United States District Court, D. New Jersey
McNulty United States District Judge
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.
reasons outlined below, I will grant CSX's motion to
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.).
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.
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.
September 11, 2018, Sunrise Metals, Inc., removed this civil
action. (DE 1).
January 29, 2019, plaintiff filed a second amended complaint
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."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).
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.).
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).
April 22, 2019, defendant CSX filed a motion to dismiss the