United States District Court for the District of Connecticut
May 14, 2024, Decided; May 14, 2024, Filed
3:23-CV-01088 (VDO)
2024 U.S. Dist. LEXIS 88529 *; 2024 WL 2139614
MAX ZACH CORPORATION, Plaintiff, – against – MARKER 17 MARINE and PREMIUM CARRIERS INC., Defendants.
Subsequent History: As Corrected May 17, 2024.
yacht, statute of limitations, breach of contract, conversion claim, negligence claim, allegations, conversion, motion to dismiss, transport
Counsel: [*1] For Marker 17 Marine, Defendant: Jonathan P. Ciottone, LEAD ATTORNEY, McGivney & Kluger P.C., Hartford, CT; Morris R. Borea, McGivney Kluger Clark & Intoccia P.C., Hartford, CT.
For Max Zach Corporation, Plaintiff: Thomas B. Decea, LEAD ATTORNEY, Fishman Decea & Feldman, Amonk, NY.
For Premium Carriers Inc., Defendant: Wesley S. Chused, LEAD ATTORNEY, Preti Flaherty Beliveau & Pachios LLP – MA, Boston, MA.
Judges: VERNON D. OLIVER, United States District Judge.
MEMORANDUM & ORDER GRANTING DEFENDANT MARKER 17 MARINE, LLC’S MOTION TO DISMISS
VERNON D. OLIVER, United States District Judge:
Plaintiff Max Zach Corporation’s (“Plaintiff” or “Max Zach”) action arises out of the alleged negligence, breach of contract, conversion, and violation of the Carmack Act by defendants Marker 17 Marine, LLC (“Defendant” or “Marker 17”) and Premium Carriers, Inc. (“Premium Carriers”) in connection with the modification and land transport of Plaintiff’s yacht. Defendant Marker 17 seeks dismissal of Counts One and Three of the Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that the negligence claim is time-barred, and the conversion claim is duplicative of Plaintiff’s breach of contract claim. [*2]
For the reasons discussed below, Marker 17’s motion to dismiss is GRANTED.
I. BACKGROUND
The Court assumes the truth of the factual allegations in the SAC for the purposes of deciding Defendant’s motion. Plaintiff entered into a contract with Marker 17 to modify its 2006 48′ Fountain EC, HIN No. FGQ48C41J506 yacht, which included, inter alia, retrofitting and repowering the yacht with four Mercury Outboard 400 Racing Motors, at a cost of approximately $315,000. (SAC, ECF No. 35, ¶ 1.) The contract, which was paid in full, also provided for the delivery of the yacht by Marker 17 to Plaintiff in Greenwich, Connecticut. (Id. ¶ 2.)
The yacht was modified to specification by Marker 17, packaged, and loaded for transport from Wilmington, North Carolina to Greenwich, Connecticut. (Id. ¶ 3.) Marker 17 selected defendant Premium Carriers to assist with loading the yacht onto a trailer and to transport the yacht via land transport. (Id.) The yacht, which has a conservative fair market value of $750,000, was destroyed when, in New Jersey, Premium Carriers accidentally flipped the trailer carrying the yacht en route to Plaintiff. (Id. ¶¶ 3, 15.) Thereafter, Superior Towing and Transport, LLC towed [*3] the yacht from the accident site to its storage facility in New Jersey, where the yacht is still stored at a rate of $150 per day. (Id. ¶ 16.) The finished yacht has not been delivered to Plaintiff as required by the contract. (Id.)
Plaintiff raises four causes of action—(1) negligence against Marker 17, (2) breach of contract against Marker 17, (3) conversion against Marker 17, and (4) violation of 49 U.S.C. § 14706 against Premium Carriers—and seeks monetary judgment, consequential and punitive damages, and attorneys’ fees. (Id. ¶¶ 21, 22, 27, 28, 32, 33, 40, 41, 42, 43, pp. 8-9.) Plaintiff’s breach of contract and Carmack Act claims are not the subject of the instant motion.
II. LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ray v. Watnick, 688 F. App’x 41, 41 (2d Cir. 2017) (quoting Ashcroft, 556 U.S. at 678).
In deciding a motion to dismiss, the Court must accept the well-pleaded factual allegations of the complaint as true [*4] and draw all reasonable inferences in the plaintiff’s favor. See Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). The Court must then determine whether those allegations “plausibly give rise to an entitlement to relief.” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). The Court is not required to accept as true “conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d. Cir. 2008) (internal quotation marks omitted).
III. DISCUSSION
Marker 17 moves to dismiss Counts One and Three of the Second Amended Complaint under Rule 12(b)(6) for failure to state a claim. The Court grants Defendant’s motion in its entirety.
A. Count One: Plaintiff’s Negligence Claim
Before considering the substance of Plaintiff’s negligence claim, Marker 17 argues that the claim “is barred by the applicable two-year statute of limitations.” (Def. Mot., ECF No. 37, at 1.) In response, Plaintiff contends that New Jersey law applies to the negligence claim and provides for a six-year statute of limitations. (Pl. Opp., ECF No. 41, at 5.) After conducting a choice of law analysis, the Court agrees with Defendant.
“A federal court sitting in diversity applies the choice of law rules of the forum state[,]” in this case, Connecticut. Maryland Cas. Co. v. Cont’l Cas. Co., 332 F.3d 145, 151 (2d Cir. 2003) (internal citation omitted). Traditionally in Connecticut, “the law of the forum [*5] state governs on matters of procedure.” Phillips v. Scott, 446 F. Supp. 2d 70, 83 n.25 (D. Conn. 2006) (quoting Keeteon v. Hustler Magazine, Inc., 465 U.S. 770, 778 n.10, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984)). “Under Connecticut’s choice of law rules, if the underlying claim existed at common law, the statute of limitations is considered procedural.” Stuart & Sons, L.P. v. Curtis Publ’g Co., Inc., 456 F. Supp. 2d 336, 343 (D. Conn. 2006) (underlying claim of conversion); see also Lostritto v. Cmty. Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418, 426 (Conn. 2004) (“A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.”) (internal citation and quotation marks omitted).
Because the Second Amended Complaint alleges a claim for negligence, which is a cause of action found at common law and not created by statute, the statute of limitations is procedural, and the Court shall apply Connecticut law. See Slekis v. AMTRAK, 56 F. Supp. 2d 202, 205 (D. Conn. 1999) (stating “[b]ecause plaintiff’s complaint sounds in simple negligence, a cause of action recognized at common law and not created by statute, we find that a Connecticut court would consider the statute of limitations procedural and would apply the statute of limitations of the forum . . .”). Under Connecticut law, the statute of limitations for negligence claims is two years. CONN. GEN. STAT. § 52-584 (“No action to recover damages for injury to the person, or to real or personal [*6] property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered); see also Sentementes v. Lamont, No. 3:20-CV-1826 (MPS), 2022 U.S. Dist. LEXIS 64569, 2022 WL 1043671, at *4 n.3 (D. Conn. Apr. 7, 2022).
Plaintiff filed the instant action in Connecticut Superior Court on July 17, 2023 (ECF No. 1), more than two years after the date of its alleged injury: May 6, 2021. (SAC ¶ 15.) Because the negligence claim is time-barred,1, 2 the Court declines to address the merits of the claim. Count One of the SAC is dismissed.
B. Count Three: Plaintiff’s Conversion Claim
Regarding Max Zach’s conversion claim, Marker 17 claims that it is merely an attempt to transform the alleged breach of contract claim into a tort claim. Specifically, Defendant argues there is no cognizable claim for conversion based purely on a debt or a claim that one is owed money as a result of a breach of contract. (Def. Mot. at 16.)
“New Jersey courts have expressly restricted application of the doctrine of conversion when it seeks to turn a claim based on breach of contract into a tort claim.” Gordon v. Nice Sys. Inc., No. 2:18-CV-2168, 2020 U.S. Dist. LEXIS 81927, 2020 WL 2316278, at *4 (D.N.J. May 11, 2020); D & D Tech., Inc. v. CytoCore, Inc., No. 2:14-CV-4217, 2014 WL 4367314, at *4 (D.N.J. Sept. 2, 2014) (same).3 According to Marker 17, “the entire claim for conversion is based upon the allegations that: Plaintiff contracted [*7] with Marker to retrofit and deliver the Vessel to Connecticut; Plaintiff paid Marker for its services; and Plaintiff now desires a refund of its payment under the contract.” (Def. Mot. at 16.)
The Court agrees with Marker 17 that Plaintiff’s conversion claim should be dismissed because it is duplicative of the breach of contract claim. Here, Plaintiff’s own allegations demonstrate that its conversion claim for the money paid to Marker 17 under the contract arises out of the contract between it and Marker 17. See SAC ¶ 31 (“Despite payment in full, Marker 17 failed to perform under the Contract . . .”); id. ¶ 32 (“The money paid under the Contract belonged to the Plaintiff. Despite demand for the return of the funds paid under the Contract, Marker 17 has failed and refused said demand.”); id. ¶ 33 (“Marker 17 has deprived Plaintiff of its money”). What is more, contrary to its argument in opposition,4 Plaintiff seeks exactly the same amount in and type of damages for both its breach of contract and conversion claims. Compare SAC ¶ 29 (“Accordingly, Plaintiff is entitled to a money judgment against Marker 17, in an amount to be determined upon the trial of this action but presently believed [*8] to be more than $1,400,000 plus costs, expenses, pre-judgment interest and consequential damages which have accrued and will continue to accrue during the pendency of this action.”), with id. ¶ 34 (“Accordingly, Plaintiff is entitled to a money judgment against Marker 17, in an amount to be determined upon the trial of this action but presently believed to be more than $1,400,000 plus costs, expenses, pre-judgment interest and consequential damages which have accrued and will continue to accrue during the pendency of this action.”).
Accordingly, the facts underlying Count Three are clearly identical to Max Zach’s [*9] breach of contract claim, and it is therefore dismissed.
IV. CONCLUSION
For the reasons described above, Marker 17’s motion to dismiss (ECF No. 37) is GRANTED. Counts One and Three of the Second Amended Complaint are dismissed with prejudice. Marker 17 shall file an answer as to Count Two within fourteen (14) days of this Order.
End of Document
1 Plaintiff argues that “the statute pursuant to which Marker 17 asserts it statute of limitations argument (C.G.S. § 52-584) is a repose statute which . . . is, as a matter of law, substantive and, therefore, New Jersey’s six (6) year statute of limitations applies[.]” (Pl. Opp. at 5.) This is not entirely accurate. “Interpreting section 52-584, Connecticut courts have drawn a clear distinction between those two periods; the two-year period, or ‘discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered.’ Rosato v. Mascardo, 82 Conn. App. 396, 401, 844 A.2d 893 (2004) (emphasis in original). The three-year period, however, ‘specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose.’ Id. at 402, 844 A.2d 893.” Galea v. L. Offs. of Cary Alan Cliff, No. 3:19-CV-225 (SRU), 2021 WL 1090783, at *8 (D. Conn. Mar. 22, 2021). “For Plaintiff’s state law negligence causes of action, which are governed by Conn. Gen. Stat. § 52-584, “[t]he statute [of limitations] begins to run when the plaintiff discovers some form of actionable harm[.]” McDonald v. Stamford Police Dep’t, No. 3:21-CV-00723 (KAD), 2022 U.S. Dist. LEXIS 84034, 2022 WL 1471249, at *5 (D. Conn. May 10, 2022), aff’d sub nom. McDonald v. Molina, No. 22-1261-CV, 2023 U.S. App. LEXIS 4624, 2023 WL 2229365 (2d Cir. Feb. 27, 2023). In this case, Plaintiff had knowledge of some form of actionable harm when the yacht flipped over on May 6, 2021. Any argument to the contrary is not supported by the allegations in the Second Amended Complaint.
2 Plaintiff’s negligence claim would also be time-barred under New Jersey law. “It is well-settled New Jersey law that a two (2) year statute of limitations applies to causes of action for negligence.” Kowalsky v. Deutsche Bank Nat’l Tr. Co., No. 14-07856 (CCC)(JBC), 2015 WL 5770523, at *5 (D.N.J. Sept. 30, 2015) (citing N.J.S.A. § 2A:14-2(a)).
3 The Court applies New Jersey law to the conversion claim as both parties appear to concede that New Jersey law governs the claim.
4 Plaintiff attempts to distinguish the damages sought in both claims in its opposition, claiming, “The $315,000 converted by Marker 17 derives from Marker 17’s demand that payment under the Contract be made prior to the delivery of the Vessel. Conversely, the Contract called for delivery of the Vessel to Greenwich, Connecticut, prior to payment. The $315,000 demanded prior to delivery and paid by Plaintiff was required to be held in escrow subject to Plaintiff’s receipt of the Vessel.” (Pl. Opp. at 13.) However, the fact regarding escrow was not alleged in the Second Amended Complaint; therefore, this argument cannot be raised for the first time in opposition to a motion to dismiss. See, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (declining to address merits of claim that “does not appear anywhere in the amended complaint and did not enter the case until [the plaintiff] mentioned it for the first time in her opposition memoranda to the motion to dismiss”).
