United States District Court, E.D. California
Rang Dong Joint Stock Company, doing business as Rang Dong
Winery, a California Corporation, sues defendants J.F.
Hillebrand USA, Inc., a Delaware Corporation, and Blue Eagle
Consolidation Services, a German business entity, for damage
to cargo carried by sea.Hillebrand moves to dismiss. As
explained below, the court GRANTS in part and DENIES in part
February 2, 2018, Rang Dong Winery contracted with Hillebrand
to ship three containers of Rang Dong Winery's wine to Ho
Chi Minh City, Vietnam. Compl., ECF No. 1, ¶ 9;
see Compl. Ex. A (invoice number 5351801536
confirming Ho Chi Minh City as port of discharge and arrival
date as March 14, 2018). Because Ho Chi Minh City was the
port of discharge, plaintiff alleges “the Cargo should
have been delivered to Cat Lai Port[, ] . . . consistent with
Hillebrand's representations to Rang Dong Winery and also
consistent with prior shipments Rang Dong Winery had made
through Hillebrand.” Compl. ¶ 10. At hearing, the
parties clarified that Cat Lai is a terminal within Ho Chi
Minh City Port. Rang Dong Winery alleges on information and
belief that on February 20, 2018, defendants received Rang
Dong Winery's cargo for carriage under bill of lading
number BQEGUSS096536. Id. ¶ 11; see
Compl. Ex. B (bill of lading). The bill of lading consisted
of only two pages, without any terms or conditions limiting
defendants' liability. Compl. ¶ 11; see Id.
unspecified time, and without notifying Rang Dong Winery, the
cargo's destination was changed to Cai Mep Port.
Id. ¶ 12. Cai Mep is also a terminal within Ho
Chi Minh City, as the parties clarified at hearing. Rang Dong
Winery then contacted Hillebrand, explaining that the cargo
needed to be delivered to Cat Lai Port to clear customs and
would be destroyed if left too long at Cai Mep Port because
of “the heat in Vietnam.” Id. On March
22, 2018, Hillebrand agreed to move the cargo to Cat Lai
Port, stating it would “move the cargo to the correct
terminal Cat Lai. [Hillebrand] ha[s] received all amended
docs this morning and informed [its] overseas office of the
correction.” Id. ¶ 13. The cargo then
remained at Cai Mep Port for eight days before being moved to
Cat Lai Port on March 30, 2018. Id. When the cargo
arrived at Cai Lai Port, it “was extensively damaged
due to the delay and geographic deviation caused by
Defendants.” Id. ¶ 14. Rang Dong Winery
alleges it suffered more than $500, 000 in damages.
Id. ¶ 17.
Dong Winery sued Hillebrand and Blue Eagle on December 12,
2018, alleging damages under the Carriage of Goods by Sea
Act, false bill of lading, deviation and breach of fiduciary
duty. Compl., ECF No. 1. Hillebrand now moves to dismiss.
Mot., ECF No. 11. Rang Dong Winery opposes, Opp'n, ECF
No. 13,  and Hillebrand filed a reply, Reply, ECF
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party may move to dismiss a complaint for “failure to
state a claim upon which relief can be granted.” A
court may dismiss “based on the lack of cognizable
legal theory or the absence of sufficient facts alleged under
a cognizable legal theory.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
a complaint need contain only “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), in order to survive
a motion to dismiss this short and plain statement
“must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A complaint must include something
more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation” or
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action.'” Id. (quoting Twombly,
550 U.S. at 555). Determining whether a complaint will
survive a motion to dismiss for failure to state a claim is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. Ultimately, the inquiry
focuses on the interplay between the factual allegations of
the complaint and the dispositive issues of law in the
action. See Hishon v. King & Spalding, 467 U.S.
69, 73 (1984).
making this context-specific evaluation, this court must
construe the complaint in the light most favorable to the
plaintiff and accept as true the factual allegations of the
complaint. Erickson v. Pardus, 551 U.S. 89, 93-94
(2007). This rule does not apply to “‘a legal
conclusion couched as a factual allegation, '”
Papasan v. Allain, 478 U.S. 265, 286 (1986)
quoted in Twombly, 550 U.S. at 555, nor to
“allegations that contradict matters properly subject
to judicial notice” or to material attached to or
incorporated by reference into the complaint. Sprewell v.
Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir.
2001). A court's consideration of documents attached to a
complaint or incorporated by reference or matter of judicial
notice will not convert a motion to dismiss into a motion for
summary judgment. United States v. Ritchie, 342 F.3d
903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995);
compare Van Buskirk v. Cable News Network, Inc., 284
F.3d 977, 980 (9th Cir. 2002) (noting that even though court
may look beyond pleadings on motion to dismiss, generally
court is limited to face of the complaint on 12(b)(6)
Whether Hillebrand is a Carrier under the Carriage of
Goods by Sea Act
argues Rang Dong Winery has not alleged Hillebrand is a
carrier subject to liability under the Carriage of Goods by
Sea Act (“COGSA”), 46 U.S.C. § 30701, Note
§ 1(a), and Rang Dong Winery's first, second and
third claims should therefore be dismissed. Mot. at 10.
Specifically, Hillebrand argues that Rang Dong Winery
“does not allege any facts that Hillebrand acted as a
carrier in this case” and the complaint's
“Exhibit B . . . clearly shows that Blue Eagle issued
the Bill of Lading contract and acted as the carrier”
while “Hillebrand was simply an agent for Blue Eagle in
issuing the Bill of Lading.” Id. at 11. At
hearing, Hillebrand argued the bill of lading is dispositive
as to this issue.
Dong Winery contends it has sufficiently alleged Hillebrand
is a carrier in alleging Rang Dong Winery “contracted
with Hillebrand to ship the Cargo, ” and argues any
further inquiry is inappropriate at the pleading stage.
Opp'n at 7; but see Dimond Rigging Co., LLC v. BDP
Int'l, Inc., 914 F.3d 435, 443-46 (6th Cir. 2019)
(resolving whether party was carrier under COGSA in motion to
dismiss). Rang Dong Winery also argues that, in any event,
COGSA defines “carrier” as “the owner,
manager, charterer, agent, or master of a vessel, ” and
thus includes Hillebrand acting as an agent here. Opp'n
at 7 (emphasis omitted) (quoting 46 U.S.C. § 30701).
Hillebrand responds that Rang Dong Winery mistakenly relies
on the Harter Act's definition of carrier rather than the
COGSA's definition. Reply at 6 (arguing “§
30701 is the Harter Act, not COGSA. The actual definition of
a carrier under COGSA is found in the Note to 46 U.S.C.
§ 30701 . . . .”); see 46 U.S.C. §
30701, Note § 1(a) (definition in note following §
30701, reading, “[t]he term ‘carrier'
includes the owner or the charterer who enters into a
contract of carriage with a shipper”).
the applicable definition of “carrier” under the
COGSA, the parties' divergent opinions are understandable
in light of the available authority, which reflects a range
of positions. A Third Circuit opinion supports
Hillebrand's position, though that panel did not
specifically address COGSA's definition of
“carrier.” See Liberty Woods ...