Ripley v. Long Distance Relocation Servs.

Robert Taylor Ripley et al. v. Long Distance Relocation Services, LLC et al.

Civil No. CCB-19-0373

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

October 25, 2019

MEMORANDUM

Now pending are the defendants' motion to dismiss plaintiffs' complaint pursuant to Rules 12(b)(3) and 12(b)(6) and the plaintiffs' motion to strike late-filed affidavits. Both motions have been fully briefed and no oral argument is necessary. For the reasons stated below, the court will grant the defendants' motion to dismiss Count II, and otherwise deny without prejudice the defendants' motion to dismiss. The court will grant the plaintiffs' motion to strike the late-filed affidavits.

FACTS AND PROCEDURAL HISTORY

Dr. Robert Taylor Ripley and Anna Nesbit Ripley (the "Ripleys") hired Long Distance Relocation Services ("LDRS") to pack and transport their household goods from Potomac, Maryland to Houston, Texas. The Ripleys have sued various individuals and companies (collectively, "the defendants"), although the exact relationship between them is unclear to the Ripleys. LDRS appears to be the same as KD Clark Investments, LLC. The Ripleys' credit card receipts show that they made payments to Long Distance Van Lines ("LDVL"), which might also do business as Maryland Moving and Storage, Inc. and North Eastern Moving and Storage, Inc. The Ripleys also have sued individual defendants Alexei Dorokhov, owner of KD Clark/LDRS, Roman Spinu, and Anthony Spade.¹

On June 18, 2018, the Ripleys received a "Binding Moving Estimate" from the defendants, based on the Ripleys' reported inventory, a review of the home on Zillow, and an in-home inspection done by another company. Compl., ¶¶ 19-21, ECF 1. Richard, an employee of the defendants who prepared the estimate, told Dr. Ripley that LDRS was not a broker and would perform all aspects of the move. Id. ¶ 22. On July 11, Lissa, a quality assurance representative for the defendants, told Dr. Ripley that Richard had underestimated the move, and the price would be higher. Id. ¶ 23. She gave him a revised quote the next day. Id. ¶ 24. According to the Ripleys, since this was within six days of the move, "the Ripleys had no practical choice but to comply with the exorbitant demand." Id. ¶ 25. On July 12, 2018, the defendants increased the cost again. Id. ¶ 26. On the day of the move, the movers appeared with two rented trucks. Id. ¶ 27. The primary driver looked through a few rooms of the house and told the Ripleys the quote was underestimated, and gave a new revised estimate that was non-negotiable. Id. ¶ 27. After the goods were packed, the defendants increased the packing costs again. Id. ¶ 31. The Ripleys allege that the movers "underfilled multiple boxes which artificially increased the total cubic feet of the shipment" and "caused serious damage to the house." Id. ¶ 32-33.

The Ripleys' goods were unloaded in Houston on July 26, 2018. The Ripleys allege that the driver of the truck did not work for the defendants, and the two movers who assisted the driver said they responded to a Craigslist ad placed by the driver. The driver wore a shirt that said "Move4less." Id. ¶ 35. The driver insisted that Dr. Ripley pay him immediately in cash orhe would not unload the goods, and Dr. Ripley paid him $4,131.15 in cash.² Id. During the move, multiple items were damaged, permanently destroyed, or lost. Id. ¶ 34.

The Ripleys allege that the defendants have provided illegal interstate brokerage services in violation of 49 U.S.C. § 14916 (Count I), have engaged in illegal "weight bumping" in violation of 49 U.S.C. § 14912 (Count II), have committed fraud (Count III), have violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (Count IV), have conspired to violate RICO (Count V), and have violated the Maryland Consumer Protection Act (Count VI).

STANDARD OF REVIEW

Forum Selection Clause:

The defendants' Rule 12(b)(3) motion attempts to enforce the forum selection clause in the bill of lading allegedly executed between the defendants and the Ripleys, and therefore will be treated as a motion to dismiss pursuant to forum non conveniens.³

A "federal court interpreting a forum selection clause must apply federal law in doing so." Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650 (4th Cir. 2010). The court must first determine whether the forum selection clause is mandatory and whether the plaintiff's claims are within the scope of the clause. Open Text Corp. v. Grimes, 262 F. Supp. 3d 278, 287-88 (D. Md. 2017). The court must also determine if the forum selection clause is "contractually valid." Sears Contract, Inc. v. Sauer Inc., 378 F. Supp. 3d 435, 440 (E.D.N.C. 2019) (quotingAtlantic Marine Const. Co., Inc. v. U.S. Dist. Court for the Western Dist. of Tex., 571 U.S. 49, 62-63, n.5 (2013). Forum selection clauses are presumptively valid, but this presumption "is not absolute and, therefore, may be overcome by a clear showing that they are unreasonable under the circumstances." Allen v. Lloyd's of London, 94 F.3d 923, 928 (4th Cir. 1996); BAE Systems Tech. Solution & Servs., Inc. v. Republic of Korea Def. Acquisition Program Admin., 884 F.3d 463, 470 (4th Cir. 2018) ("[C]ourts enforce forum selection clauses unless it would be unreasonable to do so"). "Choice of forum and law provisions may be found unreasonable if (1) their formation was induced by fraud or overreaching; (2) the complaining party 'will for all practical purposes be deprived of his day in court' because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) their enforcement would contravene a strong public policy of the forum state." Allen, 94 F.3d at 928.

Once the forum selection clause is determined to be valid, mandatory, and encompassing of the plaintiff's claims, the plaintiff bears the burden of "showing why the court should not transfer the case to the forum to which the parties agreed." Atlantic Marine, 571 U.S. at 64.⁴ "When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause." Id. at 62. To prevent transfer, the plaintiff must show "extraordinary circumstances unrelated to the convenience of the parties" and based on "public-interest factors only." Id. at 62, 64.

Motion to Dismiss:

To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). "To satisfy this standard, a plaintiff need not 'forecast' evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted) "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is 'probable,' the complaint must advance the plaintiff's claim 'across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570). Additionally, although courts "must view the facts alleged in the light most favorable to the plaintiff," they "will not accept 'legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments'" in deciding whether a case should survive a motion to dismiss. U.S. ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).

DISCUSSION

Forum Selection Clause:

In their motion to dismiss, the defendants attach two pages of what they claim is a bill of lading between the defendants and the Ripleys. The first page contains a forum selection clause, which states:

SECTION 11: AGREED MANDATORY CHOICE OF LAW, VENUE AND JURISDICTION. If a lawsuit becomes necessary to resolve any dispute between the carrier and shipper, said suit shall and must only be brought in circuit or county court in and for Broward County, Florida. Suits involving disputes over interstate shipments must be limited to the governing federal law. Both parties agree to submit themselves to the jurisdiction of the Florida Court and agree given the relationship to the state, suchexercise is reasonable and lawful. Shipper consents to jurisdiction in Broward County, Florida and hereby waives the right to be served within the State of Florida.

The second page is a valuation addendum which contains the signature of one of the Ripleys.⁵ The signature is dated July 18, 2018. "Long Distance Van Lines" and an address in Columbia, MD appear at the top of the signature page.

The Ripleys argue that the forum selection clause is not enforceable. They argue that it does not apply, as the defendants did not attach a complete copy of the alleged bill of lading and there is a dispute as to whether the Ripleys signed it. They further argue that the claims do not arise out of the contract, only one of the seven defendants is even ostensibly party to the bill of lading, and that its enforcement would be unreasonable and unjust.

The defendants have not adequately shown that the Ripleys agreed to the forum selection clause. First, the defendants have supplied one page of the alleged bill of lading containing the forum selection clause, and then a valuation addendum signed by Mr. Ripley. While the defendants are correct that a valid forum selection clause is usually enforced, here, the defendants have not shown that a valid forum selection clause was signed and agreed to by the Ripleys, as only the signed addendum is attached and there is no evidence that the Ripleys ever received or assented to the bill of lading. See Star Techs., LLC v. Gillig LLC, Civil No. 3:12-1720, 2012 WL 5194072, at *3 (S.D. W. Va. Oct. 19, 2012)⁶ (...