United States District Court, D. New Jersey
FORNAL SHAWN DAVID EDWARDS MASELLI WARREN PC Attorney for
Plaintiff Trinity Packaging Supply, LLC.
FRANCIS X. RILEY III MICHAEL ROWAN SAUL EWING ARNSTEIN &
LEHR LLP Attorney for Defendant Countrywide Pallet, Inc.
d/b/a Select Pallet.
L. HILLMAN, U.S.D.J.
a breach of contract and fraud action concerning an agreement
for packaging supplies made between the parties. Presently
before the Court is Defendant Countrywide Pallet, Inc. d/b/a
Select Pallet's Motion to Dismiss the Complaint Pursuant
to Federal Rule of Civil Procedure 12(b)(2) (the
“Motion to Dismiss”) and Plaintiff Trinity
Packaging Supply, LLC's Motion to File a Sur-Reply Brief.
For the reasons discussed herein, this Court will deny
Defendant's Motion to Dismiss and grant Plaintiff's
Motion to File a Sur-Reply Brief.
Court takes its facts from Plaintiff's Complaint and the
parties' filings as appropriate. According to
Defendant's Amended Notice of Removal, Plaintiff is a
limited liability company with one member, Anthony Magaraci,
whose citizenship is New Jersey. Defendant is a California
corporation with its principal place of business in
California. Defendant asserts it operates exclusively in
California. (Def.'s Mot. to Dismiss 2.)
Complaint reveals its business consists of wholesale
packaging supply. On October 23, 2013 Plaintiff entered into
a “Product Supply Agreement” (the
“Contract”) with a “national warehouse and
freight distribution company” (the
“Company”) to service all of its packaging and
packaging supply needs, including pallets. (Pl.'s Compl.
¶ 5.) Plaintiff arranged for Defendant to deliver and
retrieve pallets for the Contract. Plaintiff alleges that
Defendant agreed it would be “the exclusive broker,
procuring agent and point of contact” with the Company.
(Pl.'s Compl. ¶ 7.) According to Plaintiff, all
business between Defendant and the Company was to “be
processed through” Plaintiff. (Pl.'s Compl. ¶
- and the actions of a so-called rogue employee of Defendant
- is where the controversy in this case lies. Plaintiff and
Defendant agreed Plaintiff would pay Defendant the unit cost
per pallet delivered to the Company, but that Defendant would
credit Plaintiff for any recycled wooden pallets
(“Cores”) that Defendant retrieved from the
Company. (Pl.'s Compl. ¶ 8.) Depending on the
quality of the Cores, Plaintiff could receive more or less in
credits. Plaintiff alleges that Defendant circumvented this
process by “engaging with a rogue employee of the
Company and paying that employee approximately $30, 000 cash
on [a] monthly basis to permit removal of Cores that would
not be reported to Trinity or the Company.” (Pl.'s
Compl. ¶ 13.) This resulted in over-billing.
Plaintiff learned of this issue, Plaintiff terminated its
relationship with Defendant. Plaintiff alleges that
“the invoices that [it] paid during the entirety of the
. . . relationship [with Defendant] have been false,
misleading and incorrect.” (Pl.'s Compl. ¶
16.) Plaintiff not only complains of overpayment, but it also
complains of damages done to the Contract it had with the
Company. As a result of Defendant's conduct, Plaintiff
alleges that it had to investigate its entire business with
the Company and had to re-bid the Contract. This resulted in
lower prices for the Company and consequently less money for
filed its Complaint on October 12, 2018 in the Superior Court
of New Jersey, Law Division, Camden County. The Complaint
contains eight counts, which Plaintiff summarizes as
“claims for breach of contract, quantum meruit, fraud,
unjust enrichment, tortious interference with prospective
economic relations, and conversion.” (Pl.'s
Opp'n Br. 6.)
filed a Notice of Removal on November 13, 2018 in this Court.
This Court issued an Order to Show Cause on November 14, 2018
requiring Defendant to amend its Notice of Removal to
properly plead the citizenship of the parties. Defendant
filed an Amended Notice of Removal on November 15, 2018
properly alleging the citizenship of the parties. On November
20, 2018 Defendant filed its Motion to Dismiss. Plaintiff
filed opposition, Defendant replied, and Plaintiff filed a
Motion to File a Sur-Reply Brief on January 4, 2019. The two
motions presently before the court have been fully briefed
and are therefore ripe for adjudication.
Subject Matter Jurisdiction
Court possesses subject matter jurisdiction over this matter
pursuant to 28 U.S.C. § 1332 as the parties are diverse
and the amount in controversy exceeds $75, 000.
Motion to Dismiss for Lack of Personal Jurisdiction
defendant may move to dismiss, in lieu of an answer, on
grounds that the Court lacks personal jurisdiction to
adjudicate a matter concerning a particular defendant.
See Fed.R.Civ.P. 12(b)(2). Once a Rule 12(b)(2)
motion is filed, “a plaintiff bears the burden of
establishing the court's jurisdiction over the moving
defendants.” Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 97 (3d Cir. 2004) (citing Pinker
v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir.
2002)). See also Dayhoff Inc. v. H.J. Heinz Co., 86
F.3d 1287, 1302 (3d Cir. 1996) (“[O]nce a defendant has
raised a jurisdictional defense, a plaintiff bears the burden
of proving by affidavits or other competent evidence that
jurisdiction is proper.” (citing Narco Avionics,
Inc. v. Sportsman's Mkt., Inc., 792 F.Supp. 398, 402
(E.D. Pa. 1992))).
evidentiary hearing is not held, a “plaintiff need only
establish a prima facie case of personal jurisdiction.”
Miller Yacht Sales, 384 F.3d at 97 (citing
Pinker, 292 F.3d at 368). In that case, “a
plaintiff is entitled to have its allegations taken as true
and all factual disputes drawn in its favor.”
Id. But, even so, “a plaintiff may not
‘rely on the bare pleadings alone' in order to
withstand a motion to dismiss for lack of personal
jurisdiction.” Demetro v. Nat'l Ass'n of
Bunco Investigations, No. 14-6521 (KM/SCM), 2017 U.S.
Dist. LEXIS 145061, at *17 (D.N.J. Sept. 7, 2017). A
plaintiff must still provide “actual proofs, not mere
allegations." Id. (quoting Patterson v.
FBI, 893 F.2d 595, 604 (3d Cir. 1990)).
plaintiff is successful in doing so, the burden shifts back
to the moving defendant. “Once the plaintiff has made
out a prima facie case in favor of personal jurisdiction, the
defendant ‘must present a compelling case that the
presence of some other considerations would render
jurisdiction unreasonable.'” Mellon Bank PSFS,
Nat'l Ass'n v. Farino, 960 F.2d 1217, 1226 (3d
Cir. 1992) (quoting Carteret Sav. Bank, FA v.
Shushan, 954 F.2d 141, 150 (3d Cir. 1992)).
Motion to Dismiss for Lack of Personal Jurisdiction
argues this case should be dismissed because this Court lacks
personal jurisdiction over it or the claims against it.
Defendant's arguments can be broken down into two broad
categories. First, Defendant argues it is not subject to this
Court's general jurisdiction because there are no
allegations of continuous and systematic contacts with New
Jersey. Second, Defendant argues it is not subject to this
Court's specific jurisdiction because it did not
purposefully avail itself of the laws of New Jersey.