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April 24, 1998


The opinion of the court was delivered by: JOHNSON


 JOHNSON, District Judge:

 DiPaolo Machine Works, Ltd. ("Plaintiff" or "DiPaolo") filed suit in this diversity action pursuant to 28 U.S.C. § 1332 against Prestige Equipment Corporation ("Defendant" or "Prestige") for breach of contract and negligence for failing to properly arrange and provide for the transport of Plaintiff's boring mill from Monterrey, Mexico to Mississauga, Ontario. (Complaint PP 16, 19). Presently before this Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated herein, Defendant's motion is granted.


 DiPaolo is a corporation organized and existing under the laws of the Province of Ontario, Canada. (Complaint P 1). Defendant Prestige is a New York corporation that does business in Texas. (Complaint P 2). On or about June 30, 1993, Plaintiff agreed to purchase a used boring mill from Prestige to be shipped and delivered from Monterrey, Mexico to Ontario, Canada. (Complaint P 10). Prestige's Invoice No. 11066 described the terms of the agreement and stated "F.O.B. Houston, Texas." (Appendix 3 to Def's Motion to Dismiss).

 The boring mill was transported overland from Mexico to Canada via the United States. Trism Specialized Carriers was responsible for the transport of the boring mill from Monterrey, Mexico to Houston, Texas and then from Houston, Texas to Mississauga, Canada. (Complaint P 14). In Houston, the boring mill was unloaded by another party and stored in a warehouse. (Pl's Memo at 3). While the mill remained in storage, Prestige, after consulting with Plaintiff, made arrangements with Trism on behalf of Plaintiff to have Trism transport the mill from Texas to Canada. (Id.). Upon the arrival of the shipments to Mississauga on or about July 24, 1993, Plaintiff discovered that the boring mill had been damaged. (Complaint P 15).

 Plaintiff commenced two prior actions against Defendant and other parties, one in Texas and another in Canada. (Def's Motion to Dismiss). The Texas action was voluntarily discontinued, and the Canadian action was dismissed on forum non conveniens grounds. Thereafter, on June 27, 1996, Plaintiff filed a complaint with this Court.

 I. 12(b)(6) Motion

 The Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. All that is required is "a short plain statement of the claim" giving notice of the nature of the claim and the grounds upon which it rests. Leatherman v. Tarrant County Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); Fed.R.Civ.P. 8(a)(2). When considering a defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept as true factual allegations in the complaint and construe all reasonable inferences in the plaintiff's favor. Leatherman, 507 U.S. at 164; Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994), cert. denied, 513 U.S. 836, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). The complaint should be dismissed only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). A motion to dismiss for failure to state a claim upon which relief can be granted is addressed to the face of the pleading which, for the purpose of the motion, is deemed to include any document attached to it as an exhibit or any other document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059, 1065-1066 (2d Cir. 1985).

 II. Negligence Claim

 A federal court sitting in diversity must apply the substantive law of the forum, including the conflicts of law rules of the forum. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938); Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941) (state's conflicts of law rules is part of substantive law of the state). In New York, the statute of limitations is considered procedural. See Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583, 588, 403 N.Y.S.2d 185, 374 N.E.2d 97 (1978); Elghanayan v. Elghanayan, 190 A.D.2d 449, 598 N.Y.S.2d 524, 527 (1st Dept. 1993). Thus, New York's applicable statute of limitations and borrowing statute applies to DiPaolo's negligence cause of action.

 New York's borrowing statute provides that if a cause of action accrued outside of New York state, the defendant is amenable to suit in the state where the cause of action accrued, and that state has a shorter statute of limitations than New York, then the shorter statute of limitations will apply, notwithstanding the fact that the action was commenced in New York. *fn1" See Callazo v. American Airlines, Inc., 919 F. Supp. 110, 112 (E.D.N.Y. 1996). The borrowing statute was primarily intended to prevent forum shopping by non-resident plaintiffs, as well as to afford resident defendants the benefit of the shortest limitations period. Besser v. E.R. Squibb & Sons, Inc., 146 A.D.2d 107, 539 N.Y.S.2d 734, 737 (1st Dept. 1989). See also Stafford v. International Harvester Co., 668 F.2d 142, 151 (2d Cir. 1981); Martin, 43 N.Y.2d at 588 (borrowing statutes adopted to temper rigid application of statute of limitations of forum state by allowing the application of the limitations law of state where action accrued if doing so would bar plaintiff's cause of action).

 The question of where a cause of action accrued for purposes of New York's borrowing statute has been the subject of considerable debate in judicial opinions and implicates an unsettled area of New York law. Courts have grappled with whether the accrual of a cause of action under the borrowing statute should be determined by the "grouping of contacts"/interests analysis approach or by the "place of injury" approach. See Martin, 43 N.Y.2d at 591 (although ostensibly relying on the "place of injury" test, court looked to "jurisdiction that had the greater interest in the litigation"); Braune v. Abbott Laboratories, 895 F. Supp. 530, 558 (E.D.N.Y. 1995)("dubitantly" applying the "place of injury" test after recognizing the conflict between the two tests); Maslan v. American Airlines, 885 F. Supp. ...

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