Oak St. Printery, LLC v. Fujifilm N. Am. Corp.

Decision Date16 August 2012
Docket NumberCIVIL ACTION NO. 3:CV-12-0096
CourtU.S. District Court — Middle District of Pennsylvania

(Judge Mariani)

(Magistrate Judge Blewitt)


On December 19, 2011, Plaintiff Oak Street Printery, LLC, d/b/a/ Global Print & Design filed a Complaint against Defendant Fujifilm North America Corp in the Court of Common Pleas of Luzerne County, Pennsylvania, which was docketed as No. 15600-Civil-2011. (Doc. 1, p. 7). In the Complaint, Plaintiff asserts that it is "a duly organized Pennsylvania S-corporation" with a principal address in Old Forge, Pennsylvania. (Id.). Plaintiff further asserts that Defendant is "a duly organized business entity authorized to sell printing equipment and equipment services in Pennsylvania, with an office address [in] Edison, [New Jersey]." (Id.).

Defendant asserts that on December 27, 2011, it received a copy of Plaintiff's Complaint via certified mail. (Id.).

On January 17, 2012, Defendant removed this suit from the Court of Common Pleas of Luzerne County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania. (Doc. 1, p. 1). In its Notice of Removal, Defendant asserts that Plaintiff is "acitizen of Pennsylvania," as Plaintiff submitted in its Complaint. (Doc. 1, p. 1 (citing Compl. at ¶ 1)). However, Defendant also submits that it is not incorporated in Pennsylvania nor is its principal place of business in Pennsylvania; thus, Defendant "is not a citizen of Pennsylvania." (Doc. 1, p. 1). Defendant also asserts that while the Complaint "does not allege the specific amount of monetary damages sought," the amount in controversy exceeds $75,000 because Plaintiff "seeks to recover actual and consequential damages including but not limited to loss of business income as well as loss of future business income and earning capacity." (Doc. 1, p. 2 (citing Comp. at ¶¶ 21, 28, 35)). Thus, Defendant maintains that this federal Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) and that, because Defendant filed its Notice of Removal within thirty (30) days of its receipt of Plaintiff's Complaint, this action is removable to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. 1, p. 2).1

On January 24, 2012, Defendant filed a Motion to Dismiss/Transfer requesting that this Court transfer this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404(a) as well as dismiss "Count I" (Negligence) of the Complaint. (Doc. 4, pp. 1, 2). Defendant asserts that Plaintiff filed this action "contrary to an enforceable forum selection clause"; thus, Defendant maintains that this case should be transferred to theSouthern District of New York, the forum referenced in the forum selection clause. (Doc. 4, p. 2).2 Defendant also requests that this Court dismiss with prejudice Plaintiff's negligence claim against Defendant pursuant to Federal Rule of Civil Procedure 12(b)(6). (Id.).3

On February 7, 2012, Defendant filed a Brief in Support of Defendant's Motion to Dismiss/Transfer. (Doc. 5). With its Brief, Defendant also filed a Declaration of Vincent N. Avallone, Defendant's attorney, attached to three unpublished opinions pursuant to Local Rule 7.8(a), which states that "[a] copy of any unpublished opinion which is cited must accompany the brief as an attachment." (Doc. 5-1).

On February 10, 2012, Plaintiff filed a Brief in Opposition to Defendant's Motion to Dismiss/Transfer (Doc. 6) along with an Affidavit of David J. Selingo, Plaintiff's attorney, which asserts that Mr. Selingo personally accessed the terms and conditions section of the fuji film website. (Doc. 6-1, p. 1). Attached to Plaintiff's Brief and Affidavit are four exhibits to demonstrate how to access Defendant's Terms and Conditions of Sale on the website referenced. (Doc. 6-1, pp. 3-15). Also on February 10, 2012, Plaintiff filed a Response to Defendant's Motion to Dismiss/Transfer admitting and denying Defendant's various factual assertions. (Doc. 7).

On February 24, 2012, Defendant filed a Reply Brief in Further Support of Defendant's Motion to Dismiss/Transfer. (Doc. 10). With its Reply Brief, Defendant also filed a Reply Declaration of Wayne Heading, Defendant's Director of Accounting, with one exhibit. (Doc. 10-1). Defendant additionally filed a Reply Declaration of Vincent N. Avallone with two unpublished opinions as exhibits, pursuant to Local Rule 7.8(a).4

On April 3, 2012, District Judge Mariani ordered that Defendant's Motion to Dismiss Transfer be referred to the undersigned for a Report and Recommendation. (Doc. 14).


The Complaint asserts that on January 24, 2011, Plaintiff Global Print found water damages to its property on Oak Street in Old Forge, Pennsylvania, after a water pipe burst. (Doc. 1, pp. 7, 8). Because of the water pipe bursting, damage resulted to the building as well as multiple supplies, furniture, and equipment. (Doc. 1, p. 8). Plaintiff then notified its insurance carrier, State Auto Insurance Companies ("State Auto"), that there was a potential claim and "began the process of cleanup and remediation." (Id.).

Plaintiff alleges that it found standing water on its Dart Luxel T6000CTP (Model PT-RT40000 recording unit) and Luxel T6000CTP II Single Auto Loader ("Luxel Equipment") and was "concerned as to whether it suffered any water damage." (Id.). Before January 24, 2011, Plaintiff claims that it employed Defendant to "service and upgrade [its] Luxel Equipment," as it purchased the equipment from Defendant, "through an independent supplier." (Id.).

Plaintiff asserts that it "was under the impression" that Defendant manufactured the Luxel Equipment, and, as a result, Plaintiff engaged Defendant to inspect the equipment after the discovery of standing water. (Id.). Plaintiff avers that Defendant charged $1,590.00 for the inspection and opinion "on repair versus replacement." (Id.). The invoice is dated February 24, 2011. (Doc. 1, p. 16; Doc. 5, p. 2).5

On January 28, 2011, the Luxel Equipment was inspected by: Heather Shive ("Shive"), State Auto's claim handler; Roy Winter ("Winter"), a representative from LWG Consulting ("LWG"); and Dan Coon ("Coon"), a representative from Defendant. (Id.). After this inspection, LWG, an engineering firm hired by State Auto, "advised that the Luxel Equipment was repairable with disassembly, cleaning and reassembly" and that "the repair/cleaning process would take several days, at the end of which Global Print would have a fully functioning pieceof equipment." (Doc. 1, p. 9; Doc. 6, p. 2).

In an e-mail dated January 31, 2011, Coon suggested that while "everything worked" during the inspection on January 28, "water was discovered when the 'path went down the drum.'" (Doc. 1, p. 9). Coon recommended that the Luxel Equipment be "cleaned, decontaminated and restored." (Id.).

In a response to the e-mail referenced above, the Regional Support Manager for Defendant, Mike Wilson ("Wilson"), sent a reply e-mail to Coon also on January 31, 2011, that read: "Do NOT do any additional work on this unit now. We have had problems with water damaged equipment in the past and have not been successful in restoring it to operational condition. We will discuss this week and then make a decision if we will work on it." (Id.). Wilson sent another e-mail dated February 7, 2011, to LWG and State Auto that stated:

Our experience has taught us that while the dart may be cleaned, dried and reassembled, the effects of water on the components, motors, metal drum, frame and power supplies creates corrosion over time and the components eventually fail. [I]t's impossible to eliminate the damage water does to the dart and SAL [Luxel Equipment].

(Id.) (alterations in Compl.).

As Defendant's representative, Wilson "advised both LWG and State Auto that the Luxel Equipment was recommended as a total loss and should be replaced." (Id.).

Defendant suggested replacing the Luxel Equipment for approximately $122,000.00; however, State Auto, relying on LWG's opinion, pushed for the "disassembly, cleaning and reassembly" of the equipment for $33,716.00. (Id. at 10). Plaintiff claims that it relied upon Wilson's opinion as "its contracted expert" to advise "on repair versus replacement" and, assuch, "refused to agree to the work proposed by LWG." (Id.). Because LWG required Defendant's services to ensure proper calibration of the equipment after it was reassembled, further delay resulted, as Defendant "refused to participate." (Id.).

Eventually, Plaintiff asserts, Defendant "demanded a Hold Harmless Agreement relative to the disassembly, cleaning and reassembly of the Luxel Equipment due to [Defendant's] continued opinion that the Luxel Equipment could not be repaired." (Id.). State Auto employed counsel to draft a Hold Harmless Agreement ("HHA"), which was prepared to be signed by Plaintiff, Defendant, LWG, and State Auto. (Id.). The HHA included the following:

FujiFilm North America Corp., Graphic Systems Division, has advised Oak Street Printery, L.L.C., d/b/a Global Print & Design, State Auto Property & Casualty Insurance Company, and LWG Consulting that, in the opinion of FujiFilm North American Corporation, due to the effects of water on the Equipment, it may be impossible to eliminate all the damage water did to the equipment.


On February 15, 2011, State Auto forwarded the HHA to all of the parties involved, requesting that everyone execute the HHA before repairs began on the Luxel Equipment. (Id.). Plaintiff asserts that Defendant never signed the HHA. (Id.).

Plaintiff also refused to sign the HHA after counsel so advised because the agreement was "an extra contractual requirement, outside of the scope of its insurance policy with State Auto" and because of Defendant's "continued opinion that the Luxel Equipment could not be restored and was required to...

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