United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
ROBERT C. MITCHELL, Magistrate Judge.
It is respectfully recommended that the motion to dismiss for lack of jurisdiction and improper venue filed by defendant T.T. Coatings, Inc. (ECF No. 15) be denied. It is further recommended that the motion to dismiss for improper venue or, in the alternative, to transfer Amended Complaint filed by defendant Ingram Barge Company (ECF No. 24) be granted and that this action be transferred to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1406(a).
Plaintiff, Interstate Chemical Company, Inc. (ICC), brings this action asserting a variety of contractual and tort claims against Defendants, Ingram Barge Company (Ingram) and T.T. Coatings, Inc. (T.T. Coatings), arising out of property damage ICC suffered. ICC hired Ingram to transport approximately 420, 000 gallons of methanol by tank barge from Louisiana to ICC's storage facility in Illinois and Ingram hired T.T. Coatings to strip and blow dry acetone from the barge prior to loading it with methanol. But when the shipment of methanol arrived at ICC's facility, it was found to be contaminated with acetone, substantially damaging ICC's property and significantly decreasing its value.
Presently pending before the Court are two motions. T.T. Coatings moves for dismissal of the claims against it on the grounds of lack of personal jurisdiction and improper venue. Ingram also raises the issue of improper venue and moves for dismissal or, in the alternative, transfer of the action to the United States District Court for the Eastern District of Louisiana, where the action could have been brought. For the reasons that follow, T.T. Coatings' motion should be denied, Ingram's motion should be granted and the case should be transferred to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1406.
Plaintiff alleges that, on or about February 13, 2013, it hired Ingram to provide a barge for purposes of transporting approximately 420, 000 gallons of methanol from Louisiana to ICC's warehouse facility and marine river terminal in Channahon, Illinois. ICC has had a long-standing business relationship with Ingram and they communicate via email, phone calls and occasional visits, but do not have formalized contracts. On March 1, 2013, Ingram notified ICC that it would provide Barge JT-1035 to transport ICC's methanol to Illinois after the prior cargo of acetone was stripped and blown dry from the barge. Ingram delivered Barge JT-1035 to the International-Matex Tank Terminals ("IMTT") dock located in St. Rose, Louisiana. Ingram then contracted with T.T. Coatings to strip and blow dry the acetone from the barge, which it purportedly did on March 6, 2013. ICC indicates that the methanol it manufactures must conform to strict criteria in order to meet industry standards and customer expectations and alleges that both Ingram and T.T. Coatings are aware that acetone will contaminate methanol.
On March 8, 2013, the barge was loaded with approximately 420, 000 gallons of methanol. ICC claims that after the barge arrived at its port terminal on March 31, 2013, it tested the methanol and discovered that it was contaminated with acetone. Prior to being loaded onto the barge, the methanol had an acetone presence of less than 10 parts per million (ppm), but upon testing at ICC's terminal after shipment, the methanol had an average acetone presence of 77-109 ppm. In addition, the methanol from the tank barge was discharged into ICC's storage tank, thereby contaminating the methanol that was already in the storage tank (a total of 444, 900 gallons). (Am. Compl. ¶¶ 9-10, 17-18, 19-27, 35, 40-48 & Exs. A-G.)
Plaintiff filed this action on September 5, 2013 and on September 27, 2013, it filed an Amended Complaint (ECF No. 4). Diversity jurisdiction is invoked pursuant to 28 U.S.C. § 1332 on the grounds that: Plaintiff is Pennsylvania company with its principal place of business in Hermitage, Pennsylvania; Ingram is a Tennessee company with its principal place of business in Nashville, Tennessee; T.T. Coatings is a Louisiana company with its principal place of business in Covington, Louisiana; and the amount in controversy, exclusive of interest and costs, exceeds the sum of $75, 000.00. (Am. Compl. ¶¶ 2-5.)
Counts I-V and VIII are alleged against Ingram: Count I alleges a claim of breach of contract, Count II alleges a claim of breach of the covenant of good faith and fair dealing, Count III alleges a claim of breach of warranty, Count IV alleges a claim of violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Count V alleges a claim of fraud in the inducement, and Count VIII alleges a claim of negligence. Count VI alleges a claim of breach of third party beneficiary contract against T.T. Coatings. Count VII alleges a claim of misrepresentation against both Defendants. Finally, Count IX alleges a claim of negligence against T.T. Coatings.
On December 6, 2013, T.T. Coatings filed a motion to dismiss for lack of personal jurisdiction and improper venue (ECF No. 15). On January 3, 2014, Plaintiff filed a brief in opposition (ECF No. 21) and on January 20, 2014, T.T. Coatings filed a reply brief (ECF No. 22). On February 10, 2014, Ingram filed a motion to dismiss for improper venue or, in the alternative, to transfer this case to the United States District Court for the ...