Tienda Escolar, Inc. et al v. Magic Transport, Inc.

Filing 8

OPINION AND ORDER granting 4 Motion to Dismiss for Failure to State a Claim. Judgment shall be entered accordingly. Signed by Judge Daniel R. Dominguez on 5/12/2015. (MM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

TIENDA ESCOLAR, INC., ET AL.,
Plaintiffs,
v.
Civil No. 14-1843 (DRD)

MAGIC TRANSPORT, INC.,
Defendant.

OPINION AND ORDER
Pending before the Court is Defendant Magic Transport, Inc.’s
(“Defendant” or “Magic”) Motion to Dismiss (Docket No. 4).
the

reasons

set

forth

below,

Defendant’s

motion

is

For

hereby

GRANTED.
I.
Plaintiffs

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Tienda

Escolar,

Inc.

and

Luis

Hiram

Carrucini-

Quiles (collectively, “Plaintiffs”) are engaged in the retail
sale

of

school

Defendant’s

uniforms

services

to

and,

ship

for

their

years,

products

have
to

utilized

Puerto

Rico.

Magic is engaged in the carriage of goods by sea as a Non-Vessel
Operating Common Carrier (“NVOCC”)1 in international and domestic
trade.

1

“In the usual course, an NVOCC assembles small lots into a single large
container at a determinate point of origin for shipment and handling by an
ocean carrier to a specified destination. The freight forwarder arranges for
the bulk load to be broken down dock-side or moved inland to a dispersal
point, as circumstances warrant. In either event, the container is unloaded

1

In 2012, the parties entered into a contract whereby Magic
would provide ocean and inland carriage services to Plaintiffs
from Fort Worth, Texas to Toa Alta, Puerto Rico.
Docket No. 1-3.

See Complaint,

On July 7, 2012, Magic issued a bill of lading

for the carriage of two pallets of school uniform pants, one of
which was never delivered.
On November 3, 2014, Plaintiffs filed suit against Defendant
in the Puerto Rico Court of First Instance, Bayamón Part, Civil
No. DAC2014-2981 (401), for breach of contract.
On November 21, 2014, Defendant removed the case to federal
court, stressing that Plaintiff’s cause of action arises under
federal law, i.e., the Carriage of Goods by Sea Act (“COGSA”).
On December 26, 2014, Defendant filed a Motion to Dismiss
(Docket No. 4) asserting that the case at bar is time-barred.
Defendant argues that all breach of contract actions arising
under

the

COGSA

must

be

filed

within

one

year,

but

that

Plaintiff waited over two (2) years to file its complaint.
Plaintiff has failed to appear in the instant case.

As such,

Defendant’s motion stands unopposed.

by the NVOCC's agents or contractors, and the goods delivered to the
individual consignees. As a freight forwarder, an NVOCC is considered the
‘carrier.’”
Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860 (1st
Cir. 1987).

2

II. STANDARD OF REVIEW FOR MOTIONS TO DISMISS
Federal Rule of Civil Procedure 8(a) requires plaintiffs to
provide “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a
plaintiff must “provide the grounds of his entitlement [with]
more

than

labels

and

conclusions.”

See

Ocasio-Hernandez

v.

Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (“in order to
‘show’ an entitlement to relief a complaint must contain enough
factual

material

‘to

raise

a

right

to

relief

above

the

speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).’)(quoting
Twombly, 550 U.S. at 555) (citation omitted).

Thus, a plaintiff

must, and is now required to, present allegations that “nudge
[his] claims across the line from conceivable to plausible” in
order to comply with the requirements of Rule 8(a).

Id. at 570;

see e.g. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
When considering a motion to dismiss, the Court’s inquiry
occurs in a two-step process under the current context-based
“plausibility” standard established by Twombly, 550 U.S. 544,
and Iqbal, 556 U.S. 662. “Context based” means that a Plaintiff
must allege sufficient facts that comply with the basic elements
of

the

cause

(concluding

of
that

action.

See

plaintiff’s
3

Iqbal,

556

complaint

U.S.
was

at

677-679

factually

insufficient to substantiate the required elements of a Bivens
claim, leaving the complaint with only conclusory statements).
First, the Court must “accept as true all of the allegations
contained

in

a

complaint[,]”

discarding

legal

conclusions,

conclusory statements and factually threadbare recitals of the
elements of a cause of action.

Iqbal, 556 U.S. at 678. “Yet we

need not accept as true legal conclusions from the complaint or
‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Maldonado

v.

Fontanes,

568

F.3d

263,

(quoting Iqbal, 556 U.S. 678) (quoting

268

(1st

Cir.

2009)

Twombly, 550 U.S. at

557).
Under
determine

the

second

whether,

step

based

of

upon

the
all

inquiry,
assertions

the

Court

that

were

must
not

discarded under the first step of the inquiry, the complaint
“states a plausible claim for relief.”

Iqbal, 556 U.S. 679.

This second step is “context-specific” and requires that the
Court draw from its own “judicial experience and common sense”
to decide whether a plaintiff has stated a claim upon which
relief may be granted, or, conversely, whether dismissal under
Rule 12(b)(6) is appropriate.
Thus,

“[i]n

order

to

Id.
survive

a

motion

to

dismiss,

[a]

plaintiff must allege sufficient facts to show that he has a
plausible entitlement to relief.”
590 F.3d 31, 41 (1st Cir. 2009).
4

Sanchez v. Pereira-Castillo,
“[W]here the well-pleaded

facts

do

not

permit

the

court

to

infer

more

than

the

mere

possibility of misconduct, the complaint has alleged - but it
has not ‘show[n]’ ‘that the pleader is entitled to relief.’”
Iqbal,

556

U.S.

at

679

(quoting

Fed.

R.

Civ.

P.

8(a)(2)).

Furthermore, such inferences must be at least as plausible as
any “obvious alternative explanation.”
Twombly, 550 U.S. at 567).

Id. at 679-80 (citing

“A plaintiff is not entitled to

‘proceed perforce’ by virtue of allegations that merely parrot
the elements of the cause of action.”

Ocasio-Hernandez, 640

F.3d at 12, (citing Iqbal, 556 U.S. 679).
The

First

plausibility
merits,

with

affirming

Circuit
an

has

cautioned

analysis

that

of

the

the

against

likely

plausibility

success

standard

equating
on

the

assumes

“pleaded facts to be true and read in a plaintiff’s favor” “even
if seemingly incredible.” Sepúlveda-Villarini v. Dep’t of Educ.
of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550
U.S. at 556); Ocasio-Hernandez, 640 F.3d at 12 (citing Iqbal,
556 U.S. 679); see Twombly, 550 U.S. at 556 (“[A] well-pleaded
complaint may proceed even if it appears that a recovery is very
remote and unlikely.”)(internal quotation marks omitted);

see

Ocasio-Hernandez, 640 F.3d at 12 (citing Twombly, 550 U.S. at
556)(“[T]he

court

may

not

disregard

properly

pled

factual

allegations, ‘even if it strikes a savvy judge that actual proof
of those facts is improbable.’”).
5

Instead, the First Circuit

has emphasized that “[t]he make-or-break standard . . . is that
the combined allegations, taken as true, must state a plausible,
[but] not a merely conceivable, case for relief.”

Sepúlveda-

Villarini, 628 F.3d at 29.
However,

a

complaint

that

rests

on

“bald

assertions,

unsupportable conclusions, periphrastic circumlocutions, and the
like” will likely not survive a motion to dismiss.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

Aulson v.

Similarly, unadorned

factual assertions as to the elements of the cause of action are
inadequate as well.

Penalbert-Rosa v. Fortuno-Burset, 631 F.3d

592 (1st Cir. 2011).

“Specific information, even if not in the

form of admissible evidence, would likely be enough at [the
motion to dismiss] stage; pure speculation is not.”

Id. at 596;

see Iqbal, 556 U.S. at 681(“To be clear, we do not reject []
bald allegations on the ground that they are unrealistic or
nonsensical.

.

.

.

It

is

the

conclusory

nature

of

[the]

allegations, rather than their extravagantly fanciful nature,
that disentitles them to the presumption of truth.”); see Mendez
Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10,
14 (1st Cir. 2010) (The
District

Courts

to

Twombly

“screen[]

and

out

Iqbal

rhetoric

standards require
masquerading

as

litigation.”). However, merely parroting the elements of a cause
of

action

is

insufficient.

Ocasio-Hernandez,

6

640

F.3d

at

12

(citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.
2009)).
The First Circuit recently outlined two considerations for
district courts to note when analyzing a motion to dismiss.
García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir.
2013). First, a complaint modeled on Form 11 of the Appendix of
the Federal Rules of Civil Procedure which contains sufficient
facts

to

make

the

claim

plausible

is

ordinarily

enough

to

surpass the standard prescribed under Twombly-Iqbal. Id. at 104.
Second, district courts should accord “some latitude” in cases
where “[a] material part of the information needed is likely to
be

within

the

defendant’s

control.”

Id.

(more

latitude

is

appropriate in cases where “it cannot reasonably be expected
that the [plaintiff], without the benefit of discovery, would
have any information about” the event that gave rise to the
alleged injury.)(internal citations and quotations omitted).
III. LEGAL ANALYSIS
“By

its

terms,

COGSA

governs

bills

of

lading

for

the

carriage of goods ‘from the time when the goods are loaded on to
the time when they are discharged from the ship.’”

Norfolk S.

Ry. Co. v. Kirby, 543 U.S. 14, 29 (2004)(quoting COGSA § 1(e),
46 U.S.C. § 30701 notes (previously codified at 46 U.S.C. app. §
1301(e)) defining “carriage of goods” under the Act).
COGSA,

shippers

and

carriers

have
7

the

option

of

Under

extending

COGSA’s

coverage

to

the

period

before

unloading the goods from the vessels.
in

this

chapter

entering

into

shall
any

prevent

a

agreement,

loading

and

after

Id. (“Nothing contained

carrier

or

a

stipulation,

shipper

from

condition,

reservation, or exemption as to the responsibility and liability
of the carrier or the ship for the loss or damage to or in
connection with the custody and care and handling of goods prior
to the loading on and subsequent to the discharge from the ship
on which the goods are carried by sea.”)(quoting COGSA § 7, 46
U.S.C. § 30701 note (previously codified at 46 U.S.C. app. §
1307)); see Greenpack of Puerto Rico, Inc. v. Am. President
Lines, 684 F.3d 20, 24 (1st Cir. 2012)(holding that “the parties
to a shipping contract may agree to extend COGSA’s coverage to
the period before loading or after unloading of the goods.”).
Under

COGSA,

shippers

and

carriers

are

discharged

from

liability for any lost or damaged goods resulting from their
transportation of the same if suit is not initiated within one
year of the date the goods were or should have been delivered.
Id.; see Barretto Peat, Inc. v. Luis Ayala Colon Sucrs., Inc.,
896 F.2d 656, 660 (1st Cir. 1990); see also Mikinberg v. Baltic
S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993).
In the case at bar, the Bill of Lading expressly provides
that the COGSA governs the transportation of goods before being
loaded

on

and

after

being

discharged
8

from

the

vessel.

See

Docket No. 1, Exhibit 5, Bill of Lading, Clause 1.
one-year

statute

Plaintiffs’

of

complaint,

limitations
Tienda

applies.

Escolar,

Inc.

Hence, the

According
purchased

to
two

pallets of clothing from Willianson-Dickie MFG Co. and shipped
them with Magic in the summer of 2012.

Docket No. 1, Exhibit 3.

The date on the Bill of Lading was July 6, 2012.
delivered one of the pallets and lost the other.

Id.

Magic

Id.

The

summer season is critical to Tienda Escolar’s success, as the
majority of the uniforms for the upcoming year are sold during
the summer months.

Id.

Although Plaintiffs’ complaint does not expressly provide
the

exact

date

Defendant

failed

to

deliver

the

goods,

the

complaint does emphasize that the failure transpired during the
summer of 2012.

This assertion, even construed in the most

liberal manner, leaves no doubt that the instant case is timebarred, as the complaint was filed on November 3, 2014 in state
court.

Hence, more than two (2) years had elapsed since the

date Defendant had contracted with Plaintiffs to deliver the two
pallets.
Accordingly, the Court hereby GRANTS Defendant’s Motion to
Dismiss (Docket No. 4).

9

IV. CONCLUSION
For

the

aforementioned

reasons,

Plaintiffs’ claims are time-barred.

the

Court

holds

Thus, Defendant’s Motion to

Dismiss (Docket No. 4) is hereby GRANTED.

Judgment shall be

entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 12th day of May, 2015.
s/ Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE

10

that