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Nymetindustrial Solutions, Inc v. Maersk

May 24, 2011

NYMETINDUSTRIAL SOLUTIONS, INC., PLAINTIFF,
v.
MAERSK, INC. DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Pending before the Court is Defendant's motion to dismiss, or, in the alternative, for judgment on the pleadings. For the following reasons, the Court construes Defendant's motion as a Fed. R. Civ. P. 12(c) motion seeking judgment on the pleadings. Having so construed Defendant's motion, the Court hereby GRANTS it.

BACKGROUND

Plaintiff NYMET Industrial Solutions, Inc. ("NYMET") filed this admiralty action against defendant Maersk, Inc. ("Maersk") on June 9, 2010 to recover alleged damages to a cargo of steel scrap shipped from Caucedo, Dominican Republic to Kandla, India. NYMET alleges that on March 13, 2009, it learned thatMaersk had not delivered the shipment and that such failure constituted a breach of its contract of carriage with Maersk. NYMET also alleges that Maersk, when it accepted its shipment, became a bailee for the steel scrap, and that Maersk's failure to deliver the materials breached the two parties' contract for bailment.

Maersk, as agent for the carrier A.P. Moller-Maersk A/S, has moved under Fed. R. Civ P. 12(b)(3) or (c) arguing that: (1) it is not a proper party to the Complaint; and (2) seeks to enforce the forum selection clause stated in the bill of lading.

DISCUSSION I. Standard for Motion to Dismiss

Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(3) for improper venue is untimely. Defendant filed its answer to Plaintiff's Amended Complaint on October 22, 2010. Defendant's motion was filed on February 9, 2011. By answering first, Defendant waived its right to seek dismissal under Rule 12(b). See Rule 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed").

Rather, as the pleadings are closed, the Court construes Defendant's motion as seeking a judgment on the pleadings under Rule 12(c). When reviewing such a motion, the court applies the same standard it would for a Rule 12(b)(6) motion. New York Marine & Gen. Ins. Co. v. M/V Admiralengracht, 97-CV-7402, 1999 U.S. Dist LEXIS 6152, at *2 (S.D.N.Y. 1999) (citation omitted). Accordingly, the Court applies the familiar "plausibility standard" set forth in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). In undertaking the review, the court may consider the bill of lading, and its forum selection clause, because this document is "referred to, incorporated in, and integral to" Plaintiff's Complaint. Federal Ins. Co. v. M/V Ville D'Aquarius, 08-CV-8997, 2009 WL 3398266, at *4 (S.D.N.Y. Oct. 20, 2009).

II. The Forum Selection Clause is Valid and Enforceable

A. Forum Selection Clause in Clause 26 Controls

Bills of lading "bind the shipper and all . . . carriers," and "[e]ach term has in effect the force of statute of which all effected must take notice." Calchem Corp. v. Activsea USA LLC, 06-CV-1585, 2007 U.S. Dist LEXIS 53904, at *12 n. 11 (E.D.N.Y 2007) (quoting Southern Pacific Transportation Co. v. Commercials Metals, 456 U.S. 336, 342-43 (1982)).

The bill of lading at issue between NYMET and Maersk contains two forum selection clauses. The relevant language is as follows:

6.2(d). If the loss or damage is known to have occurred during Carriage inland in the USA, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or, in the absence of such a contract or tariff by the provisions of Clause ...


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