2019 WL 3430117

United States District Court, D. Utah, Central Division.
ANSON CALDER, LLC, Plaintiff,
v.
BAY SHORE MOVING & STORAGE, INC.; Godfrey Trucking, Inc.; York Risk Services Group, Inc.; and John/Jane Does Insurance Companies & Agents. Defendants.
Case No. 2:18-cv-00571
|
Signed 07/30/2019
Attorneys and Law Firms
E. Barney Gesas, E. Barney Gesas Law Office PLLC, Salt Lake City, UT, for Plaintiff.
James M. Duncan, Pro Hac Vice, Phoenix, AZ, Richard K. Glauser., David A. Glauser, Lewis Brisbois Bisgaard & Smith LLP, Sandy, UT, for Defendants.

MEMORANDUM DECISION AND ORDER
DALE A. KIMBALL, United States District Judge
*1 This matter is before the court on Defendant Bay Shore Moving & Storage, Inc.’s (“Bay Shore”) Motion to Dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The court held a hearing on the Motion on July 23, 2019. At the hearing, Plaintiff Anson Calder, LLC (“AC”) was represented by E. Barney Gesas, Defendant Bay Shore was represented by James M. Duncan and Julie Maurer, and Defendant Godfrey Trucking, Inc. (“Godfrey”) was represented by Gary T. Wight. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and the facts relating to the Motion. Now being fully advised, the court issues the following Memorandum Decision and Order.

BACKGROUND
AC is a limited liability company that recently relocated its headquarters from New York to Utah. At the time AC engaged in the transactions relevant to this case, AC was headquartered in New York and identified itself with a New York address for storage and shipping purposes. Bay Shore, a New York corporation, provides comprehensive moving services. Its principle place of business is, and has always been, in New York. Godfrey is a Utah corporation engaged in the business of long-haul trucking transportation.

This case arises out of the transportation of various AC goods, inventory, and display equipment (“AC’s Equipment”). In early May 2017, AC entered into a Uniform Straight Bill of Lading with Godfrey and Bay Shore. This agreement listed Godfrey as a Licensed Interstate Trucking Broker with the responsibility of transporting AC’s Equipment from New York, New York to its final destination in Las Vegas, Nevada. This agreement listed Bay Shore as a Shipper with the responsibility of providing intrastate – in New York only – moving, packing, and storage services in preparation for the interstate move from New York to Nevada.

On or about May 4, 2017, Bay Shore transported AC’s Equipment from New York, New York to its storage facility in Hauppauge, New York. AC’s Equipment remained in the storage facility until May 8, 2017, at which time Godfrey took possession of AC’s Equipment and transported it to Las Vegas, Nevada. AC alleges that its Equipment arrived in Las Vegas damaged. Because of the alleged damage, AC brought the present case against Bay Shore, Godfrey, and York Risk Services Group, Inc. (“York”).

In its Second Amended Complaint, AC asserts a cause of action against Bay Shore under the Carmack Amendment to the Interstate Commerce Act (“Carmack Amendment”) and alternative state law causes of action for Breach of Contract and Unjust Enrichment. AC alleges that Bay Shore’s employees mishandled and inadequately packed and protected AC’s Equipment at the time of packing and loading in New York, New York, causing significant damage to the property. AC asserts that the nature of the damage shows that either Bay Shore knowingly concealed the damage or Bay Shore should have known that its employees caused such damage. AC further claims that, as a result of the damage, it has suffered continuing economic loss.

DISCUSSION
*2 Pursuant to Federal Rule of Civil Procedure 12(b)(2), Bay Shore filed a Motion to Dismiss for lack of personal jurisdiction. Bay Shore claims that AC cannot establish personal jurisdiction over Bay Shore in the State of Utah, as the claims in this case have no nexus to the State of Utah and Bay Shore has no contacts of any kind with the State of Utah. In response to Bay Shore’s motion, AC filed a Motion for Leave to Conduct Limited Jurisdictional Discovery or in the Alternative Stay. The court granted AC’s request to conduct limited jurisdictional discovery relevant to the court’s determination of Bay Shore’s Motion to Dismiss. After the parties conducted the limited discovery, both Bay Shore and AC filed supplemental briefs.

A. Personal Jurisdiction
When a court’s jurisdiction is contested, “the plaintiff bears the burden of establishing personal jurisdiction over the defendant.” See Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996) (quoting Behagen v. Amateur Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985)). However, in the preliminary stages of litigation, the plaintiff’s burden is only to establish a prima facie case that jurisdiction exists. Old Republic Ins. v. Cont’l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017). The court accepts the well-pled allegations of the plaintiff’s complaint as true unless the defendant contradicts those allegations in affidavits. Kennedy v. Freeman, 919 F.3d 895, 903 (10th Cir. 2017); See Associated Elec. & Gas Ins. Serv. v. Am. Int’l Grp., Inc., No. 2:11CV386 DAK, 2012 U.S. Dist. LEXIS 10341, at *5 (D. Utah Jan. 27, 2012) (“[T]he party attempting to establish personal jurisdiction may rely on the allegations in the complaint only to the extent they are uncontroverted by the defendant’s affidavits.”). If parties submit conflicting affidavits, the court resolves any factual disputes in the plaintiff’s favor. Kennedy, 919 F.3d at 903.

“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Daimler AG v. Bauman, 571 U.S. 117, 125, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014). Utah’s long-arm statute extends jurisdiction to the fullest extent allowed by the Due Process Clause of the Fourteenth Amendment. Utah Code Ann. § 78B-3-201(3). Under the due process clause, a court may exercise jurisdiction over a defendant if (1) the defendant purposefully established minimum contacts” with the forum, and (2) the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice. Old Republic, 877 F.3d at 903 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 317, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

Courts recognize two types of personal jurisdiction – general and specific. In order to support general jurisdiction, the defendant’s contacts “with the State [must be] so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (quoting Int’l Shoe Co., 326 U.S. at 317, 66 S.Ct. 154). Bay Shore is a New York Corporation with its principle place of business in Hauppauge, New York. Bay Shore does not own any property in Utah, has never maintained a physical office in Utah, and is not authorized to conduct business in Utah. Moreover, AC has failed to dispute these facts. Accordingly, the court finds that Bay Shore’s affiliations do not render it “essentially at home” in the State of Utah. See id.

Specific jurisdiction, on the other hand, is case specific. Old Republic, 877 F.3d at 904. Courts in the Tenth Circuit conduct a three-part analysis when considering specific jurisdiction: (1) whether the defendant purposefully directed its activities at residents of the forum state; (2) whether the plaintiff’s claims arise out of those activities; and (3) whether the court’s exercise of jurisdiction would be reasonable. Id. The purposeful direction requirement cannot be fulfilled by “[r]andom, fortuitous, or attenuated contacts … [or] the unilateral activit[ies] of another party or third person.” Id. at 904-05 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Rather, purposeful direction requires that the defendant’s “suit-related conduct … [creates] a substantial connection with the forum state.” Walden v. Fiore, 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014); See Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919, 131 S.Ct. 2846 (finding that specific jurisdiction “depends on an affiliation between the forum and the underlying controversy”); Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1072 (10th Cir. 2008) (finding defendant purposefully directs its actions at the forum state if it is aware “that the brunt of the injury would be felt in the forum state”). Therefore, the forum state should be the “focal point both of the story and the harm suffered.” Walden, 571 U.S. at 287, 134 S.Ct. 1115.

*3 In this case, Bay Shore’s “suit-related conduct” did not extend beyond the moving, packing, and storage services it provided solely in the State of New York. See id. The ultimate destination of AC’s equipment was the State of Nevada with no indication that it was to ever pass through the State of Utah. There is simply no assertion that anything occurred in Utah. Moreover, the court finds that AC’s unilateral selection of Godfrey, as a third party transportation company, has no effect on this court’s jurisdiction over Bay Shore. Although Godfrey is a Utah corporation, the Supreme Court has made clear that unilateral acts are insufficient for the purposes of personal jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980); Kulko v. Super. Ct. of Cal., 436 U.S. 84, 94, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

Additionally, NII Brokerage LLC v. Roadway Express, Inc., a case from the United States District Court for the District of New Jersey, has striking similarities to the present case. No. 07-5125 (HAA), 2008 U.S. Dist. LEXIS 64784, at *2-15 (D.N.J. July 18, 2008). In NII Brokerage, the plaintiff sued multiple carriers in a New Jersey court for cargo damage related to an interstate shipment from New Jersey to New York. Id. at *2-5. The plaintiff had contracted with a single interstate transportation carrier, which then hired two New York agents to conduct the intrastate shipments between several New York locations. Id. at *2. A New York agent moved to dismiss the claims against it based on its lack of contacts with the forum state. Id. at *5. The personal jurisdiction question in NII Brokerage is arguably a closer call than the one at hand, because the final destination of the shipment was New Jersey – the forum state. Id. at *2. However, the court for the District of New Jersey found a lack of personal jurisdiction over the defendant agent because “personal jurisdiction cannot be based on the unilateral activity of a third party.” Id. at *15.

In this case, AC’s Equipment was shipped from New York to Nevada and Utah has nothing to do with the “focal point of the story and the harm suffered” by AC. See Walden, 571 at 287, 134 S.Ct. 1115. Because Bay Shore’s involvement was confined to the State of New York, AC has failed to assert facts that would support personal jurisdiction over Bay Shore in the State of Utah. Accordingly, the court concludes that asserting personal jurisdiction over Bay Shore would be improper.

B. Carmack Amendment
AC’s suggestion that the Carmack Amendment allows plaintiffs to choose a forum State even if the necessary minimum contacts are absent is incorrect. Several courts have rejected similar arguments where the plaintiff “conflates the question of proper venue [under the Carmack Amendment] with the question of whether personal jurisdiction is properly exercised over a non-resident defendant.” JM-Nipponkoa Ins. Co. v. Dove Transp. LLC, No. 1:14-cv-202, 2015 WL 145041, at *2, 2015 U.S. Dist. LEXIS 3081, at *7 (S.D. Ohio Jan. 12, 2015) (“The court therefore rejects Plaintiff’s argument that personal jurisdiction over [defendant] is established by virtue of the Carmack Amendment’s venue provision.”); See Tokio Marine & Nichido Fire Ins. Co. v. Flash Expedited Services, Civil Action No. 11-6109 (MLC), 2012 U.S. Dist. LEXIS 163399 (D.N.J., Nov. 15, 2012) (construing the Carmack Amendment as a venue provision, not one conferring personal jurisdiction). The Carmack Amendment’s “venue provision do[es] not trump the question of personal jurisdiction…. Although the [Carmack] Amendment allows actions to be brought in two potentially different venues, the statute’s specific venue provisions are not a substitute for personal jurisdiction.” Winona Foods, Inc. v. Kennedy, Inc., No. 07-C-1003, 2008 U.S. Dist. LEXIS 51578 (E.D. Wisc., June 26, 2008). Therefore, the court is persuaded that “the Carmack Amendment does not contain any provisions that would change the normal personal jurisdiction analysis.” Cioppa v. Schultz, No. SA-16-cv-747-XR, 2016 WL 6652764, at *2, 2016 U.S. Dist. LEXIS 156066, at *3 n.2 (W.D. Tex. Nov. 10, 2016).

C. Request for Reasonable Attorney’s Fees
*4 In its supplemental brief, Bay Shore asks the court to award it reasonable attorney’s fees and costs related to supplemental briefing. Bay Shore argues that AC’s failure to concede on this motion after the close of jurisdictional discovery wasted the parties’ and the court’s valuable resources. The court, however, believes that AC proceeded in good faith and declines to award fees or costs.

CONCLUSION
Based on the above reasoning, Defendant Bay Shore’s Motion to Dismiss for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2), is GRANTED. Plaintiff AC’s Complaint against Bay Shore is dismissed without prejudice.

All Citations
Slip Copy, 2019 WL 3430117

2019 WL 3764608

United States District Court, E.D. North Carolina.
MOUNT OLIVE PICKLE COMPANY, INC., Plaintiff,
v.
TIDEWATER TRANSIT CO., INC., Defendant.
No. 5:19-CV-105-BO
|
Filed 08/09/2019

ORDER
TERRENCE W. BOYLE CHEF UNITED STATES DISTRICT JUDGE
*1 This cause conies before the Court on plaintiff’s motion to remand and defendant’s motion to compel arbitration and stay proceedings. The appropriate responses and replied have been filed, and a hearing was held before the undersigned on July 17, 2019, at Raleigh, North Carolina. For the reasons that follow, plaintiff’s motion to remand is denied and defendant’s motion to compel arbitration and stay proceedings is granted.

BACKGROUND
This case concerns a load of salt transported by defendant Tidewater to plaintiff Mount Olive Pickle. Tidewater is a motor carrier located in Fayetteville, North Carolina which transports, among other things, food-grade salt for Cargill, Inc. to a number of purchasers using dedicated trailers. The salt arrived at Tidewater by rail from Cargill’s salt production facilities in other states, including New York. Tidewater transferred the salt from the rail car to a dedicated trailer and then transported the salt by tractor trailer to Cargill’s purchasers, here Mount Olive Pickle. The salt was then pumped via a closed system directly from Tidewater’s trailer into Mount Olive Pickle’s lixator, a chamber that creates the brine for the pickling process. On some occasions extra salt was also pumped from the Tidewater truck to a salt pad that Mount Olive Pickle used to increase the salinity of the pickling brine if needed. Mount Olive Pickle ordered salt directly from Cargill by providing it with a purchase order number and a requested delivery date. Cargill then issued a bill of lading to Tidewater, which then transferred salt from the railcars to its dedicated trailers and delivered the salt to Mount Olive Pickle.

On Friday, September 29, 2017, Mount Olive Pickle discovered small transparent and white plastic pellets in its lixator and on the salt pad. As it had been unaware that the salt had been contaminated with plastic pellets, Mount Olive Pickle used the salt in its pickling process and contaminated its consumable pickle products. Mount Olive Pickle notified Cargill of its discovery, and Cargill notified Tidewater. During a meeting between the three, Mount Olive Pickle discovered that Tidewater also transports plastic pellets of the same type found in Mount Olive Pickle’s equipment out of its Fayetteville depot.

This lawsuit ensued and was filed by Mount Olive Pickle in Wayne County, North Carolina Superior Court on February 8, 2019. [DE 1-6]. Mount Olive Pickle’s complaint alleges a single count of negligence. On March 14, 2019, Tidewater removed the action to this Court on the basis of its federal question jurisdiction. [DE 1]. Specifically, Tidewater contends that Mount Olive Pickle’s claim arises from the transportation of goods by motor carrier involving interstate commerce, and the claim for negligence is preempted and governed by the Carmack Amendment, 49 U.S.C. § 14706.

DISCUSSION

I. Motion to remand.
The first question before this Court is whether the instant action arises under federal law such that federal jurisdiction exists. Removal of a civil action from state court is only proper where the federal district courts would have original jurisdiction, 28 U.S.C. § 1441, and it is the burden of the removing party to show that jurisdiction lies in the federal court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811,816 (4th Cir. 2004) (en banc). Federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Generally, whether the district courts have federal question jurisdiction “is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). But district courts also have federal question jurisdiction over state law claims that are completely preempted by federal law. See Lontz v. Tharp, 413 F.3d 435, 439- 440 (4th Cir. 2005).

*2 The Carmack Amendment to the Interstate Commerce Act of 1887 “addresses the liability of common carriers for goods lost or damaged during a shipment over which the Interstate Commerce Commission has jurisdiction. … [and creates a] national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading.” Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 704 (4th Cir. 1993); see also 49 U.S.C. § 13501(1)(A). The Carmack Amendment “provide[s] the exclusive cause of action for claims arising out of the interstate transportation of goods by a common carrier.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 776 (5th Cir. 2003) (emphasis in original). Because claims implicating the Carmack Amendment are completely preempted, removal under 28 U.S.C. § 1441 is appropriate. Id. at 778.

Whether the Carmack Amendment governs Mount Olive Pickle’s negligence claim depends on whether the nature of the shipment at issue was inter-or-intrastate.
Whether transportation is interstate or intrastate is determined by the essential character of the commerce, manifested by shipper’s fixed and persisting transportation intent at the time of the shipment, and is ascertained from all of the facts and circumstances surrounding the transportation.
S. Pac. Transp. Co. v. I. C. C., 565 F.2d 615, 617 (9th Cir. 1977) (citation omitted). “[I]f the final intended destination at the time the shipment begins is another state, the Carmack Amendment applies throughout the shipment, even as to a carrier that is only responsible for an intrastate leg of the shipment.” Project Hope v. M/V IBN SINA, 250 F.3d 67, 75 (2d Cir. 2001).

There is no dispute that Cargill’s salt that Tidewater transported to Mount Olive Pickle was transported from New York to North Carolina and therefore traveled in interstate commerce in order to reach North Carolina. Mount Olive Pickle contends that, however, the conduct at issue here involved only the intrastate shipment of Cargill’s salt from Tidewater’s depot in Fayetteville, North Carolina to Mount Olive Pickle’s facility in Mount Olive, North Carolina. In support, Mount Olive Pickle relies on its complaint which references only salt that is transported from a third-party vendor to Mount Olive Pickle Company by Tidewater by truck, [DE 1-6] Compl. ¶¶ 5,7, and a bill of lading which shows a shipment originating in Fayetteville and terminating in Mount Olive. [DE 14-3] Bowen Decl. Ex. 2. Mount Olive Pickle further contends that the intent of Cargill, the shipper, was not fixed until the final destination of the salt was identified, and that Cargill could not form such intent until Mount Olive Pickle placed an order for salt, which would then be shipped from Tidewater’s depot to Mount Olive. In other words, in Mount Olive Pickle’s view, Cargill shipped its salt to Tidewater’s depot to hold, and Cargill would fill Mount Olive Pickle’s salt order from its salt at Tidewater’s depot when Mount Olive Pickle placed an order. Thus, plaintiff argues, Cargill’s intent was that the shipment be intrastate, and the Carmack Amendment is therefore not implicated.

Although Mount Olive Pickle has characterized Cargill’s shipment of salt as two distinct transactions – one interstate shipment to Tidewater and one intrastate shipment from Tidewater to Mount Olive Pickle – where, as here, the shipper ships its goods across state lines to customers in other states, the fact that the goods might stop in a temporary warehouse or other staging facility does not transform the nature of the shipment from interstate to intrastate. Collins v. Heritage Wine Cellars, Ltd., 589 F.3d 895, 898 (7th Cir. 2009); see also Merchants Fast Motor Lines, Inc. v. I.C.C., 5 F.3d 911, 917 (5th Cir. 1993). While the complaint does not allege that the stop at Tidewater’s depot was merely temporary, the inferences drawn from the complaint and the record before the Court support such a conclusion.

*3 The bills of lading in the record reflect that Mount Olive Pickle Company is the consignee and Cargill is the shipper. See Bowen Decl. Ex. 2. Cargill’s salt is held at the Tidewater facility generally for seven to nine business days; to hold the salt for any longer would subject it to conditions which would ruin the salt. [DE 18] Johnson Decl. ¶¶ 14-15. Moreover, it has not been genuinely disputed that when Cargill ships its salt from New York to Tidewater’s depot in Fayetteville, that shipment is part of a continuous supply chain created to meet customer demand, with Tidewater serving as the last leg in the chain. Id. 10; Project Hope, 250 F.3d at 75. That the bills of lading in the record reflect a wholly intrastate shipment from Fayetteville to Mount Olive does not affect the character of the shipment. See id.; see also Advanced Sterilizer Dev. & Design, Inc. v. Roadway Express, Inc., No. 1:02CV 285, 2002 WL 31165144, at *3 (M.D.N.C. Aug. 21, 2002) (state law claims may be preempted by Carmack Amendment even where there is no bill of lading).

Although Mount Olive Pickle’s allegations are tailored to avoid invoking transportation of interstate character, the record currently before the Court, to include the declarations submitted by both parties, supports a finding that the negligence claim is completely preempted by the Carmack Amendment. Removal to this Court was therefore proper and the motion to remand is appropriately denied.

II. Motion to compel arbitration and stay proceedings.
The Court has determined that the Carmack Amendment controls Mount Olive Pickle’s claim against Tidewater. Two agreements are implicated by Tidewater’s motion to compel arbitration: a bulk transfer agreement (BTA) between Tidewater and Cargill dated July 1, 2010, and subsequent amendments, [DE 10-2] Famularo Deck Ex. 1, as well as a motor transportation agreement (MTA) dated September 21, 2010, along with subsequent amendments. [DE 10-3] Famularo Decl. Ex. 2. The BTA pertains to the transportation services performed by Tidewater at its depot, including receiving and unloading railcars, storing Cargill food products, and transferring Cargill products to trucks for delivery. The MTA pertains to the transit of Cargill goods from the depot to a consignee. The BTA contains a mandatory arbitration provision. See BTA ¶ 13.6.

“A bill of lading is a contract between the carrier and the shipper.” OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1098 (9th Cir. 2011). Under the Carmack Amendment, the “bill of lading [also] determines the rights of the consignee.” Mexican Light & Power Co. v. Texas Mexican Ry. Co., 331 U.S. 731, 733 (1947). Additionally, written agreements which are referenced in a bill of lading are enforceable. ABB Inc. v. CSX Transp., Inc., 721 F.3d 135, 144 (4th Cir. 2013).

Mount Olive Pickle contends that it is not a party to the BTA or MTA and should not be bound by either. However, because of its classification as a consignee, or one to whom the carrier may make lawful delivery under the contract, Mount Olive Pickle is “legally bound by the provisions o f … the contract between the parties to a transaction under the Interstate Commerce Act” as to its claim arising under the Carmack Amendment. Harrah v. Minnesota Min. & Mfg. Co., 809 F. Supp. 313, 318 (D.N.J. 1992); see also Migdal Ins. Co., Ltd. v. Schenker Int’l Inc., No. 07-21011-CIV, 2009 WL 10669109, at *6 (S.D. Fla. Feb. 20,2009) (“Since a consignee is entitled to insist upon compliance with the terms of the bill of lading, it is correspondingly bound by those terms that constitute a condition precedent to recovery for loss from the carrier.”).

The bills of lading further expressly state that Tidewater received Cargill’s salt “subject to individually determined rates or contracts that have been agreed upon in writing between the carrier [Tidewater] and the shipper [Cargill] ….” Famularo Decl. Ex. 5. The referenced contract in the bill of lading would include the BTA, which governs the transportation services performed by Tidewater at its depot for Cargill. Accordingly, the Court holds that Mount Olive Pickle is bound by the arbitration clause.

*4 The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., governs the resolution of private disputes through arbitration. See Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380 F.3d 200, 204 (4th Cir. 2004). Section 2 of the FAA provides that a “written provision in any … contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract… shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2; see also Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 629-30 (2009) (construing 9 U.S.C. § 2 as making written arbitration agreements binding unless the underlying contract is otherwise void).

The “question of arbitrability” is to be decided by the court unless the parties clearly and unmistakably provide otherwise. AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649 (1986). Courts have “no choice but to grant a motion to compel arbitration where a valid arbitration clause exists and the issues in a case fall within its purview.” Adkins v. Labor Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002) (citation omitted). “[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25 (1983).

Mount Olive Pickle does not contest that the BTA contains a valid and enforceable arbitration clause, only that it is not bound by the BTA, but the Court has concluded that Mount Olive Pickle is bound by the BTA and its arbitration clause. Further, this action plainly falls within the purview of the BTA as it concerns the transfer of salt from rail cars to trailers, during which time the complaint alleges the salt was contaminated by plastic pellets. See Compl. ¶ 7. As a dispute exists between Mount Olive Pickle and Tidewater, the BTA includes an arbitration provision which covers the dispute, the transaction at issue involves interstate commerce, and Mount Olive Pickle has failed or refused to arbitrate the dispute, Tidewater has established that the motion to compel arbitration must be allowed. Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991); see also Adkins, 303 F.3d at 501.

CONCLUSION
For the foregoing reasons, plaintiff’s motion to remand [DE 12] is DENIED. Defendant’s motion to compel arbitration and stay proceedings [DE 8] is GRANTED. The parties are DIRECTED to notify the Court at the conclusion of the arbitration proceedings and to inform the Court as to whether any issues remain for adjudication. The clerk is DIRECTED to remove this case from the Court’s active docket during the pendency of the arbitration proceedings and to return it to the active docket upon notice by the parties that the arbitration proceedings have concluded.

SO ORDERED, this 9 day of August, 2019.

All Citations
Slip Copy, 2019 WL 3764608