United States District Court for the Southern District of California

May 22, 2024, Decided; May 22, 2024, Filed

Case No.: 23-cv-01917-DMS-BLM

Reporter

2024 U.S. Dist. LEXIS 92013 *; 2024 WL 2338262

RONATE C2C, INC., a California Corporation, Plaintiff, v. EXPRESS LOGISTICS, INC., an Iowa Corporation, et al., Defendants.

Core Terms

carriers, preempts, motion to dismiss, leave to amend, interstate, state law claim, transportation, allegations, brokers

Counsel:  [*1] For Ronate C2C, Inc., a California Corporation, Plaintiff: David Jones, LEAD ATTORNEY, Tustin, CA.

For Clear Lane Freight System Inc., a division of STG Logistics, Inc., a California Corporation, Defendant: Stephen M Uthoff, LEAD ATTORNEY, The Uthoff Law Corporation, Long Beach, CA.

For AAA Cooper Transportation, Inc., an Alabama Corporation, Defendant: Virginia L. Price, LEAD ATTORNEY, Price Pelletier, LLP, San Diego, CA.

Judges: Hon. Dana M. Sabraw, Chief United States District Judge.

Opinion by: Dana M. Sabraw

Opinion

ORDER GRANTING DEFENDANTS AAA TRANSPORTATION & CLEAR LANE FREIGHT SYSTEM’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Pending before the Court is Defendant AAA Cooper Transportation, Inc.’s (“Defendant AAA”) motion to dismiss Plaintiff Ronate C2C, Inc.’s Complaint for failure to state a claim (ECF No. 4.) Defendant Clear Lane Freight System, Inc. (“Defendant Clear Lane”) joined Defendant AAA’s motion to dismiss. (ECF No. 5.) Plaintiff filed an opposition, (ECF No. 9), and Defendants AAA and Clear Lane filed replies. (ECF No. 10, 11.) Defendant Express Logistics, Inc. (“Defendant Express Logistics”) has not made an appearance in the matter. For the following reasons, Defendant AAA and Clear Lane’s motion [*2]  to dismiss is granted.

I. BACKGROUND

Plaintiff is a distributor of chemical supplies, equipment, and related services. Plaintiff and Defendant Express Logistics entered into a brokerage agreement in which Defendant Express Logistics “promised to identify and locate reputable, but cost-effective, carriers for Plaintiff’s shipping needs.” (Opp’n at 2.) In accordance with the agreement, on August 2, 2022, Plaintiff asked Defendant Express Logistics to arrange for shipping of a $14,000 Rectifier from San Diego, California, to Plaintiff’s client located in Sparks, Nevada. Per Defendant Express Logistics’ recommendation, Plaintiff hired Defendant Clear Lane to ship the goods. However, Plaintiff contends that Defendant Clear Lane subcontracted with Defendant AAA to serve as Plaintiff’s carrier without Plaintiff’s knowledge or consent.

On August 26, 2022, Plaintiff discovered that the Rectifier was not delivered to their client. Defendant Express Logistics informed Plaintiff the Rectifier was lost. Plaintiff filed an insurance claim and recovered $3,600; however, Plaintiff claims this amount does not satisfy Plaintiff’s actual damages of $14,000. Thus, Plaintiff filed a claim for breach of contract [*3]  against Defendant Express Logistics and a claim for negligence against all Defendants in the Superior Court of California, County of San Diego. Defendant AAA filed a Notice of Removal to this Court because Defendant contends Plaintiff’s claims are preempted by the Carmack Amendment, 49 U.SC. § 14706.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “A claim has facial plausibility 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. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff “ha[s] not nudged [his] claims [*4]  across the line from conceivable to plausible,” the complaint “must be dismissed.” Id. at 570.

In reviewing the plausibility of a complaint on a motion to dismiss, a court must “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).

When a court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Leave to amend “shall be freely given when justice so requires,” Fed. R. Civ. P. 15(a), and “this policy is to be applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). A court should grant leave to amend where there is no (1) “undue delay,” (2) “bad faith or dilatory motive,” (3) “undue prejudice to the opposing party” if amendment were allowed, or (4) “futility” in allowing amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). Dismissal without leave to amend is proper only if it is clear that “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007).

III. DISCUSSION

A. Subject Matter Jurisdiction

To render a binding judgment, the Court must have subject matter jurisdiction over the underlying claim. “Under 28 U.S.C. § 1441(a), [*5]  the district courts have removal jurisdiction over any claim that could have been brought in federal court originally.” Hall v. North American Van Lines, Inc., 476 F.3d 683, 686-87 (9th Cir. 2007). “The presence or absence of 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, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). However, there are “a handful of ‘extraordinary situations where even a well-pleaded state law complaint will be deemed to arise under federal law for jurisdictional purposes.” Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir. 1993). “A complaint containing a completely preempted claim may be removed to district court under § 1441.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003).

Plaintiff’s complaint alleges state law claims for breach of contract and negligence.¹ The complaint does not contain a well-pleaded federal claim on its face as each claim relies exclusively on state law. However, Defendant AAA filed a notice of removal under 28 U.S.C. § 1441(a) contending the Court has jurisdiction over this claim because Plaintiff’s state law claims are completely preempted by the Carmack Amendment, 49 U.S.C. § 14706. The Ninth Circuit has described the Carmack Amendment as “a uniform national liability policy for interstate carriers.” Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 613 (9th Cir. 1992). “It is well settled that the Carmack Amendment is the exclusive cause [*6]  of action for interstate-shipping contract claims alleging loss or damage to property” as “Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” Hall, 476 P.3d at 688 (quoting Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003). Because “the Carmack Amendment completely preempts a contract claim alleging loss or damage to property,” the Court has removal jurisdiction over the instant case. Id.

B. Preemption and the Carmack Amendment

“A fundamental principle of the Constitution is that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000). A federal statute completely preempts a state action when “the scope of a statute indicates that Congress intended federal law to occupy a field exclusively.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S. Ct. 1483, 131 L. Ed. 2d 385 (1995). In 1906, Congress enacted the Carmack Amendment to the Interstate Commerce Act to establish a unified standard of liability for carriers transporting goods across state lines. The Supreme Court and the Ninth Circuit have held that the Carmack Amendment completely preempts state law claims relating to loss or damage of property against interstate carriers. See, e.g., Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964); New York, New Haven & Hartford R.R. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S. Ct. 986, 97 L. Ed. 1500, (1953); Hall, 476 F.3d at 688 (holding that the Carmack Amendment is the “exclusive cause of action” against a carrier of interstate goods, and this extends to [*7]  “all manner of harms” arising from loss or damage to the shipment); Hughes Aircraft Co., 970 F.2d at 613 (9th Cir. 1992) (holding that the Carmack Amendment preempts state law causes of action where the carrier is operating on a contract basis).

Defendants AAA and Clear Lane contend Plaintiff’s state law claim is preempted by the Carmack Amendment because Plaintiff’s complaint seeks to recover damages arising solely from the interstate transportation of Plaintiff’s goods. Plaintiff contends the Carmack Amendment does not preempt its state law claims because the Carmack Amendment applies only to carriers, not brokers. The Court agrees the Carmack Amendment does not apply to brokers; however, Plaintiff’s complaint and opposition does not allege any facts sufficient to support a finding that Defendants are brokers as opposed to carriers. See Rohr, Inc. v. UPS-Supply Chain Solutions, Inc., 939 F. Supp.2d 1041 at n. 26 (S.D. Cal. Apr. 8, 2013); Chubb Group of Ins. Cos. v. H.A. Transp. Sys., Inc., 243 F. Supp.2d 1064, 1069 (C.D. Cal. 2002) (holding that the Carmack Amendment applies only to carriers, not brokers). In fact, as Defendants AAA and Clear Lane state in their replies, Plaintiff’s complaint unambiguously refers to Defendants as carriers. (Plaintiff’s Complaint, (“Pl.’s Comp.”), ECF No. 1 at Exhibit A at ¶ 11) (“Plaintiff filed a claim for the lost Rectifier with Defendant Express Logistics, and during the claim process, discovered that Defendant AAA was used as the carrier of the Rectifier, NOT Defendant Clear Lane”) (emphasis [*8]  added); (Id. at ¶ 9) (“Plaintiff chose to use Defendant Clear Lane and Defendant Express Logistics issued Plaintiff a bill of landing that identified Defendant Clear Lane as the shipping carrier.”) (emphasis added). Nowhere in the complaint or opposition does Plaintiff allege Defendants acted as brokers as opposed to carriers. Because the Court must accept Plaintiff’s allegations in the complaint as true, the Court finds the Carmack Amendment preempts Plaintiff’s negligence claims against Defendants AAA and Clear Lane. Thus, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s claims against Defendants AAA and Clear Lane. However, because amendment would not be futile, the Court grants Plaintiff leave to amend its complaint to plead a claim under the Carmack Amendment. Plaintiff shall file an amended complaint within 20 days of the filing of this Order.

IV. CONCLUSION AND ORDER

For the foregoing reasons, the Court GRANTS Defendants’ AAA and Clear Lane’s motion to dismiss. Plaintiff’s negligence claim against Defendants’ AAA and Clear Lane is dismissed but with leave to amend to plead a claim under the Carmack Amendment.

IT IS SO ORDERED.

Dated: May 22, 2024

/s/ Dana M. Sabraw

Hon. Dana M. Sabraw, Chief Judge

United States District Court [*9] 

End of Document

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¹ Plaintiff’s complaint alleges two claims: breach of contract and negligence. The breach of contract claim is against only Defendant Express Logistics. The negligence claim, however, is against all Defendants. Because Defendant Express Logistics has yet to appear in the underlying matter, the Court addresses only the claims against Defendants AAA and Clear Lane.

United States District Court for the District of Connecticut

May 14, 2024, Decided; May 14, 2024, Filed

3:23-CV-01088 (VDO)

Reporter

2024 U.S. Dist. LEXIS 88529 *; 2024 WL 2139614

MAX ZACH CORPORATION, Plaintiff, – against – MARKER 17 MARINE and PREMIUM CARRIERS INC., Defendants.

Subsequent History: As Corrected May 17, 2024.

Core Terms

yacht, statute of limitations, breach of contract, conversion claim, negligence claim, allegations, conversion, motion to dismiss, transport

Counsel:  [*1] For Marker 17 Marine, Defendant: Jonathan P. Ciottone, LEAD ATTORNEY, McGivney & Kluger P.C., Hartford, CT; Morris R. Borea, McGivney Kluger Clark & Intoccia P.C., Hartford, CT.

For Max Zach Corporation, Plaintiff: Thomas B. Decea, LEAD ATTORNEY, Fishman Decea & Feldman, Amonk, NY.

For Premium Carriers Inc., Defendant: Wesley S. Chused, LEAD ATTORNEY, Preti Flaherty Beliveau & Pachios LLP – MA, Boston, MA.

Judges: VERNON D. OLIVER, United States District Judge.

Opinion by: VERNON D. OLIVER

Opinion

MEMORANDUM & ORDER GRANTING DEFENDANT MARKER 17 MARINE, LLC’S MOTION TO DISMISS

VERNON D. OLIVER, United States District Judge:

Plaintiff Max Zach Corporation’s (“Plaintiff” or “Max Zach”) action arises out of the alleged negligence, breach of contract, conversion, and violation of the Carmack Act by defendants Marker 17 Marine, LLC (“Defendant” or “Marker 17”) and Premium Carriers, Inc. (“Premium Carriers”) in connection with the modification and land transport of Plaintiff’s yacht. Defendant Marker 17 seeks dismissal of Counts One and Three of the Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that the negligence claim is time-barred, and the conversion claim is duplicative of Plaintiff’s breach of contract claim. [*2] 

For the reasons discussed below, Marker 17’s motion to dismiss is GRANTED.

I. BACKGROUND

The Court assumes the truth of the factual allegations in the SAC for the purposes of deciding Defendant’s motion. Plaintiff entered into a contract with Marker 17 to modify its 2006 48′ Fountain EC, HIN No. FGQ48C41J506 yacht, which included, inter alia, retrofitting and repowering the yacht with four Mercury Outboard 400 Racing Motors, at a cost of approximately $315,000. (SAC, ECF No. 35, ¶ 1.) The contract, which was paid in full, also provided for the delivery of the yacht by Marker 17 to Plaintiff in Greenwich, Connecticut. (Id. ¶ 2.)

The yacht was modified to specification by Marker 17, packaged, and loaded for transport from Wilmington, North Carolina to Greenwich, Connecticut. (Id. ¶ 3.) Marker 17 selected defendant Premium Carriers to assist with loading the yacht onto a trailer and to transport the yacht via land transport. (Id.) The yacht, which has a conservative fair market value of $750,000, was destroyed when, in New Jersey, Premium Carriers accidentally flipped the trailer carrying the yacht en route to Plaintiff. (Id. ¶¶ 3, 15.) Thereafter, Superior Towing and Transport, LLC towed [*3]  the yacht from the accident site to its storage facility in New Jersey, where the yacht is still stored at a rate of $150 per day. (Id. ¶ 16.) The finished yacht has not been delivered to Plaintiff as required by the contract. (Id.)

Plaintiff raises four causes of action—(1) negligence against Marker 17, (2) breach of contract against Marker 17, (3) conversion against Marker 17, and (4) violation of 49 U.S.C. § 14706 against Premium Carriers—and seeks monetary judgment, consequential and punitive damages, and attorneys’ fees. (Id. ¶¶ 21, 22, 27, 28, 32, 33, 40, 41, 42, 43, pp. 8-9.) Plaintiff’s breach of contract and Carmack Act claims are not the subject of the instant motion.

II. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ray v. Watnick, 688 F. App’x 41, 41 (2d Cir. 2017) (quoting Ashcroft, 556 U.S. at 678).

In deciding a motion to dismiss, the Court must accept the well-pleaded factual allegations of the complaint as true [*4]  and draw all reasonable inferences in the plaintiff’s favor. See Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). The Court must then determine whether those allegations “plausibly give rise to an entitlement to relief.” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). The Court is not required to accept as true “conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d. Cir. 2008) (internal quotation marks omitted).

III. DISCUSSION

Marker 17 moves to dismiss Counts One and Three of the Second Amended Complaint under Rule 12(b)(6) for failure to state a claim. The Court grants Defendant’s motion in its entirety.

A. Count One: Plaintiff’s Negligence Claim

Before considering the substance of Plaintiff’s negligence claim, Marker 17 argues that the claim “is barred by the applicable two-year statute of limitations.” (Def. Mot., ECF No. 37, at 1.) In response, Plaintiff contends that New Jersey law applies to the negligence claim and provides for a six-year statute of limitations. (Pl. Opp., ECF No. 41, at 5.) After conducting a choice of law analysis, the Court agrees with Defendant.

“A federal court sitting in diversity applies the choice of law rules of the forum state[,]” in this case, Connecticut. Maryland Cas. Co. v. Cont’l Cas. Co., 332 F.3d 145, 151 (2d Cir. 2003) (internal citation omitted). Traditionally in Connecticut, “the law of the forum [*5]  state governs on matters of procedure.” Phillips v. Scott, 446 F. Supp. 2d 70, 83 n.25 (D. Conn. 2006) (quoting Keeteon v. Hustler Magazine, Inc., 465 U.S. 770, 778 n.10, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984)). “Under Connecticut’s choice of law rules, if the underlying claim existed at common law, the statute of limitations is considered procedural.” Stuart & Sons, L.P. v. Curtis Publ’g Co., Inc., 456 F. Supp. 2d 336, 343 (D. Conn. 2006) (underlying claim of conversion); see also Lostritto v. Cmty. Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418, 426 (Conn. 2004) (“A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.”) (internal citation and quotation marks omitted).

Because the Second Amended Complaint alleges a claim for negligence, which is a cause of action found at common law and not created by statute, the statute of limitations is procedural, and the Court shall apply Connecticut law. See Slekis v. AMTRAK, 56 F. Supp. 2d 202, 205 (D. Conn. 1999) (stating “[b]ecause plaintiff’s complaint sounds in simple negligence, a cause of action recognized at common law and not created by statute, we find that a Connecticut court would consider the statute of limitations procedural and would apply the statute of limitations of the forum . . .”). Under Connecticut law, the statute of limitations for negligence claims is two years. CONN. GEN. STAT. § 52-584 (“No action to recover damages for injury to the person, or to real or personal [*6]  property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered); see also Sentementes v. Lamont, No. 3:20-CV-1826 (MPS), 2022 U.S. Dist. LEXIS 64569, 2022 WL 1043671, at *4 n.3 (D. Conn. Apr. 7, 2022).

Plaintiff filed the instant action in Connecticut Superior Court on July 17, 2023 (ECF No. 1), more than two years after the date of its alleged injury: May 6, 2021. (SAC ¶ 15.) Because the negligence claim is time-barred,¹, ² the Court declines to address the merits of the claim. Count One of the SAC is dismissed.

B. Count Three: Plaintiff’s Conversion Claim

Regarding Max Zach’s conversion claim, Marker 17 claims that it is merely an attempt to transform the alleged breach of contract claim into a tort claim. Specifically, Defendant argues there is no cognizable claim for conversion based purely on a debt or a claim that one is owed money as a result of a breach of contract. (Def. Mot. at 16.)

“New Jersey courts have expressly restricted application of the doctrine of conversion when it seeks to turn a claim based on breach of contract into a tort claim.” Gordon v. Nice Sys. Inc., No. 2:18-CV-2168, 2020 U.S. Dist. LEXIS 81927, 2020 WL 2316278, at *4 (D.N.J. May 11, 2020); D & D Tech., Inc. v. CytoCore, Inc., No. 2:14-CV-4217, 2014 WL 4367314, at *4 (D.N.J. Sept. 2, 2014) (same).³ According to Marker 17, “the entire claim for conversion is based upon the allegations that: Plaintiff contracted [*7]  with Marker to retrofit and deliver the Vessel to Connecticut; Plaintiff paid Marker for its services; and Plaintiff now desires a refund of its payment under the contract.” (Def. Mot. at 16.)

The Court agrees with Marker 17 that Plaintiff’s conversion claim should be dismissed because it is duplicative of the breach of contract claim. Here, Plaintiff’s own allegations demonstrate that its conversion claim for the money paid to Marker 17 under the contract arises out of the contract between it and Marker 17. See SAC ¶ 31 (“Despite payment in full, Marker 17 failed to perform under the Contract . . .”); id. ¶ 32 (“The money paid under the Contract belonged to the Plaintiff. Despite demand for the return of the funds paid under the Contract, Marker 17 has failed and refused said demand.”); id. ¶ 33 (“Marker 17 has deprived Plaintiff of its money”). What is more, contrary to its argument in opposition,⁴ Plaintiff seeks exactly the same amount in and type of damages for both its breach of contract and conversion claims. Compare SAC ¶ 29 (“Accordingly, Plaintiff is entitled to a money judgment against Marker 17, in an amount to be determined upon the trial of this action but presently believed [*8]  to be more than $1,400,000 plus costs, expenses, pre-judgment interest and consequential damages which have accrued and will continue to accrue during the pendency of this action.”), with id. ¶ 34 (“Accordingly, Plaintiff is entitled to a money judgment against Marker 17, in an amount to be determined upon the trial of this action but presently believed to be more than $1,400,000 plus costs, expenses, pre-judgment interest and consequential damages which have accrued and will continue to accrue during the pendency of this action.”).

Accordingly, the facts underlying Count Three are clearly identical to Max Zach’s [*9]  breach of contract claim, and it is therefore dismissed.

IV. CONCLUSION

For the reasons described above, Marker 17’s motion to dismiss (ECF No. 37) is GRANTED. Counts One and Three of the Second Amended Complaint are dismissed with prejudice. Marker 17 shall file an answer as to Count Two within fourteen (14) days of this Order.

SO ORDERED.

Hartford, Connecticut

May 14, 2024

/s/ Vernon D. Oliver

VERNON D. OLIVER

United States District Judge

End of Document

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¹ Plaintiff argues that “the statute pursuant to which Marker 17 asserts it statute of limitations argument (C.G.S. § 52-584) is a repose statute which . . . is, as a matter of law, substantive and, therefore, New Jersey’s six (6) year statute of limitations applies[.]” (Pl. Opp. at 5.) This is not entirely accurate. “Interpreting section 52-584, Connecticut courts have drawn a clear distinction between those two periods; the two-year period, or ‘discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered.’ Rosato v. Mascardo, 82 Conn. App. 396, 401, 844 A.2d 893 (2004) (emphasis in original). The three-year period, however, ‘specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose.’ Id. at 402, 844 A.2d 893.” Galea v. L. Offs. of Cary Alan Cliff, No. 3:19-CV-225 (SRU), 2021 WL 1090783, at *8 (D. Conn. Mar. 22, 2021). “For Plaintiff’s state law negligence causes of action, which are governed by Conn. Gen. Stat. § 52-584, “[t]he statute [of limitations] begins to run when the plaintiff discovers some form of actionable harm[.]” McDonald v. Stamford Police Dep’t, No. 3:21-CV-00723 (KAD), 2022 U.S. Dist. LEXIS 84034, 2022 WL 1471249, at *5 (D. Conn. May 10, 2022), aff’d sub nom. McDonald v. Molina, No. 22-1261-CV, 2023 U.S. App. LEXIS 4624, 2023 WL 2229365 (2d Cir. Feb. 27, 2023). In this case, Plaintiff had knowledge of some form of actionable harm when the yacht flipped over on May 6, 2021. Any argument to the contrary is not supported by the allegations in the Second Amended Complaint.

² Plaintiff’s negligence claim would also be time-barred under New Jersey law. “It is well-settled New Jersey law that a two (2) year statute of limitations applies to causes of action for negligence.” Kowalsky v. Deutsche Bank Nat’l Tr. Co., No. 14-07856 (CCC)(JBC), 2015 WL 5770523, at *5 (D.N.J. Sept. 30, 2015) (citing N.J.S.A. § 2A:14-2(a)).

³ The Court applies New Jersey law to the conversion claim as both parties appear to concede that New Jersey law governs the claim.

⁴ Plaintiff attempts to distinguish the damages sought in both claims in its opposition, claiming, “The $315,000 converted by Marker 17 derives from Marker 17’s demand that payment under the Contract be made prior to the delivery of the Vessel. Conversely, the Contract called for delivery of the Vessel to Greenwich, Connecticut, prior to payment. The $315,000 demanded prior to delivery and paid by Plaintiff was required to be held in escrow subject to Plaintiff’s receipt of the Vessel.” (Pl. Opp. at 13.) However, the fact regarding escrow was not alleged in the Second Amended Complaint; therefore, this argument cannot be raised for the first time in opposition to a motion to dismiss. See, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (declining to address merits of claim that “does not appear anywhere in the amended complaint and did not enter the case until [the plaintiff] mentioned it for the first time in her opposition memoranda to the motion to dismiss”).