United States District Court, E.D. New York
Spector Rubin, P.A. Attorneys for the Plaintiff By: Andrew R.
Spector, Esq., of Counsel.
W. Wright & Associates, LLC Attorneys for the Defendants
By: George W. Wright, of Counsel.
MEMORANDUM OF DECISION AND ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE
Plaintiff JAS Forwarding (USA), Inc. (the
“Plaintiff”) brought this action against the
Defendants Owens Truckmen, Inc. (“OTI”) and Owens
Logistics Group, LLC (“OLG”) (collectively, the
“Defendants”) alleging fraudulent
misrepresentation, breach of contract, and, in the
alternative, breach of statutory duties under the ICC
Termination Act of 1995, the Carmack Amendment, 49
U.S.C.§ 14706 et seq. The Plaintiff only seeks
damages in the amount of $15, 000.
before the Court are two motions: a motion by OLG to vacate
the Clerk's entry of default pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.” or
“Rule”) 55(c), and a motion by OTI to dismiss the
fraudulent misrepresentation count pursuant to Rule 12(b)(6).
For the following reasons, OLG's motion to vacate the
entry of default is granted, and OTI's motion to dismiss
The Relevant Procedural Background
15, 2017, the Plaintiff filed its complaint in the Supreme
Court of the State of New York, Nassau County. The complaint
alleged two causes of action-for fraudulent
misrepresentation, and breach of contract. In the
alternative, the complaint alleged a cause of action for
breach of statutory duties under the ICC Termination Act of
1995, the Carmack Amendment, 49 U.S.C. § 14706 et
14, 2017, OTI removed the action on the ground that the Court
has jurisdiction over a federal question; namely, whether the
Defendants violated the Carmack Amendment.
19, 2017, OTI filed a motion pursuant to Rule 12(b)(6) to
dismiss the Plaintiff's claim for fraudulent
misrepresentation against it.
28, 2017, the Plaintiff requested a certificate of default
against OLG. The Clerk of the Court noted the default of OLG
on the same day.
September 21, 2017, OLG moved to vacate the Clerk's entry
The Relevant Facts
following facts are drawn from the Plaintiff's complaint,
and for the purposes of OTI's motion to dismiss pursuant
to Rule 12(b)(6), are accepted as true.
Plaintiff is a Georgia corporation. It is not clear from the
face of the complaint in what type of business the Plaintiff
engages. OTI and OLG are New York corporations. Both of the
Defendants appear to engage in trucking services, and the
complaint alleges that the Defendants are carriers as defined
by the Carmack Amendment, or they held themselves out to be
the complaint does not state when, the Plaintiff retained OTI
to unpack, store, and ship cargo containing mascara (the
“cargo”). The complaint does not state if this
was a onetime agreement, or if it was an ongoing
point, which is not clear from the face of the complaint, the
cargo arrived in the Port of New Jersey. The complaint
alleges that OTI received the cargo, and brought it to its
warehouse for delivery to Howell, Michigan. Again, the
complaint does not state any dates for these events.
pickup order, which was sent from the Plaintiff to OTI,
stated that the cargo consisted of 21 pallets. When the cargo
was delivered to Michigan, “it was discovered”
that three pallets were missing. The three pallets amounted
to 23, 328 sets of mascara. The complaint does not state when
the cargo arrived, or who “discovered” that the
three pallets were missing.
complaint alleges that OTI did not make any exceptions to the
quantity of cargo that it had received, nor did it notify the
Plaintiff that it had received fewer pallets than the number
indicated on the pickup order.
Plaintiff's customer, who presumably ordered the missing
mascara, made a claim against the Plaintiff for $21, 788.35.
Through a series of emails, OTI allegedly stated that they
would, through insurance, reimburse the Plaintiff for the
missing pallets. The Plaintiff claims that it relied on these
representations from OTI when it paid the customer who made
the claim against it. On February 15, 2017, which is the only
date detailed in the complaint, OTI allegedly told the
Plaintiff that “[w]e will have our insurance take care
OTI apparently later stated that it never agreed to reimburse
Plaintiff was informed, on some date, that OTI did not
perform the services at issue for the Plaintiff, but that OLG
had done so instead, and that OLG did not have insurance for
the Plaintiff's claim. The Plaintiff alleges that OTI has
stated that OLG is a “motor broker only, and not a
carrier, and, therefore, has no responsibility for any cargo
loss.” (Compl. ¶ 27). The Plaintiff states that it
always communicated with OTI, and that all documents provided
to the Plaintiff ...