2019 WL 7047243

Not for Publication
United States District Court, D. New Jersey.
ULTRA LOGISTICS, INC., Plaintiff,
v.
A FIRST CLASS SOLUTION, LLC, Progressive Corporation, John Does Defendants 1-10, ABC Corporations 1-10, XYZ Partnerships and Other Entities 1-10, Defendants.
Civil Action No. 2-19-CV-09493-JMV-JAD
|
Signed 12/23/2019
Attorneys and Law Firms
Michael Thomas Caulfield, Schepisi & Mclaughlin, P.A., Englewood Cliffs, NJ, for Plaintiff.
Patricia W. Holden, Cipriani & Werner, Mt. Laurel, NJ, for Defendants.

OPINION
John Michael Vazquez, U.S.D.J.
*1 This matter concerns an alleged failure to deliver a shipment of goods. Originally brought in state court, the action was removed to federal court citing complete federal preemption. D.E. 1. Presently before the Court is a motion to dismiss Counts One and Two of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendant A First Class Solution, LLC (“Defendant” or “First Class”). D.E. 4. Plaintiff Ultra Logistics, Inc. (“Plaintiff” or “Ultra”) filed a brief in opposition (D.E. 12), to which Defendant replied (D.E. 14).1 The Court reviewed the parties’ submissions and decided the motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, Defendant’s motion to dismiss is GRANTED.

I. FACTUAL BACKGROUND2 & PROCEDURAL HISTORY
In 2015, Ultra entered into a broker-carrier agreement with Defendant, with Ultra as broker and First Class as carrier. Complaint at ¶ 6, D.E. 1. The contract governed a relationship whereby First Class provided transportation services for third-party freight. Id. ¶ 7. In September of 2017, Ultra entered into an agreement with First Class to ship glass bottles belonging to Ardagh Group c/o William & Associates (“Ardagh”) from Arkansas to New York. Id. ¶ 15. Ultra agreed to pay a fee of $2,680 for the shipment, with delivery due September 20, 2017. Id. ¶ 16, 17. While in transit, the truck carrying the goods was involved in an accident, rendering the glass bottles unusable. Id. ¶ 18. The value of the goods is allegedly $23,546.27. Id. ¶ 20. Ultra claims that by failing to deliver the goods as promised, First Class has breached its contract and is liable for various damages. Id. ¶ 19. Ultra further claims that First Class’s acceptance of its fee without having satisfied performance constitutes unjust enrichment. Id. ¶ 22. Additionally, though not relevant to the instant motion, Ultra has filed a claim against First Class’s insurer for the unjustly denying its claim. Id. ¶ 34, 35. While not asserted in the Complaint, Ultra alleges in its opposition brief that it has obtained an assignment of the claim against Defendant from Ardagh. Plf. Opp. at 3, Ex. B.

On February 26, 2019, Plaintiff filed its Complaint in the Superior Court of New Jersey, Bergen County. D.E. 1. The first two Counts pertain to First Class: Count One for breach of contract and Count Two for unjust enrichment. Id. First Class removed the matter to this District, (id.) and then filed the instant motion to dismiss (D.E. 4).

II. STANDARD OF REVIEW
*2 Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss when a complaint fails “to state a claim upon which relief can he granted[.]” For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do not state “a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).

III. ANALYSIS
Defendant argues that Plaintiff’s state law claims are preempted by federal law. Specifically, Defendant maintains that Counts One and Two are preempted by the Carmack Amendment and that Count Two is also preempted by the Federal Aviation Administration Authorization Act of 1994. The Court finds that Counts One and Two are preempted by the Carmack Amendment.

The Carmack Amendment, 49 U.S.C. § 14706, governs the field of interstate shipping. See Certain Underwriters at Interest at Lloyd’s of London v. UPS of Am., Inc., 762 F.3d 332, 335 (3d Cir. 2014). The provision preempts “all state law claims for compensation for the loss or damage to goods shipped by a ground carrier in interstate commerce.” Id. at 333. Circuit courts “have consistently held that the Carmack Amendment is the exclusive cause of action for interstate-shipping contract [and tort] claims alleging loss or damage to property.” Id. at 336 (internal quotation omitted). Preemption applies to claims arising from breach of contract. See, e.g., Orlick v. J.D. Carton & Son, Inc., 144 F. Supp. 2d 337, 345 (D.N.J. 2001). Preemption also applies to claims of unjust enrichment. Brudnak v. A.A. Moving and Storage, Inc., No. 14-cv-6964, 2015 WL 1310292, at *3 (D.N.J. Mar. 24, 2015). Ultra claims that its losses arose from First Class’s breach of a contract. Consequently, the claims are preempted by the Carmack Amendment.

Defendant notes that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts unjust enrichment claims. Def. Br. at 15. Defendant relies on Mrs. Ressler’s Food Products v. KZY Logistics, LLC, No. 2:17-02013, 2017 WL 3868703, at *4 (D.N.J. Sept. 5, 2017), in which the court ruled that a quasi-contractual unjust enrichment claim was preempted by the FAAAA. But the unjust enrichment claim in KZY was brought because there was no contract between the parties. Id. Ultra’s claim of unjust enrichment is more appropriately styled as a breach of contract claim. The parties had a contract and one party did not, allegedly, perform. As the court in KZY noted, a “claim that sounds in breach of contract” is preempted by the Carmack Amendment. Id. A claim “sounds” in contract when “the loss was of a nature more normally associated with a contract action and [when] the relationship between the parties [was] governed by a lengthy and comprehensive contractual arrangement.” Silla Jewelry Co., Ltd. v. Sunico LLC, No. BER-L-7542-15, 2016 WL 427723, at *11 (N.J. Super. Ct. Law Div. Feb. 1, 2016); see also Stewart Title Guar. Co. v. Greenlands Realty, LLC, 58 F. Supp. 2d 370, 386 (D.N.J. 1999) (“Under New Jersey law, a ‘dispute [that] clearly arises out of and relates to [a] contract and its breach’ sounds in contract and not in tort.”) (quoting Wasserstein v. Kovatch, 618 A.2d 886, 891 (N.J. Super. Ct. App. Div. 1993). Here, Plaintiff alleges the breach of a comprehensive contractual arrangement consisting of two agreements. The dispute is not that Defendant was unjustly enriched and a contract should therefore be inferred, but that the Defendant did not follow through on its obligations under the existing contract. Accordingly, both Counts sound in contract and are appropriately designated as breach of contract claims.3 As discussed above, contract claims are preempted by the Carmack Amendment.

*3 Moreover, Plaintiff could conceivably recover the fee paid as damages in a Carmack Amendment action. See Mecca & Sons Trucking Corp. v. White Arrow, LLC, 763 F. App’x 222, 227 (3d Cir. 2019) (reading the Carmack Amendment expansively to embrace damages beyond the market value of the property). Preemption under the FAAAA need not be reached. Counts One and Two are dismissed.

Plaintiff submits that it should be afforded the opportunity to amend its Complaint to plead cognizable claims.4 Plf. Opp. at 4. While Defendant is correct that Plaintiff has neither moved to amend its Complaint nor submitted a proposed amended complaint, this Court will grant leave to for Plaintiff to file an amended complaint. See Mecca & Sons Trucking Corp. v. White Arrow, LLC, No. 14-7915, 2016 WL 5859018, at *3 (D.N.J. Sept. 16, 2016) (outlining requirements for a Carmack Amendment claim).

IV. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss (D.E. 4) is GRANTED and Counts One and Two of the Complaint are dismissed. The dismissal is without prejudice and Plaintiff is granted leave to file an Amended Complaint. Plaintiff has thirty (30) days to file an Amended Complaint, if it so chooses, consistent with this Opinion. If Plaintiff fails to file an Amended Complaint, the dismissal will be with prejudice. An appropriate Order accompanies this Opinion.

All Citations
Slip Copy, 2019 WL 7047243

Footnotes

1
Plaintiff’s Complaint is included in Exhibit A of the notice of removal (D.E. 1) and will be referred to as the “Complaint”; Defendant’s brief in support of its motion to dismiss (D.E. 4-2) will be referred to as “Def. Br.”; Plaintiff’s opposition (D.E. 12) will be referred to as “Plf. Opp.”; and Defendant’s reply of its motion (D.E. 14) will be referred to as “Def. Reply.”.

2
The factual background is taken from the Complaint. D.E. 1. When reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in the Complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The contracts referred to in the Complaint have not been provided to this Court.

3
The Court is aware that unjust enrichment is a quasi-contractual cause of action. However, in light of the fact that there was a contract between the parties, the Court is finding that the Carmack Amendment is the more appropriate basis on which to dismiss the current matter.

4
First Class contends that, based on the Complaint, Ultra lacks a means to achieve standing to sue, such as having an assignment of the claim from Ardagh. Def. Br. at 7. The Court does not reach the issue because Ultra claims in its opposition brief that it has in fact obtained an assignment. Plf. Opp. at 3, Ex. B. However, as First Class notes in its reply, new contentions in a brief do not amend a deficient complaint. See, e.g., Pennsylvania ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to. dismiss.”) (quotation omitted); Talley v. United States, No. 11-1180, 2014 WL 282680, at *5 (D.N.J. Jan. 24, 2014) (“[A] complaint cannot be amended through the brief of a party in opposition to a motion to dismiss.”). First Class is correct as to what can be considered at this stage, so the Court is not finding that Ultra does in fact have standing. Instead, based on Ultra’s representation, the Court is not reaching the issue at this time.

2020 WL 242482

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Delaware.
ELADIO DESHIELDS, Plaintiff,
v.
CHARLES E. BOLTON, JR., TRISTATE TRUCKING, LLC, JAMES DONELL LIGHTY, US TRAILER HOLDINGS, LLC, BOWMAN TRAILER LEASING, W.B. MASON, A. DUIE PYLE, INC., ESTATE OF CLINTON PEAVY, STAPLES, INC. and J.B. HUNT TRANSPORT, INC., Defendants.
C.A. No. N18C-07-011 CEB
|
Submitted: November 6, 2019
|
Decided: January 14, 2020
Defendant Charles E. Bolton, Jr.’s Motion to Dismiss.
GRANTED
Plaintiff’s Motion for Alternative Service.
GRANTED
Attorneys and Law Firms
Gary S. Nitsche, Esquire and Joel H. Fredricks, WEIKNITSCHE & DOUGHERTY, LLC, Wilmington, Delaware. Attorneys for Plaintiff.
David C. Malatesta, Esquire, KENT & MCBRIDE, Wilmington, Delaware. Attorney for Defendant Charles E. Bolton, Jr.

MEMORANDUM OPINION
BUTLER, J.
Judge Charles E. Butler

FACTS AND PROCEDURAL HISTORY
*1 On August 19, 2016, there was an accident at the intersection of Routes 40 and 896 near Bear, Delaware.1 It is alleged a tractor-trailer failed to stop at a traffic light and plowed into a pickup truck occupied by three members of the Peavy family.2 The pickup truck caught fire and a child in the rear seat was badly injured.3

The Plaintiff in this action was not in that pickup truck.4 The injured Peavy child brought a separate action against the tractor-trailer driver and others in New Jersey, where the Peavy family resides.5 The Plaintiff was a volunteer who stopped when he saw the accident and rendered assistance to the trapped child.6 He is suing for damages resulting from his own experiences in attempting to render aid.7

The tractor-trailer was driven by Defendant Charles E. Bolton, Jr. (“Bolton”).8 The tractor was owned by Tristate Trucking, LLC, (“Tristate Trucking”) which is wholly owned by Defendant James Donell Lighty (“Lighty”).9 The trailer being hauled by Bolton and Tristate Trucking was owned by US Trailer Leasing (“UST”).10 UST leased the trailer to Bowman Trailer Leasing, which in turn sub-leased the trailer to Staples, Inc. (the “Trailer Defendants”).11 All of them were named as Defendants, as were two companies that may have been trailer brokers, but their role in this mishap is as yet only ill defined.

The docket reflects that the Complaint in this matter was filed on July 2, 2018.12 Service was effected on various Defendants throughout July and August. Some Defendants have been dismissed as a result of motions filed.13

But the docket does not reflect that service was effected on Defendants Bolton, Tristate Trucking or Lighty. On March 28, 2019, the Prothonotary sent Plaintiff’s counsel a “stall letter,” advising counsel that there had been no response from these Defendants since writs for service were issued on July 23, 2018.14 The Court gave Plaintiff’s counsel two weeks in which to respond or face a default as to those Defendants. Plaintiff’s counsel responded promptly as follows:
Plaintiff’s attempted to serve Defendants Bolton, Lighty and Tristate Trucking through certified mailing. To date, it is noted that the mailing is still in transit. We are attempting to confirm the correct addresses. In the meantime, we are attempting to serve the Defendants’ counsel in the lawsuit that is currently pending in New Jersey.15

Pointedly, Plaintiff did not seek additional time to complete service under Super. Ct. Civ. R. 4G).16

*2 Two weeks later, Plaintiff’s counsel sought appointment of Torri’s Legal Services as a special process server to effect service on Defendants Tristate Trucking and Lighty.17 Torri’s Legal Services sought service on these Defendants at 1550 Oak Ridge Road, Baltimore, MD and 406 Trotter Farm Drive, Rockville, MD.18

Finally, on May 23, 2019, Plaintiff filed an affidavit of service on Defendant Bolton, along with evidence that he was served via certified mail at a residence address in Maryland on May 21.19

In June, Bolton, through his counsel, moved to dismiss the Complaint.20 The Court called upon Plaintiff’s counsel to file with the Court an affidavit setting forth what evidence of “good cause” counsel had undertaken to effect service within the rules.21 Counsel has done so and the affidavit is now a matter of record.22

In addition to Bolton’s motion to dismiss, Plaintiff himself has moved separately to deem service effective as to Defendants Tristate Trucking and Lighty.23 According to Plaintiff and an affidavit filed by his investigator, service was repeatedly attempted as to these Defendants in the Baltimore area and there is evidence that Lighty was actively avoiding service of process.24

DISCUSSION
What both of these motions share in common is a seven month gap in Plaintiff’s counsel’s movement on getting service effected during the period between August, 2018, when the Complaint was filed and March 28, 2019, when the Court clerk notified counsel that service was not returned and the cases were in danger of being dismissed for failure to prosecute. Just how that could be so is explained as follows.

All three Defendants are residents of the Baltimore area.25 Service was commenced pursuant to the long arm statute by sending certified mail, return receipt requested.26 From all that has been shown, it appears that Plaintiff’s counsel used the return receipt for certified mail as his proof that service was indeed effected.

But the electronic record of the certified mail delivery system shows the notices “in transit” even now, almost two years later. Plaintiff’s counsel did not know that the service had not been effected until late March, 2019 when the Court alerted counsel via the “stall” letter. Thus, counsel essentially off-loaded the tracking of service of process on the court’s staff, which routinely checks for cases that have stalled. But this stall system is not designed to do what Plaintiff’s counsel had it do here.

Service of process is expected to be completed within 120 days of filing the complaint.27 Extensions of the 120 day rule are not automatic and are granted only for good cause shown.28

*3 So, what are we to make of a complaint not served where there was a seven month period when absolutely nothing happened to effect service? Can the Plaintiff demonstrate “good cause” why such service was not made within 120 days?

Having surveyed the cases deciding the issue in Delaware, the Court must conclude that the answer is no. In Ballard v. Takeda Pharmaceuticals America, Inc.,29 there were two plaintiffs named Ballard and plaintiff’s counsel confused the individuals while tracking service internally. As a result, one plaintiff’s complaint was served twice while the other one not at all.30 Although the error was discovered only two months after the 120 window had expired, the Court found the negligence of plaintiff’s counsel in effecting service unacceptable and dismissed the action under Rule 4(j).31 For the Ballard Court, there had been a showing of neglect, but it was not “excusable” under the rule. The case was therefore dismissed.

Plaintiff’s effort to distinguish Ballard is unavailing. Whether the errors in service are by paralegals as in Ballard, or counsel who candidly takes the responsibility himself as here is of no consequence. As Judge Quillen wrote in Ellis v. Davis,32 “What happened here is unfortunate. One of the unhappy aspects of this job is rendering an opinion that neglect of counsel was not excusable, especially since we all make mistakes.”33 Alas, this is our lot, inexcusable neglect is the only finding the Court can make on the pleadings and papers presented.

Perhaps foreshadowing what is yet to come, Plaintiff has suggested that even if the matter is dismissed, he may refile under the “savings statute.”34 But this was a mere suggestion, made before the Court found the neglect inexcusable and Plaintiff’s argument was untimely. Likewise, Bolton complained at oral argument that permitting a plaintiff to refile under the savings statute is not really relief for service beyond the statute of limitations. Neither of these arguments are fully articulated in the briefs before the Court and it is premature for the Court to speculate on whether a refiled complaint, properly served, will survive another round of motions to dismiss.35

For now it is enough for the Court to find that the Plaintiff has failed to show “good cause/excusable neglect” in failing to serve Bolton within 120 days and at least this Complaint will be dismissed as to him.

As to Defendants Lighty and Tristate Trucking they still have not been “served,” but Plaintiff seeks a ruling that service should be deemed effective by virtue of Lighty’s active avoidance of service.

In support of Plaintiff’s argument, he has produced sworn deposition testimony of Defendant Lighty in the related New Jersey litigation. In his deposition, taken January 21, 2019, Lighty testified that he resides at 1550 Oak Ridge Road, Baltimore, MD.36 When Torri’s Legal Services attempted service at that address on two occasions, it was met first by a youngster who said his father will not allow him to accept mail on behalf of his father and on the second visit by an older woman who claimed Lighty did not reside there.37 That claim is belied by Lighty’s own sworn testimony in January, 2019.

*4 The Court is satisfied that Lighty and his wholly owned company Tristate Trucking should be deemed served by reason of his active avoidance of service.38 This ruling will hopefully give Lighty and Tristate Trucking reason enough to come to Court and make whatever arguments they wish concerning service or the merits of Plaintiff’s Complaint.

CONCLUSION
For all of the foregoing reasons, the motion of Defendant Bolton to dismiss is GRANTED. The motion of Plaintiff to deem service effective as to Defendants Lighty and Tristate Trucking is GRANTED.

IT IS SO ORDERED.

All Citations
Not Reported in Atl. Rptr., 2020 WL 242482

Footnotes

1
Complaint. D.I. 1.

2
Id.

3
Id.

4
Plaintiff’s Motion for Alternative Service. D.I. 58.

5
Complaint. D.I. 1.

6
Id.

7
Id.

8
Id.

9
Id.

10
Complaint. D.I. 1.

11
Id.

12
Id.

13
The Trailer Defendants were dismissed with consent of the plaintiff. D.I. 62, D.I. 65. Defendant Estate of Clinton Peavy was dismissed by Order of the Court on October 29, 2019. D.I. 78.

14
D.I. 48.

15
D.I. 51.

16
“If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.”

17
Plaintiff’s Motion for Alternate Service. D.I. 58.

18
Id.

19
Amendment to the Complaint. D.I. 56.

20
Motion to Dismiss. D.I. 60. In the alternative, Bolton sought dismissal pursuant to Rule 12(b)(5), insufficiency of process and Super. Ct. Civ. R. 4(j), failure of service of the complaint and summons within 120 days.

21
Letter Requesting Affidavit. D.I. 72.

22
Affidavit of Counsel. D.I. 74.

23
Plaintiff’s Motion for Alternative Service. D.I. 58.

24
Id.

25
Complaint. D.I. 1.

26
10 Del. C. § 3104(d)(3).

27
Super. Ct. Civ. R. 4(j) supra, note 16.

28
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998)(noting a trial court may permit service beyond 120 days upon a showing of good cause).

29
2017 WL 3396488, (Del. Super. Ct. Aug. 7, 2017) aff’d, 184 A.3d 1291 (Del.2018).

30
Id. at *2.

31
Id. at *7.

32
1997 WL 527941 at *5 (Del. Super. Ct. July 22, 1997).

33
Id.

34
10 Del. C. § 8118.

35
Ellis, supra, note 29, at *4 (addressing savings statute on motion to dismiss is premature).

36
Plaintiffs Motion for Alternative Service. D.I. 58 at Ex. 3.

37
Id. at 58.

38
Wang v. B’Nai B’rith Senior Citizen Housing Inc., 2010 WL 8250793, at * 1 (Del. Super. Ct. July 20, 2010) “Active evasion can justify relaxed service when there is clear evidence that the defendant has been notified”. Doe v. Catholic Diocese of Wilmington, Inc., 2010 WL 2106181, at *5 (Del. Super. Ct. May 26, 2010) quoting Lovelace v. Acme Markets Inc., 820 F.2d 81, 84 (3d. Cir. 1987) “Congress [has] provided only one example of a ‘good cause’ exception to the 120-day rule-when failure to timely serve is caused by the defendant’s intentional evasion of service of process.”