Opinion
19-CV-5731 (GHW) (RWL)
03-02-2022
IN THE MATTER OF THE COMPLAINT OF HAPAG-LLOYD AKTIENGESELLSCHAFT a/k/a HAPAG-LLOYD AG AS OWNERS AND OPERATORS OF THE M/V YANTIAN EXPRESS.
REPORT AND RECOMMENDATION TO HON. GREGORY H. WOODS: MOTION TO DISMISS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
On September 21, 2020, third-party defendant Ocean Network Express Pte. Ltd. (“ONE”) filed a motion to dismiss four bellwether “test” claims based on forum non conveniens. (Dkt. 570.) The test claims were agreed upon by ONE, certain cargo claimants represented by Hill Rivkins LLP (“Cargo Claimants”), and certain non-vesseloperating common carriers led by Apex Marine Co., Inc. and represented by the Kennedy Lillis Schmidt & English firm (“NVOCC Claimants, ” and together with Cargo Claimants, the “Claimants”).
On June 30, 2021, I recommended that ONE's motion be denied with respect to all four test claims. (Dkt. 707.) On November 29, 2021, Judge Woods adopted the report and recommendation in full. (Dkt. 735.)
ONE now has moved to dismiss Claimants' non-test claims against ONE. (Dkt. 763.) On February 8, 2022, I approved a streamlined process and schedule for briefing and resolving the motion on the non-test claims. (Dkt. 760.) That process has been completed.
In moving and opposing the motion to dismiss, the parties rely on the same papers they filed in support of and in opposition to the motion to dismiss the test claims. ONE also relies on the additional declarations of Jon Werner (Dkt. 764) and Douglas Wyatt (Dkt.765). Exhibit A to the Werner Declaration is a spreadsheet identifying each non-test claim and the test-claim category to which it corresponds (the “Claims Spreadsheet”). (See Dkt. 764. Exh. A.) Claimants do not object to use of the Claims Spreadsheet as a means of proving the claims which are the subject of ONE's instant motion to dismiss the non-test claims. (Dkt. 764 ¶ 10.)
Accordingly, I recommend that ONE's instant motion to dismiss the non-test claims as set forth in the Claims Spreadsheet be dismissed for the same reasons provided in my earlier Report and Recommendation addressing the test claims.
Conclusion
For the forgoing reasons, ONE's motion to dismiss the non-test claims for forum non conveniens should be DENIED in its entirety.
Procedures For Filing Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Gregory H. Woods, United States Courthouse, 500 Pearl Street, New York, NY 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, NY 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
Respectfully submitted,