Surplus African Foods, LLC v. Air France

United States District Court for the District of New Jersey

January 11, 2018, Decided; January 11, 2018, Filed

Civil Action No: 17-7105 (SDW) (CLW)

 

Reporter

2018 U.S. Dist. LEXIS 4898 *

SURPLUS AFRICAN FOODS, LLC, and KENNETH C. OKONKWO, Plaintiffs, v. AIR FRANCE, FORWARD AIR, INC., and ABC, INC., Defendants.

Notice: NOT FOR PUBLICATION

Core Terms

 

carrier, Foods, transportation, allegations, preempted

Counsel:  [*1] For SURPLUS AFRICAN FOODS, LLC, KENNETH C. OKONKWO, Plaintiffs: CHINEMEREM N. NJOKU, LEAD ATTORNEY, LAW FIRM OF C.N. NJOKU, LLC, ELIZABETH, NJ.

For AIR FRANCE, Defendant: ANTHONY M. TESSITORE, LEAD ATTORNEY, CLYDE & CO US LLP, FLORHAM PARK, NJ.

For FORWARD AIR, INC., Defendant: WILLIAM D. BIERMAN, LEAD ATTORNEY, Price Meese Shulman & D’Arminio, Woodcliff Lake, NJ; THOMAS C. MARTIN, PRICE MEESE SHULMAN & D’ARMINIO, P.C., WOODCLIFF LAKE, NJ.

Judges: SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.

Opinion by: SUSAN D. WIGENTON

Opinion

 

 

WIGENTON, District Judge.

Before this Court is Defendant Forward Air, Inc.’s (“Forward Air” or “Defendant”) Motion to Dismiss Plaintiffs Surplus African Foods, LLC and Kenneth C. Okonkwo’s (collectively, “Plaintiffs”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Jurisdiction is proper pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated herein, the Motion to Dismiss is GRANTED.

 

1. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Surplus African Foods, LLC (“Surplus African Foods”) is a New Jersey company that buys and sells African food stuffs; Plaintiff Kenneth C. Okonkwo (“Okonkwo”) is the company’s Chief Executive Officer. (Compl. ¶¶ 1-2, ECF [*2]  No. 1.) Okonkwo alleges that he entered into a contract with Defendant Air France (“Air France”) to transport a consignment of frozen foods from Nigeria to the United States. (Compl. ¶ 6.) On July 11, 2015, Air France arrived at John F. Kennedy Airport in New York with the consignment. (Compl. ¶¶ 6, 10.) Forward Air, which Plaintiffs assert is a company that transports goods and services for Air France, picked up the food in New York and delivered it to a warehouse in Newark, New Jersey. (Compl. ¶¶ 4, 12-13.) Okonkwo alleges that although he contracted with Air France to keep the delivery refrigerated until Plaintiff Surplus African Foods could take possession of the goods in New Jersey, it was not refrigerated and some of the food spoiled. (Compl. ¶¶ 9, 13.)

On July 13, 2017, Plaintiffs filed a one-count suit against Defendants in the Superior Court of New Jersey, Essex County. (ECF No. 1) Defendants removed the action to the United States District Court of New Jersey on September 14, 2017. (Id.) On September 27, 2017, Forward Air filed the instant Motion to Dismiss.1 (ECF No. 7.) Plaintiffs timely filed their opposition on October 23, 2017, and Forward Air replied on November 10, 2017. [*3]  (ECF Nos. 17, 24.)

 

1. LEGAL STANDARD

An adequate complaint must be “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of an entitlement to relief”).

In considering a Motion to Dismiss under Rule 12(b)(6), the Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 231 (external citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations in a complaint are “plausible” [*4]  is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint should be dismissed for failing to “show[] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.

 

III. DISCUSSION

This Court construes Plaintiffs’ Complaint to allege common law claims against Defendants for negligence and breach of contract. (See generally Compl.) Plaintiffs’ state law claims are preempted by federal law, namely the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 (the “Carmack Amendment’) and the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c) (the “FAAAA”).

Under the Carmack Amendment,

[a] carrier providing transportation . . . shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service . . . are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose [*5]  line or route the property is transported in the United States . . . .

49 U.S.C. § 14706(a)(1). Courts have consistently held that the Carmack Amendment is the “exclusive cause of action for interstate-shipping contract [and tort] claims alleging loss or damage to property.” Certain Underwriters at Interest at Lloyds of London v. United Parcel Serv. of Am., Inc., 762 F.3d 332, 336 (3d Cir. 2014) (quoting Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 688-90 (9th Cir. 2007)).

Plaintiff’s Complaint alleges that Forward Air transported the food stuff at issue from New York to New Jersey as an agent or partner of Air France. (Compl. ¶¶ 4-5, 12). Although Forward Air avers that it is a “[f]ederally authorized broker of freight in interstate commerce[,]” (ECF No. 7-1 at 3), rather than a motor carrier, on a Motion to Dismiss, the Court must accept all factual allegations in the Complaint as true. See Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Therefore, Plaintiffs’ “state law breach of contract and negligence claims against a carrier for loss of or damage to goods are preempted.” See Brudnak v. A.A. Moving & Storage, Inc., No. 14-6964, 2015 U.S. Dist. LEXIS 36359, 2015 WL 1310292, at *3 (D.N.J. Mar. 24, 2015) (quoting Lloyds of London, 762 F.3d at 336).

Additionally, the FAAAA contains expressly preemptive language as applied to brokers and motor carriers. See 49 U.S.C. § 14501; see also Alpine Fresh, Inc. v. Jala Trucking Corp., 181 F. Supp. 3d 250, 257 (D.N.J. 2016) (dismissing common law claims for breach of bailment and negligence, which were expressly preempted by the FAAAA and Interstate Commerce Commission Termination Act). Specifically, the statute provides, “no State . . . shall enact or enforce any law, [*6]  rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.” 49 U.S.C. § 14501(b)(1); see also 49 U.S.C. § 14501(c)(1) (providing that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property”). As such, Plaintiffs’ common law causes of action are also preempted by the FAAAA. See Alpine Fresh, Inc., 181 F. Supp. 3d at 257 (“State common law qualifies as an ‘other provision having the force and effect of law.'”).

Because Plaintiffs have only asserted common law causes of action, which are preempted by the Carmack Amendment and the FAAAA, the Complaint is dismissed.

 

1. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED. Plaintiffs shall have thirty (30) days to file an Amended Complaint. An appropriate Order follows.

/s/ Susan D. Wigenton

SUSAN D. WIGENTON, U.S.D.J

 

ORDER

WIGENTON, District Judge.

This matter, having come before this Court on Defendant Forward Air, Inc.’s ( “Defendant”) Motion to Dismiss Plaintiffs Surplus African Foods, LLC and Kenneth C. Okonkwo’s (collectively, “Plaintiffs”) Complaint [*7]  pursuant to Federal Rule of Civil Procedure 12(b)(6), and this Court having considered the parties’ submissions, and for the reasons stated in this Court’s Opinion dated January 11, 2018,

IT IS on this 11th day of January, 2018

ORDERED that Defendant’s Motion to Dismiss is GRANTED, and it is further

ORDERED that Plaintiffs shall have thirty (30) days to file an Amended Complaint.

SO ORDERED.

/s/ Susan D. Wigenton

SUSAN D. WIGENTON

UNITED STATES DISTRICT JUDGE

Court of Appeals of Georgia.

NATASHA BLAKEMORE AS MOTHER OF SE-059 NATROYA HULBERT

v.

DIRT MOVERS, INC. et al.

A17A1540

|

January 11, 2018

DILLARD, C. J., RAY and SELF, JJ.

Opinion

SELF, Judge.

 

*1 In this interlocutory appeal in a wrongful death action, we must decide whether a domestic motor carrier corporation may remove a tort action in which it is a defendant to the county where its principal place of business is located, pursuant to OCGA § 14-2-510 (b) (4), when venue against the defendant would also be proper in the county where the tort occurred under OCGA § 40-1-117 (b). Because plaintiff Natasha Blakemore’s allegations of venue were based upon a distinct venue provision unique to motor carriers, we conclude that defendant Dirt Movers, Inc. had no right of removal under the plain language of OCGA § 14-2-510 (b) (4). Therefore, we reverse the trial court’s denial of Blakemore’s motion to remand this action to the county where the tort occurred.

 

Following the death of her daughter in a motor vehicle accident, Blakemore filed a wrongful death action against Dirt Movers, its driver, and its liability insurance carrier in the State Court of Bibb County. Blakemore alleged that her daughter, Natroya Hulbert, was driving a vehicle on Interstate 75 in Bibb County when she was either hit or forced off the road by a tractor-trailer owned by Dirt Movers; that although the tractor-trailer pulled over and the driver got out, the driver soon fled the scene after seeing the extent of the wreckage; and that Hulbert died in the accident. Furthermore, the pleadings established that Dirt Movers was a domestic corporation engaged in interstate commerce and registered with, licensed by, and insured in accordance with the Federal Motor Carrier Safety Administration. Finally, Dirt Movers acknowledged that the accident occurred in Bibb County and that its principal place of business and registered agent were located in Jeff Davis County. As a result, Blakemore asserted that venue as to Dirt Movers was proper in Bibb County under the Georgia Motor Carrier Act1 because her cause of action arose as a result of the accident in Bibb County.2 See OCGA § 40-1-117 (b).

 

After receiving service of process, Dirt Movers filed a notice of removal to Jeff Davis County based on OCGA § 14-2-510 (b) (4),3 which permits a defendant corporation to remove an action “to the county in Georgia where [it] maintains its principal place of business.” However, OCGA § 14-2-510 (b) (4) limits the right of removal to cases in which “venue is based solely on this paragraph. … “ Following Dirt Movers’ removal of the case, the State Court of Jeff Davis County denied Blakemore’s motion to remand the case to Bibb County. However, the trial court granted Blakemore a certificate of immediate review, and we granted Blakemore’s application for an interlocutory appeal.

 

*2 Blakemore posits that the right of removal under OCGA § 14-2-510 (b) (4) applies only “[i]f venue is based solely on [that] paragraph” and that Blakemore filed her civil action in Bibb County based not on OCGA § 14-2-510 (b) (4), but on a separate and distinct venue provision governing motor carriers contained in OCGA § 40-1-117 (b). Dirt Movers does not dispute that Blakemore’s complaint alleged facts establishing that venue would be proper in Bibb County under the Motor Carrier Act. Rather, Dirt Movers asserts that, because the only fact supporting venue against it is the county in which the accident occurred, it was entitled to remove the action to Jeff Davis County under OCGA § 14-2-510 (b) (4). For the following reasons, we conclude that the plain language of OCGA § 14-2-510 (b) (4) limits a defendant corporation’s right of removal to cases in which venue is based only upon that specific paragraph. Accordingly, if there is a separate basis for venue, as in this case, the defendant corporation has no right of removal.

 

As a threshold matter, the Georgia Constitution provides that all civil cases shall be tried “in the county where the defendant resides; venue as to corporations, foreign and domestic, shall be as provided by law.” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. To that end, OCGA § 14-2-510 provides that

[e]ach domestic corporation and each foreign corporation authorized to transact business in this state shall be deemed to reside and to be subject to venue as follows:

(1) In civil proceedings generally, in the county of this state where the corporation maintains its registered office …;

* * *4

(3) In actions for damages because of torts, wrongs, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county;

(4) In actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. …

(Emphasis supplied.) However, a corporation has no right of removal under OCGA § 14-2-510 (b) (4) if the complaint alleges facts to support proper venue under a different statutory provision. See Mohawk Industries v. Clark, 259 Ga. App. 26 (576 SE2d 16) (2002) (no right of removal where factual allegations supported venue under both subsection (b) (3) and subsection (b) (4)). And with regard to motor carriers,5 OCGA § 40-1-117 (b) states that “[e]xcept in those cases where the Constitution requires otherwise, any action against any resident or nonresident motor carrier for damages by reason of any breach of duty … may be brought in the county where the cause or action or some part thereof arose[.]” (Emphasis supplied.) Importantly, although OCGA § 14-2-510 (b) uses the term “shall” to define venue against a corporation, and “ ‘[s]hall’ is generally construed as a word of mandatory import[,]” O’Donnell v. Durham, 275 Ga. 860, 861 (3) (573 SE2d 23) (2002), OCGA § 14-2-510 (c) provides that “[a]ny residences established by this Code section shall be in addition to, and not in limitation of, any other residence that any domestic or foreign corporation may have by reason of other laws.” See WBC Holdings v. Thornton, 213 Ga. App. 48, 48-49 (443 SE2d 686) (1994). Likewise, OCGA § 40-1-117 (b) further provides that “[t]he venue prescribed by this Code section shall be cumulative of any other venue provided by law.”

 

*3 Stated succinctly, the issue in this case is whether a domestic motor carrier retains the right to remove a case under OCGA § 14-2-510 (b) (4), by virtue of its status as a corporation or other business entity, when venue is also predicated upon OCGA § 40-1-117 (b). We conclude that it does not. Under the plain language of OCGA § 14-2-510 (b) (4), a corporation may remove a civil action to the county where its principal place of business is located “if venue is based solely on this paragraph. …” “Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (Citation and punctuation omitted.) Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009). Accordingly, “the ordinary signification shall be applied to all words. …” OCGA § 1-3-1 (b). See also Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (“In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.”) (punctuation omitted). “Solely” has been defined as meaning “without another[;] to the exclusion of all else.” Webster’s Ninth New Collegiate Dictionary 1122 (1991). Therefore, under the plain language of OCGA § 14-2-510 (b) (4), a corporation cannot remove an action to the county where its principal place of business is located if there is any basis for venue other than OCGA § 14-2-510 (b) (4).

 

OCGA § 40-1-117 (b), applicable to motor carriers, supplies such an independent basis and plainly states that venue against a motor carrier may lie “in the county where the cause of action or some part thereof arose. …” Furthermore, when read together, we find no tension between OCGA § 14-2-510 (b) (4) and OCGA § 40-1-117 (b). OCGA § 14-2-510 (b) (4) generally provides that a plaintiff may file certain causes of action against a corporation in the county where the plaintiff’s cause of action originated. However, if there is a separate basis for venue, as in this case, the plain language of OCGA § 14-2-510 (b) (4) precludes the defendant corporation from removing the case to the county where its principal place of business is located.6 We therefore conclude that this reading harmonizes OCGA § 14-2-510 (b) (4) and OCGA § 40-1-117 (b).7 See Ga. Forestry Comm. v. Taylor, 241 Ga. App. 151, 153 (526 SE2d 373) (1999) (“A statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible ….”) (citation and punctuation omitted).

 

*4 Perhaps the most instructive authority is Mohawk, supra, in which the plaintiffs sued the defendant in Murray County. 259 Ga. App. at 26. The defendant, arguing that its principal place of business was located in Gordon County, removed the action to Gordon County pursuant to OCGA § 14-2-510 (b) (4). Thereafter, the plaintiffs amended their complaint, noting that the defendant “had an office in Murray County and transacted business there.” Id. at 26-27. The plaintiffs’ motion to remand the case to Murray County was granted, and Mohawk appealed. We held that, because the right of removal under OCGA § 14-2-510 (b) (4) is only available in cases where “venue is based solely on this paragraph” and the plaintiffs’ complaint contained allegations to support venue under both OCGA §§ 14-2-510 (b) (3) and (4), Mohawk could not remove the case to the county in which its principal place of business was located. Id. at 27-28. Accord Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 269 (50 SE2d 822) (1948) (held that plaintiff may sue a motor carrier “in the county where the action originated,” even if defendant does not have a place of business or an agent in that county).

 

In sum, Blakemore’s complaint in this case alleges facts to support venue under OCGA § 40-1-117 (b), which is separate and distinct from OCGA § 14-2-510 (b) (4). Accordingly, because Blakemore’s allegation of venue was not based solely upon OCGA § 14-2-510 (b) (4), Dirt Movers had no right of removal under the plain language of OCGA § 14-2-510 (b) (4). As a result, the trial court erred in denying Blakemore’s motion to remand her civil action to Bibb County.

 

Judgment reversed. Dillard, C. J., and Ray, J., concur.

All Citations

— S.E.2d —-, 2018 WL 359951

 

 

Footnotes

1

See OCGA § 40-1-50 et seq.

2

The complaint also asserts that venue is proper as to Crum & Forster Indemnity Company under OCGA § 33-4-1 (2), which provides that an insurance company may be sued “[i]n any county where the company shall have an agent or place of doing business.” The trial court did not address venue as to Crum & Forster in its order denying Blakemore’s motion to remand. Furthermore, inasmuch as insurers are not considered joint tortfeasors under the direct action statute, see Jackson v. Sluder, 256 Ga. App. 812, 814 (1) (569 SE2d 893) (2002), the question of whether venue as to Crum & Forster would be proper in either Bibb County or Jeff Davis County does not aid our analysis in this case.

3

Although Dirt Movers’ removal notice cited OCGA § 14-3-510 (b) (4), that code section applies to nonprofit corporations. An identical provision governing business corporations, and the paragraph to which we will cite, is codified at OCGA § 14-2-510 (b) (4).

4

OCGA § 14-2-510 (b) (2) concerns venue in contract cases and therefore is not applicable here.

5

See OCGA §§ 40-1-100 (12) (A) (“ ‘Motor carrier’ means [ ] [e]very person owning, controlling, operating, or managing any motor vehicle, including the lessees, receivers, or trustees of such persons or receivers appointed by any court, used in the business of transporting for hire persons, household goods, or property or engaged in the activity of nonconsensual towing pursuant to Code Section 44-1-13 for hire over any public highway in this state.”), (15) (“ ‘Person’ means any individual, partnership, trust, private or public corporation, municipality, county, political subdivision, public authority, cooperative, association, or public or private organization of any character.”).

6

Neither party has identified, nor have we located, any Georgia authority addressing the relationship between OCGA §§ 14-2-510 (b) (4) and 40-1-117 (b). Authorities that specifically examined OCGA § 14-2-510 offer some insight but do not squarely resolve our inquiry. See, e.g., Coastal Transport v. Tillery, 270 Ga. App. 135 (605 SE2d 865) (2004) (action filed in Chatham County, where defendant maintained place of business, arising out of motor vehicle accident in Dougherty County; venue was improper in Chatham County because defendant’s registered agent was in Gwinnett County; furthermore, OCGA § 14-2-510 (b) (4) did not apply because plaintiff did not originally file action in county where accident occurred); Southern Drayage v. Williams, 216 Ga. App. 721, 723 (3) (455 SE2d 418) (1995) (venue for action against nonresident motor carrier proper in Gwinnett County, pursuant to OCGA § 46-7-17 (b) (predecessor to OCGA § 40-1-117 (b)), because accident occurred in Gwinnett County; however, OCGA § 14-2-510 did not apply because defendant nonresident motor carrier was “not a foreign corporation authorized to transact business in … Georgia”); Gault v. Natl. Union Fire Ins. Co. of Pittsburgh, 208 Ga. App. 134, 136 (2) (430 SE2d 63) (1993) (focus upon nonresident motor carrier and potential for venue under the Nonresident Motorist Act).

7

Dirt Movers’ proposed reading of these statutes, in which a defendant motor carrier corporation would retain its right of removal under OCGA § 14-2-510 (b) (4) because the factual predicate for venue under both OCGA § 14-2-510 (b) (4) and OCGA § 40-1-117 (b) is identical, would ignore the plain language of OCGA § 14-2-510 (b) (4) and render OCGA § 40-1-117 (b) meaningless. We are not authorized to read the statutes in such a manner. See, e.g., Lathan v. Hosp. Auth. of Charlton County, ___ Ga. App. ___ (805 SE2d 450) (2017) (“a statute should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning”) (citation and punctuation omitted). Furthermore, the removal procedure in OCGA § 14-2-510 (b) (4) was not codified until 2000. See Pandora Franchising v. Kingdom Retail Group, 299 Ga. 723, 725 (1) (a) (791 SE2d 796) (2016). OCGA § 14-2-510 (b) (4) does not contain an express repealer of OCGA § 40-1-117 (b). Moreover, there is nothing to suggest that the enactment of OCGA § 14-2-510 (b) (4) impliedly repealed OCGA § 40-1-117 (b). See Chatham County v. Hussey, 267 Ga. 895 (485 SE2d 753) (1997) (“Repeals by implication are not favored. An implied repeal never occurs unless the later act clearly contradicts the former act and their differences cannot be reconciled. …”).