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March 8, 2004.


The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge

SUMMARY Judgment for Defendant Granting Docket # 35
Before the Court is Defendant's motion to dismiss Plaintiffs' complaint pursuant to Rule 12(c), Federal Rules of Civil Procedure. This Court has jurisdiction under 28 U.S.C. § 1333. The motion came on for hearing on February 25, 2004. Vernon Goins of Taylor & Goins appeared for Plaintiffs. Jeffery Glick of Kipperman & Johns appeared for Defendant. The Court considered the written pleadings and the oral arguments of counsel and hereby Page 2 orders that the motion is granted. Summary judgment is hereby entered for Defendant.

Factual Background

  This case is about freight loss and damage and unpaid freight and storage fees. Plaintiffs ("Capital") contend that they entered into a series of oral and written agreements with Defendant ("Danzas") on March 28, 2000, which required Danzas to ship Capital's property valued at $50,000 from Creutzwald, Belgium to Oakland, California. Capital later claimed that the shipment consisted of business inventory, personal property, and family heirlooms, including a suit of armor, family clothing, children's toys, business records, and a wedding gown. The contract required Danzas to perform all necessary steps to ensure the delivery of the property in its original condition. Added protections entailed inspections, safe-handling procedures, and promptly notifying Capital of any problems, delays, and delivery dates.

  Danzas denies entering into the oral and written agreements alleged in the third amended complaint. Rather, Danzas asserts the only agreement is set forth in the Bill of Lading, which incorporates the Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C. § 1300 et. seq. (Declaration of Phil Rathgeb in Support of Opposition By Danzas to Motion to Remand, Exhibit A). In addition, Danzas contends that it was unaware the cargo contained personal property and heirlooms. Capital declared in the Bill of Lading the contents of the general cargo as follows: a dry container containing firelogs, illumination chargeable garden logs made of wood and paraffin, alimentation for garden logs, special barbeque, firestarter and chimney cleaner containing chimney cleaning powder made of 95% ammonium chlorine, sodium chlorine and copper sulfate.

  On May 10, 2000, Capital received a shipping bill in the amount of $4,616.87, which it argued substantially exceeded Danzas quoted price of $2,240. Danzas admits quoting a general cargo price in the amount of 5,075 French francs, which at the time had an approximate value of $2,240 in United States currency. Danzas insists that the price was Page 3 quoted in francs, not dollars; and it was not responsible for currency fluctuations, which resulted in the price increase.

  Danzas stored Capital's property with a trucking company from May until July 2000. Capital did not pay the bill, and Danzas incurred storage fees in the amount of $4,484.00. The trucking company refused to continue to store the shipment because it believed toxic fumes were emanating from the container. The shipment was moved to Danzas' warehouse.

  In June 2000, Danzas rejected Capital's offer to pay the outstanding bill in monthly installments of $500. Danzas denies this specific allegation but admits only that Capital offered to make payment arrangements which were unacceptable and not within the terms of the contract. In September 2000, Danzas was unable to contact Capital either by telephone or mail and because of the fumes the cargo was destroyed.

  In October 2000, Capital contacted Danzas to set up a payment plan. Danzas however, found this payment plan also unacceptable and informed Capital that it had destroyed the property because it was leaking toxic fumes. Capital claims Danzas offered to accept the $500 installation payment plan originally offered in June 2000.

  Procedural History

  Capital is a California corporation. Danzas is a New York corporation with an office in Brisbane and substantial business in California. Capital filed suit on August 31, 2001, in San Mateo Superior Court for breach of contract. The initial complaint was served on September 12. Capital filed an amendment to the complaint on October 10. On October 18, Capital filed a notice of default and the second amended complaint. On November 5, Capital's request for entry of default was granted in the amount of $326.00 in costs. On February 28, 2002, Capital's request for entry of default judgment was granted in the amount of $53,034.092. On April 18, Capital agreed to set aside the default judgment. In exchange, Danzas accepted service of process for this suit. The state court dismissed the defendant from the complaint on July 17, 2002, for lack of personal jurisdiction. Page 4

  San Mateo Superior Court granted Capital's leave to file a third amended complaint, effective December 16, 2002. Danzas accepted the summons and the complaint. The third amended complaint alleges Danzas breached the contract and the implied covenant of good faith and fair dealing by: demanding a shipping price that substantially exceeded the agreed-upon amount; refusing to deliver Capital's goods; and intentionally destroying Capital's property without providing notice or warning. In addition, the complaint avers that Danzas' efforts to extort monies, refusing to deliver the goods and intentionally destroying Capital's property without providing notice or warning caused Capital to suffer emotional and physical distress. Capital also contends that Danzas failed to deliver the cargo from May through August 2000, and then destroyed it, affecting some of Capital's property. Capital also alleges it suffered severe economic damages as a result of Danzas' failure to exercise due care and skill in the billing, shipping, and handling of business inventory, personal property, and family heirlooms.

  On December 31, 2002, Danzas removed the case from the San Mateo Superior Court to the United States District Court for the Northern District of California alleging federal jurisdiction under the Carriage of Goods by Sea Act ("COGSA.") On January 6, 2003, Danzas filed an answer to the third amended complaint and a counterclaim for the outstanding shipping bill and storage fees it incurred as a result of Capital's failure to pay for the shipment. On January 29, 2003, Capital filed an answer to the counterclaim. On January 30, Capital filed a motion to remand the action to state court for lack of subject matter jurisdiction. Both parties consented to the jurisdiction of a United States Magistrate Judge under 28 U.S.C. § 636(c)). The hearing on the Motion to Remand came on March 12, 2003. Capital's motion to remand was denied.

  Danzas moves to dismiss this action under Federal Rule of Civil Procedure 12(c)) for failure to state a claim for which relief can be granted because the one-year statute of limitations in the ...

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