United States District Court, D. Utah
ICON HEALTH & FITNESS, INC., a Delaware Corporation, Plaintiff,
NVC LOGISTICS GROUP, INC., a New Jersey Corporation, Defendant.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION TO TRANSFER VENUE, GRANTING DEFENDANT'S MOTION TO
DISMISS, AND GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
AMEND ITS COMPLAINT
N. Parrish United States District Court Judge.
the court are Defendant NVC Logistics Group, Inc.'s
(“NVC”) motion to transfer venue pursuant to 28
U.S.C. § 1404 (Docket 6) and its Rule 12(b)(6) motion to
dismiss for failure to state a claim (Docket 3). Also before
the court is Plaintiff ICON Health & Fitness, Inc.'s
(“ICON”) motion for leave to amend its complaint
(Docket 26). The court heard oral argument on these motions
on June 13, 2017. After considering the parties'
arguments and the applicable law, the court DENIES NVC's
motion to transfer, but GRANTS its motion to dismiss. The
court also GRANTS ICON's motion for leave to amend its
initially brought four claims against NVC: 1) breach of
contract, 2) breach of covenant of good faith and fair
dealing, 3) unjust enrichment, and 4) negligence. These
claims arose from a business dealing in which NVC was to ship
and deliver goods manufactured by ICON. NVC moves to transfer
venue pursuant to a forum selection clause contained in both
its WG-500 Tariff (“Tariff”) and its Master
Transportation Service Agreement (“MTSA”), which
provide that “all claims and actions arising in
connection with this tariff or any shipment hereunder shall
be adjudicated solely and exclusively in . . . the district
court for the District of New Jersey.” (Docket 6 at 2).
NVC also moves the court to dismiss the claims pursuant to
Rule 12(b)(6) claiming that 49 U.S.C. § 14706, also
known as the Carmack Amendment, supersedes state law claims
arising under contracts for interstate ground shipment of
property. ICON opposes both motions and moves for leave to
amend its complaint to add a claim under the Carmack
Amendment and to allege its state law claims in the
facts alleged by the parties in this case are few, but are as
follows. ICON manufactures fitness equipment. On or about
December 1, 2014, ICON engaged NVC's services for the
purpose of logistics in delivery of ICON's goods and
products to consumers in many states, including Utah. The
parties entered into an agreement for the shipment of goods
manufactured and sold by ICON. NVC was responsible for the
timely and safe delivery of ICON's goods, but while in
NVC's control the goods were damaged and/or lost. ICON
notified NVC and asserted claims for the alleged damages, but
it was never reimbursed by NVC. ICON filed suit seeking
damages of no less than $230, 418. ICON also seeks to recover
its attorney's fees, as well as prejudgment and
Carmack Amendment was passed by Congress to standardize
inter-state transportation claims. Adams Express Co. v.
Croninger, 226 U.S. 491, 505 (1913) (citing S. Pac.
Co. v. Crenshaw Bros., 5 Ga.App. 675 (1909)). Prior to
the Carmack Amendment, the rule of carriers' liability
for interstate shipment was “general common law”
or “determined by supposed public policy of a
particular state.” Id. at 504. The Carmack
Amendment was intended to “supersede all the
regulations and policies of a . . . state” and
“limit the power to exempt [a carrier] by . . .
contract.” Id. at 505-06. Congress's
action “manifest[ed] a purpose to exercise its conceded
authority” and caused state's power with regards to
inter-state shipping to “cease to exist.”
Id. at 506. In essence, carriers exchanged strict
liability for a consistent legal standard. Id. at
Motion to Transfer Venue
argues that this court should transfer pursuant to a valid
forum selection clause contained in both the Tariff and the
MTSA. Additionally, NVC argues that the factors for transfer
weigh in its favor because it is a New Jersey company and the
witnesses in this case would be more accessible in New
Jersey. In response, ICON argues that NVC has waived any
objection to venue by failing to raise its venue defense
prior to filing its motion to dismiss. (Docket 12 at 3). ICON
also argues that the forum selection clause on which NVC
relies is contained in a contract to which it did not agree.
(Docket 12 at 4).
court concludes that NVC's motion to transfer venue was
not waived by its failure to bring a Rule 12(b)(3) motion for
improper venue prior to filing its motion to dismiss. NVC has
not alleged that venue is legally improper. Rather, it seeks
to transfer venue on the grounds of forum non
conveniens pursuant to 28 U.S.C. § 1404. Although
NVC did not waive it venue argument, it is not well-taken. If
the Carmack Amendment applies, either because NVC is a
“carrier” or because ICON agreed to be bound by
the Tariff or MTSA, then NVC's forum selection clause is
preempted by the Carmack Amendment's special venue
provisions. And absent an applicable forum selection clause,
ICON's choice of forum outweighs any concerns that NVC
proffers in support of its motion to transfer venue.
NVC did not forfeit its right to bring this motion.
argues that NVC is barred from moving to transfer venue
because NVC did not include a Rule 12(b)(3) motion to dismiss
for improper venue in its motion to dismiss. (Docket 12 at
3). See Fed. R. Civ. P. 12(h). ICON contends that
this failure forecloses a motion to transfer venue pursuant
to NVC's forum selection clause. ICON's argument is
not well-taken. The proper way to enforce a forum selection
clause is through forum non conveniens, which is not
governed by Rule 12. Atl. Marine Constr. Co. v. U.S.
Dist. Court, 134 S.Ct. 568, 580 (2013).
Supreme Court has held that the governing law for forum
non conveniens is 28 U.S.C. § 1404, not Rule 12.
Id. at 577. NVC seeks to transfer venue to the state
of New Jersey pursuant to a forum selection clause. (Docket 6
at 2). NVC is not asserting that Utah is an improper venue.
Rather, it asserts that it is entitled to transfer the case
to the venue specified in its forum selection clause. The
Supreme Court has recognized that Rule 12(b)(3) only governs
in cases where venue is improper, not in cases seeking to
transfer venue under the theory of forum non
conveniens. Id. at 580. Accordingly, NVC is not
procedurally barred from bringing its motion to transfer
The Carmack Amendment preempts NVC's forum selection
basis for NVC's motion to transfer venue is the forum
selection clause contained it its MTSA. But if the Carmack
Amendment governs this case, its special venue ...