Ingram Barge Co. v. Louis Dreyfus Co., Case No. 3:19-cv-01023

• Court: U.S. District Court — Middle District of Tennessee
• Writing for the Court: ALETA A. TRAUGER, United States District Judge
• Citation: 455 F.Supp.3d 548
• Parties: INGRAM BARGE COMPANY, LLC, Plaintiff, v. LOUIS DREYFUS COMPANY, LLC, Defendant.
• Docket Number: Case No. 3:19-cv-01023
• Decision Date: 17 April 2020

455 F.Supp.3d 548

INGRAM BARGE COMPANY, LLC, Plaintiff,
v.
LOUIS DREYFUS COMPANY, LLC, Defendant.

Case No. 3:19-cv-01023

United States District Court, M.D. Tennessee, Nashville Division.

Filed April 17, 2020

455 F.Supp.3d 551

David L. Reisman, Raymond T. Waid, Trinity Morale, Liskow & Lewis, New Orleans, LA, W. Brantley Phillips, Jr., Bass, Berry & Sims, Nashville, TN, for Plaintiff.

Jay D. Koehn, Patrick D. Pepper, McGrath, North, Mullin & Kratz, Omaha, NE, Lela M. Hollabaugh, Bradley Arant Boult Cummings LLP, Nashville, TN, for Defendant.

MEMORANDUM AND ORDER

ALETA A. TRAUGER, United States District Judge

Louis Dreyfus Company, LLC ("LDC") has filed a Motion to Dismiss or, in the Alternative, to Transfer Venue (Docket No. 18), to which Ingram Barge Company, LLC ("Ingram") has filed a Response (Docket No. 24), LDC has filed a Reply (Docket No. 25), and Ingram has filed a Sur-Reply (Docket No. 28). For the reasons set out herein, LDC's motion will be granted.

I. BACKGROUND

LDC is a Connecticut-based commodities trading company incorporated in Delaware. It controls a significant share of the U.S. grain market. (Docket No. 20 ¶¶ 2–4; Docket No. 24-1 ¶ 3.) LDC subsidiaries—namely, Louis Dreyfus Company Cotton Storage, LLC and Louis Dreyfus Company Cotton LLC—own physical properties in Tennessee, but those subsidiaries and properties are unrelated to the grain-trading at issue in this case.¹ (Docket No. 20 ¶ 5.) LDC does, however, have a Tennessee grain dealer license, "to conduct business in Tennessee if it desires." (Id. ¶ 7.)

Around May 21, 2019 and July 15, 2019, traders working for LDC entered into agreements to purchase grain from COFCO International Grains US, LLC ("COFCO") and Green Plains Trade Group, LLC ("Green Plains"). LDC characterizes the grains as purchased on a "CIF" basis—that is, "cost, insurance, freight," also known as "delivered"—meaning that seller was responsible for paying the charges for transporting the grain from its point of origin to the buyer's point of receipt.² In this instance, the grains were to be received in Louisiana. (Id. ¶¶ 10–12.)

Among the carriers that LDC frequently uses to transport its grains is Ingram, a Tennessee-based river freight company. (Docket No. 24-1 ¶ 3.) COFCO and Green Plains engaged Ingram to ship the grains at issue to Louisiana. Ingram used a version of its standard bill of lading for the jobs. "A bill of lading is ‘the basic transportation contract between the shipper-consignor and the carrier.’ " Great W. Cas. Co. v. Flandrich , 605 F. Supp. 2d 955, 964 (S.D. Ohio 2009) (quoting S. Pac. Transp. Co. v. Commercial Metals Co. , 456 U.S. 336, 342, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982) ). "A bill of lading has three purposes: (1) it records that a carrier has received goods from the party that wishes to ship them; (2) it defines the terms governing

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the carriage; and (3) it serves as evidence of the contract for carriage." CSX Transp., Inc. v. Meserole St. Recycling , 618 F. Supp. 2d 753, 765 (W.D. Mich. 2009) (citing Norfolk S. Ry. Co. v. Kirby , 543 U.S. 14, 18–19, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) ).

In its most simplified form, a bill of lading defines the relationship of three parties—the consignor, the consignee, and the carrier—although it is possible for one entity to serve in more than one of those capacities. The consignor is the shipper—the party arranging for the goods to be shipped. See Oak Harbor Freight Lines, Inc. v. Sears Roebuck, & Co. , 513 F.3d 949, 954 (9th Cir. 2008). The consignee is "[t]he person named in the bill of lading as the person ‘to whom or to whose order the bill promises delivery." Paper Magic Grp., Inc. v. J.B. Hunt Transp., Inc. , 318 F.3d 458, 461 (3d Cir. 2003) (quoting U.C.C. § 7-102 (2002)). The carrier is the party that carries the goods from where they can be found to where they are received. See Saul Sorkin, 1 Goods in Transit § 1.02 (2019) ("Carriers of goods, in addition to their description by mode, such as motor carriers, rail carriers, carriers by water, sea or air are also designated by other terms such as common carrier, private carrier, contract carrier, non-vessel operating common carrier, freight forwarder, consolidator, or dispatcher.").

Ingram has provided four bills of lading related to the grain shipments at issue in this case. (Docket Nos. 1-3, 1-7, 1-11, 1-19.) Each bill of lading designates the relevant grain seller as the consignor. For example, Bill of Lading No. ING19-00481 identifies the consignor as "COFCO INTERNATIONAL GRAINS US, LLC." That bill of lading has a "CONSIGNED TO:" field that states, "ORDER OF COFCO INTERNATIONAL GRAINS US, LLC." Below the "CONSIGNED TO:" line is a line designating the shipment's destination, and below that is a line that reads as follows: "NOTIFY: LOUIS DREYFUS CORP@PORT ALLEN A/C COFCO." (Docket No. 1-3 at 2.) "A/C," Ingram has explained, means "on account of." (Docket No. 24-1 ¶ 4.) The bill next identifies the relevant barge, after which it reads "FREIGHT: Prepaid." It includes signature blocks for Ingram and COFCO, although only Ingram's includes an actual signature.³ (Docket No. 1-3 at 2.) The other bills of lading are essentially the same in the relevant respects: the grain seller is the consignor; the consignment is to the order of the seller; LDC is included as a "notify" party "A/C" the seller; the freight is described as prepaid; and the signature blocks are for Ingram and the seller. (Docket Nos. 1-7 at 2, 1-11 at 2, 1-19 at 2.)

Ingram has provided a Declaration by its Director of Agriculture and Dry Bulk Sales, Matt Tomayko, in which Tomayko discusses the bills of lading. Tomayko explains that "[i]t is not normal for bills of lading to be signed by the cargo owner," because "[s]ignatures are neither customary nor feasible when a particular bill of lading may be negotiated multiple times as the related cargo sails down river or over the sea." (Id. ¶ 8.) Tomayko also offers the following explanation of the significance of the "notify" field and his company's use of "A/C":

Ingram's standard bill of lading contains several fields, including: (1) "Transportation Ordered By," which identifies the Seller; (2) "Consigned To," which identifies the Seller's first consignee of the cargo; and, (3) "Notify," which identifies the ultimate consignee and receiver of the cargo. At times, the "Notify" field identifies multiple companies. In such

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cases, the first name listed is the ultimate consignee, receiver, and owner of the cargo. The other names listed, typically after "A/C," meaning "on account of," are companies in the consignment chain, but who are not the ultimate consignee, receiver, and owner of the cargo.

(Docket No. 24-1 ¶ 4.) Accordingly, pursuant to Tomayko's characterization of the terms, "[a]ll of the bills of lading contained in Ingram's complaint were ultimately consigned to LDC," despite any appearance to the contrary. (Id. )

Each bill of lading relevant to this case included the following language:

It is mutually agreed, as to each carrier of this property over all or any portion of said route, and to each party at any time interested in all or any part, of said property, that every service to be performed hereunder is (or will be deemed) subject to Carrier's Grain Transportation Terms which are posted on Carrier's webpage at www.ingrambarge.com/graintransportationterms.pdf ...; any Consignee hereto is (and will be deemed) bound by Carrier's Grain Transportation Terms.

(Docket Nos. 1-3 at 2, 1-7 at 2, 1-11 at 2, 1-19 at 2.) The Grain Transportation Terms are a separate document available from Ingram or Ingram's website. They consist of 36 detailed items covering issues related to the carriage of grain and the relationships of the related parties, including the following paragraph:

28. Choice of Law and Forum: This Contract is governed by the General Maritime Law of the United States and to the extent not inconsistent therewith, the laws of the State of Tennessee, both as to interpretation and performance. Any dispute arising from this Contract, the applicable bill of lading, or the performance of Carrier or Shipper's obligations under either this Contract or the applicable bill of lading must be brought in the U.S. District Court for the Middle District of Tennessee. Each party hereby irrevocably waives any objection to personal jurisdiction or venue therein. Each party also waives its right to a trial by jury.

(Docket No. 1-2 at 4.) The Grain Transportation Terms purport to bind "[a]ny entity that places an order for transportation of heavy grains, soybeans in bulk, (or any combination thereof) with" Ingram, as well as "any entity that causes the loading of such a cargo into [Ingram's] barges or that holds the bill of lading covering cargo transported in [Ingram's] barges." (Id. at 2.) The Terms state that the grain seller and grain purchaser are jointly and severally obligated to fulfill all of the contractual obligations of the "Shipper," which the Terms define to include both "the entity ordering the cargo transportation and the owners of the cargo (including any consignee(s))." (Id. )

On April 22, 2019, prior to the shipments, Tomayko sent an...