ICON HEALTH & FITNESS, INC., a Delaware Corporation, Plaintiff, v. NVC LOGISTICS GROUP, INC., a New Jersey Corporation, Defendant.

 

Case No. 1:16-cv-00167-JNP-EJF

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

 

2017 U.S. Dist. LEXIS 95734

 

 

June 20, 2017, Decided

June 20, 2017, Filed

 

 

COUNSEL:  [*1] For ICON Health & Fitness, a Delaware corporation, Plaintiff: Bradley H. Bearnson, LEAD ATTORNEY, Aaron K. Bergman, BEARNSON & CALDWELL LLC, LOGAN, UT; Coby M. Price, MORGAN MINNOCK RICE & MINER, SALT LAKE CITY, UT.

 

For NVC Logistics Group, a New Jersey Corporation, Defendant: Michael C. Mills, LEAD ATTORNEY, BAUMAN LOEWE WITT & MAXWELL, LAS VEGAS, NV.

 

JUDGES: Jill N. Parrish, United States District Court Judge.

 

OPINION BY: Jill N. Parrish

 

OPINION

 

MEMORANDUM DECISION AND ORDER DENYING DEFENDANT’S MOTION TO TRANSFER VENUE, GRANTING DEFENDANT’S MOTION TO DISMISS, AND GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS COMPLAINT

Before the court are Defendant NVC Logistics Group, Inc.’s (“NVC”) motion to transfer venue pursuant to 28 U.S.C. § 1404 (Docket 6) and its Rule 12(b)(6) motion to dismiss for failure to state a claim (Docket 3). Also before the court is Plaintiff ICON Health & Fitness, Inc.’s (“ICON”) motion for leave to amend its complaint (Docket 26). The court heard oral argument on these motions on June 13, 2017. After considering the parties’ arguments and the applicable law, the court DENIES NVC’s motion to transfer, but GRANTS its motion to dismiss. The court also GRANTS ICON’s motion for leave to amend its complaint.

 

INTRODUCTION

ICON [*2]  initially brought four claims against NVC: 1) breach of contract, 2) breach of covenant of good faith and fair dealing, 3) unjust enrichment, and 4) negligence. These claims arose from a business dealing in which NVC was to ship and deliver goods manufactured by ICON. NVC moves to transfer venue pursuant to a forum selection clause contained in both its WG-500 Tariff (“Tariff”) and its Master Transportation Service Agreement (“MTSA”), which provide that “all claims and actions arising in connection with this tariff or any shipment hereunder shall be adjudicated solely and exclusively in . . . the district court for the District of New Jersey.” (Docket 6 at 2). NVC also moves the court to dismiss the claims pursuant to Rule 12(b)(6) claiming that 49 U.S.C. § 14706, also known as the Carmack Amendment, supersedes state law claims arising under contracts for interstate ground shipment of property. ICON opposes both motions and moves for leave to amend its complaint to add a claim under the Carmack Amendment and to allege its state law claims in the alternative.

 

FACTS

The facts alleged by the parties in this case are few, but are as follows. ICON manufactures fitness equipment. On or about December 1, 2014, ICON engaged NVC’s services for the purpose of logistics [*3]  in delivery of ICON’s goods and products to consumers in many states, including Utah. The parties entered into an agreement for the shipment of goods manufactured and sold by ICON. NVC was responsible for the timely and safe delivery of ICON’s goods, but while in NVC’s control the goods were damaged and/or lost. ICON notified NVC and asserted claims for the alleged damages, but it was never reimbursed by NVC. ICON filed suit seeking damages of no less than $230,418. ICON also seeks to recover its attorney’s fees, as well as prejudgment and post-judgement interest.

 

ANALYSIS

The Carmack Amendment was passed by Congress to standardize inter-state transportation claims. Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S. Ct. 148, 57 L. Ed. 314 (1913) (citing S. Pac. Co. v. Crenshaw Bros., 5 Ga. App. 675, 63 S.E. 865 (1909)). Prior to the Carmack Amendment, the rule of carriers’ liability for interstate shipment was “general common law” or “determined by supposed public policy of a particular state.” Id. at 504. The Carmack Amendment was intended to “supersede[] all the regulations and policies of a . . . state” and “limit[] the power to exempt [a carrier] by . . . contract.” Id. at 505-06. Congress’s action “manifest[ed] a purpose to exercise its conceded authority” and caused state’s power with regards to inter-state shipping to “cease[] to exist.” Id at 506. In essence, carriers exchanged strict liability for a consistent legal standard. Id. at 504-05.

 

1. Motion [*4] to Transfer Venue

NVC argues that this court should transfer pursuant to a valid forum selection clause contained in both the Tariff and the MTSA. Additionally, NVC argues that the factors for transfer weigh in its favor because it is a New Jersey company and the witnesses in this case would be more accessible in New Jersey. In response, ICON argues that NVC has waived any objection to venue by failing to raise its venue defense prior to filing its motion to dismiss. (Docket 12 at 3). ICON also argues that the forum selection clause on which NVC relies is contained in a contract to which it did not agree. (Docket 12 at 4).

The court concludes that NVC’s motion to transfer venue was not waived by its failure to bring a Rule 12(b)(3) motion for improper venue prior to filing its motion to dismiss. NVC has not alleged that venue is legally improper. Rather, it seeks to transfer venue on the grounds of forum non conveniens pursuant to 28 U.S.C. § 1404. Although NVC did not waive it venue argument, it is not well-taken. If the Carmack Amendment applies, either because NVC is a “carrier” or because ICON agreed to be bound by the Tariff or MTSA, then NVC’s forum selection clause is preempted by the Carmack Amendment’s special venue provisions. And absent an applicable [*5]  forum selection clause, ICON’s choice of forum outweighs any concerns that NVC proffers in support of its motion to transfer venue.

 

1. NVC did not forfeit its right to bring this motion.

ICON argues that NVC is barred from moving to transfer venue because NVC did not include a Rule 12(b)(3) motion to dismiss for improper venue in its motion to dismiss. (Docket 12 at 3). See Fed. R. Civ. P. 12(h). ICON contends that this failure forecloses a motion to transfer venue pursuant to NVC’s forum selection clause. ICON’s argument is not well-taken. The proper way to enforce a forum selection clause is through forum non conveniens, which is not governed by Rule 12. Atl. Marine Constr. Co. v. U.S. Dist. Court, 134 S. Ct. 568, 580, 187 L. Ed. 2d 487 (2013).

The Supreme Court has held that the governing law for forum non conveniens is 28 U.S.C. § 1404, not Rule 12. Id. at 577. NVC seeks to transfer venue to the state of New Jersey pursuant to a forum selection clause. (Docket 6 at 2). NVC is not asserting that Utah is an improper venue. Rather, it asserts that it is entitled to transfer the case to the venue specified in its forum selection clause. The Supreme Court has recognized that Rule 12(b)(3) only governs in cases where venue is improper, not in cases seeking to transfer venue under the theory of forum non conveniens. Id. at 580. Accordingly, NVC is not procedurally barred [*6]  from bringing its motion to transfer venue.

 

1. The Carmack Amendment preempts NVC’s forum selection clause.

The basis for NVC’s motion to transfer venue is the forum selection clause contained it its MTSA. But if the Carmack Amendment governs this case, its special venue provisions preempt NVC’s forum selection clause.

Venue in cases arising under the Carmack Amendment is addressed in 49 U.S.C. § 14706(d)(1)-(2). It provides that cases “may be brought against a delivering carrier in a district court of the United States” or “in the judicial district in which such loss or damage is alleged to have occurred.” 49 U.S.C. § 14706(d)(1)-(2). Courts have ruled generally that when a federal statute contains specific venue provisions, those provisions should be interpreted broadly. See, e.g., Somerville v. Major Expl., Inc., 576 F. Supp. 902, 908 (S.D.N.Y. 1983) (“[T]he venue provision of the Act is designed to allow the plaintiff the widest possible choice of forums.”). In light of the broad terms of § 14706(d)(1)-(2), which provide for venue in “a district court of the United States,” this court should defer to Congress’s choice to leave broad discretion to the Plaintiff in its selection of a forum.

The Tenth Circuit, while having never ruled specifically on the issue of forum selection under the Carmack Amendment, has ruled that the Carmack Amendment preempts other similar contractual provisions. In Aluminum Products Distributors, [*7]  Inc. v. Aaacon Auto Transport, Inc., the court ruled that an arbitration clause in the defendant’s contract, although valid, was preempted by the arbitration provisions of the Carmack Amendment. 549 F.2d 1381, 1384-85 (1977). This determination extends by analogy to the situation at hand. Like the arbitration agreement at issue in Aacon, the contractual venue provisions at issue here would control the place in which this case is to be decided. And like the arbitration agreement, NVC’s forum selection clause is preempted by Congress’s broad grant of discretion to plaintiffs in selecting the forum for cases arising under § 14706.

Additionally, the Supreme Court, in dicta, has stated that forum selection clauses are likely preempted by Carmack. Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 98, 130 S. Ct. 2433, 177 L. Ed. 2d 424 (2010). While the Court overruled the Ninth Circuit’s determination that the Carmack Amendment preempted the Defendant’s forum selection clause, it did so only because it determined that the Carmack Amendment did not apply. Id. And it expressly stated that “it can be assumed that if Carmack’s terms apply . . . the cargo owners would have a substantial argument that the . . . forum-selection clause in the bills is preempted by Carmack’s venue provisions.” Id. (dictum).

It is also worth noting the Ninth Circuit’s holding, rendered after Kawasaki [*8] , that forum selection clauses are, in fact, preempted by the Carmack Amendment. Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1121-22 (2011) (“One of these inalienable requirements is that the shipper be permitted to sue in certain venues when a dispute arises. . . . These provisions assure the shipper a choice of forums as plaintiff.”).

Having concluded that the Carmack Amendment preempts contractual forum selection clauses, the court turns to the issue of whether preemption applies here. The court holds that NVC’s forum selection clause is preempted whether or not NVC is found to be a “carrier” subject to the Carmack Amendment. If NVC is a “carrier,” as it claims to be, then Carmack applies as a matter of law. (Docket 24, p. 6-7). But, even if NVC is not a “carrier,” but rather a “broker,” as claimed by ICON, its forum selection clause is still preempted by the Carmack Amendment’s venue provisions because both its Tariff (Docket 6 at 32) and the MTSA (Docket 6 at 53) also contain provisions specifying that damage disputes arising under those agreements must be adjudicated in accordance with the Carmack Amendment. (Docket 6 at 33, 48 (“All claims for . . . damage to cargo shall be handled in accordance with 49 USCS § 14706.”)). In short, if the Carmack Amendment applies–either because NVC is a “carrier” or because NVC’s agreements are binding on [*9]  ICON–it preempts NVC’s forum selection clause. Unable to rely on the forum selection clause, NVC’s only remaining argument is that the case should be transferred because a district court in New Jersey would be a more convenient forum.

 

1. Plaintiff’s choice of forum outweighs any concerns NVC may have.

Generally, a Plaintiff’s choice of forum is given a great deal of weight when considering whether or not to transfer a case. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (“[A] plaintiff’s choice of forum should rarely be disturbed.”); See also Somerville v. Major Expl., Inc., 576 F. Supp. 902, 908 (S.D.N.Y. 1983). However, 28 U.S.C. § 1404(a) provides that a court may transfer venue “[f]or the convenience of parties and witnesses” and “in the interest of justice” to another district court where it may have been brought. NVC argues that transferring venue to New Jersey would be more convenient for the parties. (Docket 6 at 6). In support of this assertion, NVC states that its “corporate headquarters is in New Jersey and many of the witnesses and documents related to the various shipments are located in New Jersey.” It further points out that any judgment against NVC would have to be enforced in New Jersey.

The party seeking a transfer on grounds of forum non conveniens bears the burden of “establishing that the existing forum [*10]  is inconvenient.” Chrysler Credit Corp. v. Chrysler Coty., Inc., 928 F.2d 1509, 1515 (10th Cir. 1991) (citing Texas E. Transmission Corp. v. Marine Office-Appleton & Co., 579 F.2d 561, 567 (10th Cir. 1978)). Some of the factors that the court should consider are: 1) Plaintiff’s choice of forum; 2) availability of evidence, including compulsory attendance of witnesses; 3) advantages or disadvantages to a fair trial, 4) congested dockets, 5) and the advantage of local courts addressing local law. Tex. Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967).

NVC’s motion to transfer fails to address most of these factors. And it fails to acknowledge that what is more convenient for it and its witnesses will be less convenient for ICON and its witnesses. Moreover, while NVC baldly asserts that witnesses would be better served in New Jersey, it fails to provide any detail or explain why its witnesses could not travel to Utah.

The court concludes that NVC’s lack of compelling reasons to transfer is outweighed by ICON’s choice of forum. In short, a transfer would simply “shift[] the inconvenience from one side to the other.” Scheidt, 956 F.2d at 966.

 

1. NVC’s Motion to Dismiss

This court GRANTS NVC’s Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. ICON’s complaint contains only state law claims that, under the facts as alleged in the complaint, are preempted by the Carmack Amendment. Adams Express Co., 226 U.S. at 505-06. Thus, ICON has failed to state [*11]  a claim on which relief may be granted.

 

1. The Carmack Amendment supersedes all state law claims.

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim” showing that “the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Fed. R. Civ. P. 8(a)(2). This does not require “detailed factual allegations,” but requires more than just a general “the-defendant-unlawfully-harmed-me allegation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

A pleading that offers “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “To survive a motion to dismiss, a complaint must contain a sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). Two principles govern a court when deciding whether to dismiss a cause of action. First, while the court must accept as true all factual allegations made, this does not apply to legal conclusions–this holds true for “a legal allegation couched as a factual allegation.” Second, “only a complaint that states a plausible claim for relief survives.” Iqbal, 556 U.S. at 678 (citing Twombly 550 U.S. at 555).

ICON, in its original complaint, outlines four causes of action against NVC: 1) breach of contract, 2) breach of covenant of good faith, 3) unjust enrichment, and 4) negligence. All [*12]  four of these causes of action are state law claims. The complaint states that ICON brings these causes of action for misdeeds pursuant to 49 CFR § 370.5(b)(1)-(3), the code of regulations that derives its legitimacy from § 14706, the Carmack Amendment. And the factual allegations of the complaint allege that NVC was, at all relevant times, a “carrier” subject to the regulations.

The Supreme Court has recognized that the Carmack Amendment supersedes all state law claims and is the only cause of action for which relief may be sought for damages to goods allegedly done by carriers. Adams Express Co., 226 U.S. at 505-06. Thus, a plaintiff may not pursue state law claims against “carriers” for damages to goods and products. The exclusive remedy for such damages is a claim brought pursuant to the Carmack Amendment. And the claims that may be brought against a “carrier” for such damages are limited. § 14706(a)(1). The only claims that may be brought are for strict liability for “the actual loss or injury to the property.” Id.

The court concludes that ICON’s complaint fails to “state[] a plausible claim for relief.” Iqbal 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Taking all of ICON’s factual allegations as true, which it must, ICON’s complaint fails to allege causes of action for which relief can be granted. Indeed, at the hearing on these motions, even ICON conceded that the complaint [*13]  was “poorly plead.”

This court is not overly concerned at this stage of the proceedings whether NVC is indeed a “carrier” because ICON’s complaint alleges that it is.1 (Docket 2-1 at 2). It is only in ICON’s response to the motion to dismiss that it tries to characterize its complaint as leaving the door open to whether NVC was subject to the Carmack Amendment. (Docket 24 at 6-7). But this completely ignores ICON’s continued attempts to tie its claims to a federal regulation that is derived from the Carmack Amendment. Because Carmack preemtps ICON’s state law claims, it has no “plausible claim for relief.” Iqbal, 556 U.S. at 678. Thus, this court GRANTS NVC’s motion to dismiss ICON’s original complaint.

 

1   In its original complaint ICON argues that 49 CFR § 370.5(b)(1)-(3) allows it to bring its claims against NVC. ICON even goes as far as to call NVC a “carrier” such that NVC is subject to 49 CFR § 370.5(b)(1)-(3).

 

III. ICON’s Motion to Amend

Leave is granted for ICON to amend its complaint to properly state its claims under the Carmack Amendment and/or its alternative state law claims. Under Fed. R. Civ. P. 15(a), leave to amend should be “freely give[n] . . . when justice so requires.” This is one such situation. Moreover, allowing ICON to amend its complaint would not unduly prejudice NVC nor would it be futile as NVC suggests. (Docket 27 at 5).

 

1. An amendment would be neither prejudicial nor futile.

ICON seeks leave to amend its complaint to add a claim for relief under the Carmack Amendmnet and to plead alternative [*14]  facts that may render its state law claims viable. Granting leave to amend is a “matter committed to the court’s sound discretion.” Cont’l Bank, N.A. v. Caton, 136 F.R.D. 691 (D. Kan. 1991) (citing First City Bank, N.A. v Air Capitol Sales, Inc., 820 F.2d 1127 (10th Cir.1987)). When deciding to grant or deny a motion to amend, the court must consider several factors, such as: will the amendment result in undue prejudice to the non-movant, was the request inexplicably delayed, and was it offered in good faith. St. Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984).

The lack of anything in the amendment that would render it “futile” should also persuade the court to freely give leave. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). However, a court may still deny a motion to amend when it appears that the “plaintiff is using Rule 15 to make the complaint a ‘moving target.'” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (citing Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998)).

NVC argues that allowing for ICON to amend its complaint would be unfairly prejudicial and/or futile. (Docket 27). The court is not persuaded. Allowing an amendment would not be unfairly prejudicial. Indeed, this case is still in its infancy–NVC has yet to even file an answer to ICON’s complaint. NVC has had fair notice of the type of claim that ICON is attempting to bring. And although ICON failed to properly state its claim within the framework of the Carmack Amendment, NVC concedes that a claim pursuant to the Carmack Amendment would state a potentially viable claim.

Neither would [*15]  amendment be futile. NVC argues that any inclusion of state law claims in an amended complaint would be futile because the Carmack Amendment supersedes state law. But this argument fails to recognize the possibility that ICON may plead alternative facts that could give rise to viable state law claims.2 This does not appear to be a case of ICON attempting to hit a “moving target” with its complaint. Minter, 451 F.3d at 1206. Instead, ICON is attempting to preserve its state law claims in the event the discovery reveals that NVC is not a carrier subject to the Carmack Amendment or some other reason that the Carmack Amendment does not apply.

 

2   The Federal Rules of Civil Procedure specifically allow a party to plead in the alternative, even where the alternative claims are inconsistent. Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim . . . alternatively or hypothetically . . . If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”).

The court cautions that ICON should undertake due diligence to ensure the potential validity of whatever alternative claims it might bring. While it would be inappropriate for the court to render an advisory opinion regarding the potential claims available to ICON, ICON’s counsel should give careful consideration to the issues raised by NVC’s counsel at the June 13 hearing.

NVC has not stated any persuasive reason to deny ICON an opportunity to amend. Indeed, NVC more or less conceded at oral argument that an amendment was appropriate. Thus, this court GRANTS ICON’s motion to amend its complaint.

 

CONCLUSION

This court DENIES [*16]  NVC’s motion to transfer venue (Docket 6). The Carmack Amendment preempts NVC’s forum selection clause either because NVC is a “carrier” or because NVC’s Tariff and MTSA incorporate the dispute resolution provisions of the Carmack Amendment. In the event that the Carmack Amendment is inapplicable, 28 U.S.C. § 1404 still does not necessitate a transfer. NVC fails to persuade the court that New Jersey would be a more convenient forum for both parties.

This court GRANTS NVC’s Rule 12(b)(6) motion to dismiss for failure to state a claim (Docket 3). ICON’s original complaint stated only state law claims. But the factual allegations of the complaint compel the conclusion that those claims are superseded by the Carmack Amendment.

This court GRANTS ICON’s motion for leave to amend its complaint (Docket 26). The amendment would not prejudice NVC, especially since it has yet to file an answer. Moreover, allowing the amendment would not be futile. NVC acknowledges the potential validity of a claim brought pursuant to the Carmack Amendment and ICON may be able plead facts in the alternative that could give rise to potentially viable state law claims.

IT IS SO ORDERED.

Signed June 20, 2017.

BY THE COURT

/s/ Jill N. Parrish

Jill N. [*17]  Parrish

United States District Court Judge

 

 

TANYA PENDERGRASS-WALKER, et al., Plaintiffs v. GUY M. TURNER, INC., et al., Defendants, NITZA I. QUIÑONES ALEJANDRO, J.

 

CIVIL ACTION NO. 16-5630

 

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

2017 U.S. Dist. LEXIS 95444

 

 

June 21, 2017, Decided

June 21, 2017, Filed

 

 

COUNSEL:  [*1] For TANYA PENDERGRASS-WALKER, PHINEZY WALKER, JR., W/H, MINNIE PENDERGRASS, TIA MARTIN, Plaintiffs: JAMES D. GOLKOW, LEAD ATTORNEY, GOLKOW HESSEL LLC, PHILADELPHIA, PA.

 

For GUY M. TURNER, INCORPORATED, also known as TURNER TRANSFER, Defendant: EMILY H QUAN, MARK R JOHNSON, LEAD ATTORNEYS, WEINBERG WHEELER HUDGINS GUNN & DIAL LLC, ATLANTA, GA; BENJAMIN J. TURSI, MARKS O’NEILL O’BRIEN DOHERTY & KELLY PC, PHILADELPHIA, PA.

 

For NATIONAL RAILROAD PASSENGER CORPORATION, also known as AMTRAK, CSX TRANSPORTATION, INC., also known as CSXT, Defendants: BRENNAN T. BROOKS, JOHN C. MILLBERG, LEAD ATTORNEYS, MILLBERG GORDON STEWART PLLC, RALEIGH, NC; THOMAS J. MCKENZIE, LEAD ATTORNEY, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PHILADELPHIA, PA; BENJAMIN J. TURSI, MARKS O’NEILL O’BRIEN DOHERTY & KELLY PC, PHILADELPHIA, PA.

 

JUDGES: NITZA I. QUINONES ALEJANDRO, United States District Judge for EDPA.

 

OPINION BY: NITZA I. QUINONES ALEJANDRO

 

OPINION

 

MEMORANDUM OPINION

 

INTRODUCTION

Before this Court is a motion to dismiss, or, in the alternative, to transfer filed pursuant to 28 U.S.C. §1406(a) and Federal Rules of Civil Procedure (“Rules”) 12(b)(1), 12(b)(2), and 12(b)(3) by Defendant Guy M. Turner, Inc., a/k/a Turner Transfer (“Turner”),1 [ECF 22], a motion to transfer venue filed pursuant to 28 U.S.C. §§1406(a) and 1404(a) by Defendants National [*2]  Railroad Passenger Corp. (“Amtrak”) and CSX Transportation, Inc., (“CSX”) (collectively with Turner, “Defendants”), [ECF 26], as well as the responses in opposition filed by Plaintiffs Tanya Pendergrass-Walker, Phinezy Walker, Jr., Minnie Pendergrass, and Tia Martin (“Plaintiffs”), [ECF 24, 28], and the reply filed by Defendants Amtrak and CSX. [ECF 32]. The issues presented in the motions have been fully briefed and are ripe for disposition.

 

1   Turner’s Rule 12(b) motion to dismiss is untimely since it was filed after Turner filed its answer to the complaint. Clearly, a Rule 12(b) motion to dismiss must be filed before any responsive pleadings. See Fed. R. Civ. P. 12(b) (requiring that “[a] motion asserting any of [the listed] defenses [in Rule 12(b)(1)-(7)] must be made before pleading if a responsive pleading is allowed”). By choosing not to file its motion prior to its responsive pleading, Turner waived its right to seek dismissal of Plaintiffs’ complaint by way of a Rule 12(b) motion. See CoActiv Capital Partners, Inc. v. Feathers, 2009 U.S. Dist. LEXIS 56103, 2009 WL 1911673, at *2 (E.D. Pa. July 1, 2009) (Rule 12(b)(3) motion must be filed before a responsive pleading); see also Yearwood v. Turner Constr. Co., 2011 U.S. Dist. LEXIS 14818, 2011 WL 570003, at *1 n.3 (E.D. Pa. Feb. 15, 2011) (reaching the same conclusion with respect to a Rule 12(b)(2) motion). Notwithstanding the untimeliness of Turner’s motion to dismiss, this Court finds that Turner has preserved its objections to venue by raising the defense in its answer to the complaint, see CoActiv, 2009 U.S. Dist. LEXIS 56103, 2009 WL 1911673, at *2 (a party may challenge venue by including the defense in a responsive pleading), and, accordingly, will consider the various arguments Turner made in support of its motion to transfer venue.

For the reasons set forth herein, Defendants’ motions to transfer venue are granted. In the interests of justice, this matter is transferred pursuant to 28 U.S.C. §1406(a), to the United States District Court for the Eastern District of North Carolina.

 

BACKGROUND

Plaintiffs are residents of Pennsylvania. (Compl. at ¶¶ 1-3) [ECF 1]. On March 9, 2015, Plaintiffs suffered injuries when the Amtrak train on which they were passengers struck a tractor-trailer, owned and operated by Turner, at a railroad crossing in Halifax, North Carolina. (See id. at ¶¶ 16-31). The complaint does not allege the principal place of business or the state of incorporation of any of the Defendants. Instead, the complaint indicates that Amtrak and CSX “regularly conduct [*3]  and/or transact business” in the Eastern District of Pennsylvania, (id. at ¶¶ 10-11), and that Turner “regularly operates tractor-trailers in Pennsylvania,” and, more particularly, “within the Eastern District of Pennsylvania.” (Id. at ¶ 8).

Defendants filed the instant motions objecting to venue in this Court. Turner seeks the dismissal of the complaint or, alternatively, joins the other Defendants in requesting that this matter be transferred to the United States District Court for the Eastern District of North Carolina pursuant to 28 U.S.C. §1406(a), where the train collision underlying Plaintiffs’ claims occurred.

 

LEGAL STANDARDS

Generally, 28 U.S.C. §1390 et seq., governs venue in federal court. Specifically, Section 1391(b) provides:

 

A civil action may be brought in–(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (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) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant [*4]  is subject to the court’s personal jurisdiction with respect to such action.

 

 

Id. §1391(b)(1)-(3).

For venue purposes, a corporation “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question . . . .” Id. at §1391(c)(2). If venue is improper, the district court has the discretion to either dismiss the case or, if it be in the interest of justice, transfer it to a district in which it could have originally been brought. Id. at §1406(a). A defendant filing a §1406(a) motion to transfer venue has the burden of proving that venue is improper. See Myers v. Am. Dental Ass’n, 695 F.2d 716, 725, 19 V.I. 642 (3d Cir. 1981) (establishing that “the defendant should ordinarily bear the burden of showing improper venue”); see also Reitnour v. Cochran, 1987 U.S. Dist. LEXIS 3098, 1987 WL 9774, at *1 n.1 (E.D. Pa. Apr. 22, 1987) (defendant, as the movant, bears burden of proving improper venue in context of §1406(a) motion).

To determine personal jurisdiction over a nonresident defendant corporation, courts undertake a two-step analysis; to wit: (1) the court looks to the forum state’s long-arm statute to determine if personal jurisdiction is permitted over the defendant, and (2) assuming that there is a basis for asserting personal jurisdiction under the state statute, the court must determine [*5]  whether the exercise of personal jurisdiction comports with the due process clause of the Fourteenth Amendment.2IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998).

 

2   In this District, Pennsylvania’s long-arm statute authorizes courts to exercise personal jurisdiction to the full extent permitted by the due process clause of the United States Constitution. See 42 Pa. Cons. Stat. Ann. §5322(b); see also Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001).

The due process clause of the Fourteenth Amendment requires that a defendant have “minimum contacts” with the forum state, and that the exercise of jurisdiction comport with “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945) (internal quotations and citations omitted). The determination of whether minimum contacts exist requires an examination of “the relationship among the forum, the defendant and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977).

Federal courts have recognized two types of personal jurisdiction which comport with these due process principles; to wit: specific and general jurisdiction. GE v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). “Where the plaintiff’s cause of action is related to or arises out of the defendant’s contacts with the forum, the court is said to exercise ‘specific jurisdiction.'” IMO Indus., 155 F.3d at 259 (quoting Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 414 n.8, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)). In determining whether there is specific jurisdiction over a nonresident defendant, courts undertake a three-part inquiry. See O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). “First, the defendant must have ‘purposefully directed his activities’ at the forum.” Id. (quoting Burger King v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). Second, the plaintiff’s claim must “arise out of or relate to” at least one of those activities. Helicopteros, 466 U.S. at 414. Third, assuming that the first two requirements are met, courts may consider [*6]  additional factors to ensure that the assertion of jurisdiction otherwise “comport[s] with fair play and substantial justice.” Burger King, 471 U.S. at 476 (quotation marks and citations omitted); see also O’Connor, 496 F.3d at 317.

In contrast, general jurisdiction may be asserted over a nonresident defendant even when the cause of action has no relation to the defendant’s contacts with the forum if the defendant’s “affiliations with the [s]tate are so ‘continuous and systematic’ as to render them essentially at home in the forum [s]tate.” Daimler AG v. Bauman,     U.S.    , 134 S. Ct. 746, 754, 187 L. Ed. 2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011)) (quotation marks omitted); see also Helicopteros, 466 U.S. at 414. “The ‘paradigm’ forums in which a corporate defendant is ‘at home,’ . . . are the corporation’s place of incorporation and its principal place of business . . . .” BNSF Ry. Co. v. Tyrrell,     U.S.    , 137 S. Ct. 1549, 1552, 198 L. Ed. 2d 36 (2017) (citing Daimler, 134 S.Ct. at 760); see also Chavez v. Dole Food Co., 836 F.3d 205, 223 (3d Cir. 2016). In addition to the two paradigm bases, general jurisdiction may arise in the “exceptional case” where “a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler, 134 S. Ct. at 761 n.19; see also Chavez, 836 F.3d at 223 (“It is . . . incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.”) (quoting Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014)); Brown v. Lockheed Martin Corp., 814 F.3d 619, 627 (2d Cir. 2016) (“[I]n our [*7]  view Daimler established that, except in a truly ‘exceptional’ case, a corporate defendant may be treated as ‘essentially at home’ only where it is incorporated or maintains its principal place of business–the ‘paradigm’ cases.”) (citation omitted). However, “[a] corporation’s ‘continuous activity of some sort within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.'” Goodyear, 564 U.S. at 927 (quoting Int’l Shoe, 326 U.S. at 318).

“When a defendant raises the defense of the court’s lack of personal jurisdiction,” the plaintiff bears the burden of coming forward “with sufficient facts to establish that jurisdiction is proper.” Mellon Bank (E.) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). To meet this burden, a plaintiff may not rest on mere allegations in the complaint, but must support the jurisdictional allegations with affidavits or other competent evidence. See Patterson by Patterson v. FBI, 893 F.2d 595, 603-04 (3d Cir. 1990) (“[A]t no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant’s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction . . . . Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.”) (quoting Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984)).

 

DISCUSSION3

 

3   Although Turner’s Rule 12(b)(1) motion was untimely filed, this Court finds it prudent to briefly address Turner’s argument with respect to subject matter jurisdiction. See Rule 12(h)(3); see also Pennsylvania v. FDIC, 1997 U.S. Dist. LEXIS 14990, 1997 WL 634495, at *3 (E.D. Pa. Sept. 26, 1997) (citing Rule 12(h)(3) for the proposition that a court may address subject matter jurisdiction sua sponte “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter”). Specifically, Turner argues that this Court has neither federal question nor diversity jurisdiction over the instant matter. Turner is mistaken. It is well-settled law in this Circuit that federal courts have original jurisdiction over all claims asserted against federally charted corporations in which the United States holds “more than one-half of [the corporation’s] capital stock.” 28 U.S.C. §1349; see also McManus v. Glassman’s Wynnefield, Inc., 710 F. Supp. 1043, 1044 (E.D. Pa. 1989) (internal citations omitted). Amtrak is a federally charted corporation whose stock is wholly owned by the United States. Therefore, this Court has original subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§1331 and 1349. See Hollus v. Amtrak Northeast Corridor, 937 F. Supp. 1110, 1113-14 (D.N.J. 1996) (citing a number of federal cases for the proposition that federal courts have subject matter jurisdiction over any action involving Amtrak because it was created by an Act of Congress and the United States continues to own greater than fifty percent of its capital stock); Hicks v. Amtrak Corp., 1989 U.S. Dist. LEXIS 7092, 1989 WL 71274, at *1 (E.D. Pa. June 26, 1989) (noting that any suit asserted against Amtrak was within the original jurisdiction of the federal courts).

Since this Court has original jurisdiction over all claims asserted against Amtrak, it may exercise supplemental jurisdiction over all of Plaintiffs’ claims against the remaining Defendants pursuant to 28 U.S.C. §1367(a), which provides that “district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §1367(a).

Here, Defendants argue that venue is not proper in the Eastern [*8]  District of Pennsylvania under §1391(b) because this Court lacks personal jurisdiction over Turner, and that this Court Plaintiffs’ claims against the remaining Defendants arise from the same accident and, thus, from a “common nucleus of operative fact.” Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)); see also Hollus, 937 F. Supp. at 1110. Therefore, because this Court has federal jurisdiction over all claims asserted against Amtrak pursuant to §§1331 and 1349, it may exercise supplemental jurisdiction over any remaining claims pursuant to §1367(a). should transfer this case to the Eastern District of North Carolina,4 a proper venue under §§1391(b)(1) and (2). In response, Plaintiffs contend that this Court has jurisdiction and that venue is proper in this district pursuant to §1391(b)(1) because all of the Defendants are residents of Pennsylvania. This Court disagrees, and finds that Plaintiffs have not established that this Court may exercise either general or specific personal jurisdiction over Turner.

 

4   As noted, Defendant Turner also moves for dismissal of the Complaint pursuant to Rule 12(b)(2).

Specifically, §1391(b)(1) provides that a civil action may be brought in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.” 28 U.S.C. §1391(b)(1) (emphasis added). No one disputes that Amtrak and CSX are residents of Pennsylvania. Rather, the dispute [*9]  centers on whether this Court has personal jurisdiction, be it specific or general, over Turner since §1391(b)(1) requires “all Defendants” to be residents of Pennsylvania. As stated, for purposes of venue, a defendant corporation is “deemed to reside . . . in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” Id. §1391(c)(2).

As noted, Plaintiffs bear the burden of establishing, through sworn evidence or other competent evidence, that this Court may exercise either specific or general jurisdiction over Turner. To exercise specific jurisdiction over a defendant, a plaintiff’s cause of action must arise from, or relate to, the defendant’s contacts with the forum. See Helicopteros, 466 U.S. at 414 n.8. Here, the accident giving rise to this lawsuit did not occur in Pennsylvania, nor did it arise out of any contact Turner may have had with Pennsylvania. Simply stated, the train accident involving Turner’s tractor-trailer occurred in North Carolina. Thus, there is no basis for the exercise of specific jurisdiction over Turner. See Decker v. Dyson, 165 F. App’x 951, 953 (3d Cir. 2006) (concluding that the United States District Court for the Middle District of This argument has been addressed in footnote [*10]  1. Pennsylvania could not exercise specific jurisdiction over defendant, a resident of Georgia, on the basis that he was “involved in a motor vehicle collision in Georgia” that involved Pennsylvania passengers); see also Evers v. Coryn Grp., Inc., 2011 U.S. Dist. LEXIS 47246, 2011 WL 1666900, at *3 (E.D. Pa. May 3, 2011) (finding that the court lacked specific jurisdiction over a nonresident defendant in a premises liability case because the claims arose from an accident that occurred in a hotel in the Dominican Republic).

Plaintiffs have also failed to establish that this Court may permissibly exercise general jurisdiction over Turner. Pennsylvania is not a “paradigm” forum, Daimler, supra, in which Turner is “at home” for the purposes of personal jurisdiction. In support of its motion, Turner presents an affidavit from Jeanette A. Landreth, Turner’s chief financial officer (the “Landreth Declaration”), in which Landreth attests that Turner is neither incorporated in Pennsylvania nor maintains a principal place of business in this Commonwealth; rather, it is incorporated and maintains its principal place of business in North Carolina. (See Decl. of Jeanette A. Landreth, att. as Ex. C. to Turner’s Mot. to Dismiss at ¶ 7) [ECF 22-4]. Plaintiffs do not offer any rebuttal to these particular facts. [*11]  Thus, this Court lacks a basis to exercise general jurisdiction over Turner.

Finally, although Plaintiffs did not argue that this was an “exceptional case” warranting the exercise of jurisdiction over Turner outside the two paradigm forums, even if they had made this argument, it would have failed. To show that this is an “exceptional case,” Plaintiffs would have had to show that Turner’s affiliations with Pennsylvania are “so continuous and systematic as to render it essentially at home” in Pennsylvania. See Goodyear, 564 U.S. at 919. Plaintiffs have failed to do so. Turner, on the other hand, has submitted the Landreth Declaration, in which it attests that Turner has not owned or maintained any real property in Pennsylvania, (see Landreth Decl. at ¶¶ 12), has not owned or operated an office in Pennsylvania for the past two years, (see id. at ¶ 13), has had no employees or corporate officers working or residing in Pennsylvania, (id. at ¶¶ 17-19), has no registered agent for service in Pennsylvania, (id. at ¶ 16), and has never owned or maintained any assets or bank accounts in Pennsylvania, (see id. at ¶¶ 20-22). Plaintiffs have not rebutted Landreth’s declaration with any affidavit or other competent evidence, [*12]  or offered any evidence that Turner is essentially “at home” in Pennsylvania. Instead, they simply make bald allegations that Turner has “sufficient contacts” with Pennsylvania, including, inter alia: that Turner “continuously operates tractor-trailers in the Commonwealth of Pennsylvania” and operates an office in Pittsburgh, Pennsylvania. (See Pltfs. Resp. in Opp. to Turner’s Mot. to Dismiss/Transfer Venue at ¶ 4) [ECF 24]. Turner’s use of Pennsylvania highways, however, is not sufficient to support the exercise of general jurisdiction. See, e.g., Carney v. Bill Head Trucking, 83 F. Supp. 2d 554, 557-58 (E.D. Pa. 2000) (applying more liberal, pre-Daimler standards to determine that the court could not exercise general jurisdiction over a trucking company who had, “from time to time, used the roads and highways of Pennsylvania”). Furthermore, as Defendants point out, a cursory review of Turner’s website, which is publicly available, reveals that the “Pittsburgh” office is actually located in West Virginia, not Pennsylvania. These allegations alone are insufficient to show that Turner is “essentially at home” in Pennsylvania, as required under Goodyear and Daimler, supra. At most, Plaintiffs’ contentions establish that Turner has some business presence in Pennsylvania. Plaintiffs [*13]  have not challenged Defendants’ jurisdictional defense with “actual proof,” rather than “mere allegations.” Time Share, 735 F.2d 61, 66 n.9; see also Hurley v. Cancun Playa Oasis Int’l Hotels, 1999 U.S. Dist. LEXIS 13716, 1999 WL 718556, at *1 (E.D. Pa. Aug. 31, 1999) (stating that “[g]eneral averments in an unverified complaint or response [to a motion to dismiss] without the support of sworn affidavits or other competent evidence are insufficient to establish jurisdictional facts”). Furthermore, Plaintiffs have not provided this Court with any evidence to substantiate that Turner has amassed sufficient contacts with Pennsylvania as to render Turner “essentially at home” in Pennsylvania. See Daimler, 134 S. Ct. at 751-52 (explaining that regional offices are not enough to consider a corporation “at home” in a forum in which it does not have its principal place of business or its place of incorporation); see also Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 226 (2d Cir. 2014) (noting that Daimler makes it “clear that even a company’s engage[ment] in a substantial, continuous, and systematic course of business is alone insufficient to render it at home in a forum”) (internal citation and quotations omitted); Krishanti v. Rajaratnam, 2014 U.S. Dist. LEXIS 58314, 2014 WL 1669873, at *7 (D.N.J. Apr. 28, 2014) (“It is clear from Daimler that the physical presence of a corporation in a state does not necessarily render the corporation ‘at home’ in that state.”). Because Plaintiffs have made no showing that Turner’s contacts with Pennsylvania [*14]  “are so continuous and systematic as to render it essentially at home in this state,” Daimler, 134 S. Ct. at 762 (internal quotations and citation omitted), this Court lacks general jurisdiction over Turner under the “exceptional case” standard. Consequently, §1391(b)(1) does not apply since Plaintiff has not established that all of the Defendants are “residents” of Pennsylvania, as the term is defined by §1391(c)(2).

Notably, Plaintiffs have not made any argument that either §1391(b)(2) or §1391(b)(3) are applicable here, which this Court agrees. Under §1391(b)(2), venue in this district is not proper since “a substantial part of the events or omissions giving rise to” Plaintiffs’ claims did not occur here. Likewise, under §1391(b)(3), Plaintiffs cannot establish venue in this district since another judicial district exists which satisfies the requirements of §§1391(b)(1) or (b)(2), i.e., the Eastern District of North Carolina, where venue appears to be proper under either §§1391(b)(1) or 1391(b)(2), as the accident that forms the basis for the lawsuit occurred in that district and all three Defendants are subject to specific personal jurisdiction there. Accordingly, this Court concludes that venue is not properly laid in this judicial district under either §§1391(b)(1), (b)(2), or (b)(3).

When a court determines that an action has been [*15]  filed in an improper venue, §1406(a) allows the court to dismiss the case or transfer the case, “in the interest of justice,” to any district “in which it could have been brought.” 28 U.S.C. §1406(a); see also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-66, 82 S. Ct. 913, 8 L. Ed. 2d 39 (1962). As noted, venue is proper in the Eastern District of North Carolina pursuant to §1391(b)(2) because: (1) a “substantial part of the events or omissions giving rise” to Plaintiffs’ claims occurred within that judicial district, and (2) personal jurisdiction is proper in the Eastern District of North Carolina with respect to all three corporate Defendants. This Court finds that the interests of justice would be better served by a transfer of venue, as opposed to dismissing this matter. A transfer of venue will prevent the Plaintiffs from incurring additional filing expenses and avoid the potential statute of limitations problems that would likely arise from a dismissal at this point. See Feldman v. Bally’s Park Place, Inc., 2006 U.S. Dist. LEXIS 37172, 2006 WL 1582331, at *6 (E.D. Pa. Jun. 5, 2006) (“Normally transfer will be in the interest of justice because dismissal of an action that could be brought elsewhere is time-consuming and justice-defeating.”) (citation omitted); see also Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 401 F. Supp. 2d 415, 425 (E.D. Pa. 2005) (exercising discretionary powers to transfer a case when statute of limitations problems would arise from dismissal for improper venue). Under [*16]  these circumstances, this matter is transferred to the United States District Court for the Eastern District of North Carolina.

 

CONCLUSION

For the reasons set forth herein, Defendant Turner’s motion to dismiss is denied, and Defendants’ joint motions to transfer are GRANTED. Consequently, this matter is transferred to the United States District Court for the Eastern District of North Carolina pursuant to 28 U.S.C. §1406(a). An appropriate order will follow.

NITZA I. QUINONES ALEJANDRO

Judge, United States District Court for EDPA.

 

ORDER

AND NOW, this 21st day of June 2017, upon consideration of the motion to dismiss, or, in the alternative, to transfer filed by Defendant Guy M. Turner, Inc. a/k/a Turner Transfer (“Turner”), [ECF 22], the motion to transfer venue filed by Defendants National Railroad Passenger Corp. (“Amtrak”) and CSX Transportation, Inc. (“CSX”) (collectively, with Turner, “Defendants”), [ECF 26], and Plaintiff’s responses in opposition thereto, [ECF 24, 28], the reply brief filed by Amtrak and CSX , [ECF 32], and the allegations contained in the complaint, [ECF 1], it is hereby ORDERED, for the reasons set forth in the accompanying Memorandum Opinion filed on this day, that Defendants’ motions [*17]  to transfer are GRANTED. The Clerk of Court is directed to TRANSFER this matter to the United States District Court for the Eastern District of North Carolina pursuant to 28 U.S.C. §1406(a), and to mark this matter CLOSED for statistical purposes.

BY THE COURT:

/s/ Nitza I. Quiñones Alejandro

NITZA I. QUIÑONES ALEJANDRO

Judge, United States District Court