Plaintiff did not allege a Carmack claim, a fraud claim, or a conspiracy to commit fraud
claim against Responding Defendants anywhere in its complaint. (See Compl.) Plaintiff’s
attempt to raise these claims for the first time in its memorandum of law is improper, as it is well
settled “that a party cannot assert a claim for the first time in its motion papers.” Global
Crossing Bandwidth, Inc. v. Locus Telecommunication, Inc., 632 F. Supp. 2d 224, 245
(W.D.N.Y. 2009) (collecting cases); accord Cordts-Auth v. Crunk, LLC, 815 F. Supp. 2d 778,
796 (S.D.N.Y. 2011); In re Comverse Tech., Inc. Derivative Litig., 2006 WL 3193709, at *5 n. 3
(E.D.N.Y. Nov. 2, 2006).
Plaintiff has had multiple opportunities to amend its complaint, and, after completion of
discovery, if Plaintiff concluded that it wanted to bring additional claims against Responding
Defendants, Plaintiff was obligated to comply with Federal Rule of Civil Procedure 15(a)(2) and
seek leave of the court to amend its complaint further. “A summary judgment opposition brief is
not a substitute for a timely motion to amend the complaint.” Maharishi Hardy Blechman Ltd. v.
Abercrombie & Fitch Co., 292 F. Supp. 2d 535, 544 (S.D.N.Y. 2003). Accordingly, the court
will not consider Plaintiff’s newly raised theories of liability.
See Chairnoff v. National
Westminster Bank, N.A., 309 F. Supp. 2d 581, 586 (S.D.N.Y. 2004) (“Plaintiffs’ complaint
makes no mention of this theory . . . and Plaintiffs’ failure to raise this issue previously, even on
a generous reading of their submissions, is grounds alone to reject their argument.”).
Plaintiff has failed to alert the court as to what state law its claims are apparently
premised upon. Assuming that Plaintiff’s claims are premised on New York law, its conspiracy
to commit fraud claim, even if timely raised, is not cognizable. See Thyroff v. Nationwide Mut.
Ins. Co., 57 A.D. 3d 1433, 1435 (4th Dep’t 2008) (“New York does not recognize civil
conspiracy to commit a tort as an independent cause of action.” (quoting Sokol v. Addison, 293
17
A.D. 2d 600, 601 (2d Dep’t 2002)); see also Gorbaty v. Wells Fargo Bank, N.A., 2012 WL
1372260, at *23-24 (E.D.N.Y. Apr. 18, 2012) (collecting cases). Based upon the foregoing,
Plaintiff’s belatedly raised conspiracy to commit fraud claims are denied as untimely and as not
cognizable under New York law.
III.
Inter’s Summary Judgment Motion
Inter contends that each of Plaintiff’s state or common law breach of contract claims are
premised on and arise out of Inter’s alleged failure to properly ship goods in interstate
commerce. (Inter’s Mem. at 2.) As such, Inter asserts all of Plaintiff’s claims are preempted and
exclusively governed by the Carmack Amendment. (Id. at 7.) As noted supra, Part II, Plaintiff
neither raises a Carmack claim in its complaint nor addresses Inter’s preemption argument in its
moving papers. (See Pl.’s Mem.) However, Plaintiff seems to concede that the Carmack
Amendment is the proper vehicle by which it should have asserted liability against Inter, when,
in its summary judgment motion papers, it attempts to raise what appears to be a Carmack claim
for the first time. (See Pl.’s Mem. at 9-11.) The court concludes that Plaintiff’s claims against
Inter, as currently pled, are preempted by the Carmack Amendment. Accordingly, summary
judgment is granted in Inter’s favor.
The Carmack Amendment, 9 which Congress passed in 1906, “addresses the subject of
carrier liability for goods lost or damaged during shipment, and most importantly provides
shippers with the statutory right to recover for the actual loss or injury to their property caused
9
The Carmack Amendment, 49 U.S.C. § 14706(a)(1) states in pertinent part: A carrier providing
transportation or service . . . shall issue a receipt or bill of lading for property it receives for
transportation under this part. That carrier and any other carrier that delivers the property and is
providing transportation or service . . . are liable to the person entitled to recover under the
receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury
to the property caused by (A) the receiving carrier, [or] (B) the delivering carrier . . . Failure to
issue a receipt or bill of lading does not affect the liability of a carrier.
18
by any of the carriers involved in the shipment.” Cleveland v. Beltman N. Am. Co., 30 F. 3d 373,
377 (2d Cir. 1994) (emphasis in original). The Supreme Court has interpreted the Carmack
Amendment to broadly preempt state law claims arising from the shipment of goods in interstate
commerce. See, e.g., Adams Express Co. v. Croninger, 226 U.S. 491, 505-06 (1913) (“[The
Carmack Amendment] embraces the subject of the liability of the carrier under a bill of lading . .
. . Almost every detail of the subject is covered so completely that there can be no rational doubt
but that Congress intended to take possession of the subject, and supersede all state regulation
with reference to it.”); Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196 (1916)
(“[T]he words of the [Carmack Amendment] are comprehensive enough to embrace
responsibility for all losses resulting from any failure to discharge a carrier’s duty as to any part
of the agreed transportation. . . .”).
In addition, “the Second Circuit has concluded that the statutory scheme provided by the
Carmack Amendment is the exclusive remedy whereby a shipper may seek reimbursement from
a carrier for damage to his or her property that occurred during shipment.” Commercial Union
Ins. Co. v. Forward Air, Inc., 50 F. Supp. 2d 255, 257 (S.D.N.Y. 1999) (citing Cleveland, 30 F.
3d at 380-81); accord Diamond v. Beltman N. Am. Van Lines, 29 F. App’x 49, 50 (2d Cir. 2002)
(“The Carmack Amendment to the Interstate Commerce Act is the exclusive remedy a shipper
may use to recover damages from a carrier for damage to property during shipment.”); Design X
Mfg., Inc. v. ABF Freight Systems, Inc., 584 F. Supp. 2d 464, 467 (D.Conn. 2008) (collecting
cases) (“It is well established that the Carmack Amendment preempts state law claims arising
from the shipment of goods in interstate commerce.”).
Here, Plaintiff alleges in the complaint, and the evidence in the record demonstrates, that
the subject rice shipments were shipped by Inter in interstate commerce. Because Plaintiff seeks
19
reimbursement from Inter, a motor carrier, for goods lost or damaged during interstate shipment,
the Carmack Amendment is the exclusive means by which Plaintiff can recover against Inter.
See Commercial Union Ins. Co., 50 F. Supp. 2d at 257. Plaintiff only alleges common law
breach of contract claims against Inter. Accordingly, grants summary judgment is granted in
Inter’s favor, as all of Plaintiff’s breach of contract claims are preempted by the Carmack
Amendment. See Mafcote Industries, Inc. v. Milan Exp. Co., Inc., 2011 WL 3924188, at *9
(D.Conn. Sept. 7, 2011) (Because the shipments at issue were interstate shipments, “the Carmack
Amendment preempts Plaintiffs’ state law claims and Defendant is accordingly entitled to
summary judgment in its favor[.]”); Design X Mfg., Inc., 584 F. Supp. 2d at 468 (granting
summary judgment in favor of defendant with respect to plaintiff’s common law negligence and
breach of contract claims because they are preempted by the Carmack Amendment).
IV.
MCL’s Summary Judgment Motion
As summary judgment is granted in Inter’s favor against Plaintiff, Inter’s cross-claims
against MCL are now moot. Accordingly, only Plaintiff’s breach of contract claims against
MCL remain outstanding. As such, the court need not reach the issue of whether Section
14501(c)(1) of the ICCTA preempts all state law claims, other than breach of contract claims,
which the Second Circuit has not yet addressed, in order to dispose of this motion. Thus, the
narrow question remaining before this court is whether MCL is liable to Plaintiff for breaching
the bills of lading.
MCL contends, inter alia, that it was never in privity of contract with Plaintiff and, thus,
the complaint should be dismissed as to it. (MCL’s Mem. at 12, 14-17.) Plaintiff fails to
contest, let alone address, the issue of privity in its moving papers, but instead focuses its
arguments on its untimely and improperly asserted conspiracy to commit fraud claim. (See, e.g.,
20
Pl.’s Mem. at 8-9.) The record shows that MCL was never in privity of contract with Plaintiff.
Accordingly, summary judgment is granted in favor of MCL as to Plaintiff’s breach of contract
claims.
As an initial matter, the bills of lading that form the basis of Plaintiff’s breach of contract
claims do not contain choice of law provisions. (See Ex. B, Annexed to Arora Aff.) However,
there does not appear to be a choice of law issue here because Responding Defendants discuss
New York law in their briefs and Plaintiff does not contest Responding Defendants’ reliance on
New York law. (See MCL’s Mem. at 16-17; Mem. of Law in Further Supp. of Inter’s Mot. for
Summ. J. and in Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Inter’s Reply Mem.”) at 8, Doc. Entry
No. 94; Pl.’s Mem.) Thus, the court will proceed under the assumption that New York law
applies to the contracts.
Under New York law, there are four elements necessary to establish a breach of contract
claim: (1) the formation of a contract between the parties; (2) performance by the plaintiff; (3)
failure to perform on the part of defendant; and (4) damages. See Johnson v. Nextel Commc'ns,
Inc., 660 F. 3d 131, 142 (2d Cir. 2011) (citations omitted). In order for a contract to be binding
“there must be a manifestation of mutual assent sufficiently definite to assure that the parties are
truly in agreement with respect to all material terms.” Express Indus. and Terminal Corp. v. N.Y.
State Dep’t. of Transp., 93 N.Y.2d 584, 589 (1999). As such, courts generally “look to the basic
elements of the offer and the acceptance to determine whether there is an objective meeting of
the minds sufficient to give rise to a binding and enforceable contract.” Id.
Here, the record shows Plaintiff and MCL did not enter into binding contract with each
other regarding the subject rice shipments. Plaintiff did not hire or pay MCL to arrange for
transportation of the rice and MCL did not bill Plaintiff for its broker services. (Defs.’ 56.1
21
Stmt. ¶ 55, 56; Pl.’s 56.1(b) Stmt. ¶ 55; Arora Dep. at 139-140, 160-61.) Plaintiff played no role
in arranging for the transportation of the subject shipments and Plaintiff’s principal, Arora,
testified that “it never occurred in my mind” to think about the role MCL played in the shipment
arrangements. (Defs.’ 56.1 Stmt. ¶¶ 21, 63; Pl.’s 56.1(b) Stmt. ¶ 21; Arora Dep. at 136, 162.)
Plaintiff believed that MCL was hired by Whole Foods and Trader Joe’s and that MCL was
making the shipping arrangement on behalf of Whole Foods and Trader Joe’s. (Defs.’ 56.1 Stmt.
¶¶ 18, 20; Pl.’s 56.1(b) Stmt. ¶¶ 18, 20; Arora Dep. at 48-49, 72-73, 136-37.) To the contrary,
MCL was actually hired, instructed and paid by Patel. (Defs.’ 56.1 Stmt. ¶ 57; Pl.’s 56.1(b)
Stmt. ¶ 57.) The uncontroverted record shows that: 1) the bills of lading do not name MCL; 2)
only representatives from Inter signed the bills of lading; 3) MCL never sent Plaintiff any
documents relating to the shipments; and 4) Plaintiff did not transmit any documents, including
the bills of lading, to MCL. (Defs.’ 56.1 Stmt. ¶ 54, 58; Pl.’s 56.1(b) Stmt. ¶ 54, 58; Arora Dep.
at 89-90, 160; Ex. B, Annexed to Arora Aff.) Instead, Plaintiff sent copies of the bills of lading
to Smith in Austin, Texas. (Defs.’ 56.1 Stmt. ¶ 28; Pl.’s 56.1(b) Stmt. ¶ 28; Arora Dep. at 9092.) Finally, MCL, acting as a broker, never transported or maintained physical possession of
any of the rice shipments. (Defs.’ 56.1 Stmt. ¶ 47; Pl.’s 56.1(b) Stmt. ¶ 47.) Based on this
undisputed evidence, the court concludes no agreement was ever made between MCL and
Plaintiff. Hence, no contract was formed between these parties and MCL cannot be found liable
for breach of contract. See Gessin Elec. Contractors, Inc. v. 95 Wall Associates, LLC, 74 A.D.
3d 516, 518 (1st Dep’t 2010) (no contract exists where there was no meeting of the minds
between the parties). Accordingly, MCL’s summary judgment motion is granted as to Plaintiff’s
breach of contract claims.
To the extent Plaintiff attempts to assert MCL owed it a separate legal duty that MCL
22
allegedly breached, MCL argues that, as a property broker, its sole duty is to act in good faith
towards its principal, in this case Devan Patel, and its liability to its principal is limited to
selecting a qualified carrier to transport the principal’s freight. (See MCL’s Mem. at 11, 16); cf.
Tartaglione v. Shaw’s Exp., Inc., 790 F. Supp. 438, 441 (S.D.N.Y. 1992) (property broker’s duty
was to arrange for transportation of property by an authorized motor carrier). The court need not
address the possibility that the law might have permitted Plaintiff to recover against MCL under
some other theory of liability, because the only theory of liability Plaintiff alleged against MCL
in its complaint is for breach of contract.
V.
Plaintiff’s Summary Judgment Motion
For the reasons discussed supra in Parts II, III, and IV of this Opinion and Order,
Plaintiff’s cross-motion for summary judgment is denied in its entirety.
CONCLUSION
For the reasons set forth above: 1) Inter’s motion for summary judgment is granted in its
entirety; 2) MCL’s motion for summary judgment as to Plaintiff’s breach of contract claims is
granted; 3) MCL’s motion for summary judgment as to Inter’s cross-claims is denied as moot;
and 4) Plaintiff’s cross-motion for summary judgment is denied in its entirety. The complaint is
dismissed as to Responding Defendants, and, therefore, the Responding Defendants’ requests for
notions of default as to Neil and Devan Patel (Doc. Entry Nos. 67, 71, 78) are denied as moot
and the Clerk’s entry of notation of defaults are vacated. (Doc. Entry Nos. 70, 74, 78.) As the
only claim made by Plaintiff against the remaining, non-appearing defendant, Devan Patel,
appears to be a conspiracy to commit fraud, which as discussed in Part II, supra, is not a
cognizable claim under New York law, the remaining claim in the complaint, cause of action
23
seventeen, is also dismissed. Thusly, Plaintiff’s motion for entry of default is denied as moot
(Doc. Entry No. 71) and the Clerk’s entry of notation of default is vacated. (Doc. Entry No. 74.)
The entire complaint is dismissed and the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Brooklyn, New York
August 10, 2012
_______________/s/_____________
DORA L. IRIZARRY
United States District Judge
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?