Zurich American Insurance Company v. M/V "APL PEARL" et al, No. 1:2012cv04083 - Document 19 (S.D.N.Y. 2013)
Court Description: OPINION: For the foregoing reasons, the Defendant's 6 motion to dismiss is denied. It is so ordered. (Signed by Judge Robert W. Sweet on 02/01/2013) (jcs)
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----- ---- --------- ---- -------------x ZURICH AMERICAN INSURANCE CO. t Plaintiff t 12 Civ. 4083 -againstOPINION M/V "APL PEARLll t HER ENGINES, BOILERS t ETC. t AND EXPOLANKA FREIGHT LTD. Defendants. -x A P PEA RAN C E S: At ntiff MARSHALL t DENNEHY t WARNER t COLEMAN & GOGGIN Wall Street Plaza 88 Pine Streett 21st Fl. New York t NY 10005 By: James J. RuddYt Of Counsel John K. McElligott Esq. REISMAN t RUBEO & MCCLURE t LLP 151 Broadway Hawthorne t NY 10532 By: Richard Altman t P.C. t Of Counsel Sweet, D.J. Defendant Expolanka Freight Ltd. ("Expolanka" or "Defendant"), has moved, pursuant to Fed. R. Civ. P. 12(b) (2) & (5), to dismiss the complaint of plaintiff Zurich American Insurance Co. ("Zurich" or "Plaintiff") due to improper service of process and lack of personal j conc sdiction. Based upon the ions set forth below, the Defendant's mot is denied. According to Zurich's complaint filed May 23, 2012 ("Complaint"), a shipment consisting of 456 cartons of garments (the "Garments") originated in Chittagong, Bangladesh on November I, 2011, bound for the port of New York. Sched. A. See Compl. The defendant, Expolanka, is a common carrier of merchandise by water for hire and owner of a ship called the APL Pearl, upon which the Garments were carried from Bangladesh to New York. Compl. lading drafted Expolanka accept ~~ 3-5. Pursuant to the terms of the bill of connection with the shipment of the Garments I responsibility for the Garments from the point at which they were loaded onto the carrying vessel through point at which the Garments were discharged from the vessel. See Ex. 1 to Attorney/s Affirmation in Support of Motion to Dismiss ("Bill of Lading"). 1 The Complaint alleges that when the APL Pearl arrived at its destination in New York and made delivery of the Garments, it was discovered that the Garments had been severely damaged during the course of the voyage. which was Compl. ~ 6. Zurich, subrogated underwriter of the shipper t consignee t ~ or owner of the Garments t Compl. 7t asserted an admiralty claim against Expolanka, alleging that Expolanka violated its duties as er of the Garments by permitting be damaged during the voyage. Compl. ~~ Garments to 6-8. Zurich attempted to serve a summons upon Expolanka by effecting service upon an individual working at the offices of an entity called Expolanka USAt LLC t located in Jamaica, New York. See Plaintiffts Memorandum of Law in Opposition to Defendantts Motion to Dismiss (~Zur. Opp.") at 7. Zurich later served process upon an employee of an entity called Ocean Compliance The Descartes Group, which ch alleges is authorized to accept service on behalf of Expolanka. Dkt. No. 18. Expolanka filed the instant motion to dismiss on June 28 t 2012. The motion was fully briefed on July 20, argument was held on October 3, 2012. 2 2012 t and The Applicable Standards "When responding to a Rule 12(b) (2) motion to dismiss , the plaintiff bears the for lack of personal jurisdict burden of establishing that the court has jurisdiction over the defendant./I DiStefano v. (2d Cir. 2001) Carozzi~N. Am., Inc., 286 F.3d 81, 84 (quotation marks omitted). In addition, where, as here, no discovery has taken place as of yet, the plaintiff need only make a "prima fa e showing" in order to defeat the motion. Id. personal jurisdiction Moreover t when assessing whether the plaintiff has met its burden, all pleadings and affidavits are construed in a light most favorable to the plaintiff. See PKDLabs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997). "When a defendant sufficiency of ses a 12(b) (5) challenge to the ce of process, the aintiff bears the burden of proving its adequacy./I Posr v. 11 Civ. 986 (PGG), 2012 WL 4378049, at *3 2012) (quoting Mep:de v ___ Milestone Tech., 216, 251 (S.D.N.Y. Z003)} addition, of New York t No. (S.D.N.Y. Sept. 25, Inc., 269 F. Supp. 2d (quotation marks omitted). In "in considering a motion to dismiss pursuant to Rule 12(b) (5) for insufficiency of service of process 3 t a Court must whether it look to matters outside the complaint to det j ur i sdi c t ion. " Id . (quot ing _K..c::0_u_l_k. l·.....n. a.. . . . .v. . . . . .~--'----'-"--'-_ _ _ _ __ .. .. .. 559 F. Supp. 2d 300, 311 (S.D.N.Y. 2008)) (quotation marks and terations omitted) . There is Personal Jurisdiction Over Expolanka "[T]he law of the forum the issue of personal jurisdiction the instant case. KI , New York-governs admiralty cases" such as v. S.N.C. Achille Lauro Ed Altri --~------------------------ Gestione Motonave Achille Lauro In Amministrazione Straordinaria, 937 F.2d 44, 50 exercise of personal juri constitutional guarantees (2d Cir. 1991). ction must comport with the due process. Telecasting Inc., 261 F.3d 196, 208 Under New Whitaker v. Am. (2d Cir. 2001). 's long arm statute, exercise personal j In addition, any "a court may ction over any non-domiciliary who in person or through an agent . contracts anywhere to in the state," provided supply goods or the cause of action arose from the contract to supply goods or services. N.Y. C.P.L.R. Expolanka is 302 (a) (1) § I (McKinney 2008). In to have breached its obI 4 s case, ion under the Bill of Lading. See Attorney's Affirmation in Support of Motion to Dismiss, Ex. 1. Under the terms of the Bill of Lading, Rxpolanka iQ clgarly identified a~ the carri@r of the Cargo. Attorney's Affirmation in Opposition to Motion to Dismiss, Ex. F. "A carrier's agreement to del goods in New York is ces in the statell and obviously a contract to perform "involves a ear[] submission to the laws of the state. 1I Volkart Bros., Inc. v. M/V "PALM TRADER II , (RLC) , 88 CIV. 9094 (RLC) and 88 CIV. 0380 at *4 (S.D.N.Y. Apr. 6, 1989). Nos. 88 CIV. 7527 (RLC) , 1989 WL 34094, Such an agreement therefore "falls within the plain language § 302 (a) (1), and it easily satisfies the constitutional requirement that jurisdiction grounded on acts that are 'purposefully directed toward the forum State. '" Id. (quoting Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1987)). According1y, Expolanka is subject to personal jurisdiction pursuant to New York's long arm statute by virtue of its promise, evidenced by the Bill of Lading, to deliver the Cargo to New York.l Expolanka contends that it did not engage in purposeful activity within New York because, as er, its responsibility the vessel "up to and for the Cargo was only from the loading during di~c;nQ.:rge 'Of tne ye~~el," Qut it did not handle customs 1 clearance or distribution. Reply Memorandum of Law in Further Support of Motion to Dismiss by Defendant Expolanka Freight Limited at 7. However, fact that Expolanka was responsible for the Cargo up to and including its scharge from the vessel 5 Zurich Has Properly Served Expolanka After filing the Complaint on May 23, 2012, Zurich attempted to serve Expolanka by effecting service upon an individual working at offices of Expolanka USA, which is located in Jamaica, New York. See Dkt. NO.2. its motion to dismiss, cont Expolanka, in that this service was ineffective because Expol USA is a wholly independent entity from Expolanka, and Expolanka could not be served service upon Expolanka USA. See Memorandum of Law in Support of Motion to Dismiss by Defendant Expolanka Freight Ltd. ("Expolanka Mem.") at 5. On August 3, 2012, Zurich served process on Ocean Compliance - The Descartes System Group, which accept on behalf of Expol within the 120- , see Dkt. No. 18. This limit set by Fed. R. Civ. P. 4. proof of service on August 24, 2012, and at oral October 3, 2012, Zurich took the position that ce was Zurich filed on s constituted New York to in New York constitutes sufficient contact wi establish a is for long-arm jurisdiction. See Volkart, 1989 WL 34094, at *4. 6 adequate service upon Expolanka. contention. Expolanka did not dispute this Accordingly, Zurich has met its burden to prove adequate service upon Expolanka. Conclusion For the foregoing reasons, the Defendant's motion to dismiss is It is so ordered. New York, NY JiaBua~ ,2013 ;p;~~ / ? ROBERT W. SWEET U.S.D.J. 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
