Opinion
Case Number: 21-20586-CIV-MARTINEZ
2022-02-28
CHUBB SEGUROS CHILE S.A., Plaintiff, v. FREIGHT LOGISTICS INTERNATIONAL LLC d/b/a Rhenus Freight Logistics, et al., Defendants. Rhenus Logistics LLC and Rhenus Warehousing Solutions Mia LLC, Third-Party Plaintiffs, v. Evolution Logistics Corp., et al., Third-Party Defendants.
David Y. Loh, Pro Hac Vice, Nicholas E. Pantelopoulos, KMA Zuckert, LLC, Coral Gables, FL, for Plaintiff. Robert Mark Borak, Marc Alan Rubin, Spector Rubin, P.A., Miami, FL, for Defendants/Third-Party Plaintiffs Freight Logistics International LLC, Rhenus Freight Logistics. Marlin Kareem Green, Brown Sims, PC, Miami, FL, Cody Lane Frank, Brown Sims, Coral Gables, FL, for Third-Party Defendants Logicalis Uruguay S.A., PLLAL International, LLC, Logicalis Andina Bolivia Lab Ltda. TDA., Logicalis Argentina S.A., Logicalis Mexico S. De Rl De Cv. Marlin Kareem Green, Brown Sims, PC, Miami, FL, for Third-Party Defendants Logicalis Chile S.A., Logicalis Colombia S.A.S., C2 Mining Solutions S.A.C. Bruce David Green, Fort Lauderdale, FL, Robert G. Rothstein, Pro Hac Vice, Seaton & Husk L.P., Vienna, VA, for Third-Party Defendant Griffin and Pierce, Inc.
David Y. Loh, Pro Hac Vice, Nicholas E. Pantelopoulos, KMA Zuckert, LLC, Coral Gables, FL, for Plaintiff.
Robert Mark Borak, Marc Alan Rubin, Spector Rubin, P.A., Miami, FL, for Defendants/Third-Party Plaintiffs Freight Logistics International LLC, Rhenus Freight Logistics.
Marlin Kareem Green, Brown Sims, PC, Miami, FL, Cody Lane Frank, Brown Sims, Coral Gables, FL, for Third-Party Defendants Logicalis Uruguay S.A., PLLAL International, LLC, Logicalis Andina Bolivia Lab Ltda. TDA., Logicalis Argentina S.A., Logicalis Mexico S. De Rl De Cv.
Marlin Kareem Green, Brown Sims, PC, Miami, FL, for Third-Party Defendants Logicalis Chile S.A., Logicalis Colombia S.A.S., C2 Mining Solutions S.A.C.
Bruce David Green, Fort Lauderdale, FL, Robert G. Rothstein, Pro Hac Vice, Seaton & Husk L.P., Vienna, VA, for Third-Party Defendant Griffin and Pierce, Inc.
ORDER GRANTING DEFENDANT EVOLUTION LOGISTICS CORPORATION'S MOTION TO DISMISS
JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before this Court upon Defendant Evolution Logistics Corporation's ("Evolution") Motion to Dismiss (the "Motion"), (ECF No. 5). This Court has carefully reviewed the Motion and pertinent portions of the record and is otherwise fully advised as to the premises. Accordingly, for the reasons set forth herein, the Motion, (ECF No. 5), is GRANTED.
I. BRIEF FACTUAL BACKGROUND
In or around August 2020, NTT Chile S.A., a Chilean business entity, purchased a shipment of electronic equipment from Cisco Systems, Inc. (the "Cargo"). NTT Chile S.A. hired Defendants Freight Logistics International LLC d/b/a Rhenus Freight Logistics (or Rhenus Freight Logistics LLC) to transport the Cargo from Huston, Texas, to Miami, Florida. While en route to Miami, the trailer in which the Cargo was transported caught fire in or around Channelview, Texas. The fire destroyed the Cargo, so NTT Chile S.A. never received it. Plaintiff Chubb Seguros Chile S.A. ("Chubb") ultimately paid for NTT Chile S.A.’s loss and filed this action against Defendants Freight Logistics International LLC, Rhenus Freight Logistics, Evolution, and Ramp Logistic Inc. (collectively, "Defendants") as NTT Chile S.A.’s subrogee.
In its forty-two paragraph Complaint, Chubb brings five causes of action against all Defendants: breach of contract of common carriage (Count I); (2) negligence (Count II); (3) gross negligence (Count III); (4) breach of bailment (Count IV), and (5) breach of contract (Count V). Evolution now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because Chubb (1) "fails to identify any contract to which both [Chubb] and Evolution are parties[,]" (Def.’s Mot. Dismiss 1, 4, ECF No. 5); (2) does not sufficiently plead that Evolution is a "carrier" pursuant to Title 49, United States Code, section 13102(3), (id. at 4–6); (3) cannot sufficiently plead that Evolution breached any duty it allegedly owed to Chubb, (id. at 6–7); and (4) does not sufficiently plead that Evolution ever had possession of the Cargo, (id. at 8). The Court addresses Evolution's motion by Count.
II. LEGAL STANDARD
A complaint may only survive a motion to dismiss under Rule 12(b)(6) if it contains "sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and the exhibits attached thereto, including "documents referred to in the complaint that are central to the claim." See Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (11th Cir. 2009) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam)). When ruling on a motion to dismiss, a court "must accept the well pleaded facts as true and resolve them in the light most favorable to the plaintiff." St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am. , 795 F.2d 948, 954 (11th Cir. 1986). Courts, nevertheless, "are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (citing Briscoe v. LaHue , 663 F.2d 713, 723 (7th Cir. 1981) ). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (cleaned up).
III. DISCUSSION
This Court addresses the Motion as it relates to each count sequentially by count.
A. Count I: Breach of Contract of Common Carriage
Evolution first argues that Chubb failed to sufficiently plead that Evolution was a "carrier," and therefore, Chubb cannot state a cause of action for breach of common carriage contract. (Def.’s Mot. Dismiss 4–6, ECF No. 5.) Chubb argues in opposition that it does sufficiently plead that Evolution is a carrier and that the question whether it is a carrier is a contested material fact that precludes this Court from dismissing Count I. (Pl.’s Resp. Opp. Def.’s Mot. Dismiss 1–2, 5, ECF No. 10.)
Title 49, section 14706, United States Code states that a "carrier and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 or 105 are liable to the person entitled to recover under the receipt or bill of lading." 49 U.S.C. § 14706(a)(1) (emphasis added). Hence, carriers are liable "for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States ...." Id. Title 49, United States Code, defines "carrier" to mean "a motor carrier, a water carrier, and a freight forwarder." 49 U.S.C. § 13102(3). Pertinent to this discussion, a "motor carrier" is a "person providing motor vehicle transportation for compensation." Id. § 13102(15) ; see also Essex Ins. v. Barrett Moving Storage, Inc. , 885 F.3d 1292, 1298 (11th Cir. 2018) ("The Carmack Amendment, a part of the Interstate Commerce Act ... makes all motor carriers ‘who receive[ ], deliver[ ], or provide[ ] transportation or service’ during a shipment strictly liable to the shipper for ‘the actual loss or injury to the property,’ regardless of which carrier had possession of the shipment at the time it was lost or damaged." (citing § 14706(a)(1) )).
Here, Chubb alleges that Evolution is "a corporation or other business entity organized under the laws of Florida with a principal place of business located at 9800 NW 100 Road, Suite #1, Medley, FL 33178." (Compl. ¶ 7, ECF No. 1.) Thereafter, and much more generally, Chubb alleges that "Defendants, at all times hereinafter alleged, were intermodal common carriers engaged in transportation pursuant to various federal statutes governing the international, interstate and intrastate carriage of goods." (Id. ¶ 16.) Chubb also alleges that "[a]t and during all times hereinafter mentioned, defendants had and now have the legal status and offices and places of business stated above, and were and now are engaged as warehousemen, bailees, or common carriers of merchandise for hired [sic]." (Id. ¶ 17.) That is to the extent that Chubb alleges that Evolution is a "carrier" that could, potentially, be subject to liability under section 14706.
Moreover, Chubb alleges that Evolution (1) was instructed by Defendant Freight Logistics International LLC or Rhenus Logistics LLC to carry the Cargo from Huston to Miami, and (2) subcontracted its responsibility for carrying the Cargo to Defendant Ramp Logistic Inc. (Id. ¶¶ 11–12.) As Evolution suggests, Chubb does not provide more than conclusory allegations that Evolution was a carrier and that it is liable under the section 14706 as a "receiving carrier," "delivering carrier," or "another carrier over whose line or route the property is transported in the United States ...." § 14706. Evolution correctly argues that Chubb "does not identify [under] which contract of common carriage it is pursuing" its claims as the only bill of lading alluded to in the Complaint is bill of lading number 189955, dated August 12, 2020. (Compl. ¶ 10, ECF No. 1.)
Under the Carmack Amendment, the question whether Evolution was a "motor carrier" is determinative of whether it is strictly liable to Chubb, as NTT Chile S.A.’s (the shipper) subrogee. See Essex Ins. , 885 F.3d at 1299 ("[An alleged carrier's] liability under the Carmack Amendment's strict liability provision turns on [whether the alleged carrier was a ‘motor carrier’]. If [the alleged carrier] was a ‘motor carrier,’ the Carmack Amendment applies ... and [the alleged carrier] is strictly liable ...."). To satisfy its pleading requirements, Chubb need only have pleaded "factual content that allows the court to draw the reasonable inference that [Evolution] is liable for the misconduct alleged." See Iqbal , 556 U.S. at 663, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). To this Court, Chubb's bare assertions of fact outlined in the Complaint are insufficient to state a cause of action for breach of carriage contract against Evolution. Without providing this Court with factual allegations that Evolution, specifically (and all Defendants for that matter), was actually a person that provided motor vehicle transportation for hire in connection with the Cargo, this Court cannot say that Chubb met its burden to state a claim to relief that is "plausible on its face ...." Id. at 663, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Instead, the Complaint contains mere conclusory allegations that this Court cannot take as true. See, e.g. , McCullough v. Finley , 907 F.3d 1324, 1333 (11th Cir. 2018) ("We identify conclusory allegations and then discard them—not ‘on the ground that they are unrealistic or nonsensical’ but because their conclusory nature ‘disentitles them to the presumption of truth.’ " (quoting Iqbal , 556 U.S. at 681, 129 S.Ct. 1937 )).
Absent the conclusory allegations that Evolution is a "carrier" subject to liability under the Carmack Amendment, Chubb cannot state a cause of action against Evolution under the Complaint's Count I for breach of common carriage contract. See Essex Ins. , 885 F.3d at 1299. Therefore, Count I of the Complaint as to Evolution is dismissed.
B. Counts II and III: Negligence and Gross Negligence
Having found that Chubb failed to sufficiently plead that Evolution is a "carrier" subject to the Carmack Amendment, this Court turns to whether Chubb sufficiently stated causes of action for negligence and gross negligence against Evolution in Counts II and III, respectively. At the outset, this Court notes that the Complaint contains no allegations that Evolution is anything other than an "intermodal common carrier[ ] engaged in transportation pursuant to various federal statutes governing the international, interstate carriage of goods." (Compl. ¶ 16, ECF No. 1.)
Under Florida law, "[a] negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff." Encarnacion v. Lifemark Hosps. of Fla. , 211 So. 3d 275, 277–78 (Fla. 3d DCA 2017) (citing Wilson-Greene v. City of Mia. , 208 So. 3d 1271, 1274 (Fla. 3d DCA 2017) ). Likewise, to state a cause of action for gross negligence, a plaintiff must allege
(1) the existence of a composite of circumstances which, together, constitute an imminent or clear and present danger amounting to more than the normal and usual peril; (2) a showing of chargeable knowledge or awareness of the imminent danger; and (3) an act of omission occurring in a manner which evinces a conscious disregard of the consequences.
Cortes v. Honeywell Bldg. Sols. SES Corp. , 37 F. Supp. 3d 1260, 1270 (S.D. Fla. 2014) (first citing Deutsche Bank Nat'l Tr. Co. v. Foxx , 971 F. Supp. 2d 1106, 1117 (M.D. Fla. 2013) ; and then citing Kline v. Rubio , 652 So. 2d 964, 965 (Fla. 3d DCA 1995) ). Of course, the first element of either a negligence or gross negligence claim in Florida is "a legal duty owed by [a] defendant to [the] plaintiff." Lamm v. State Street Bank & Tr. , 749 F.3d 938, 947 (11th Cir. 2014) (alterations in original) (quoting Estate of Rotell ex rel. Rotell v. Kuehnle , 38 So. 3d 783, 789 (Fla. 2d DCA 2010) ). "Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others." McCain v. Fla. Power Corp. , 593 So. 2d 500, 503 (Fla. 1992). Of course, a legal duty may also arise by statute. Id. at 503 n.2.
Absent the conclusory allegations that Evolution is a "carrier" under the Carmack Amendment, the allegations in Counts II and III related to Evolutions alleged negligence or gross negligence are, at most, sparse. Related first to negligence, Chubb alleges that all "defendants[,] their agents, servants and employees conducted themselves during the custody, control, handling, transportation and care of the Cargo in a negligent manner and in such a way as to be oblivious to [Chubb's] rights." (Compl. ¶ 27, ECF No. 1.) Chubb also alleges that "defendants’ willful negligence and improper conduct with respect to the custody, control handling, transportation and care of the Cargo resulted in its loss, damage and deterioration." (Id. ¶ 28.)
Evolution argues that dismissal is warranted as to Counts II and III because Chubb did not sufficiently plead that Evolution owed any legal duty to NTT Chile S.A. and thus Chubb as its subrogee. (Def.’s Mot. Dismiss, 6–8, ECF No. 5.) Chubb argues in opposition that Evolution owed Chubb a duty because it was a carrier under the Carmack Agreement. (Pl.’s Resp. Opp. Def.’s Mot. Dismiss 12, ECF No. 10.) Both Chubb and Evolution cite to Chatelaine, Inc. v. Twin Modal, Inc. , 737 F. Supp. 2d 638 (N.D. Tex. 2010) to support their respective positions. In Chatelaine , ruling on a motion to dismiss for failure to state a claim, the Northern District of Texas found that the Carmack Amendment did not bar the plaintiff's state law claims against the defendant. Id. at 638. Notably different than here, however, were the allegations in the plaintiff's complaint there; in Chatelaine , the plaintiff alleged first that the defendant was a "broker, or alternatively ... a carrier ...." Id. at 639. Here, Chubb merely alleges that Evolution (and Defendants without specificity) was and is an "intermodal common carrier[ ] engaged in transportation pursuant to various federal statutes governing the international, interstate and intrastate carriage of goods." (Compl. ¶ 16, ECF No. 1.)
This Court notes that, in opposition to the Motion, Chubb argues that, even if Evolution is not a "carrier" liable under the Carmack Amendment and "is found to have acted as a broker with respect to [the Cargo], which is denied, [Chubb] is nevertheless entitled to pursue common law causes of action such as negligence or gross negligence [against Evolution]." (Pl.’s Resp. Opp. Def.’s Mot. Dismiss 14, ECF No. 10.) But this alternative argument is absent from the Complaint. (See generally Compl., ECF No. 1.) Instead, Chubb couches the entire complaint on Evolution's status as a "carrier" under the Carmack Amendment; absent well-pleaded allegations that Evolution is a carrier under the Carmack Amendment or a Broker or had, itself, carried, handled, moved, or even touched the Cargo, Chubb fails to state causes of action for negligence and gross negligence.
Therefore, this Court finds that, absent well-pleaded allegations that Evolution owed Chubb, as NTT Chile S.A.’s subrogee, any legal duty, the Complaint's Counts II and III against Evolution are due to be dismissed.
C. Count IV: Breach of Bailment
Having found that Chubb failed to sufficiently plead that Evolution is a "carrier" subject to the Carmack Amendment and that Chubb failed to sufficiently plead a cause of action for negligence and gross negligence this Court turns to Chubb's breach of bailment claim. Evolution argues that dismissal of Count IV is warranted because Chubb did not sufficiently plead that Evolution ever had actual or constructive possession of the Cargo. This Court agrees.
To state a cause of action for bailment under Florida law, a plaintiff must prove that there was "a contractual relationship among the parties in which the subject matter of the relationship is delivered temporarily to and accepted by one other than the owner." S & W Air Vac Sys., Inc. v. Fla. Dep't of Revenue , 697 So. 2d 1313, 1315 (Fla. 5th DCA 1997) (citing 5 Fla. Jur. 2d Bailments § 1.) Bailment, therefore, "requires an owner of the object (the bailor) and the possessor (the bailee)." Meeks ex rel. Estate of Meeks v. Fla. Power & Light Co. , 816 So. 2d 1125, 1129 n.4 (Fla. 5th DCA 2002) A bailor's "delivery of [an] item to the bailee must give [the bailee] the right to exclusive use and possession of the item for the period of the bailment." Id. at 1129 (citing S & W Air Vac Sys. , 697 So. 2d at 1315 ).
Here, Chubb alleges that Defendants Freight Logistics International LLC or Rhenus Logistics LLC "instructed [Evolution] to carry the Cargo" from Huston to Miami and that Evolution "subcontracted the responsibility for carrying the Cargo to" Defendant Ramp Logistic Inc. (Compl. ¶¶ 11–12, ECF No. 1.) Then, Plaintiff alleges that all Defendants "received the Cargo belonging to [Chubb, as NTT Chile S.A.’s subrogee,] and as such became a bailee for hire." (Id. ¶ 34.) Then Chubb alleges that all Defendants "received the Cargo in good condition and pursuant to such bailment for hire ...." (Id. ¶ 35.) These allegations are conclusory in nature and this Court does not accept them as true. Without considering Chubb's conclusory allegations, this Court finds that Chubb has failed to sufficiently plead that Evolution was a bailee under Florida law as Chubb does not allege whether, how, when, and for what period Evolution had the exclusive right to use or possess the Cargo. See Meeks ex rel. Estate of Meeks , 816 So. 2d at 1129 n.4. Accordingly, this Court dismisses Count IV of the Complaint as it relates to Evolution.
D. Count V: Breach of Contract
Last, the Court turns to Count V of the Complaint. Evolution argues that dismissal of Count V as to Evolution is also appropriate because Chubb does not sufficiently plead that there exists an agreement that would subject Evolution to a breach of contract claim against it by Chubb. (Def.’s Mot. Dismiss, 8–9, ECF No. 5.)
Because this Court has already found that Chubb failed to sufficiently plead that Evolution was a carrier that would subject it to strict liability under the Carmack Amendment, this Court must look to see whether Chubb pleads that Evolution and Chubb entered into a contractual agreement that would subject Evolution to Chubb's breach of contract claim. To this end, Chubb alleges that "[u]pon information and belief, [D]efendants received the Cargo in good order and condition and contracted and otherwise agreed to perform the transportation and/or storage of the Cargo and deliver same in accordance with the aforementioned agreement in good order and condition received." (Compl. ¶ 39, ECF No. 1.) Chubb, moreover, alleges that "[a]s a result of [D]efendants’ breach of their respective contracts , [Chubb] has sustained damages ...." (Id. at ¶ 42.)
It is axiomatic that to state a cause of action for breach of contract, there need be a contract that a party allegedly breached. To prove the existence of a contract, a plaintiff must prove that either party (1) made an offer, (2) the other party accepted the offer, and (3) there was an exchange of valuable consideration. E.g. , SCG Harbourwood, LLC v. Hanyan , 93 So. 3d 1197, 1200 (Fla. 2d DCA 2012) (citing Pezold Air Charters v. Phoenix Corp. , 192 F.R.D. 721, 725 (M.D. Fla. 2000) ). Here, Chubb makes nothing more than conclusory allegations that a contract exists between Chubb, as NTT Chile S.A.’s subrogee, and Evolution. No allegations of Evolution's or NTT Chile S.A.’s making of an offer, no allegations of acceptance, and no allegation that there was an exchange of valuable consideration.
Accordingly, this Court finds that Chubb failed to sufficiently plead a cause of action for breach of contract. Hence, Count V as to Evolution is due to be dismissed.
IV. CONCLUSION
Accordingly, for the foregoing reasons, it is
ORDERED AND ADJUDGED that:
1. The Motion, (ECF No. 5), is GRANTED.
2. The Complaint is DISMISSED without prejudice solely as to Defendant Evolution Logistics Corporation.
3. Plaintiff has until and including Friday, March 18, 2022, to file a motion for leave to file an amended complaint to address the deficiencies identified in this Order. Failure to comply with this Order may result in dismissal without further notice.
DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of February, 2022.