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Deb v. Sirva Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 11, 2017

ASHOKE DEB, Plaintiff,
v.
SIRVA INC., ALLIED VAN LINES, INC., Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion to Dismiss filed by Defendants SIRVA, Inc. (“SIRVA”) and Allied Van Lines, Inc. (“Allied U.S.”), (collectively “Defendants”). This dispute arises out of a failed moving contract entered into in India by Plaintiff Ashoke Deb (“Deb”) and a moving company called Allied Lemuir. Deb's belongings never made it from India to Canada and were ultimately sold to cover the disputed balance between Deb and Allied Lemuir. He now seeks the Defendants liable for the disposal of his property. Defendants dispute liability and have moved to dismiss Deb's Amended Complaint. For the reasons described below, the Court denies Defendants' Motion to Dismiss, (Filing No. 77).

         I. BACKGROUND

         In or around August 2009, Deb contracted with Allied Lemuir to pack and move his personal and household effects from Calcutta, India to St. John's, Canada. (Filing No. 27 at 4-5.) On August 22, 2009, the date that Allied Lemuir packed Deb's belongings and loaded the items for shipment, Deb paid in advance and in full the contracted amount of $5, 362.29.[1] (Filing No. 27 at 5.) On September 5, 2009, Deb received an email from Allied Lemuir, indicating that sea freight charges had risen substantially, and requiring him either to pay an additional $1, 138.03 or to have the shipment unpacked in Canada at his own expense. (Filing No. 27 at 6.) On September 11, 2009, Deb responded that he expected Allied Lemuir to fulfill its contractual obligation, and refused to pay the additional amount. (Filing No. 27 at 6.) Between September 15 and November 19, 2009, Deb received at least six emails from Allied Lemuir, stating additional reasons why it had not yet shipped his belongings, including that Deb had not provided Allied Lemuir his travel departure certificate from Calcutta to Toronto, and that transport from Calcutta had been delayed by port congestion. (Filing No. 27 at 7.) On December 24, 2009, Deb received a letter repeating the demand for additional payment made in the September 5, 2009 email. (Filing No. 27 at 7.) Allied Lemuir sent Deb a letter dated January 30, 2010, stating that Deb had accrued additional charges for demurrage and fumigation of his belongings, customs clearance, and sea freight expenses. (Filing No. 7.) The letter stated that if Deb failed to remit payment within seven days, the company “would be forced to construe that [he was] no longer interested in the shipment.” (Filing No. 27 at 7.) Deb did not respond to that letter. (Filing No. 27 at 7.)

         On August 5, 2010, Deb's Canadian attorney, Amanda Barfitt, emailed American company Allied Van Lines (“Allied U.S.”), asking it to take all necessary steps to ensure that Deb's belongings were shipped to Deb as quickly as possible. (Filing No. 27 at 8.) On August 10, 2010, SIRVA's vice president and general manager of international moving services forwarded Barfitt's August 5 email to an individual named Ravi, copying Barfitt, asking Ravi to “investigate urgently and respond.” (Filing No. 27 at 8.) On August 11, 2010, SIRVA's claim services department emailed Barfitt stating that they were unable to identify a record of shipment for Deb, and asking Deb to provide a registration number so that the account could be located. (Filing No. 27 at 8.) Barfitt responded on August 12, 2010 that Deb was not given a registration number. (Filing No. 27 at 9.)

         Barfitt did not receive a response to the August 12 email, and she emailed Allied Van Lines Canada (“Allied Canada”) on August 23, 2010. (Filing No. 27 at 9.) From December 2010 through May 2011, Barfitt attempted unsuccessfully to resolve the issue with an attorney for Allied Canada. (Filing No. 27 at 9.) On April 12, 2013, Deb's new legal counsel, Davis E. Wright, received an email from Allied Lemuir's counsel. (Filing No. 27 at 10; Filing No. 27-18.) That email contained a letter dated August 26, 2010 and addressed to Barfitt. (Filing No. 27-18.) The letter stated, among other things, that Allied Lemuir sold Deb's property in order to pay the additional costs it had incurred and that Deb had refused to pay. (Filing No. 27-18.) Deb alleges that this letter was never received by either Barfitt or himself. (Filing No. 27 at 10.)

         Deb filed a legal action against Allied Canada in the Supreme Court of Newfoundland and Labrador, Canada on November 5, 2010.[2] (Filing No. 78-4.) On July 12, 2013, while the Canadian case was still pending, Deb filed this action in Indiana state court against Allied U.S. and SIRVA, raising conversion and breach of contract claims. (Filing No. 1-2.) Defendants jointly filed a notice of removal to this Court on August 5, 2013, (Filing No. 1), and Deb filed the operative Amended Complaint on October 18, 2013, (Filing No. 27).

         On November 4, 2013 Defendants filed a Motion to Dismiss the Amended Complaint, raising several arguments in support of dismissal. (Filing No. 29.) Defendants argued that: (1) Deb failed to state a claim upon which relief can be granted; (2) Deb failed to join a required party; (3) the promotion of judicial economy and efficiency warranted dismissal; (4) the claim should be dismissed on forum non conveniens grounds; and (5) the applicable statute of limitations barred Deb's claims. (Filing No. 30.) This Court granted Defendants' Motion to Dismiss on forum non conveniens grounds, and did not reach Defendants' other arguments. (Filing No. 55.) Deb appealed the dismissal, and the Seventh Circuit concluded that this Court did not hold Defendants to their burden of demonstrating that India was an available and adequate forum for this litigation. (Filing No. 65 at 5.) The Seventh Circuit vacated this Court's prior order and remanded the case for further consideration. (Filing No. 65 at 5.)

         Defendants have filed a renewed Motion to Dismiss, (Filing No. 77), which is now fully briefed and ripe for this Court's review.

         II. DISCUSSION

         In their Renewed Motion to Dismiss, (Filing No. 77), Defendants raise four arguments in support of dismissal: (1) that venue in this court is improper under principles of forum non conveniens; (2) that Deb has failed to state a claim upon which relief can be granted; (3) that Deb has failed to join a required party; and (4) that an identical action is pending before a Canadian court. (Filing No. 78 at 1.) The Court addresses each argument in turn.

         A. Forum Non Conveniens

         Defendants argue that Deb's Amended Complaint must be dismissed under the forum non conveniens doctrine, because India is an available and adequate forum to resolve this dispute. (Filing No. 78 at 10.) Deb responds that Defendants have not met their burden to establish that India is either available or adequate. (Filing No. 78 at 10.)

         From the outset, the Court takes issue with Defendants' contention that this Court “must” dismiss this action under the doctrine of forum non conveniens. That doctrine is a discretionary one, and assuming that venue is proper where filed, a court may always determine whether nor not to exercise its discretion to dismiss a case on those grounds. See Deb, 832 F.3d at 805 (internal citations and quotations omitted) (“A district court may dismiss a case on forum non conveniens grounds when it determines that there are strong reasons for believing it should be litigated in the courts of another, normally a foreign, jurisdiction. A dismissal for forum non conveniens is committed to the sound discretion of the trial court…”). The doctrine should also be used “sparingly, ” as a dismissal on forum non conveniens grounds is an exceptional remedy. See, Id. at 805. As the Seventh Circuit stated in its opinion on review of this Court's prior order:

[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. The exceptional nature of a dismissal for forum non conveniens means that a defendant invoking it ordinarily bears a heavy burden in opposing the plaintiff's chosen forum. A heavy burden is appropriate, because if the doctrine is successfully invoked, the result is not a transfer to another court but a dismissal, and the plaintiff will not be able to refile his case in any other court if the statute of limitations has run.

Id. at 805-06. Here, where the plaintiff has chosen a forum that is not his home, the presumption in the plaintiff's favor applies with less force. See Id. at 806. However it “is still the defendants' burden to oppose the chosen forum.” Id.

         The forum non conveniens inquiry involves two steps. First, a court must “determine if an alternative and adequate forum is available…” Id. at 807. A court starts “with the availability of the forum because, as a practical matter, it makes little sense to broach the subject of forum non conveniens unless an adequate alternative forum is available to hear the case. Therefore, the first step in any forum non conveniens inquiry is to decide whether such a place exists.” Id. (internal citations and quotations omitted). As to the alternative forum:

[a]n alternative forum is available if all parties are amenable to process and are within the forum's jurisdiction. An alternative forum is adequate when the parties will not be deprived of all remedies or treated unfairly. Adequacy only comes into play to the extent that the remedy would be so inadequate that for all intents and purposes the forum is not available. A forum is not inadequate merely because the law in the foreign jurisdiction is less favorable to the party opposing dismissal.

Id.

         So, in order to show that their proposed alternative forum, India, is available, Defendants are required to establish that “Deb could sue these Defendants, SIRVA and [Allied U.S.] in India.” Id. at 807-08. As in the initial Motion to Dismiss, Defendants have not indicated that they would consent to the jurisdiction of an Indian Court. See Deb, 832 F.3d at 812 (noting that a concession of jurisdiction is one form of evidence that a defendant can present to demonstrate that a foreign jurisdiction will be available). In support of their argument that Deb could sue the Defendants in India, Defendants have submitted a “legal opinion” offered by Yamandeep Kumar of Singhania & Partners, LLP as to whether Allied U.S. and SIRVA would be subject jurisdiction of a court in India.[3]

         Deb objects to the Court's consideration of Mr. Kumar's report. (Filing No. 92 at 7.) Deb points out that the report and accompanying affidavit do not disclose Mr. Kumar's qualifications “to opine as an expert on the issues contained in his report.” (Filing No. 92 at 7.) Deb also states that he requested information regarding Mr. Kumar, such as his CV, qualifications, or prior publications, and that both Defendants and Mr. Kumar have improperly refused to provide any such information or to respond to the relevant discovery requests. (Filing No. 92 at 7-8.) As such, Deb contends, Defendants have “thwart[ed] attempts to make [the report] subject to an adversarial process in which the parties have an opportunity to argue about its meaning and import.” (Filing No. 92 at 7, citing Deb, 832 F.3d at 814.)

         The Court agrees that it is impossible to assign proper evidentiary weight to Mr. Kumar's report without any information as to the expertise of the drafter or the circumstances of the drafting. In any event, Mr. Kumar's report fails to provide any evidentiary support for Defendants' factual contention that they would be subject to the jurisdiction of an Indian court in this matter.

         First, the report as a whole is confusing. The Court excerpts a portion of the ...


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