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
orders that the motion is granted. Summary judgment is hereby
entered for Defendant.
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
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.
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
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 ...