United States District Court,

D. South Carolina,

Aiken Division.

Felicia McDUFFIE, Plaintiff,

v.

MEADE TRUCKING COMPANY, INC.; Brian Tudor Harris, Jr.; and Jeree L. Shiggs, Defendants.

C/A No. 1:10-CV-1887-MBS.

 

Oct. 14, 2010.

 

ORDER

 

MARGARET B. SEYMOUR, District Judge.

 

This matter is before the court on motion to remand filed by Plaintiff Felicia McDuffie (“McDuffie”) on August 19, 2010. ECF No. 19. The motion is fully briefed and properly before the court for consideration. The court has thoroughly reviewed the parties’ papers and the relevant portions of the record and finds the motion suitable for disposition without oral argument. Therefore, for the reasons that follow, the court hereby GRANTS the motion to remand. ECF No. 19.

 

I. BACKGROUND

 

This matter arises out of an automobile accident that occurred on June 2, 2009 in Barnwell County, South Carolina. McDuffie was a passenger in a vehicle being driven by Defendant Jeree L. Shiggs (“Shiggs”). Compl. ¶ 6, ECF No. 1-1. Defendant Brian Tudor Harris, Jr. (“Harris”) was traveling behind McDuffie and Shiggs, operating a tractor-trailer owned by Defendant Meade Trucking Company (“Meade”). Id. The two vehicles collided when Shiggs attempted to turn left off of the road into a private driveway at the same time that Harris attempted to pass Shiggs in a no passing zone. Id. McDuffie and Shiggs are residents of South Carolina. Compl. ¶¶ 1, 4, ECF No. 1-1. Meade and Harris are not. Id. at ¶ 2-3.

 

McDuffie filed the within action in the Court of Common Pleas for the County of Allendale, South Carolina on December 22, 2009, asserting that all three Defendants “were negligent, careless, reckless, grossly negligent, willful and wanton” and thus caused the accident and McDuffie’s resulting injuries. Id. at ¶ 8. McDuffie alleged that Shiggs specifically was negligent for “failing to maintain a proper lookout; … failing to maintain proper control of her vehicle; … failing to take evasive action to avoid the collision; … failing to give a proper signal; … making an improper turn; … stopping suddenly; … slamming on brakes; … failing to exercise the degree of care that a reasonable person would have exercised under the same or similar circumstances; and … [i]n such other and further particulars as the evidence in trial may show.” Id.

 

This matter is before the court on several pending motions, including Plaintiff’s Motion to Remand filed on August 18, 2010. ECF No. 19. This is the second time that this court has been tasked with deciding a motion to remand between these parties on these claims. Defendants Meade and Harris first filed a notice of removal on February 25, 2010, alleging that Defendant Shiggs had been fraudulently joined for the purpose of defeating diversity. See First Notice of Removal 2, ECF No. 1 (C/N 1:10-CV-00455-MBS). Meade and Harris theorized that, because McDuffie’s counsel formerly represented Shiggs in this same matter, McDuffie and Shiggs may have entered into a covenant not to execute judgment or other similar agreement under which Shiggs would not be subject to liability in this case. See Order Remanding Case 2, ECF No. 32 (C/N 1:10-CV-00455-MBS). In response, McDuffie filed an affidavit in which she affirmed,

 

The first Notice of Removal initiated Case No. 1:10-CV-00455-MBS.

 

I sued Defendant Shiggs because she was negligent in the following ways: (a) she failed to maintain a proper lookout; (b) she failed to take evasive action to avoid the collision; (c) she attempted to turn left before determining that she could turn with reasonable safety; and (d) she did not appear to give a proper signal.

 

I have not entered into any Covenant Not to Execute against Jeree Shiggs or any settlement agreement of any kind with Jeree Shiggs.

 

McDuffie Aff. ¶¶ 3-4, ECF No. 21-7 at 44. Thereafter, this court granted Plaintiff’s motion to remand through an order issued on May 7, 2010, which concluded:

The court must resolve all issues of fact in the plaintiff’s favor at this stage of the proceedings. Plaintiff has shown by affidavit that no settlement agreement exists and there was no covenant. Therefore, Meade and Harris cannot successfully oppose remand and diversity of jurisdiction does not exist.

 

Order Remanding Case 3, ECF No. 32. Following remand, discovery, which had been stayed, resumed, and McDuffie was deposed. Thereafter, Meade and Harris initiated the instant action by filing their second Notice of Removal on July 20, 2010, again asserting that Shiggs was fraudulently joined. See Second Notice of Removal 2, ECF No. 1. The court now considers Plaintiff’s motion to remand. ECF No. 19.

 

II. LEGAL STANDARD

 

To show fraudulent joinder, the removing party must demonstrate either “outright fraud in the plaintiff’s pleading of jurisdictional facts” or that “there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999) (citing Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993)). “The party alleging fraudulent joinder bears a heavy burden-it must show that the plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiff’s favor.” Id. In determining whether attempted joinder is fraudulent, “the court is not bound by the allegations of the pleadings, but may instead consider the entire record, and determine the basis of joinder by any means available.” AIDS Counseling & Testing Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1003-04 (4th Cir.1990).

 

III. ANALYSIS

 

In opposing the instant motion to remand, Meade argues that discovery following remand has revealed that Defendant Shiggs was, indeed, fraudulently joined and that the statements made in McDuffie’s affidavit, upon which this court relied in granting the first motion to remand, were false. Specifically, based on the following testimony by McDuffie at her deposition, Meade contends that “there is absolutely no possibility that … McDuffie can establish a cause of action against Jeree Shiggs and there [has] been outright fraud in the pleading of jurisdictional facts.” Def.’s Resp. 1, ECF No. 24:

 

Q. Do you know-realize that you have sued Ms. Shiggs?

 

A. Yes, sir.

 

* * *

 

Q. You think she caused the accident?

 

MR. TINSLEY: Object to the form.

 

A. No, sir.

 

Q. You do not, okay. Who caused the accident?

 

A. The truck.

 

McDuffie Dep. 24:14-15, 21-25, ECF No. 24-11 at 31.

Q. Did Ms. Shiggs contribute to the accident in any way?

 

MR. TINSLEY: Object to the form.

 

A. You meaning by? In what way?

 

Q. Did she contribute to the accident?

 

MR. TINSLEY: Object to the form.

 

A. I would say no.

 

Q. Can you think of anything Ms. Shiggs did that caused this accident in any way?

 

MR. TINSLEY: Object to the form.

 

A. No, sir.

 

Q. And the accident was caused by the truck driver?

 

MR. TINSLEY: Object to the form.

 

A. Yes, sir.

 

Q. If Ms. Shiggs did not cause the accident or contribute to it, why did you bring the lawsuit against her?

 

MR. TINSLEY: Object to the form.

 

A. Can you repeat the question you asked?

 

Q. Yeah. If Ms. Shiggs did not cause or contribute to the accident, why did you bring a lawsuit against her?

 

MR. TINSLEY: Object to the form.

 

A. I don’t know.

 

Id. at 25:1-21. Meade also cites testimony in which McDuffie states that she remembers Shiggs initiating a turn signal; that she does not know what Shiggs could have done to get out of the way of the truck; that Shiggs did not have time to get out of the way of the truck; that the brake lights on the car that Shiggs was driving functioned; that she does not know whether Shiggs contributed to the accident by failing to maintain a proper lookout; that the vehicle that Shiggs was driving was under control at the time of the accident; that Shiggs could have pulled up further, but the result would have been the same; that Shiggs slowed when she came to the turn; and that Shiggs did not slam on her brakes. See Def.’s Resp. 8-11, ECF No. 24.

 

Plaintiff counters that Meade cites McDuffie’s testimony selectively. In fact, as evidenced by the transcripts, in citing the first section of testimony reproduced above, Meade deleted some responses by McDuffie, highlighted below in bold:

 

Q. Do you know-realize that you have sued Ms. Shiggs?

 

A. Yes, sir.

 

Q. Do you plan to collect against her?

 

A. Yes, sir.

 

Q. Do you think she was negligent in this accident?

 

MR. TINSLEY: Object to the form.

 

A. Yes, sir.

 

Q. You think she caused the accident?

 

MR. TINSLEY: Object to the form.

 

A. No, sir.

 

Q. You do not, okay. Who caused the accident?

 

A. The truck.

 

McDuffie Dep. 24:14-25, ECF No. 19-5 at 2.

 

Plaintiff further argues that, under any circumstances, McDuffie’s negative response to defense counsel’s question as to whether McDuffie believed that Shiggs “caused” the accident would not necessarily conclusively settle the legal question of proximate cause-but even more so in this case, given that McDuffie testified that she does not remember the accident because she lost consciousness:

 

Q. You don’t remember the accident?

 

A. No, sir.

 

Id. at 35:14-15.

Q. What could Ms. Shiggs have done to get out of the way of the car-the truck, if anything?

 

A. I don’t know.

 

Q. And you tell me if I’m wrong, but is it fair to say that the only thing you remember about the accident is hearing the clicking sound of the turn signal and that’s it?

 

A. Yes, sir.

 

Q. You don’t remember the impact?

 

A. No, sir.

 

Q. Did you lose consciousness?

 

A. Yes, sir.

 

Id. at 37:14-25. McDuffie also testified that she does not remember whether the truck turned to avoid hitting the car. Id. at 39:15-17.

 

Furthermore, to the extent that Meade credits McDuffie’s testimony as conclusive proof that McDuffie could not recover on a negligence claim against Shiggs, it is worth noting that McDuffie is not a licensed driver and has never had a driver’s license. See McDuffie Dep. 24:10-13, ECF No. 19-5 at 2. It is reasonable to assume she lacks knowledge concerning the laws applicable to driving an automobile and the duties imposed on the driver of an automobile. Pl.’s Mot. 12 n. 3, ECF No. 19-1.

 

In addition to pointing out portions of McDuffie’s testimony that appear to contradict Meade’s argument, Plaintiff submits an affidavit from accident reconstruction expert, Bryan Durig. Mr. Durig reviewed inter alia, the complaint, Meade’s answer and cross-complaint, the accident report, and McDuffie’s deposition, and opines that those materials “[indicate] that Ms. Shiggs should not have attempted to turn left when the Meade Trucking tractor-trailer was in the process of making an illegal passing maneuver.” Bryan R. Durig Aff. ¶ 7, ECF No. 19-4. Plaintiff also cites several South Carolina cases that have found that a driver of a vehicle can be held negligent for turning left into the path of a following vehicle that is attempting to overtake it. See Still v. Blake, 255 S.C. 95, 177 S.E.2d 469, 473 (S.C.1970); Jumper v. Goodwin, 239 S.C. 508, 123 S.E.2d 857, 860 (S.C.1962); Anderson v. Davis, 229 S.C. 223, 92 S.E.2d 469, 472 (S.C.1956).

 

Meade argues that the court should disregard Mr. Durig’s affidavit on the basis that McDuffie has not formally identified Mr. Durig as an expert; Mr. Durig has not been approved as an expert by this court; and Mr. Durig does not base his opinion on personal knowledge. Def.’s Resp. 16-17, ECF No. 24. Without Mr. Durig’s affidavit, Meade argues, “there is no longer any possibility that the Plaintiff can establish an actionable cause of action for Negligence against Jeree Shiggs,” because-Meade insists-McDuffie’s testimony at her deposition “directly contradicted that which she had previously submitted to this court as being true” in her affidavit. Id. at 6, 7, 92 S.E.2d 469.

 

As noted above, the standard for fraudulent joinder is heavily weighted in favor of the plaintiff and, in this case, McDuffie has the better part of this argument. First, when the testimony that Meade relies upon is examined in context, it is not clear that it does, in fact, contradict the affidavit submitted by McDuffie in connection with the first motion to remand. Because a clear contradiction between McDuffie’s affidavit and her testimony is the only basis that Meade asserts for finding that McDuffie fraudulently pleaded jurisdictional facts to avoid removal, the court rejects Meade’s argument on this point. Moreover, given the fact that this case is still in the early stages, it is entirely proper to consider the expert testimony proffered by McDuffie-but even without Mr. Durig’s testimony, it simply cannot be said that McDuffie’s deposition testimony forecloses the possibility of any recovery against Shiggs in state court. Proximate cause is generally a question of fact to be determined by the jury, see, e.g., McKnight v. S.C. Dep’t of Corrections, 385 S.C. 380, 684 S.E.2d 566, 569 (S.C.Ct.App.2009), and McDuffie’s deposition testimony that Shiggs was “negligent,” but that she does not believe Shiggs “caused” the accident does not prohibit a jury from finding that Shiggs’s behavior was a contributory cause of the accident.

 

IV. CONCLUSION

 

For the reasons stated above, this court concludes that this action was removed improvidently and it is without jurisdiction. Therefore, Plaintiff’s motion to remand is GRANTED. ECF No. 19. Defendant Jeree Shiggs’ Motion to Remand, ECF No. 13, and Plaintiff’s Motion to Stay, ECF No. 11, are DENIED AS MOOT. This case is hereby REMANDED to the South Carolina Court of Common Pleas for Allendale County. A certified copy of this Order of remand shall be mailed by the Clerk of this Court to the Clerk of the Court of Common Pleas, Allendale County, Fourteenth Judicial Circuit of South Carolina.

 

IT IS ORDERED.

 

United States District Court,

E.D. New York.

TRANS-PRO LOGISTIC INC., Plaintiff,

v.

COBY ELECTRONICS CORPORATION, Defendant.

Coby Electronics Corporation, Third-Party Plaintiff,

v.

CSX Intermodal, Inc. and Yellowstone Freight, Inc., Third-Party Defendants.

No. 05 CV 1759(CLP).

 

Oct. 14, 2010.

 

MEMORANDUM AND ORDER

 

CHERYL L. POLLAK, United States Magistrate Judge.

 

On April 12, 2005, plaintiff Trans-Pro Logistic Inc. (“Trans-Pro”) filed this action, alleging breach of contract and claiming payment for an account stated, in connection with monies owed to plaintiff for shipping services provided to defendant Coby Electronics Corporation (“Coby”). (See Compl. ). On December 2, 2005, defendant Coby filed various counterclaims against plaintiff, as well as a Third-Party Complaint against CSX Intermodal, Inc. (“CSXI”) and Yellowstone Freight, Inc. (“Yellowstone”), the transporters of the shipments, alleging that they were responsible for the loss of certain goods that occurred during the transport process.

 

Citations to “Compl.” refer to plaintiff’s Complaint filed on April 12, 2005.

 

On December 14, 2007, third-party defendant CSXI filed a motion for summary judgment, seeking to have the Third-Party Complaint dismissed as against CSXI. By Memorandum and Order dated September 2, 2008, the Honorable Charles P. Sifton denied the CSXI motion for summary judgment, finding that there were material issues of fact in dispute as to the terms of the agreement between plaintiff and defendant that prevented the court from determining the liability of the third party. Trans-Pro Logistics, Inc. v. Coby Electronic, No. 05 CV 1759, 2008 WL 4163992, at(E.D.N.Y. Sept. 3, 2008). CSXI filed a motion for reconsideration on September 15, 2008, which was denied by Judge Sifton in an Order dated January 6, 2009.

 

All parties consented to having the case assigned to a United States Magistrate Judge for all purposes including entry of judgment on May 18, 2009. The parties then filed a proposed Pretrial Order on September 17, 2009, in which CSXI asserted that this Court “does not have subject matter jurisdiction over CSXI Intermodal, Inc. (CSXI) because the forum selection clause contained in CSXI’s contract with its customers, Service Directory No. 1, provides that any suit against CSXI must be brought in either of three places,” none of which is the Eastern District of New York. (PTO  at 2).

 

Citations to “PTO” refer to the proposed Pre-Trial Order filed on September 17, 2009.

 

Although CSXI filed a Pretrial Memorandum of Law, dated October 2, 2009, which essentially repeated the arguments it made to Judge Sifton in its earlier Motion for Summary Judgment, CSXI failed to file a motion to dismiss or a motion for summary judgment. Noting that CSXI objected to jurisdiction in the Eastern District of New York in both the Pretrial Order and its Pretrial Memorandum of Law, this Court issued an Order on September 8, 2010, stating that if CSXI wished to make a motion objecting to this Court’s jurisdiction, it must do so by September 24, 2010.

 

CSXI now moves for summary judgment “as to dismissal of the Third Party Complaint filed by Coby … against it on the grounds that this Court lacks subject matter jurisdiction over it because of a forum selection clause in the transportation agreement….” (Second Mot. at 1-2).

 

Citations to “Second Mot.” refer to the Memorandum of Law in Support of CSX Intermodal, Inc.’s Motion for Summary Judgment, filed on September 24, 2010.

 

DISCUSSION

 

A party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). In addition, “ ‘inferences to be drawn from the underlying facts … must be viewed in the light most favorable to the party opposing the motion.’ “ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

 

In moving for summary judgment, CSXI relies on the forum selection clause set forth in the Service Directory agreed to between CSXI and TRT Carriers, a division of NYK Logistics that hired CSXI to transport goods for Coby. (Second Mot. at 8). CSXI argues that this forum selection clause applies to Coby because Trans-Pro was acting on Coby’s behalf when Trans-Pro contracted with TRT, which then contracted with CSXI.

 

Coby disputes CSXI’s allegation that TRT Carriers is a division of NYK Logistics. See Trans-Pro Logistic, Inc. v. Coby Electronics Corp., No. 05 CV 1759, 2008 WL 4163992, at(E.D.N.Y. Sep. 3, 2008). Since the status of TRT Carriers is irrelevant to the Court’s present decision, the Court does not address the issue.

 

CSXI made a similar argument in its first motion for summary judgment, relying on Great Northern Railway Co. v. O’Connor, 232 U.S. 508 (1914), Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14 (2004), and Nippon Fire & Marine Co., Ltd. v. Skyway Freight Systems, Inc, 235 F.3d 52 (2d Cir.2000), to buttress its argument that the Service Directory was enforceable against Coby. Judge Sifton found that the three cases were inapposite, as “third-party defendant CSXI is a shipper’s agent, not a carrier, and knew that defendant and third-party plaintiff Coby was the shipper and not a freight forwarder at the time that it contracted with TRT to arrange for the shipment of the goods in question.” Trans-Pro, 2008 WL 4163992, at *4. Judge Sifton concluded that “[b]ecause there are material factual disputes about the terms of the contract between plaintiff and defendant, a jury must first determine their relationship before addressing whether defendant and third-party plaintiff Coby was bound by the terms of the Service Directory.” Id. at *5.

 

On September 16, 2008, CSXI filed a Motion for Reconsideration or Reargument, arguing that Judge Sifton “overlooked basic principles of agency law” when he ruled that there exist issues of fact surrounding the enforceability of the Service Directory. (Mot. Recons. at 2). In the Motion for Reconsideration, CSXI argued that Trans-Pro had implied or apparent authority to arrange for the shipment of goods on Coby’s behalf, or that Coby had ratified agreement to the Service Directory by voluntarily loading its cargo onto a truck owned by a company hired by CSXI.

 

Citations to “Mot. Recons.” refer to CSXI’s Memorandum of Law in Support of its Motion for Reconsideration or Re-argument,” filed on September 16, 2008.

 

Judge Sifton found that such arguments were not appropriate bases for a motion to reconsider, since the arguments had not appeared in CSXI’s initial motion for summary judgment, and, therefore, they were not arguments that he had “overlooked.” Nevertheless, the judge proceeded to dispose of CSXI’s arguments on the merits, finding that “denial of [CSXI’s] summary judgment motion would nevertheless be appropriate.” Trans-Pro Logistic, Inc. v. Coby Electronics Corp., No. 05 CV 1759, 2009 WL 36824, at(E.D.N.Y. Jan. 6, 2009). In his Order, Judge Sifton found that “[t]he nature and details of the oral agreement between third-party-plaintiff Coby and plaintiff Trans-Pro are in dispute, but there is no allegation that the limitations present in the Service Directory, upon which third-party defendant [CSXI’s] contract with TRT was predicated, were included in the oral agreement between Coby and Trans-Pro.” Id. Further, Judge Sifton rejected CSXI’s arguments that, as a matter of law, Trans-Pro had implied or apparent authority or that Coby ratified the contract between Trans-Pro and CSXI. Id. at *6-7. Accordingly, the judge denied CSXI’s motion for reconsideration.

 

In the instant motion, filed on September 24, 2010, CSXI again seeks summary judgment, now couching the issue surrounding the forum selection clause in the Service Directory as one of subject matter jurisdiction. CSXI notes that “the issue of the court’s subject matter jurisdiction was never resolved in the two opinions by Judge Sifton.” (Resp. at 3). This is true to the extent that Judge Sifton did not frame his opinion in terms of subject matter jurisdiction and did not explicitly find that the forum selection clause did or did not preclude subject matter jurisdiction over this case. However, the judge’s finding that there are material issues of fact as to whether Coby is bound by the terms of the Service Directory, including the forum selection clause, in essence included a ruling on subject matter jurisdiction.

 

Citations to “Resp.” refer to CSXI’s Response to the Court’s October 1, 2010, Order, filed October 6, 2010. Fed.R.Civ.P. 12(b)(3). See Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir.2007).

 

For this Court to dismiss the Third Party Complaint as CSXI requests, it must first find that the forum selection clause in question is valid and enforceable as against Coby. To make such a finding in the context of a motion for summary judgment would require the Court to conclude that there exist no triable issues of fact as to the validity and enforceability of the forum selection clause.  Forum selection clauses are presumptively valid and will only be set aside if enforcement would be unreasonable. Mercer v. Raildreams, Inc., 702 F.Supp.2d 176, 180 (E.D.N.Y.2010). Forum selection clauses are unreasonable:

 

At the final pre-trial conference hearing, held on October 13, 2010, counsel for CSXI argued that, in addition to the forum selection clause, other provisions of the Service Directory preclude Coby’s claims against CSXI. Again, there remain issues of triable fact as to whether Coby is bound by the Service Directory entered into by CSXI and TRT Carriers.

 

(1) if their incorporation into the agreement was the result of fraud or overreaching; (2) if the complaining party will for all practical purposes be deprived of his day in court, due to the grave inconvenience or unfairness of the selected forum; (3) if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) if the clauses contravene a strong public policy of the forum state.

Id. (quoting In re Assicurazioni S.p.A. Holocaust Insurance Litigation, 228 F.Supp.2d 372, 373 (S.D.N.Y.2002)). However, before examining these factors-for which no evidence has yet been presented-the Court must first determine if the parties at issue even had an agreement to be bound by the clause.

 

If the Court were to conclude that there are no triable issues of fact in this regard, the Court would then need to determine the propriety of characterizing CSXI’s motion as a motion to dismiss for lack of subject matter jurisdiction, as opposed to a motion to dismiss for improper venue. The Second Circuit “has recognized that ‘there is no existing mechanism with which forum selection enforcement is a perfect fit.’ “ Mercer v. Raildreams, Inc., 702 F.Supp.2d 176, 178 (E.D.N.Y.2010) (quoting New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 28-29 (2d Cir.1997). Although some courts treat motions to dismiss and motions for summary judgment predicated on a forum selection clause as governed Federal Rule of Civil Procedure 12(b)(1), see, e.g., Cfirstclass Corp. v. Silverjet PLC, 560 F.Supp.2d 324, 327 (S.D.N.Y.2008) (citing AVC Nederland B.V. v. Atrium Inv. Patnership, 740 F.2d 148, 152 (2d Cir.1984)), others have classified such motions as motions to dismiss for improper venue under

 

CSXI has cited only one new case decided since its first motion for summary judgment, Kawasaki Kisen Kaisha Ltd. v. Regal Beloit Corp., 130 S.Ct. 2433 (2010), to support its statement that forum selection clauses “are enforceable whether or not the opposing party bargained for them or was unaware of the precise terms of the clause so long as the clause was in the ‘agreement’ for the arrangement of transportation services.” (Resp. at 7). CSXI fails to elaborate on exactly how Kawasaki is relevant to the instant motion except that the case involves a forum selection clause found to be enforceable by the Supreme Court.

 

In Kawasaki, a number of cargo owners sought to ship their goods from China to the midwestern United States. The cargo owners hired Kawasaki Kisen Kaisha, Ltd., and its agent “K” Line America, Inc. (“ ‘K’ Line”), which issued bills of lading covering the entire course of shipment to the cargo owners. These bills of lading included so-called “Himalaya Clauses,” which “extend [ ] the bills’ defenses and limitations on liability to parties that sign subcontracts to perform services contemplated by the bills.” Id., at 2439. They also included forum selection clauses, setting Tokyo District Court as the proper forum for any action relating to the shipment.

 

“K” Line arranged to have Union Pacific Railroad Company serve as the rail carrier for the portion of the shipment that took place in the United States. When the Union Pacific train derailed in Oklahoma, the cargo was allegedly destroyed, and the cargo owners brought suit in California. The District Court dismissed the case based on the forum selection clause, and the Ninth Circuit reversed. The Supreme Court granted certiorari to determine whether the Carmack Amendment applies “to the inland segment of an overseas import shipment under a through bill of lading.” Id. at 2440.

 

Although the Supreme Court ultimately found the forum selection clause at issue in Kawasaki to be enforceable, the circumstances surrounding this case and Kawasaki are so different that it is difficult to draw any helpful conclusions from the Supreme Court’s decision. In Kawasaki, the forum selection clause was present in written bills of lading issued by “K” Line directly to the cargo owners, and it was clear from the Himalaya Clauses that “K” Line was authorized to subcontract with other companies to complete the shipment. Thus, there was no question that the cargo owners were aware of and agreed to the forum selected. Further, the Himalaya Clauses in the same bills of lading explicitly bound subcontractors.

 

Here, by contrast, not only are the terms of the original oral agreement between Trans-Pro and Coby in dispute, but there are issues of fact in dispute as to whether either Trans-Pro or Coby were ever made aware of the Service Directory that was only part of the agreement between TRT Carriers and CSXI, As Judge Sifton noted: “The nature and details of the oral agreement between third-party-plaintiff Coby and plaintiff Trans-Pro are in dispute, but there is no allegation that the limitations present in the Service Directory … were included in the oral agreement between Coby and Trans-Pro.” Trans-Pro Logistic, Inc. v. Coby Electronics Corp., No. 05 CV 1759, 2009 WL 36824, at(E.D.N.Y. Jan. 6, 2009). The Supreme Court’s decision in Kawasaki addressed only “whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by a rail carrier, despite prohibitions or limitations in another federal statute.”   Kawasaki, 130 S.Ct. at 2439. Nothing in the Kawasaki decision can be read as new law requiring that the terms of the Service Directory be applied to Coby.

 

CSXI’s argument in the instant motion is, therefore, the same wine in a different bottle. Assuming for the sake of argument that the forum selection clause is jurisdictional, a conclusion that is by no means settled law, CSXI would still have to prove that Coby is bound by the Service Directory before the forum selection clause removed the case from this Court’s jurisdiction. CSXI twice failed to persuade Judge Sifton that, as a matter of law, the Service Directory is enforceable against Coby, and CSXI fails to do so before this Court. In what is essentially a second motion to reconsider, CSXI fails to present “factual matters or controlling decisions the court overlooked that might materially have influenced its decision.” Trans-Pro, No. 05 CV 1759, 2009 WL 36824, at.

 

During the final pre-trial conference, held on October 13, 2010, counsel for CSXI raised a variety of additional arguments as to why CSXI should not and need not be a party to this suit. These contentions were not raised by CSXI in its moving papers. Accordingly, the Court does not consider them at this time.

 

Since the Court concurs with Judge Sifton’s conclusions in ruling on CSXI’s prior Motion for Summary Judgment and Motion to Reconsider that there exist triable issues of fact as to the applicability of the forum selection clause to Coby, CSXI’s motion for summary judgment is denied. CSXI may raise the issue of subject matter jurisdiction again at the conclusion of the presentation of evidence at trial.

 

SO ORDERED.