PCX HOLDING, LLC, Plaintiff, v. GUY M. TURNER, INC., and RELAY ASSOCIATES, INC., Defendants. RELAY ASSOCIATES, INC., Third-Party Plaintiff, v. ALTRAN SOLUTIONS CORP., Third-Party Defendant.

 

No. 5:17-CV-95-BO

 

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, WESTERN DIVISION

 

2017 U.S. Dist. LEXIS 172825

 

 

October 19, 2017, Decided

October 19, 2017, Filed

 

 

COUNSEL:  [*1] For PCX Holding, LLC, an Ohio Limited Liability Company, Plaintiff: Ruth Ann-Levy, LEAD ATTORNEY, Camden R. Webb, Williams Mullen, Raleigh, NC.

 

For Guy M. Turner, Incorporated, a North Carolina Corporation also known as Turner Transfer, a division of Guy M. Turner, Defendant: Leslie C. Packer, LEAD ATTORNEY, Ellis & Winters, LLP, Raleigh, NC; Christopher W. Jackson, Ellis & Winters LLP, Greensboro, NC.

 

For Relay Associates, Inc. of Delaware, doing business as Relay & Power Systems, Defendant: Evan A. Blaker, LEAD ATTORNEY, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., Philadelphia, PA; Thomas Alexander Gray, LEAD ATTORNEY, Smith Debnam, LLP, Raleigh, NC.

 

For Guy M. Turner, Incorporated, a North Carolina Corporation, Counter Claimant: Leslie C. Packer, LEAD ATTORNEY, Ellis & Winters, LLP, Raleigh, NC; Christopher W. Jackson, Ellis & Winters LLP, Greensboro, NC.

 

For PCX Holding, LLC, an Ohio Limited Liability Company, PCX Holding, LLC, an Ohio Limited Liability Company, Counter Defendants: Ruth Ann -Levy, LEAD ATTORNEY, Camden R. Webb, Williams Mullen, Raleigh, NC.

 

For Relay Associates, Inc. of Delaware, ThirdParty Plaintiff: Evan A. Blaker, LEAD ATTORNEY, Cohen, Seglias, Pallas, Greenhall [*2]  & Furman, P.C., Philadelphia, PA; Thomas Alexander Gray, LEAD ATTORNEY, Smith Debnam, LLP, Raleigh, NC.

 

For Altran Solutions Corp., ThirdParty Defendant: Jon Paul Carroll, LEAD ATTORNEY, James, McElroy & Diehl, P.A., Charlotte, NC; Matthew C. Moschella, LEAD ATTORNEY, Sherin and Lodgen LLP, Boston, MA.

 

For Relay Associates, Inc. of Delaware, Cross Claimant: Evan A. Blaker, LEAD ATTORNEY, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., Philadelphia, PA; Thomas Alexander Gray, LEAD ATTORNEY, Smith Debnam, LLP, Raleigh, NC.

 

For Guy M. Turner, Incorporated, a North Carolina Corporation, Cross Defendant: Leslie C. Packer, LEAD ATTORNEY, Ellis & Winters, LLP, Raleigh, NC; Christopher W. Jackson, Ellis & Winters LLP, Greensboro, NC.

 

For Relay Associates, Inc. of Delaware, Counter Claimant: Evan A. Blaker, LEAD ATTORNEY, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., Philadelphia, PA; Thomas Alexander Gray, LEAD ATTORNEY, Smith Debnam, LLP, Raleigh, NC.

 

For Altran Solutions Corp., Counter Claimant: Jon Paul Carroll, LEAD ATTORNEY, James, McElroy & Diehl, P.A., Charlotte, NC; Matthew C. Moschella, LEAD ATTORNEY, Sherin and Lodgen LLP, Boston, MA.

 

For Altran Solutions Corp., Counter Defendant: [*3]  Jon Paul Carroll, LEAD ATTORNEY, James, McElroy & Diehl, P.A., Charlotte, NC; Matthew C. Moschella, LEAD ATTORNEY, Sherin and Lodgen LLP, Boston, MA.

 

JUDGES: TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.

 

OPINION BY: TERRENCE W. BOYLE

 

OPINION

 

ORDER

This cause is before the Court on Defendant Guy M. Turner Inc.’s Motion to Dismiss Defendant Relay Associates’ claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE 24], Defendant Turner’s motion to strike Defendant Relay Associates’ surreply brief [DE 37], and Third-Party Defendant Altran Solutions’ motion for partial judgment on the pleadings [DE 34]. The matters have been fully briefed and are ripe for ruling. For the reasons discussed below, the motion to dismiss is DENIED, the motion to strike the surreply is DENIED, and the motion for partial judgment on the pleadings is GRANTED.

 

BACKGROUND

The seeds of this case were sown when an oversized truck bearing electronic equipment was hit by a train in Halifax, North Carolina in 2015. The truck was bound for New Jersey, where third-party defendant Altran had contracted with defendant Relay Associates to build a control house as part of an electrical switching station. Defendant Relay Associates in turn hired plaintiff PCX, a North Carolina corporation, to [*4]  build the control house sections. Once the sections were completed, plaintiff PCX, through a shipping broker, hired defendant Turner to transport the pieces from North Carolina to New Jersey. En route, the truck bearing one of the sections was hit and the cargo was destroyed. Most of the underlying merits claims, which include claims for damages between PCX and Relay Associates, PCX and Turner, Relay Associates and Turner, and Relay Associates and Altran, are not yet before this Court.

Defendant Relay Associates filed a crossclaim against defendant Turner, asserting a negligence claim stemming from the destruction of the control house section. Defendant Turner has moved to dismiss that claim. Additionally, defendant Turner has filed a motion to strike a surreply filed by defendant Relay Associates. Finally, Relay Associates’ series of claims against Altran include a claim under the New Jersey Prompt Pay Act, which is the subject of Altran’s motion for partial judgment on the pleadings.

This Court has jurisdiction over the claim plaintiff PCX brought against defendant Turner on the basis of the federal question asserted, 49 U.S.C. § 14706. This Court has jurisdiction over the remaining claims between [*5]  the various parties under diversity jurisdiction, 28 U.S.C. § 1332, as well as supplemental jurisdiction, 28 U.S.C. § 1367.

 

ANALYSIS

 

Defendant Turner’s Motion to Dismiss

Defendant Turner’s motion to dismiss defendant Relay Associates’ crossclaim is made under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). When acting on a motion to dismiss under Rule 12(b)(6), “the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Facial plausibility means that the facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A complaint must be dismissed if the factual allegations do not nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Defendant Relay Associates, in its crossclaim against defendant Turner, asserts a cause of action sounding in negligence. To do so, a claimant must allege the following: a duty, breach of that duty, causation, and damages. E.g., William L. Thorp Revocable Trust v. Ameritas Inv. Group, 57 F. Supp. 3d 508, 531 (E.D.N.C. 2014). Defendant Relay [*6]  Associates has pled enough facts to state a claim. It has alleged that defendant Turner owed defendant Relay Associates a duty of due care. It has alleged specific facts as to defendant Turner’s neglect of that duty when crossing the train tracks. It has alleged that this negligence led to a train hitting the equipment on the truck. And it has alleged that the destruction of the equipment on the truck led to its injury. These facts suffice to state a tort claim.

Defendant Turner, in its motion to dismiss defendant Relay Associates’ negligence claim, argues that the claim is preempted by the Carmack Amendment to the Interstate Commerce Commission Act, 49 U.S.C. § 14706. The Carmack Amendment provides a mechanism to resolve contractual and tort disputes between carriers and shippers. Turner is undisputedly the motor carrier. But Relay Associates has alleged facts sufficient to argue that it is neither the shipper nor on the bill of lading, and thus is not controlled by the Carmack Amendment. At this juncture, such factual claims are substantial enough that a motion to dismiss should not be granted. Relay Associates has stated a plausible claim.

 

Defendant Turner’s Motion to Strike Defendant Relay Associates’ Surreply

Defendant Turner also filed a motion to strike defendant Relay Associates’ surreply regarding [*7]  the above claim. While surreply briefs are generally disfavored, this Court has the discretion to permit them. See Osei v. University of Maryland University College, 202 F. Supp. 3d 471 (D. Md. 2016). The Court declines to strike the surreply brief at issue here. The motion is therefore denied.

 

Third-Party Defendant Altran’s Motion for Partial Judgment on the Pleadings

Under Rule 12(c) of the Federal Rules of Civil Procedure, a judgment on the pleadings is appropriate when no set of facts would entitle a plaintiff to relief under his claim. Fed. R. Civ. P. 12(c); Gibby v. Int’l Bus. Machines Corp., 155 F.3d 559 (4th Cir. 1998). The claim at issue here is one of several defendant Relay Associates brought against third-party defendant Altran when involving it in the proceeding before this Court. It alleges a violation of the New Jersey Prompt Payment Act, or NJPPA. N.J.S.A § 2A:30A. The text of the NJPPA itself restricts it as a cause of action outside the state of New Jersey. N.J.S.A § 2A:30A-2(f) (“In any civil action brought to collect payments pursuant to this section, the action shall be collected inside of this state.”). “The terms of the NJPPA are unequivocal.” First Gen. Const. Corp. v. Kasco Const. Co., 2011 U.S. Dist. LEXIS 55349, 2011 WL 2038542, at *2 (E.D. Pa. 2011). This claim is restricted to New Jersey. As this lawsuit is proceeding outside of New Jersey, it is appropriate to grant judgment for third-party defendant

 

CONCLUSION

For the foregoing reasons, Defendant Guy M. Turner Inc.’s Motion to Dismiss Defendant Relay Associates’ claim [*8]  [DE 24] is DENIED, Defendant Turner’s motion to strike Defendant Relay Associates’ surreply brief [DE 37] is DENIED, and Third-Party Defendant Altran Solutions’ motion for partial judgment on the pleadings [DE 34] is GRANTED.

SO ORDERED, this 19 day of October, 2017.

/s/ Terrence W. Boyle

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE

ERVIN YOUNG, ETAL VERSUS GREGORY WALLER, ET AL

 

CIVIL ACTION NO. 1:14-3030

 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, ALEXANDRIA DIVISION

 

2017 U.S. Dist. LEXIS 173592

 

 

October 19, 2017, Decided

October 19, 2017, Filed

 

 

COUNSEL:  [*1] For Ervin Young, Individually and on behalf of M Y, on behalf of X Y, Ashley Dauzat, Individually and on behalf of M Y, on behalf of X Y, Plaintiffs: Cory P Roy, LEAD ATTORNEY, Benjamin David James, Brandon Jude Scott, Roy & Scott, Marksville, LA.

 

For Gregory Waller, Murrays Trucking Inc, Defendants: Lottie L Bash, LEAD ATTORNEY, Laura Beth Matthews, Faircloth Melton & Sobel, Alexandria, LA.

 

For Flames Logistics Inc, Tower Insurance Co of New York, Defendants: Lance R Rydberg, LEAD ATTORNEY, Mitchell Hasenkampf, Hangartner Rydberg & Terrell, New Orleans, LA.

 

JUDGES: JAMES T. TRIMBLE, JR., UNITED STATES DISTRICT JUDGE. MAG. JUDGE HORNSBY.

 

OPINION BY: JAMES T. TRIMBLE, JR.

 

OPINION

 

MEMORANDUM RULING

Before the court is a “Motion for Summary Judgment” (R. #71) wherein defendant, Flames Logistics, Inc. and Tower Ins. Company seek to be dismissed with prejudice from the instant lawsuit pursuant to Federal Rule of Civil Procedure 56.

 

STATEMENT OF FACTS

This matter arises out of a motor vehicle accident which occurred on April 25, 2014 involving a 2005 Volvo truck driven by Gregory Waller and a 2004 Chrysler automobile driven by plaintiff, Ashley Dauzat. Ervin Young and his minor children M.Y. and X. Y. were passengers.

On October 18, 2013, Norma Spence, the principal [*2]  and owner of Defendant, Flames Logistics, Inc. entered into a Volvo Truck Sale Agreement (the “Agreement”)1 on behalf of Flames Logistics to sell the 2005 Volvo tractor to Defendant, Murray’s Trucking. Flames Logistics asserts that it did not own, operate or direct the operation of the 2005 Volvo truck involved in the accident, nor did Flames Logistics employ or contract the driver of the Volvo truck involved in the accident. Flames Logistics notes that Plaintiffs named two separate trucking companies as responsible defendants in this lawsuit.

 

1   Defendants’ exhibit B.

The Agreement entered on October 18, 2013 provided that the final payment of the purchase price was July 18, 2015; the Agreement further required Murray’s, who is designated as the “contractor”, to maintain liability insurance, DOT tags, DOT titles, DOT licensure and to use the truck for its designed purpose and cover all expenses through the payment terms.2

 

2   Defendant’s exhibit B, R. #71-4.

The Motor Vehicle Traffic Crash Report identifies the carrier as Murray’s Trucking, the owner, as Norma Spence, and the insurer, as Tower.3

 

3   Defendant’s exhibit A, R. #71-3; Tower Ins. Co. of NY has been liquidated and Georgia Insurers Insolvency Pool (“GILA”) has stepped into the shoes of Tower pursuant to Georgia law, O.C.G.A. § 33-36-9.

 

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the [*3]  affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.4 A fact is “material” if its existence or nonexistence “might affect the outcome of the suit under governing law.”5 A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party.6 As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party’s claim.”7 Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.8 The burden requires more than mere allegations or denials of the adverse party’s pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.9 There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier [*4]  of fact could find for the non-moving party.10 If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.11 The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.12

 

4   Fed. R. Civ. P. 56(c).

5   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

6   Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).

7   Vera v. Tue, 73 F.3d 604, 607 (5th Cir. 1996).

8   Anderson, 477 U.S. at 249.

9   Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

10   Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

11   Anderson, 477 U.S. at 249-50.

12   Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)

 

LAW AND ANALYSIS

In the instant motion, Defendants, Flames Logistics and Tower move to be dismissed because there is no causal connection between Flames Logistics and the accident at issue, and there is no viable legal theory under which Flames Logistics can be held vicariously liable. Defendants allege that the Volvo truck operated by Mr. Waller at the time of the accident was owned by Flames Logistics prior to the date of the accident, and that prior to the date of the accident, Flames Logistics had transferred possession and ownership of the truck to Murrays. Defendants further assert that Mr. Waller was not employed, controlled or directed by Flames Logistics at the time of the accident.

Plaintiffs assert that on the date of the accident, Flames Logistics/ Norma Spence was still the owner of the vehicle pursuant to the Agreement, Tower was the liability insurer, and ownership of the truck [*5]  had not been transferred to Murrays. Plaintiffs argue that the Agreement sounded more in lease than in sale because ownership would not be transferred until the last payment was made, and because the Agreement required Murrays to maintain liability insurance, DOT tags, DOT titles, DOT licensure, and that Murrays was to use the truck for the purpose for which it was designed. In other words, Plaintiffs maintain that Flames Logistics retained ownership until Murrays made the final payment. Plaintiffs remark that because the Uniform Motor Vehicle Crash Report listed Mr. Waller as the driver, Murrays as the carrier, and Norma Spence as the owner, Mr. Waller was apparently driving the truck under the employment of either Flames Logistics or Murrays. Thus, Plaintiffs assert that there is a genuine issue of fact for trial as to whether ownership had transferred to Murrays, and whether Murrays was acting as the agent of Flames Logistics.

Plaintiffs rely on Louisiana Civil Code article 2623 which defines a bilateral promise of sale or a contract to sell as “[a]n agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some [*6]  obligation by either party.” Such an agreement gives either party the right to demand specific performance. A contract to sell must set forth the thing and the price, and to meet the formal requirements of the sale it contemplates.”

Revised Comment (c) to article 2623 states “[i]n a contract to sell, ownership and risk remain with the vendor, since a contract to sell does not effect a transfer of ownership.” Thus, Plaintiffs maintain because a contract to sell was entered into by the parties, ownership remained with Flames Logistics at the time of the accident.13

 

13   Citing Rourke v. Cloud, 398 So.2d 57 (La. App. 3 Cir. 1981); Harris v. Olivier’s Contractors, 155 So.3d 652 (La. App. 3 Cir. 12/10/14); Hewitt v. Safeway Ins. Co. of Louisiana, 787 So.2d 1182 (La.App. 3 Cir. 6/6/01).

In Hewitt v. Safeway Ins. Co. of Louisiana,14 the Third Circuit Court of Appeal reversed the trial court’s finding that an agreement with payment plans was a contract to sell pursuant to Louisiana Civil Code article 2623. The appellate court determined that based on the parties’ actions immediately after execution of the agreement (taking possession of the subject vehicle and using it as their own) that they intended more than just an agreement to sell the vehicle in the future. The defendant insurer argued that the agreement was a conditional sale agreement, and as such, ownership of the vehicle transferred immediately to the purchaser. The Third Circuit agreed. [*7]

 

14   Id.

The transfer of ownership of property in Louisiana takes place “as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.15 “Louisiana has declined to recognize the common law concept of conditional sale of movables where the vendor attempts to retain ownership until the purchase price is paid in full.”16 In Haymon v. Hollidav,17 the court explained:

 

Accordingly, if the parties have agreed on the thing and the price, the sale is complete. The parties cannot validly agree that the seller will retain title to the object until payment of the purchase price, as Louisiana does not recognize the common law conditional sales contract for movable property. The effect of this law is that the seller is divested of ownership as soon as the buyer is unconditionally bound to pay the purchase price, and such contractual attempts to retain title until payment are of no effect.

 

 

 

 

15   Louisiana Civil Code article 2456.

16   Security Ctr. Protection Servs., Inc. v. All-Pro Sec., Inc., 703 So.2d 806 (La. App. 4 th Cir. 11/26/97).

17   405 So.2d 1304 (La.App. 3 Cir. 1981)(citations omitted).

Moreover, an attempted conditional sale agreement is simply “treated as a credit sale in which ownership of the object of the sale passes at the time the contract is entered into.”18 The parties contemplated [*8]  that title would be transferred upon compliance with the payment schedule contained in the Agreement. Thus, the court finds that the Agreement was not a lease, nor was it a contract to sell. Ownership passed once the Agreement was executed.

Flames Logistics maintains that Plaintiffs have failed to submit summary judgment evidence to establish that the driver, Mr. Waller was directed and/or controlled by Flames Logistics in order to prove vicarious liability. Flames Logistics submits the affidavit of Noram Spence which establishes that Mr. Waller was not employed, controlled or directed by Flames Logistics at the time of the accident.19 Plaintiffs rely solely on the Agreement and the Vehicle Crash Report. Plaintiffs have failed to present any summary judgment evidence to create a genuine issue of material fact for trial as to whether Mr. Waller was directed and/or controlled by Flames Logistics; therefore there can be no claim of vicarious liability as to Flames Logistics.

 

18   Succession of Dunham, 408 So.2d 888, 896 (La. 1981).

19   Defendants’ exhibit C, R. #71-5.

 

CONCLUSION

For the reasons set forth above, the motion for summary judgment will be granted dismissing with prejudice Plaintiffs claims against defendants, Flames Logistics Inc. and Tower Insurance Company of New York [*9]  (due to insolvency, now referred to as Georgia Insurers Insolvency Pool). The Court determines that there is no just reason for delay and will direct entry of final judgment under rule 54(b) of the Federal Rules of Civil Procedure.

THUS DONE AND SIGNED in Alexandria, Louisiana on this 19th day of October, 2017.

/s/ James T. Trimble, Jr.

JAMES T. TRIMBLE, JR.

UNITED STATES DISTRICT JUDGE