United States District Court,

M.D. Pennsylvania.

Robert JOHNSON, Plaintiff

v.

PREDATOR TRUCKING, LLC; and Michael Pareja, Defendants.

 

Civil No. 1:13–CV–1683.

Feb. 14, 2014.

 

Richard E. Freeburn, Freeburn & Hamilton, Harrisburg, PA, for Plaintiff.

 

Stephanie L. Hersperger, Stephen E. Geduldig, Thomas, Thomas & Hafer, Harrisburg, PA, for Defendant.

 

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

*1 In this civil action invoking this court’s diversity jurisdiction, Plaintiff has sued Defendants for injuries allegedly sustained as a result of an incident involving a tractor and trailer allegedly operated by Defendant Pareja and owned by Defendant Pareja’s employer, Defendant Predator Trucking. Presently before the court is Plaintiff’s motion for leave to file an amended complaint. (Doc. 26.) For the reasons stated herein, Plaintiff’s motion will be granted.

 

I. Background

In this memorandum, the court sets forth only the factual and procedural background necessary to explain its ruling.

 

A. Plaintiff’s Complaint and Defendants’ Answer

On June 20, 2013, Plaintiff filed a complaint against Defendant Pareja sounding in negligence (Count I), and against Defendant Predator Trucking sounding in negligence based on vicarious liability (Count II) and negligent hiring/retention/supervision (Count III). (Doc. 1.) On August 30, 2013, Defendants answered the complaint and asserted eleven “affirmative defenses” to liability. (Doc. 10.) The parties are currently engaged in fact discovery, which is set to conclude on June 16, 2014. (See Doc. 15.)

 

As asserted in the complaint, this case concerns an accident that occurred on January 3, 2012, at Beck Aluminum Alloy LTD’s recycling center, located within the Middle District of Pennsylvania. Defendant Parej a, employed by Defendant Predator Trucking, was operating a vehicle, owned by Defendant Predator Trucking. The vehicle had been backed into the Beck Aluminum facility as the freight was being unloaded. Defendant Pareja allegedly caused the vehicle to move forward, which resulted in the rear tires of the trailer striking Plaintiff, who was operating a forklift near Defendant Pareja’s vehicle. Plaintiff allegedly suffered serious injuries as a result of the incident. Defendants admit that Defendant Predator Trucking both employed Defendant Pareja and owned the vehicle Defendant Pareja was operating. (Doc. 10, ¶¶ 5, 6.)

 

B. Plaintiff’s Amended Complaint

On January 2, 2014, Plaintiff filed a motion for leave to file an amended complaint. (Doc. 26.) In his motion, Plaintiff avers that, based on the answers he had received from Defendants, he believes that: (1) more than one employer was responsible for hiring, training, and supervising Defendant Parej a; (2) Defendant Pareja was using his mobile phone while operating the tractor; (3) Defendant Pareja was operating the vehicle in violation of the Federal Motor Carrier Safety Regulations; and (4) more than one entity was responsible for entrusting its shipment to Defendant Predator Trucking. (See Doc. 26.) Relevant to the matter sub judice, Plaintiff’s proposed amended complaint, submitted pursuant to Local Rule 15.1, contained the following allegations related to his request to add Ricksant LLC (“Ricksant”) as a defendant to the action:

 

5. Defendant, Ricksant, LLC, is a limited liability company, doing business as Klein Recycling (hereinafter referred to as Ricksant, LLC), organized under the laws of New Jersey with offices at 2156 Camplain Road, Hillsborough, New Jersey 08844.

 

* * *

*2 7. It is believed that after a reasonable opportunity for further investigation or discovery, there will be evidentiary support to show that at all times relevant hereto, Defendant Ricksant, LLC was the co-supervisor, co-principal, or co-employer of Defendant, Michael Parej a.

 

* * *

9. It is believed that after a reasonable opportunity for further investigation or discovery, there will be evidentiary support to show that at all times relevant hereto Defendant, Michael Pareja was acting as the co-agent, ostensible co-agent, co-servant and/or co-employee of Defendant Ricksant, LLC, and was acting within the course and scope of said co-agency, ostensible co-agency or co-employment with said Defendant Ricksant, LLC.

 

10. It is believed that after a reasonable opportunity for further investigation or discovery, there will be evidentiary support to show that at all times relevant hereto, Defendant Predator Trucking, LLC, and its employees were acting as the agents, ostensible agents, servants and/or employees of Defendant, Ricksant, LLC and were acting in the course and scope of their agency, ostensible agency, or employment.

 

(Doc. 31, ¶¶ 5, 7, 9–10.) Based on these averments, Plaintiff’s proposed amended complaint contains two additional counts, asserting claims against Ricksant sounding in negligence based on vicarious liability (Count III) and negligent hiring/retention/supervision (Count V), and contains additional substantive allegations regarding Defendants’ alleged conduct.

 

Defendants oppose Plaintiff’s motion to amend. (See generally Doc. 33.) Specifically, Defendants argue that the court should disallow Plaintiff to file an amended complaint adding Ricksant as a defendant because the claims against Ricksant, as asserted in the proposed amended complaint, would be futile as unable to withstand a motion to dismiss. Defendants further argue that Plaintiff’s requests to add the allegations set forth in subparagraphs 37(u), (v), and (x) and 47(j),(k),(n),(p), and (q) of the proposed amended complaint would be futile as unable to withstand a motion to dismiss. The issue has been fully briefed and is ripe for consideration.

 

II. Legal Standard for a Motion To Amend

Rule 15 of the Federal Rules of Civil Procedure sets forth the rules governing amended pleadings and provides that, if more than 21 days has elapsed after a defendant has served a responsive pleading, a party may amend its pleading only with leave of court or with the opposing party’s written consent. Fed.R.Civ.P. 15.FN1 In the instant matter, Plaintiff must obtain leave of court because Defendants have not given such consent, and more than 21 days have elapsed since Defendants filed their responsive pleading.

 

FN1. Federal Rule of Civil Procedure 15 contains the rules for amending and supplementing pleadings and provides, in pertinent part, as follows:

 

(a) Amendment Before Trial

 

(1) Amendment as a Matter of Course. A party may amend its pleading once as a matter of course within:

 

(A) 21 days after serving it, or

 

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

 

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

 

Rule 15(a) embodies the liberal pleading philosophy of the Federal Rules of Civil Procedure. Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d Cir.2006). However, “the policy favoring liberal amendments [of pleadings] is not unbounded.” Kearney v. JPC Equestrian, Inc., Civ. No. 11–cv–1419, 2012 WL 5247322, *4 (M.D.Pa. Oct.23, 2012) (internal quotation marks omitted) (citing Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir.1990)). Although the decision whether to grant or deny a motion for leave to amend rests within the sound discretion of the district court, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), a district court should deny leave to amend a complaint where “it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith[,] or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.” Diaz v. Palakovich, 448 F. App’x 211, 215–16 (3d Cir.2011) (citing Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000)).FN2 Defendants oppose Plaintiff’s motion only on the basis of futility.

 

FN2. Leave to amend may also be denied for “repeated failures to correct deficiencies with previous amendments.” Riley v. Taylor, 62 F.3d 86, 90 (3d Cir.1995). Because Plaintiff has not amended his complaint previously, this ground for denying leave to amend is inapplicable to this case.

 

*3 In this context, for a proposed amendment to be futile, “the complaint—as amended—must fail to state a claim upon which relief could be granted.” Id. at 216. Futility of amendment may only serve as a basis for denial of leave to amend where “the proposed amendment ‘is frivolous or advances a claim … that is legally insufficient on its face.’ “ Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J.1990) (citing 6 Wright, et al. Federal Practice and Procedure § 1487 (2d ed.1990)). Amendment of the complaint is futile if the amended complaint “cannot withstand a renewed motion to dismiss.” Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir.1988) (citing Massarsky v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir.1983)) (holding that the district court did not abuse its discretion in denying motion to amend based on futility of amendment because proposed claim was barred by the statute of limitations). Thus, in determining whether a claim would be futile, “the district court applies [to the proposed amendments] the same standard of legal sufficiency as applie[d] under Federal Rule of Civil Procedure 12(b)(6).” Travelers Indem. Co. v. Dammann & Co. ., Inc., 594 F.3d 238, 243 (3d Cir.2010) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997)); see also Miller v. Beneficial Mgmt. Corp., 844 F.Supp. 990, 1001 (D.N.J.1993) (“Futility of an amendment is shown when the claim … is not accompanied by a showing of plausibility sufficient to present a triable issue.”).

 

Rule 12(b) (6) of the Federal Rules of Civil Procedure, in turn, provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b) (6). In considering whether a complaint fails to state a claim upon which relief can be granted, the court “must accept all of the complaint’s well-pleaded facts as true,” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009), and construe all reasonable inferences that can be drawn therefrom in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir.1994). However, a court need not credit a complaint’s bald assertions and may “disregard any legal conclusions” when deciding a motion to dismiss. Fowler, 578 F.3d at 210–11.

 

Through this lens, the court must determine “whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ “ Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ “ Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). In other words, 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. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

 

III. Discussion

*4 Each of Defendants’ arguments are based on futility. “Futility” means that the complaint, as amended, would fail to state a claim upon which relief could be granted, and in assessing “futility,” the court must take all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Lincoln Gen. Ins. Co. v. Kingsway Am. Agency, Inc., Civ. No. 11–cv–1195, 2013 WL 214634, *4 (M.D.Pa. Jan.18, 2013). Claims in a complaint will be dismissed only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Pegasus Int’l, Inc. v. Crescent Mfg. Co., Civ. No. 06–cv–2943, 2007 WL 1030457, *6 (E.D.Pa. Apr.2, 2007) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

 

A. Request To Add Ricksant as a Defendant

Defendants first oppose amending the complaint to include Ricksant on the basis of futility, arguing that “the proposed Amended Complaint it [sic] utterly devoid of any facts to support any claims against Ricksant.” (Doc. 33, p. 6 of 16.) Defendants cite to the portions of the proposed amended complaint containing the language: “[i]t is believed that after a reasonable opportunity for further investigation or discovery, there will be evidentiary support to show that at all times relevant hereto.” In essence, Defendants’ argument challenges Plaintiff’s pleading of an employment relationship between Ricksant and Defendant Pareja, arguing that the proposed amended complaint is insufficient due to its failure to show that Ricksant is vicariously liable for Defendant Pareja’s actions or negligent in hiring, supervising, training, or entrusting Defendant Pareja. The court disagrees.

 

Plaintiff’s proposed amended complaint asserts a cause of action against Ricksant sounding in negligence on both the bases of vicarious and direct liability. In Pennsylvania, an employer is held vicariously liable for the negligent acts of an employee that cause injuries to third parties, provided that such acts were committed during the course and within the scope of employment. Adams v. U.S. Airways Grp., Civ. No. 12–cv–5603, 2013 WL 5676356, *10 (E.D.Pa. Oct.18, 2013) (quoting Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa.Super.Ct.1998)). Typically, the determination of whether an employee acted within the scope of his employment is a question for the jury; however, a court need not reach the course and scope of employment inquiry where a plaintiff has not first demonstrated an underlying tort committed by an employee. Regarding negligent hiring, training, or supervision, an employer is directly liable under Pennsylvania law of its own negligent failure to protect a plaintiff from an employee that it knows, or has reason to know, is likely to cause injury. See Adams, 2013 WL 5676356 at *9 (citing Restatement (Second) of Torts § 317 (1965)). Under either theory, Plaintiff must establish the existence of an employment relationship.

 

*5 Here, Plaintiff avers that, based on discovery already conducted, he has reason to believe an employment relationship between Ricksant and Defendant Pareja existed, and, therefore, the former may be liable for the actions of the latter based on both direct and vicarious liability. Although Defendants take exception with what Plaintiff believes additional discovery will reveal, i.e., that it will produce evidence confirming his allegations, Plaintiff’s honest uncertainty FN3 is insufficient to warrant foreclosing the possibility for Plaintiff to establish liability through the fact-finding mechanism contemplated by the Federal Rules of Civil Procedure. Indeed, a claim against Ricksant is not futile simply because Plaintiff may not yet have in his possession conclusive evidentiary support to show that an employment relationship existed. Plaintiff presumably has a legitimate basis for believing that Ricksant is liable for Defendant Pareja’s actions because, otherwise, both Plaintiff and his counsel are venturing down a dangerous path.FN4 Whether evidentiary support exists for Ricksant’s alleged liability is the proper subject of discovery, and if discovery undisputedly reveals that no such relationship existed, Ricksant’s lack of liability would become the proper subject of a motion for summary judgment, which the court is confident would come across its bench uncontested.

 

FN3. The court hypothesizes that, had Plaintiff simply alleged that “[A]t all times relevant hereto, Defendant Ricksant, LLC was the co-supervisor, co-principal, or co-employer of Defendant, Michael Pareja” rather than qualifying his belief with the language: “It is believed that after a reasonable opportunity for further investigation or discovery, there will be evidentiary support to show that,” whether Ricksant had an employment relationship with Defendant Pareja would likely have been first tested during summary judgment.

 

FN4. Defendants do not argue, nor does the court have reason to believe, that Plaintiff has an improper or malicious motive for seeking to add Ricksant as a defendant.

 

In this case, Plaintiff alleges that Ricksant had an employer-employee relationship with Defendant Pareja, that Defendant Pareja was negligent during the course of his employment, that Defendant Pareja’s negligence was the cause of harm suffered by Plaintiff, and that Ricksant was negligent in its failure to exercise reasonable care in hiring, training, or supervising Defendant Parej a. Viewing these allegations in the light most favorable to Plaintiff, the court concludes that Plaintiff’s proposed amended complaint states claims upon which relief may be granted against Ricksant. Thus, the amendment to add Ricksant as a defendant is not futile for lack of substantive allegations.

 

B. Request To Add Allegations Against Defendants Pareja and Predator Trucking

Defendants also argue that the inclusion of certain allegations against Defendant Pareja set forth in subparagraphs 37(u), (v), and (x) and against Defendant Predator Trucking set forth in subparagraphs 47(j), (k), (n), (p), and (q) of the proposed amendment complaint would be futile. In support of their opposition, Defendants characterize the contents of these paragraphs as “non-specific legal conclusions” that cannot survive a motion to dismiss. The court is not convinced that these proposed amendments are futile.

 

The basis of Defendants’ challenge remains less than clear. After a review of the contested paragraphs, the court cannot conclude that the proposed amendments are futile. Indeed, these paragraphs put Defendants on adequate notice of Plaintiff’s allegations that Defendant Pareja violated policies, rules, guidelines, procedures, and regulations of Defendant Predator Trucking or Ricksant and failed to adhere to certain Federal Motor Carrier Safety Regulations. (Doc. 31, ¶¶ 37(u), (v), (x).) Furthermore, the paragraphs put Defendants on adequate notice of Plaintiff’s allegations that Defendant Predator Trucking negligently hired, trained, and supervised Defendant Parej a. Each averment is related to the controversy at the heart of this action. The court cannot conclude that amendment of the complaint to include these paragraphs would be futile.

 

IV. Conclusion

*6 Based on the foregoing reasons and upon consideration of the liberal pleading philosophy of the Federal Rules of Civil Procedure, the court finds that the proposed amendments would not be futile. The court further finds no basis to either conclude that the delay in filing for leave to amend was undue or motivated by bad faith or that granting leave to amend would prejudice Defendants. To the extent Defendants challenge the employment relationship of Defendant Pareja to Ricksant, the court concludes that the more efficient route is to allow Plaintiff to amend his complaint at the present time, and should it become clear that such an employment relationship does not exist, that issue may be presented by motion for summary judgment after completion of relevant discovery. Thus, the court concludes that granting leave to amend is in the interest of justice under Rule 15(a).

 

An appropriate order will issue.

United States District Court,

S.D. New York.

CATARIA INTERNATIONAL, INC., Plaintiff,

v.

ORIENT EXPRESS CONTAINER CO., INC., Defendant.

 

No. 12 Civ. 4781(JMF).

Feb. 18, 2014.

 

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, District Judge.

*1 Plaintiff Cataria International Inc. (“Cataria”), a California corporation in the business of buying and selling clothing, brings this admiralty action against Defendant Orient Express Container Co., Inc. (“OEC”) alleging that, during a shipment of its goods from Cambodia to Los Angeles, some goods were stolen or lost. Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, Defendant moves for summary judgment. (OEC’s Mot. Summ. J. (Docket No. 20)). For the reasons stated below, Defendant’s motion is GRANTED.

 

BACKGROUND

In July 2011, Cataria arranged for OEC—a non-vessel operating common carrier that coordinates international shipments (Wang Decl. (Docket No. 23) ¶ 7)—to transport twenty-five containers of clothing from a supplier in Cambodia, Diamond Tower, to Cataria’s warehouse in Los Angeles (id. ¶¶ 4–5, 9–10). Diamond Tower was responsible for manufacturing and packaging the clothing, as well as stuffing, closing, and sealing all of the containers in its warehouse. (Campanale–Orozco Decl. (“Orozco Decl.”) (Docket No. 22), Ex. 8, at 22; id., Ex. 9 (“Chen Depo.”), at 16–17). Cambodian customs officials supervised the process; when the twenty-five containers left the Diamond warehouse, each bore three seals: a yellow Government Control “CCD” seal, a white broker seal, and an orange Economy Department seal. (Decl. Chhun Chhay Supp. Pls.’s Opp’n Def.’s Mot. Summ J. (Docket No. 29) ¶ 8).

 

All twenty-five containers were transported to the Port of Phnom Penh where they were turned over to OEC for shipment to Cataria in Los Angeles. (Wang Decl. ¶ 9). OEC issued three bills of lading for the goods. The first bill of lading was for ten containers “said to” contain 3350 cartons of “garments wearing apparel” with a gross weight of 90,450 kilograms. (Id. ¶ 16; id. Ex. 2). The second bill of lading was for eight containers “said to” contain 2680 cartons of “garments wearing apparel” with a gross weight of 72,360 kilograms. (Id. ¶ 16; id. Ex. 3). The final bill of lading was for five containers “said to” contain 1675 cartons of “garments wearing apparel” with a gross weight of 45,225 kilograms. (Id. ¶ 16; id. Ex. 4).FN1 All three indicated that they were “CY/CY,” (id. ¶ 16) or “ ‘container yard to container yard,’ meaning [the shipper’s] custody and control begins at the port of loading and ends at the port of discharge” Alpine Fresh, Inc. v. M/V CAP ITAIM, No. 10 Civ. 8279(HB), 2011 WL 4831195, at *2 (S.D.N.Y. Oct. 12, 2011).

 

FN1. Although the parties agree that the shipment involved a total of twenty five containers, the three bills of lading in the record cover only twenty three containers—suggesting that there may have been a fourth bill of lading. As the three bills of lading in the record pertain to the goods at issue in this case, the discrepancy is irrelevant for present purposes.

 

OEC shipped the containers to Los Angeles on three different voyages during July and August of 2011. (Wang Decl. ¶¶ 10, 13–15; id. Exs. 2–4). Upon the arrival of each shipment, OEC issued an “Arrival Notice / Freight Invoice” to Cataria advising it that the containers had been discharged from the ship and were available to be picked up. (Id. ¶¶ 24, 33, 41; id. Exs. 5, 7, 9; Chen Depo. at 26–27, 69–70, 110–11). Each “Arrival Notice / Freight Invoice” listed the gross weight of the relevant shipment; in each case, the gross weight matched the gross weight listed on the corresponding bill of lading. (Compare id. Exs. 2–4, with id. Exs. 5, 7, 9). One of the containers at issue in this case was subject to a random inspection by the Department of Homeland Security at the Port of Los Angeles, in the course of which its seal was broken and the container was opened. (Wang Decl. ¶ 42; Chen Depo. at 136–37). United States customs officials did not inform OEC that there were any problems with the seal upon inspection. (Wang Decl. ¶ 43). There is no evidence that the officials notified Cataria of anything untoward either.

 

*2 The containers remained at the discharge port for four to five days until third-party trucking companies picked them up and transported them to Cataria’s warehouse on four separate dates in August 2011. (Id. ¶¶ 26–27, 35–36; id. Exs. 5, 7, 9; Chen Depo. at 38, 78–79, 116–17, 119, 134–35). The delivery receipts did not report any problems with the containers or their respective seals. (Wang Decl. ¶¶ 29, 36; id. Ex. 6; Chen Depo. at 61, 78–79, 112, 119, 154; Orozco Decl. ¶ 21; id. Ex. 3). But when Cataria cut the seals to four containers—including the one container searched by customs officials—it allegedly found that cartons of garments were missing. (Compl. (Docket No. 1) ¶¶ 7, 12, 16, 20–21). According to the Complaint, the missing cargo amounted to 719 cartons of garments containing a total of 17,975 items. (Id.). Upon discovering the loss, Cataria filed police reports. (Orozco Decl. ¶¶ 22–25; id. Exs. 4–7). On December 20, 2011, Cataria issued a formal claim notice to OEC (Wang Decl. ¶ 11; id. Ex. 1), and on June 19, 2012, it commenced this lawsuit. Defendant now moves for summary judgment.

 

THE SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (per curiam). A dispute over an issue of material fact qualifies as genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.”   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party’s claim.”   Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995) (citing Celotex, 477 U.S. at 322–23); accord PepsiCo, Inc. v. Coca–Cola Co., 315 F.3d 101, 105 (2d Cir.2002).

 

In ruling on a motion for summary judgment, all evidence must be viewed “in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004), and the court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004). To defeat a motion for summary judgment, however, the non-moving party must advance more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and demonstrate more than “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To that end, the non-moving party cannot “rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998); see also Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.1996) (“[The non-moving party] cannot defeat the motion by relying on the allegations in [its] pleading or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.”).

 

DISCUSSION

*3 OEC moves for summary judgment on the ground that Cataria cannot make out a prima facie case for liability under the Carriage of Goods by Sea Act, 46 U.S.C. § 30701, et seq. (“COGSA”). (OEC’s Mem. Law Supp. Mot. Summ. J. (“Def.’s Mem. Law”) (Docket No. 21) 4). To establish a prima facie case for damages under COGSA, Cataria must demonstrate that the goods were lost or stolen while in the custody of OEC. See, e.g., Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 538 (2d Cir.1994). Specifically, Cataria must prove “(1) delivery of the goods to the carrier in good condition and (2) outturn by the carrier in damaged condition.” Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30, 32 (2d Cir.1982) (collecting cases). “Outturn” is “variously defined as at the time of delivery to the port of destination, the time of discharge, or the time goods delivered to the consignee’s agent.” Res. Recovery, Inc. v. China Ocean Shipping (Grp.) Co., No. 96 Civ. 4409(JSM), 1998 WL 474134, at *2 (S.D.N.Y. July 11, 1998) (citing Bally, Inc. v. M/V Zim Am., 22 F.3d 65, 69 (2d Cir.1994)); see also, e.g., Nissho–Iwai Co. v. M/T Stolt Lion, 719 F .2d 34, 38 (2d Cir.1983) (stating that outturn occurs “at the time of discharge”). If the plaintiff establishes its prima facie case, the burden then shifts to the carrier, who must “show that the loss or damage falls within one of the COGSA exceptions.” Westway Coffee, 675 F.2d at 32.

 

Here, Cataria has satisfied the first prong of its prima facie case based on the weight and description of the cargo in the bills of lading issued by OEC. See id. (“[T]he weight listed on a bill of lading is prima facie proof of receipt by the carrier of that weight regardless of attempted reservations like ‘said to weigh[ ]’ ….”). But “[t]he second prong of the prima facie case—damage at outturn—is more problematic.” Bally, 22 F.3d at 69. Cataria’s sole evidence of a shortage at that time (which Cataria concedes was no later than when “the truckers picked up the cargo”) is (1) the fact that cartons were missing when the containers were opened at its warehouse; (2) the fact that “none of the truckers noted any exceptions on their delivery orders or called Cataria’s attention to problems with the seals or containers”; and (3) the claim by one of its employees that “he personally examined the seals after the containers were opened and observed what he thought was evidence of tampering, either noticeable marks and/or possible re-gluing.” (Pl.’s Mem. Law Opp’n Def.’s Mot. Summ. J. (Docket No. 28) 6 (referring to Decl. Jason Chen. Supp. Pl.’s Opp’n Def.’s Mot. Summ. J. (Docket No. 30) ¶¶ 9, 14, 18)). But this evidence, even if admissible (which OEC disputes at least in part (OEC’s Reply Cataria Int’l, Inc.’s Opp’n OEC’s Mot. Summ. J. (Docket No. 34) 5–7, 9), establishes only that there was a shortfall when the containers were ultimately opened at Cataria’s warehouse. It does nothing to “rule out the possibility that the goods were pilfered while in [the truckers’] custody, while stored at Port Security, or during or after unloading of the container at the [Cataria] warehouse.” Bally, 22 F.3d at 69.

 

*4 Indeed, if anything, the evidence in the record suggests that the loss or theft did not occur during OEC’s shipment of the goods. First, far from supporting Cataria, the fact that the truckers (not to mention, the customs officials who inspected of one of the containers at issue) did not note any problems with the containers or their seals at the time of discharge supports a conclusion that the shortage occurred after the containers left OEC’s custody. Second, as noted, OEC issued an “Arrival Notice / Freight Invoice” upon arrival of each shipment and, in each case, the weight listed matched the weight listed on the corresponding bill of lading. Admittedly, there appears to be no evidence in the record that OEC actually weighed the containers upon their arrival in Los Angeles. But that is immaterial, as COGSA places the initial burden on Cataria to prove that the cargo was lost while it was in OEC’s custody. See id. at 70. “Had [Cataria] weighed the container[s] while [they] still [were] sealed, and thereby demonstrated a shortfall in weight at outturn, [Cataria] would have had a better case against [OEC]. Having failed to do so, and also having failed to prove by other evidence that the cargo was lost while it was in [OEC’s] custody, [Cataria] has not met its burden in this case.” Id. at 70–71; see also Phoenix Assurance Co. of N .Y. v. M/V Eagle Tide, No. 96 Civ. 8404(JGK), 1999 WL 163547, at *6–7 (S.D.N.Y. Mar. 24, 1999) (granting summary judgment where the carrier had issued “out tickets” showing that the weights of the containers at issue were the same as those listed on the bills of lading and the plaintiff failed to prove shortage at outturn).

 

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED. In light of that ruling, Defendant’s motion to strike declarations submitted by Plaintiff in opposition to Defendant’s summary judgment motion (Docket No. 31) is DENIED as moot. The Clerk of Court is directed to terminate Docket Nos. 20 and 31 and to close this case.

 

SO ORDERED.