Thunderwave, Inc. v. Carnival Corp.

• Decision Date: 23 January 1997
• Docket Number: No. 96-2187-CIV.,96-2187-CIV.
• Citation: 954 F.Supp. 1562
• Court: U.S. District Court — Southern District of Florida
• Parties: THUNDERWAVE, INC., Plaintiff, v. CARNIVAL CORPORATION f/k/a Carnival Cruise Lines, Defendant.

954 F.Supp. 1562

THUNDERWAVE, INC., Plaintiff, v. CARNIVAL CORPORATION f/k/a Carnival Cruise Lines, Defendant.

No. 96-2187-CIV.

United States District Court, S.D. Florida.

January 23, 1997.

Philip L. O'Neill, John M. Craig, Keck, Mahin & Cate, Washington, DC, Steven J. Brodie, Cohen, Berke, Bernstein, Brodie & Kondell, P.A., Miami, FL, for Plaintiff.

Jeffrey T. Foreman, Michael Nachwalter, Miriam Lefkowitz, Kenny Nachwalter Seymour Arnold Critchlow & Spector, P.A., Miami, FL, for Defendant.

MEMORANDUM OPINION

MORENO, District Judge.

Defendant Carnival Corporation ("Carnival") circulated a Request for Proposal to forty-two vendors inviting contract proposals for a Turnkey Shipboard In-Cabin Interactive/Multimedia System ("SIIMS"). Plaintiff ThunderWave, Inc. ("ThunderWave") responded to the Request, and claims that its proposal was ultimately accepted by Carnival. ThunderWave also contends that Carnival requested that ThunderWave perform certain Design Review services which fell outside of the contract proposal, with Carnival agreeing to pay on a "time, materials, and out-of-pocket expense" basis. In addition, ThunderWave argues that Carnival requested that ThunderWave take responsibility for Carnival's Infrastructure services, offering to pay on the same terms. ThunderWave claims that Carnival has refused to pay for this work, and seeks damages under two alternative theories of recovery: breach of express contract or unjust enrichment.

The Court notes that Carnival previously filed a Rule 12(b) Motion to Dismiss. See ThunderWave, Inc. v. Carnival Corporation f/k/a Carnival Cruise Lines, No. AW 96-481 (D.Md. March 18, 1996) (Defendants' Motion to Dismiss or, Alternatively, to Transfer Case). Consequently, Carnival cannot "make a motion based on the defense or objection so omitted, except a motion as provided in subdivision h(2)...." Fed.R.Civ.P. 12(g). Rule 12(h)(2) provides that "A defense of failure to state a claim upon which relief can be granted ... may be made ... by motion for judgment on the pleadings." Fed.R.Civ.P. 12(h)(2). See also Daingerfield Island Protective Soc. v. Lujan, 797 F.Supp. 25 (D.D.C. 1992), aff'd, 40 F.3d 442 (D.C.Cir.1994) (holding that the defense of failure to state a claim upon which relief can be granted is not waived by the failure to interpose it in a motion under Rule 12); English v. Dyke, 23 F.3d 1086, 1091 (6th Cir.1994) (noting that Rule 12 excepts motions for judgment on the pleadings from its waiver provisions). The Court will therefore treat Defendant's motion as a Rule 12(c) Motion for Judgment on the Pleadings.

STANDARD OF REVIEW

Federal district courts have applied a "fairly restrictive standard in ruling on motions for judgment on the pleadings." Bryan Ashley Int'l, Inc. v. Shelby Williams Indus., Inc., 932 F.Supp. 290, 291 (S.D.Fla.1996) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1368 (1990)). To obtain a judgment on the pleadings, the moving party must clearly establish that no material issue of fact remains unresolved and that it is entitled to judgment as a matter of law. Id.; Vagenas v. Continental Gin Co., 789 F.Supp. 1137, 1138 (M.D.Ala. 1992), vacated on other grounds, 988 F.2d 104 (11th Cir.1993), cert. denied, 510 U.S. 947, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993); Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir.1973). Moreover, the district court must view the facts presented in the pleadings, and all inferences drawn thereof, in the light most favorable to the non-moving party. Inst. for Scientific Info., Inc. v. Gordon and Breach, 931 F.2d 1002, 1004 (3rd Cir.1991), cert. denied, 502 U.S. 909, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991). The standard of review for Rule 12(b)(6) and Rule 12(c) motions are identical. See Bryan Ashley, 932 F.Supp. at 291-92 (citations omitted); Delta Truck & Tractor v. Navistar Intern. Transp., 833 F.Supp. 587 (W.D.La.1993) (applying the standard used for Rule 12(b)(6) motions to Rule 12(c) motions) (citations omitted).

CHOICE OF LAW

The Maryland District Court ruled that "Florida is going to be applicable here ... under the appropriate choice of law...." ThunderWave, Inc. v. Carnival Corporation f/k/a Carnival Cruise Lines, No. AW 96-481 (D.Md. August 26, 1996) (Hearing Transcript). This prior ruling of the transferor court may only be reconsidered "when the governing law has been changed by a subsequent decision of a higher court, when new evidence becomes available, when a clear error has been committed, or to prevent manifest injustice." Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991) (citations omitted), cited with approval in Shute v. Carnival Cruise Lines, Inc., 804 F.Supp. 1525, 1528 (S.D.Fla.1992). Since the governing law has not been changed by a higher court, no new evidence has become available, and Plaintiff has not presented any showing that a manifest injustice will occur under the application of Florida law, this Court need only consider whether the Maryland District Court committed a clear error.

Both Florida and Maryland apply the "lex loci contractus" rule for choice of law determinations regarding issues of contract law. Fioretti v. Massachusetts General Life Ins. Co., 53 F.3d 1228, 1235 (11th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 708, 133 L.Ed.2d 663 (1996); American Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 659 A.2d 1295, 1301 (1995). Consequently, application of the "lex loci contractus" rule determines whether Florida or Maryland law applies to ThunderWave's unjust enrichment claims. See Trumpet Vine Investments, N.V. v. Union Capital Partners I, Inc., 92 F.3d 1110, 1119 (11th Cir.1996) (applying the lex loci contractus rule to an unjust enrichment claim). Under this rule, an implied-in-law contract is created where the last act necessary to complete the contract is made. Id. (citing Jemco, Inc. v. United Parcel Serv., Inc., 400 So.2d 499, 500-01 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982)); Mallinckrodt, Inc. v. Whittaker M.A. Bioproducts, Inc., 81 Md.App. 96, 566 A.2d 1113, 1116 (1989) (law governing oral contract is the law of the state where the agreement was reached).

Although Carnival argues in this motion that ThunderWave's implied-in-law contracts for Design Review services and Infrastructure services arose at the time of performance, a review of Carnival's Complaint indicates that performance followed Carnival's acceptance of ThunderWave's offers. See Complaint ¶ 38 (the parties "orally agreed" that "ThunderWave in cooperation with Carnival would perform a Design Review"); Id. ¶ 83 ("ThunderWave entered into an oral agreement with Defendant Carnival, whereby the parties agreed to engage ThunderWave to perform a Design Review ... [which] ... was to be in accordance with instructions submitted by Defendant Carnival");¹ Id. ¶ 51 (Carnival's Vice President of Fleet Operations, Brendan Corrigan, stated to ThunderWave that the parties "must proceed as if the contract (for, among other things, Infrastructure services) is signed"); Id. ¶ 95 (the parties "entered into an oral agreement" in Miami "whereby the parties agreed to engage ThunderWave to perform Infrastructure consulting services ... [which] ... was to be in accordance with the instructions submitted by Defendant Carnival");² Id. ¶ 98 ("In compliance with the parties' agreement and understanding, ThunderWave began performance of the work ... and completed all tasks assigned to it"). Based on Carnival's own pleadings, and in the absence of any evidence or argument by Carnival that the alleged contracts for Design Review services or Infrastructure services were unilateral contracts, this Court can find no clear error in the Maryland District Court's determination that the contract was entered into in Miami and that Florida law applies to the unjust enrichment claims.

Regarding the tort actions, a case transferred under Section 1404(a) is governed by the same choice of law principles that would have applied had there been no transfer. Ferens v. John Deere Co., 494 U.S. 516, 531, 110 S.Ct. 1274, 1283-84, 108 L.Ed.2d 443 (1990). Thus, while the Florida Supreme Court has adopted the "most significant relationship" test set forth in the Restatement (Second) of Conflict of Laws § 145, see Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980); Trumpet Vine, 92 F.3d at 1115-16; Judge v. American Motors Corp., 908 F.2d 1565, 1568 (11th Cir. 1990), Maryland adheres to the traditional "lex loci delicti" conflict of laws principle for issues of tort law. See, e.g., Chambco v. Urban Masonry Corp., 338 Md. 417, 659 A.2d 297, 299 (1995); Ward v. Nationwide Mutual Automobile Ins. Co., 328 Md. 240, 614 A.2d 85, 91 n. 8 (1992); Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27, 606 A.2d 295, 300, cert. denied, 327 Md. 626, 612 A.2d 257 (1992).

Under the doctrine of "lex loci delicti," Maryland applies the substantive tort law of the place where the tort occurred. See Hauch v. Connor, 295 Md. 120, 453 A.2d 1207, 1209-1212 (1983). "[T]he law of the place of the tort ... is the place where the injury or death was inflicted and not the place where the allegedly wrongful act or omission took place." Johnson v. Oroweat Foods Co., 785 F.2d 503, 511 (4th Cir.1986). Since in a tort action a corporation always suffers abstract financial injury at its primary place of business, the applicable law is not necessarily the corporation's primary place of business, but is rather where the injury was actually inflicted. See First Federal Savings and Loan Ass'n of Brainerd v. Equitable Bank, 1988 WL 167703 at *4 (D.Md. April 5, 1988) (unpublished opinion).

Counts VIII and IX of the Complaint (the tort claims) are based on certain alleged wrongful conduct of Perez and Carnival, all of which occurred in Florida. Judge Williams of the District Court of Maryland, Southern Division, concluded that "there is one overall...