Witt v. Nation-Wide Horse Transp., Inc.

• Decision Date: 25 July 2016
• Docket Number: 4:16-cv-108
• Citation: 197 F.Supp.3d 1146
• Parties: Michael James WITT and Caroline M. Witt, Plaintiffs, v. NATION-WIDE HORSE TRANSPORTATION, INC., Robert Owens, and Travis Joseph Turlo, Defendants.
• Court: U.S. District Court — Southern District of Iowa

197 F.Supp.3d 1146

Michael James WITT and Caroline M. Witt, Plaintiffs,

v.NATION-WIDE HORSE TRANSPORTATION, INC., Robert Owens, and Travis Joseph Turlo, Defendants.

4:16-cv-108

United States District Court, S.D. Iowa, Central Division.

Signed July 25, 2016

Michael James Witt, Michael J. Witt Law Offices, West Des Moines, IA, for Plaintiffs.

Joan M. Fletcher, Patrick E. Shanahan, Dickinson Mackaman Tyler & Hagen PC, Des Moines, IA, for Defendants.

ORDER

ROBERT W. PRATT, Judge, U.S. DISTRICT COURT

Plaintiffs filed a petition against Defendants in the Iowa District Court for Polk County on January 31, 2016. Clerk's No. 1–1. Defendants removed the action to this Court on April 14, 2016, on the basis of diversity jurisdiction. Clerk's No. 1. On April 22, 2016, Defendants filed a Motion to Transfer Venue. Clerk's No. 3. Plaintiffs filed a resistance to the Motion on May 4, 2016. Clerk's No. 6. Plaintiffs filed an Amended Complaint on May 9, 2016. Clerk's No. 10. Plaintiffs filed a Second Amended Complaint on May 23, 2016. Clerk's No. 20. Plaintiffs filed a supplemental resistance to Defendants' Motion to Transfer Venue on May 25, 2016. Clerk's No. 21. Defendants filed a Reply in support of their Motion on May 25, 2016. Clerk's No. 22. Plaintiffs filed a sur-reply on June 2, 2016. Clerk's No. 28. The Court also held a hearing on the Motion to Transfer Venue on June 2, 2016. Clerk's No. 27. The matter is fully submitted.

I. FACTUAL BACKGROUND

Plaintiff Michael J. Witt ("Witt") is the owner of a seven-year old male thoroughbred horse named Sebastian and also known as Purity Express. Second Am. Compl. ¶ 6. Witt purchased the horse intending it to be used by his daughter, Caroline M. Witt ("Caroline"). Id. ¶ 8. In May 2015, Sebastian was transported to a stable in Bethel, Pennsylvania so that he could undergo further training with instructor Lisa Bishop ("Bishop"), who along with other professionals, believed that Sebastian had potential to be a champion jumper. Id. ¶ 9–11.

In late summer 2015, Witt decided to return Sebastian to Des Moines for further boarding and training at Valley Park Stables. Id. ¶ 14. On or about August 18, 2015,¹ Witt contacted Nation-Wide Horse Transportation, Inc. ("NHT") about the transport, and explained that Sebastian had special attributes and a high value.² Id. ¶ 15. Witt also contacted three other equine transportation services, but ultimately made the decision to hire NHT because it had "promised the trip back to Iowa would take no more than two, or possibly two and a half, days, which was the shortest travel time offered by all of the interviewed transportation services." Id. ¶ 16.

Witt asked Caroline to go on NHT's website and determine what needed to be done to hire NHT for the transport of Sebastian. Clerk's No. 6–1 (Caroline's Certification) ¶ 4; Clerk's No. 6–2 (Witt's Certification) ¶ 4. On August 20, 2015, Caroline went to NHT's website and saw there was an "authorization form" to be filled out. Id. Caroline told Witt about the form and, without looking at it himself, Witt told her to fill it out and submit it. Clerk's No. 6–1 ¶ 5; Clerk's No. 6–2 ¶ 5. Caroline observed that there was writing on the form submission page, which she later realized was NHT's legal terms and conditions, but she did not read it before filling in the form and submitting it. Clerk's No. 6–1 ¶ 6–7. In particular, when Caroline clicked on the "authorization form" tab, on the website, she was presented with the following pertinent language, which is all in the same font size, and which appears above the spaces to fill in the relevant information for the Sebastian's transport:

Please read the terms and conditions before filling out the form at the bottom of this page.

The following Terms and Conditions govern the transportation of all horses by Nation-Wide Horse Transportation, Inc. ("Transporter") and you ("Shipper") pursuant to oral or written communications....

Transporter will use reasonable efforts in accordance with industry standards to safely transport, feed and care for the shipped horse(s), but makes no guarantees as to the health or physical condition of the horse(s) upon departure or arrival. Transporter will make commercially reasonable efforts to deliver the horse(s) at or about the requested delivery date but is not responsible for delays due to inclement weather, road closures, mechanical failures, or other acts of force majeure whether or not of a class or kind mentioned herein and not reasonably within Transporter's control....

Transporter will provide, at no additional charge to Shipper, one thousand dollars ($1,000) of limited accidental collision mortality insurance per horse transported ... Shipper understands and acknowledges that the only insurance provided to the Shipper by Transporter is one thousand dollars ($1,000) of limited accidental mortality insurance per horse transporter. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRANSPORTER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, RELIANCE, INCIDENTAL, SPECIAL, DIRECT OR INDIRECT DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR FUTURE BREEDING VALUE, PERSONAL INJURY OR ANY OTHER LOSSES UNDER ANY LEGAL THEORY INCLUDING CONTRACT AND TORT, ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT.... The rate quoted is for stated delivery and care of the horse(s)....

This sale shall be deemed to have been made in the State of Colorado and shall be governed by the laws of Colorado notwithstanding any conflict-of-laws doctrines. Any claim related to this Agreement must be brought in the courts of El Paso County, Colorado or the tenth federal district courts in Denver, Colorado. The Parties stipulate that venue is proper therein, waive any other jurisdiction and venue whether by virtue of domicile or otherwise, and consent to the in personam jurisdiction of said courts....

This Agreement shall bind and inure to the benefit of the parties and their respective principals, agents, heirs, successors, and permitted assigns. The parties agree that the terms and conditions stated herein shall set forth the entire agreement between the Shipper and the Transporter....

Clerk's No. 3–3 at 1-2. Underneath this language was a form to fill in details of the requested transport. Id. at 3. In the section titled "Owner Information," Caroline listed herself as "owner" of the horse, with no reference to Witt. Clerks' No. 3–5 at 1. The transport was to cost $770, with half payable as a deposit and the balance due upon delivery of Sebastian to the stable in Des Moines. Id. at 2; Second Am. Compl. ¶ 20. Witt contacted NHT by telephone on August 31, 2015, and paid the deposit with his credit card. Clerk's No. 3–2 (Aff. of NHT owner Brenda Steele) ¶ 8; Pls.' Sur-Reply Br. at 6 ("On August 31, 2015 ... Witt had another telephone call with a man at [NHT] in order to firm up the contract and make the required down payment on his Visa® credit card.").

Robert Owens ("Owens") and Travis Turlo ("Turlo"), employees of NHT, picked up Sebastian in Pennsylvania at approximately 11:00 p.m. on September 4, 2015. Second Am. Compl. ¶ 21. Although expected earlier, Sebastian did not arrive in Des Moines until about 3:00 a.m. on September 9, 2016. Id. ¶ 29. Caroline and an employee of Valley Park Stables were present when the truck arrived. Id. ¶ 28. When the trailer door was opened, they observed that Sebastian was "shaking and the ribs on both sides of his body were jutting out, thus showing that he was underfed, undernourished, dehydrated and/or not given sufficient water during the trip." Id. ¶ 30. Sebastian was uncooperative when Owens and Turlo attempted to lead him out of the trailer. Id. ¶ 31. In an effort to remove Sebastian, they "pushed him violently against a wall and he fell to the floor." Id. ¶ 32. Thereafter, they "proceeded to grab the struggling, prostate Sebastian by his two front legs and yank him out of the trailer, sliding him down the ramp on his buttocks with his two hind leg[s] caught underneath him." Id. ¶ 34. Plaintiffs allege that Owens's and Turlo's reckless treatment of Sebastian has caused lasting harm in the form of pain and suffering to Sebastian, a reduction in his market value, and a corresponding monetary loss to Witt. Id. ¶ 43. In particular, they claim Sebastian's jumping height has been dramatically reduced and he now exhibits an aggressive and wild streak that was not present prior to his transport. Id. ¶¶ 36-39. Witt thus asserts causes of action against Defendants for: (1) tortious conduct; (2) violation of Iowa Code § 717B; and (3) breach of warranty, breach of contract, and restitution. Second Am. Compl. ¶¶ 1-58. Caroline also asserts a cause of action for tortious conduct against Defendants. Id. ¶ 59-61. Although there is no dispute that Witt is Sebastian's owner, Caroline claims she has been personally harmed because: (1) Witt purchased Sebastian for her use and enjoyment; (2) she had an agreement with Witt that if Sebastian became a champion jumper, the two would share in his upside market value; and (3) she spent substantial sums of money improving Sebastian's jumping skills prior to his transport and for his rehabilitation after the transport. Id.

II. LAW AND ANALYSIS

A. Venue Generally

Jurisdiction of the federal court in this matter is premised on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiffs are citizens of Iowa, NHT and Owens are citizens of Colorado, and Turlo is a citizen of New Hampshire. The amount in controversy, as detailed in Defendants' Notice of Removal, exceeds the jurisdictional requisite of $75,000.00. See Clerk's No. 1 at 5-12. Pursuant to 28 U.S.C. § 1391(a), when jurisdiction is founded on diversity of citizenship, a civil action may be brought in:

(1) a judicial district where any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim

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