United States District Court,

D. New Jersey.

YANG MING (AMERICA) CORP., Plaintiff,

v.

TRANSPORTATION SPECIALISTS, INC., et al., Defendants.

July 17, 2009.

OPINION

CHESLER, District Judge.

This matter comes before the Court upon the motion to dismiss or transfer venue pursuant to 28 U.S.C. § 1406(a) filed by Defendants Transportation Specialists, Inc. (“TSI”) and Arnold Grisham (“Grisham”) (collectively, “Defendants”) [docket entry 3]. Plaintiff Yang Ming (America) Corp. (“Plaintiff” or “Yang Ming”) has opposed the motion. The Court has considered the parties’ submissions in connection with this motion. Pursuant to Federal Rule of Civil Procedure 78, it rules on the motion without oral argument. For the reasons that follow, the Court grants in part and denies in part Defendants’ motion and transfers this action to the United States District Court for the Western District of Tennessee.

I. BACKGROUND

This action is based on Defendants’ alleged failure to pay shipping and related charges. According to the Complaint, Plaintiff Yang Ming arranged for the transportation of goods belonging to TSI or its customers by common carrier, pursuant to the contract of carriage between Plaintiff and Defendants and pursuant to the Uniform Intermodal Interchange and Facilities Access Agreement (“UIIA”) between the parties. TSI is in the business of transporting freight. The Complaint alleges that Defendants received their goods and took possession of them at the agreed port of destination, which the motion papers reveal was a freight yard in Memphis, Tennessee. It further alleges that despite Plaintiff’s performance of its contractual duties, Defendants failed to make payment of the required shipping and accessorial charges. Plaintiff alleges that Defendants owe $208,255.00 in connection with the subject transaction.

Of relevance to this motion, Plaintiff is a New Jersey corporation with its principal place of business in Jersey City, New Jersey and TSI is a Tennessee corporation with its principal place of business in Memphis, Tennessee. Grisham, TSI’s Vice President of Operations, resides in Mississippi. Plaintiff asserts in the Complaint that venue is proper in this Court because the parties reside and/or do business in the United States of America and because the contract between them is governed by the laws of the United States.

II. DISCUSSION

Venue of federal court actions is governed by 28 U.S.C. § 1391. The standard for proper venue depends on whether subject matter jurisdiction is based solely on diversity of citizenship or not. The Complaint states that this Court has subject matter jurisdiction over this action based on diversity, 28 U.S.C. § 1332, and admiralty or maritime jurisdiction, 28 U.S.C. § 1333. However, the Court notes from its review of the Complaint that the pleading does not make the maritime nature of the claims apparent. Indeed, the shipment at issue appears to have been made by rail to Memphis, where TSI, a trucking company, received delivery. The shipment and the contract pursuant to which it was made are not wholly maritime in nature, nor is the overland transportation of cargo merely incidental to primary maritime obligations. Thus, admiralty jurisdiction, under 28 U.S.C. § 1333, does not attach. Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 880 (3d Cir.1992). The Court further notes that Plaintiff, in its motion papers, treats the action as one founded on diversity jurisdiction. Thus, the Court will analyze the instant motion under the venue standard applicable to actions grounded solely in diversity jurisdiction.

The venue statute directs that an action in which federal subject matter jurisdiction is founded solely on diversity of citizenship may be brought only in

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(a). When a plaintiff has filed a case laying venue in the wrong district, the district court may dismiss the action, or in the interest of justice, transfer venue to a district where the action could have been brought. 28 U.S.C. § 1406(a).

Defendants are correct that, pursuant to 28 U.S.C. § 1391(a), the District of New Jersey is the incorrect venue for this action. Defendants assert, and Plaintiff does not deny, that the events or omissions giving rise to this lawsuit did not occur in the District of New Jersey. Moreover, based on the information presented to the Court, it does not appear that either TSI or Grisham reside in New Jersey. Grisham is a resident of Mississippi. As for TSI, the venue statute deems the residence of a defendant corporation to be any judicial district in which it is subject to personal jurisdiction. 28 U.S.C. § 1391(c). Plaintiff has failed to meet its burden of demonstrating that either general or specific jurisdiction exists over Defendants in New Jersey. Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir.1992). Thus, venue in New Jersey would also not be proper under subsection (2) or (3) of § 1391(a).

For general jurisdiction to attach, Plaintiff must prove that each corporate and individual defendant had ongoing, continuous, and systematic contacts with New Jersey. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). Plaintiff has provided no proofs to this effect. By affidavits, Defendants have demonstrated that they are not subject to general jurisdiction in the State of New Jersey. Defendants do not regularly conduct business in the State of New Jersey, nor do they own property, maintain bank accounts, addresses or telephone numbers in New Jersey.

Rather, Plaintiff argues that Defendants have sufficient minimum contacts with the State of New Jersey to support specific jurisdiction. However, Plaintiff’s evidence of Defendants’ contacts with New Jersey falls far short of establishing specific jurisdiction. Specific jurisdiction may arise when the claim is related to or arises out of the defendant’s contacts with the forum. Helicopteros, 466 U.S. at 414. The contacts it indicates consist of Yang Ming’s issuance of invoices to TSI from Yang Ming’s New Jersey office, TSI’s remitting payment to the New Jersey office, communications directed at Yang Ming’s New Jersey office regarding forbearance on the collection of outstanding bills, and a request that Yang Ming assist TSI in its efforts to collect amounts owed from its own customers. Plaintiff argues that minimum contacts are demonstrated by Defendants’ general business relationship with Yang Ming, a company located in New Jersey. Plaintiff is wrong. The fact that a non-resident has contracted with a resident of the forum state is not, by itself, sufficient to justify personal jurisdiction over the nonresident. Mellon Bank (East) PSFS Nat’l Ass’n v. Farino, 960 F.2d 1167, 1223 (3d Cir.1992). Moreover, Plaintiff has not demonstrated any contact between Defendants and New Jersey related to the claims at issue in this lawsuit, which arose out of the failure to pay for shipping upon Defendants’ receipt of goods in Tennessee transported by Yang Ming to Memphis. As for the Complaint’s assertion that venue is proper in this district based on the parties’ presence in the United States, this purported basis lacks legal support. Indeed, personal jurisdiction over a defendant must be established with regard to a particular forum state, in this case New Jersey, not with regard to the United States generally. See, e.g., XL Specialty Ins. Co. v. Melexis GMBH, No. 07-1018(DRD), 2007 U.S. Dist. LEXIS 76672, at *8-9 (D.N.J. Oct. 16, 2007) (rejecting plaintiff’s arguments that defendant parent corporation’s operation of various subsidiaries in the United States and the defendant’s application for United States patents established general personal jurisdiction over the defendant because “[t]he plaintiff must show that the defendant maintains contacts with the forum state, not simply with the United States.”) (emphasis in original).

Defendants, in their motion, further argue that per the UIIA’s forum selection clause, the proper venue for this action would be the Western District of Tennessee. As both Defendants appear to be subject to personal jurisdiction in Tennessee, venue in the Western District of Tennessee would be proper under 28 U.S.C. § 1391(a)(3). Moreover, Plaintiff agrees to a transfer of this action to that district. Thus, in the interests of justice and in the Court’s discretion, the Court will not dismiss the Complaint but rather transfer the action to the Western District of Tennessee. Goldlawr v. Heiman, 369 U.S. 463, 466 (1962).

Accordingly, the Court will deny Defendants’ motion insofar as it seeks dismissal of this action but grant it insofar as it seeks the alternative relief of transfer pursuant to 28 U.S.C. § 1406(a).

III. CONCLUSION

For the foregoing reasons, Defendants’ motion is granted in part and denied in part. The Court will issue an order transferring this action to the Western District of Tennessee, pursuant to 28 U.S.C. § 1406.

D.N.J.,2009.

Yang Ming (America) Corp. v. Transportation Specialists, Inc.

Slip Copy, 2009 WL 2168727 (D.N.J.)

END OF DOCUMENT

Superior Court of New Jersey,

Appellate Division.

Soghra VARASTEH and Mahmoud Alizadehmeidani, Plaintiffs-Appellants,

v.

STORAGE U.S.A., Defendant-Respondent.

Argued: June 23, 2009.

Decided: July 16, 2009.

Before Judges CUFF and FUENTES.

PER CURIAM.

Plaintiffs Soghra Varasteh and Mahmoud Alizadehmeidani rented a storage unit from defendant Storage U.S.A. They allege that property placed in the unit was stolen and seek damages from defendant. Plaintiffs appeal from an order granting summary judgment to defendant. We affirm.

On April 19, 2004, plaintiffs executed a rental agreement with defendant. They agreed to pay $179.94 monthly for a storage unit and represented that they intended to store rugs in the unit. Plaintiffs allege they placed 170 handmade Persian rugs in the unit. They declined to obtain insurance for the contents stored in the unit. Two months after plaintiffs placed the rugs in the unit, the rugs disappeared.

The storage rental agreement contained a boilerplate limitation of liability provision which stated that a bailment was not created and defendant is not a warehouseman. The provision also provides that the tenant bears the whole risk of any loss of articles stored at the premises; it states: “No bailment is created hereunder, lessor is not a warehouseman engaged in the business of storing goods for hire, and all property stored within or on the space by tenant or located at the facility shall be at tenant’s sole risk and supervision.”

The Addendum to the Rental Agreement also provides that:

I also understand that the Lessor of this self storage facility:

1. is a commercial landlord renting storage space, is not a warehouseman, and does not take custody of my property;

2. is not responsible for any loss to my property;

3. does not provide insurance on my property for me; and

4. requires that to the extent that I do not obtain insurance coverage for the full value of my property, I will personally assume all risk of loss to the property in accordance with my Rental Agreement.

On May 9, 2006, plaintiffs filed a complaint seeking damages from defendant. They alleged negligence, breach of contract, negligent supervision of employees, and negligent hiring. Plaintiffs asserted that the gate controlling access to the facility broke and allowed unimpeded access to the storage facility for weeks before they discovered the loss of their rugs. Plaintiffs alleged that defendant was notified of the gate problem.

A police investigation revealed no sign of forced entry to the storage unit leased by plaintiffs. The quality and format of the video surveillance tapes provided no relevant information. A private detective retained by plaintiffs learned that there had been several thefts at the facility prior to the alleged theft of plaintiffs’ rugs. Police had responded to many reports of theft at this facility.

The private detective was able to trace some of the rugs. He interviewed a person who stated that he viewed the rugs at the storage facility and purchased them at that site from Eric. Plaintiffs produced an affidavit from a former employee of defendant who was able to identify Eric as an employee of defendant who worked occasionally at the Hackensack facility.

Both parties filed motions for summary judgment. Defendant’s motion was granted and the complaint was dismissed. Plaintiffs also sought to amend their complaint to assert a consumer fraud claim. The motion judge acknowledged that the information gathered by investigators regarding the conduct of various persons employed by defendant would probably create genuine issues of material fact, if these facts were relevant to the disposition of the matter. The judge found, however, that the threshold issue was the enforceability of the exculpatory clause of the rental agreement. If so, the conduct of some employees and associates of those employees was irrelevant.

The motion judge found that defendant is not a warehouseman as defined by N.J.S.A. 12A:7-102(1)(h) or N.J.S.A. 2A:44-188. Therefore, chapter seven of the Uniform Commercial Code, N.J.S.A. 12A:7-101 to -603, which concerns warehousemen, does not govern the relationship between plaintiffs and defendant. The judge also held that the Self-Service Storage Facility Act (the Act), N.J.S.A. 2A:44-187 to -192, does not affect the disposition of plaintiffs’ complaint because the statute concerns the consequences of failure to pay monthly rent.

The judge proceeded to hold that exculpatory agreements or provisions limiting the liability of a party in a commercial transaction are generally sustained as long as the transaction does not affect the public interest. He noted that exculpatory clauses in residential leases are prohibited but such clauses in commercial leases are regularly upheld. He reasoned that a self-storage contract is more akin to the lease of commercial space than residential housing and there was no evidence of unequal bargaining power by either party to the self-storage agreement. Therefore, he held that the exculpatory agreement was enforceable and barred plaintiffs’ action.

On appeal, plaintiffs argue that the judge should have followed Gonzalez v. A-1 Self-Storage, Inc., 350 N.J.Super. 403 (Law Div.2000). The motion judge acknowledged the case but also noted that it was not binding precedent. He stated that he disagreed with the Gonzalez ruling and explained the basis of his disagreement.

We affirm substantially for the reasons expressed by Judge Harris in his June 6, 2008 oral opinion. N.J.S.A. 2A:44-188 defines a self-service storage facility as “any real property designed and used for the purpose of renting or leasing individual storage space to occupants who are to have access for the purpose of storing and removing personal property.”The facility operated by defendant meets this description. As such, defendant’s facility is also “not a warehouse as used in chapter 7 of Title 12A of the [Uniform Commercial Code],”ibid., and the special obligations plaintiffs seek to impose on defendant as a warehouseman are not available to them.

In addition, Judge Harris correctly observed that he was not bound by the ruling in Gonzalez.See Manturi v. V.J.V., Inc., 179 N.J.Super. 300, 3006 (App.Div.1981) (trial court judge not bound by a reported opinion of another trial court judge). We note that Gonzalez has been distinguished and limited where, as here, the storage facility meets the definition of a self-service storage facility provided in N.J.S.A. 2A:44-188. Kane v. U-Haul Int’l, Inc. 218 F.App’x 163, 166 n. 2 (3d Cir.2007). Furthermore, Gonzalez can best be considered a case holding a landlord to its obligation to provide a facility suitable for its intended purpose rather than a case that imposes vicarious liability on an owner and operator of storage facility for the negligent or even criminal acts of its employees.

We, therefore, affirm the June 6, 2008 order granting summary judgment to defendant and dismissing plaintiffs’ complaint.