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Forero v. APM Terminals

United States District Court, D. New Jersey

November 19, 2019

DOHENY FORERO, Plaintiff,
v.
APM TERMINALS, SUNRISE METALS, INC., TAL INTERNATIONAL, CAI INTERNATIONAL, CSX TRANSPORTATION, A.P. MOLLER-MAERSK A/S. XYZ COMPANIES 1-10. JOHN DOES 1-10, Defendants.

          OPINION

          Kevin McNulty United States District Judge

         Before me is the motion of defendant CSX Transportation ("CSX") to dismiss plaintiff Doheny Forero's second amended complaint. CSX moves to dismiss on three grounds: (1) lack of personal jurisdiction; (2) failure to timely file the complaint; and (3) failure to plead facts in conformity with Rule 8.

         For the reasons outlined below, I will grant CSX's motion to dismiss.

         I. Background

         On or about May 29, 2015, plaintiff Doheny Forero was operating a hustler forklift owned by her employer, APM Terminals when she attempted to make a left turn. (DE 20-3 at 2). Forero asserts that as she turned the forklift, the containers shifted and fell to the ground, overturning the forklift and injuring her. [Id.).

         On May 26, 2017, the plaintiff, through her counsel, Andrew R. Topazio, Esq., filed a complaint in the Superior Court of New Jersey, Law Division, Union, New Jersey, case No. UNN-L-2019-17. (DE 20-3). Forero named APM Terminals, as well as corporate and individual John Does, as defendants.

         On July 30, 2018, new counsel for plaintiff, Bruce S. Gates, Esq., filed an amended complaint asserting nearly identical allegations. (DE 1). Count 1 was still asserted against APM Terminals. This time, however, plaintiff named as defendants under Count 2 Sunrise Metals, Inc., TAL International, and CAI International. Plaintiff alleged that these three defendants "owned and/or maintained the containers and were responsible for the safe loading of the contains involved in the accident" and failed to properly and safely load the containers and therefore contributed to the events that injured her. (Id. at 9). CSX was not named as a defendant in the amended complaint.

         On September 11, 2018, Sunrise Metals, Inc., removed this civil action. (DE 1).

         On January 29, 2019, plaintiff filed a second amended complaint (DE 22).

         Count 1, asserted against APM Terminals, alleges that as a result of the accident, Forero sustained severe and permanent injuries. (Id. at 2). APM is alleged to have "owned, operated and maintained the hustler and bluebird."[1]Count 1 does not appear to assert a theory of liability; rather it states that APM would know "who owned, maintained and/or loaded the containers and the entities responsible for the safe loading of the containers within the appropriate weight limits." This count "demands information" as to those entities. (Id. at 3).

         Count 2 is directed against those unknown persons and entities, designated as John Does 1-10 and XYZ Companies 1-10, as well as named defendants TAL International, CAI International, CSX Transportation, and A.P. Moller-Maersk A/S. improperly and unsafely loaded the containers and therefore contributed to the events that injured her. (Id.).

         The second amended complaint also asserts, for the first time, the following jurisdictional allegations:

The events constituting the cause of action herein arise from or are related to the fact that the defendants as aforesaid through their actions and those of their agents, servants and employees were through their business activities present on the date and place of the injurious events. Defendants caused the containers to be unsafely loaded and inspected and thereby and in that fashion through the expected and commonplace stream of commerce this led to and resulted in the events as aforesaid and the injuries of the Plaintiff. The defendants purposely availed themselves of the benefits and privilege of doing business in New Jersey through continuous and systematic general business contacts in this state, inasmuch as defendants are in the business of having their goods or the goods of others placed in containers and/or in the business of transporting same for their commercial benefit and accomplishing same by travelling in the State of New Jersey.

(Id. at 3-4).

         On April 22, 2019, defendant CSX filed a motion to dismiss the ...


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