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Fireman's Fund Insurance Company A/S/O Michael Skurnik Wines, Inc v. Amc Usa

August 13, 2012

FIREMAN'S FUND INSURANCE COMPANY A/S/O MICHAEL SKURNIK WINES, INC., PLAINTIFF,
v.
AMC USA, INC.,
DEFENDANT.



The opinion of the court was delivered by: J. Paul Oetken, District Judge:

MEMORANDUM AND ORDER

Plaintiff Fireman's Fund Insurance Company, as subrogee of Michael Skurnik Wines, Inc. ("MSW"), brings this action against Defendant AMC USA, Inc. ("AMC") for breach of fiduciary duty, fraud, negligence, breach of contract, and account stated in connection with damage to and loss of a shipment of wine from Spain to the United States. AMC moves to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the first three claims are time-barred under relevant contracts and under the Carriage of Goods by Sea Act, Pub. L. 16 No. 74-521, 49 Stat. 1207 (1936), reprinted in note following 46 U.S.C. § 30701 (previously codified at 46 U.S.C. App. §§ 1301 et seq.) ("COGSA"), and that, once those claims are dismissed, the Court no longer has jurisdiction over the fourth and fifth claims because they do not meet the amount-in-controversy requirement of the diversity jurisdiction statute, 28 U.S.C. § 1332(a)(2). AMC also argues that the fraud claim must be dismissed for failure to meet the heightened pleading requirements for fraud claims set forth in Rule 9(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, AMC's motion to dismiss is denied.

I. Background

A. Facts

The following facts are drawn from the allegations in the Amended Complaint, which are presumed true for the purpose of this motion, as well as from documents that are incorporated in and integral to the Complaint.

Plaintiff is an insurance company incorporated and with a principal place of business in California.

MSW was, at all times relevant to this case, an importer, distributor and seller of wines, and was the purchaser, owner, and intended consignee of the shipment at issue in the case.

Defendant AMC is a New Jersey corporation with its principal place of business in New York that was "engaged in the business of providing transportation and logistics services, including freight forwarder services, related to the arrangement, organization, and provision of transportation for wine shipments between Spain and the United States." (Amended Complaint, Dkt. No. 15, ("Am. Comp.") ¶ 5.)*fn1

In or about October 2009, AMC contracted with MSW to provide freight forwarding services for a shipment of 1,236 cases of Spanish wine purchased by MSW, and insured by Plaintiff. AMC was responsible for arranging and organizing the pick-up of the individual consignments of wine in various quantities from suppliers in Spain, for organizing the road-carriage of the wine to a consolidation facility at or near Barcelona, Spain, and for arranging and organizing the consolidation, storage, and sake-keeping of the individual consignments pending the intended ocean transportation to New York scheduled to commence on or about November 10, 2009.

AMC subcontracted these duties to Barnatrans, S.A. ("Barnatrans"), which is believed to be a Spanish freight forwarder and/or forwarding agent. Unbeknownst to MSW, AMC was allegedly indebted to Barnatrans under prior agreements pertaining to unrelated transactions in an amount totaling roughly €300,000.

After arranging for the collection of the 1,236 cases of wine, Barnatrans effected a seizure of the shipment and refused to allow it to be released from a third-party warehouse to the vessel that was to bring the shipment to the United States. AMC allegedly withheld information from MSW regarding this seizure. The seizure of the wine lasted from November 2009 until on or about June 1, 2010. During the seizure, the wine was allegedly held in unsecure and improper storage conditions and was exposed to extremes of temperature.

On June 1, 2010, when an inventory was performed by AMC, it was discovered that 245 cases were missing. The remaining 991 cases were shipped to New York in or about August 2010.

The parties executed bills of lading for the shipment of the 991 cases, which were divided into seven different shipments. These bills of lading are dated July 20, 2010. Each of these bills of lading contained identical terms and conditions, including a "Clause Paramount" that "All carriage under this Bill of Lading to or from the United States shall have effect subject to the provisions of [COGSA]. . . . [and] said law shall govern before the goods are loaded on and after they are discharged from the vessel whether the goods are carried on deck or under deck and throughout the entire time the goods are in the custody of the carrier." (Jacobs Dec. Ex. C at 2.) The bills of lading also set a time bar for lawsuits, providing that the carrier "shall be discharged from all liability for loss of or damage to goods unless suit is brought within one (1) year after delivery of the goods or the date when the goods should have been delivered." (Id.)

After the goods arrived in or about August 2010, a wine expert sampled the wine and concluded that the wines were "compromised" and "unfit for intended sale." (Am. Comp. ΒΆ 29.) These cases were ...


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