Gargoyle Granite & Marble, Inc. v. Opustone, LLC, Ct. 2:21-cv-00127-MMB

CourtU.S. District Court — District of Idaho
Writing for the CourtM. Miller Baker, Judge.
Decision Date22 November 2021
Docket NumberCt. 2:21-cv-00127-MMB



Ct. No. 2:21-cv-00127-MMB

United States District Court, D. Idaho

November 22, 2021


M. Miller Baker, Judge.[21]

Two of the three defendants in this case-Opustone, LLC, dba Opustone Stone Tile Concepts, and CH Robinson Worldwide, Inc.-move to dismiss Plaintiff Gargoyle Granite & Marble, Inc.'s complaint. See ECF 1 (complaint); ECF 20 (Opustone motion); ECF 21 (Robinson motion).[1] Alternatively, Opustone requests that the court transfer this case to the Southern District of Florida. ECF 20-1, at 2. For the reasons provided below, the court (1) grants Opustone's motion to dismiss and (2) grants Robinson's motion to dismiss but grants Gargoyle leave to file an amended complaint as to Count One within 28 days.


Factual and Procedural Background

This case arises out of a transaction for the sale and shipment of stone construction materials. Gargoyle is based in Rathdrum, Idaho, and was involved in a construction project in northern Idaho that required the purchase and installation of various stone materials, including “¾ slab Calcutta Gold.” ECF 1, ¶¶ 1, 6.

Gargoyle alleges that it contacted Opustone, a Miami-based company, about purchasing the stone, and that Opustone sent Gargoyle a “Sales Order, ” under which Gargoyle ordered $59, 040.43 of stone materials from Opustone for shipment to Idaho. Id. ¶¶ 2, 6. The Sales Order is referenced in-but not attached to-the complaint.[2]

The front of the Sales Order itemizes the costs of the products purchased, gives the total pricing, and contains a “paid in full” notation. ECF 20-1, Ex. A, at 1. The back contains two columns of “Additional Terms and Conditions, ” which include (among many other provisions) various provisions purporting to limit Opustone's liability for loss of, or damage to, the ordered product, and a forum-selection clause providing, inter alia, that (1) any litigation arising from the Sales Order must be brought in “a court of competent jurisdiction in Miami-Dade County, Florida, ” and (2) “[a]ll disputes arising under this Sales Order


shall be governed by Florida law including Chapter 672-Uniform Commercial Sales, regardless of conflict of laws statutes.” Id. at 2 col. 2.

Gargoyle avers that it was not involved in the shipment of the stone other than paying shipping fees. ECF 1, ¶¶ 7-8. Gargoyle contends that Opustone “arranged for” Robinson, a Minneapolis-based entity, to ship the stone and put Robinson in touch with Gargoyle to arrange for payment. Id. ¶¶ 3, 8. Once Robinson obtained information from Opustone about the stone's weight and dimensions, Gargoyle wired payment to Robinson for the shipping. Id. ¶¶ 9, 11. Gargoyle alleges that it was not offered the option of purchasing additional insurance on the shipment and was not advised, by either Opustone or Robinson, of any limitation of liability for damage to the shipment. Id. ¶ 10.

Gargoyle further alleges, upon information and belief, that Opustone packaged the stone material in three boxes for shipment and delivery and that UPS was “the entity that actually transported” the stone material. Id. ¶¶ 11, 14. At some unknown time and place, the contents of one of the three boxes of stone-the box containing the Calcutta Gold stone-were “damaged in transit.” Id. ¶ 12. Robinson notified Gargoyle of the damage and provided photos. Gargoyle alleges that based on these photos alone it rejected the delivery-prior to actual receipt-“as non-conforming as the stone was broken and cracked and entirely unusable.” Id.


Gargoyle avers that Robinson helped it submit a claim of $60, 362.79 to UPS for the damaged stone but that UPS paid only $4, 084.87, citing a limitation of liability clause in its contract with Robinson. Id. ¶¶ 13-15. Gargoyle asserts that it was not a party to the UPS-Robinson contract, was unaware of any limitation of liability, did not agree to any such limitation, and had no contract of its own with UPS or Robinson. Id. ¶ 15. Gargoyle alleges that it unsuccessfully demanded compensation from Robinson and Opustone. Id. ¶ 16.

Gargoyle's complaint alleges four counts. Id. ¶¶ 17-32. Count One alleges that UPS and Robinson are liable for the actual loss or injury of the product under the Carmack Amendment, 49 U.S.C. § 14706, as motor carriers or freight forwarders. Id. ¶ 18. Count Two alleges that Opustone breached its contract with Gargoyle by failing to provide usable product that conformed to the contract. Id. ¶¶ 22-23. Count Three asserts a claim against Opustone under the Idaho Uniform Commercial Code, Idaho Code § 28-2-201 et seq., for reimbursement of the cost to replace the non-conforming goods and incidental and consequential damages. Id. ¶¶ 25-28. Finally, Count Four alleges negligence against “Defendants.” Id. ¶¶ 29-32.

Gargoyle's complaint alleges that this court has federal question subject-matter jurisdiction under 28 U.S.C. § 1331 as well as the Carmack


Amendment, 49 U.S.C. § 14706(d), [3] and venue under the latter. ECF 1, ¶ 5.[4] In so alleging jurisdiction, the complaint does not distinguish between the asserted federal and state-law claims.

Opustone moves to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, Rule 12(b)(2) for lack of personal jurisdiction, Rule 12(b)(3) for lack of venue, and Rule 12(b)(6) for failure to state a claim. ECF 20, at 2; see Fed. R. Civ. P. 12(b). Alternatively, Opustone moves to “transfer this case to a court of competent jurisdiction in Miami[-]Dade County, Florida, pursuant to 28 U.S.C. § 1404(a).” ECF 20-1, at 23.

For its part, Robinson moves to dismiss under Rule 12(b)(6) for failure to state a claim as to the only counts asserted against it, Counts One (Carmack Amendment) and Four (negligence). ECF 19, at 2.



I. Subject-matter jurisdiction

Opustone challenges subject-matter jurisdiction, arguing (without explanation or elaboration) that Gargoyle “does not cite a basis for subject-matter jurisdiction” and that diversity jurisdiction does not exist because “the amount in controversy does not exceed $75, 000.” ECF 20-1, at 13 (citing 28 U.S.C. § 1332(a)). Because the complaint invokes federal question subject-matter jurisdiction for Gargoyle's Carmack Amendment claims against UPS and Robinson, the court surmises that Opustone means to argue that Gargoyle fails to allege any basis for subject-matter jurisdiction over the exclusively state law claims against Opustone.

Gargoyle responds that under 28 U.S.C. § 1367, [5] supplemental jurisdiction exists over its state law claims against Opustone. ECF 25, at 9-10. This statute codifies the concept of pendent and ancillary jurisdiction, under “which the federal courts' original jurisdiction over federal questions carries with it jurisdiction over state law claims that derive from a common nucleus of


operative fact.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 164-65 (1997) (cleaned up).

Gargoyle correctly argues that its state-law claims against Opustone and its federal claims against UPS and Robinson all arise out of the same transaction. ECF 25, at 10. Because Gargoyle's state and federal claims derive from a common nucleus of operative facts-Gargoyle's purchase of stone materials from Opustone and the ensuing shipment of such materials from Florida to Idaho-supplemental jurisdiction exists over Gargoyle's state-law claims against Opustone.

That Gargoyle's complaint does not specifically allege supplemental jurisdiction is not fatal because § 1367 “effectively codified” the judicially-created doctrines of pendent and ancillary jurisdiction. See 5 Wright & Miller, Federal Practice & Procedure § 1207 (4th ed. Oct. 2021 update). Prior to § 1367's enactment, jurisdiction over ancillary and pendant claims did not need to be expressly pleaded because the district court already had subject-matter jurisdiction over the main claims to which those claims were attached. Id. Section 1367's enactment imposed no new express pleading requirement. Id.[6] Gargoyle's motion to dismiss for lack of subject-matter jurisdiction must therefore be denied.


II. Personal jurisdiction

Opustone asserts that the court lacks personal jurisdiction over it, a Florida entity. See ECF 20-1, at 14-18. Robinson does not challenge personal jurisdiction and has thereby waived this defense. See Fed. R. Civ. P. 12(h)(1)(ii). UPS is in default and has likewise waived any such defense.

“Personal jurisdiction over an out-of-state defendant is proper where permitted by a long-arm statute and where the exercise of jurisdiction does not violate federal due process.” AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1207 (9th Cir. 2020).[7] The Ninth Circuit has held that Idaho's long-arm statute is co-extensive with the jurisdiction allowed under the due process clause of the United States Constitution, so this court's task is to determine whether the exercise of due process over the defendants accords with constitutional due process. See Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987) (citing Doggett v. Elecs. Corp. of Am., 93 Idaho 26, 30, 454 P.2d 63, 67 (1969), and Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1286 (9th Cir. 1977)).

A court can exercise personal jurisdiction over a defendant that has “minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe


Co. v. Washington, 326 U.S. 310, 316 (1945) (cleaned up). Since International Shoe, courts have distinguished between “general or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing Helicopteros...

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