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Dorcas-Jedi & Associates v. Divine Edlen USA, LLC

United States District Court, S.D. Texas, Houston Division

May 26, 2018

DORCAS-JEDI & ASSOCIATES, Plaintiff,
v.
DIVINE EDLEN USA, LLC, NORDANA USA, INC., CITIBANK NATIONAL ASSOCIATION, and DIAMOND BANK, PLC, Defendants.

          MEMORANDUM AND RECOMMENDATION GRANTING DEFENDANT NORDANA (USA). INC.'S MOTION FOR SUMMARY JUDGMENT

          FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE

         Pending and referred is Defendant Nordana (USA) Inc.'s Motion for Summary Judgment (Document No. 23) in which Defendant maintains that Plaintiff s claims are barred by the applicable limitations period. According to Defendant Nordana (USA) Inc. ("Nordana")[1], Plaintiff filed this lawsuit more than four years after the goods made the basis of the lawsuit were delivered in Nigeria - outside of both the one year statutory limitations period provided for in the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 30701, Note § 3(6), and the one year limitations period set forth in the parties' Bill of Lading. Plaintiff has not, to this date, filed a response to Defendant Nordana's Motion for Summary Judgment.

         Having considered the Motion for Summary Judgment, the absence of a response, the claims at issue in this case, the terms of the Bill of Lading that governed the shipment of the goods at issue and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Defendant's Motion for Summary Judgment (Document No. 23) be GRANTED.

         Background

         Plaintiff Dorcas-Jedi & Associates, Limited ("Dorcas-Jedi"), a corporation organized under the laws of Nigeria, filed this lawsuit against Divine Edlen USA, LLC on August 5, 2016, complaining about the quality of the goods (enzymatic dough) it had purchased from Divine Edlen, and which were shipped to Nigeria in 2013. Dorcas-Jedi asserted claims against Divine Edlen in the Original Complaint for breach of contract, breach of various warranties, and negligence. Divine Edlen did not file an Answer or any other responsive pleading. On July 20, 2017, after having been granted leave to do so, Dorcas-Jedi filed a First Amended Complaint (Document No. 13). In that First Amended Complaint, Dorcas-Jedi continued to assert the same claims against Divine Edlen, but also purported to add, as additional defendants, Nordana USA, Inc., Citibank National Association, and Diamond Bank PLC. With regard to Defendant Nordana USA, Inc., Dorcas-Jedi asserted breach of contract and negligence claims. With respect to the breach of contract claim, Dorcas-Jedi alleged:

Dorcas Jedi was the intended third party beneficiary of the contract between Divine Edlen and Nordana with respect to the shipment of the products to Nigeria. . . . Defendants, Divine Edlen and Nordana, also breached the contract for improperly packaging, storing and by shipping the goods later than contracted for by the parties. These defendants failed to perform and the goods did not get to Dorcas Jedi in 2012 as agreed to by the parties.

         As for the negligence claim, Dorcas-Jedi alleged as follows:

53. Dorcas-Jedi & Associates Limited and Defendant entered into an Exclusive Distributorship Agreement for the purchase, sale and distribution in Nigeria of Defendant's EDC-95/EDC-2000 Combo Pak. To further this agreement, Divine Edlen entered into a contract with .Defendant Nordana USA to ship the goods to Dorcas-Jedi & Associates Limited in Nigeria. Thus Dorcas-Jedi is a party or intended third-party beneficiary to the contracts herein alleged.
54. Defendants, Divine Edlen and Nordana, and their agent(s) had a duty to exercise due care in handling and delivering the goods to Dorcas-Jedi at all times from its factory up to and including the time that Dorcas-Jedi took possession of the goods in Nigeria. Defendants' duty is heightened because the contract is an Exclusive Contract imposing a duty of good faith and because of the special nature of the goods.
55. Divine Edlen and Nordana breached their duty to Dorcas-Jedi & Associates Limited by their excessive delays, dropping Onne, Nigeria from its scheduled port of call and its mishandling of the goods before they were delivered to Nigeria.
56. Divine Edlen breached its duty to Dorcas-Jedi by packaging and shipping powder and liquids in an untested can prototype and by shipping expired and defective products to Dorcas-Jedi & Associated Limited.
57. By the time Dorcas-Jedi took possession of the products shipped by Defendants, the products had turned into a dough-like substance. The actions or lack of actions by Nordana and Defendants caused Dorcas-Jedi significant financial damages, as well as damages to its reputation as a reputable distributor within Nigeria.
58. Dorcas-Jedi & Associated Limited sustained foreseeable damages due to the conduct of Defendants, Divine Edlen and Nordana. Dorcas-Jedi & Associates Limited is entitled to any and all compensatory damages flowing from the actions of Defendants.

         Plaintiffs First Amended Complaint (Document No. 13) at 8, 9, 12-13. Defendant Nordana filed an Answer on August 31, 2017 (Document No. 19), and several months later, a Motion for Summary Judgment (Document No. 23). In that Motion for Summary Judgment, Nordana argues that it is entitled to summary judgment on Dorcas-Jedi's claims against it because they were not asserted until more than four years after the delivery of the allegedly defective goods made the basis of this lawsuit. Nordana relies on the one-year statute of limitations in COGSA as well as the one year limitations period set forth in the Bill of ...


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