United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE
plaintiff, Auto USA, Inc., has filed suit claiming that the
defendant, DHL Express (USA), Inc. (“DHL”)
fraudulently or negligently misrepresented the terms of their
shipping agreement, violated the Maryland Consumer Protection
Act, committed constructive fraud, and intentionally
concealed a material fact. DHL has moved to dismiss these
claims as insufficiently pleaded. For the reasons stated
below, DHL's motion will be granted.
agreement at the heart of this complaint had its start on
September 11, 2015, when David Shaulis, on behalf of DHL,
made an offer to win Auto USA's international shipping
business. (Compl. ¶¶ 9-10). Auto USA was not an
easy sell; the company rejected DHL's initial offer and
countered by requesting a 20% rebate on its shipping costs.
(Id. at ¶ 11). This request was repeated on
September 29, 2015, when Auto USA submitted a counter-offer
requesting, among other things, a 20% rebate during a three
month trial period with DHL. (Id. at ¶ 12).
Shaulis was excited by Auto USA's counter-offer claiming
it “was the best news” he “heard all
day” and that his manager would review the terms which
he felt DHL would “be able to accommodate.”
(Id. at ¶ 13). A little over a month later, the
parties entered into a Shipping Service Agreement,
(“Agreement”), a contract that outlined the terms
of the shipping arrangement, and included a rebate but not
the 20% rebate Auto USA had requested during the negotiation.
(Id. at ¶ 14; Id. at Ex. A
that it was entitled to a 20% rebate despite the
contract's conflicting terms, Auto USA sent an email to
DHL asking if the rebate could be included on their online
invoice to simplify their accounting. (Id. at ¶
15). Shaulis responded on behalf of DHL a month later saying
that he would ask his boss about Auto USA's accounting
inquiry. (Id. at ¶ 16). He did not, however,
say that Auto USA's presumption that it was entitled to a
20% rebate was mistaken. A formal correction did not come
until February 26, 2016, after Auto USA demanded the 20%
rebate, when DHL disavowed the existence of any promise to
provide a 20% rebate. (Id. at 17). DHL asserted that
it never agreed to the 20% rebate, and the contract between
the parties, which contains a different rebate, is the
exclusive source of their respective obligations.
(Id.). Auto USA sent one more letter concerning the
20% rebate to no avail. (Id. at ¶ 18).
USA filed suit against DHL on May 12, 2017, claiming that the
company fraudulently or negligently misrepresented the terms
of the Agreement before and after it was signed. (ECF No. 1).
DHL moved to dismiss the case for failure to state a claim.
(ECF No. 6). For the reasons stated below, the court will
grant the defendant's motion.
survive a motion to dismiss, the factual allegations of a
complaint “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). “To
satisfy this standard, a plaintiff need not
‘forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements.”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citation omitted). “Thus, while a plaintiff does
not need to demonstrate in a complaint that the right to
relief is ‘probable, ' the complaint must advance
the plaintiff's claim ‘across the line from
conceivable to plausible.'” Id. (quoting
Twombly, 550 U.S. at 570). And the plaintiff
typically must do so by relying solely on facts asserted
within the four corners of his complaint. Zak v. Chelsea
Therapeutics Intern., Ltd., 780 F.3d 597, 606-07 (4th
Cir. 2015). When alleging fraud, however, “a party must
state with particularity the circumstances constituting fraud
or mistake.” Fed.R.Civ.P. 9(b).
argues that this court should dismiss Auto USA's claims
because the plaintiff has not identified a false
representation, DHL did not have a duty to disclose, nor did
it, in any case, conceal anything from Auto USA, the Maryland
Consumer Protection Act does not apply to commercial
transactions, and the parties were not in a confidential
relationship and therefore DHL cannot be liable for
constructive fraud. For substantially these reasons, the
court will grant DHL's motion to dismiss.
Choice of Law
motion to dismiss DHL claimed that the choice-of-law
provision in the shipping agreement controls this case and
therefore Florida law applies. In supplemental briefing on
the choice of law question, however, DHL chose not to argue
that Florida law applies, instead asserting that Auto
USA's suit should be dismissed even if Maryland law
applies. (ECF No. 16). Because Auto USA asserts causes of
actions sounding in tort rather than contract law, Maryland
sitting in diversity applies the choice of law principles of
the state in which it sits. See Klaxon Co. v. Stentor
Electric Mfg. Co., 313 U.S. 487, 496 (1941). This court
must apply Maryland's choice of law rules which adopt the
principle of lex loci delicti: “the law of the
place where the tort or wrong was committed.”
Laboratory Corp. of America v. Hood, 911 A.2d 841,
844-45 (Md. 2006). The “place of wrong” is the
place of injury. See Erie Ins. Exchange v.
Heffernan, 925 A.2d 636, 648-49 (Md. 2007); see also
Philip Morris Inc. v. Angeletti, 752 A.2d 200, 231 (Md.
2000) (endorsing the view that “[t]he place of injury
is the place where the injury was suffered, not where the
wrongful act took place.”).
there is no question that the law of the place of injury
applies. See Wedeman v. City Chevrolet Co., 366 A.2d
7, 11 (Md. 1976) (“When one may be induced by fraud to
enter into a contract, the tort in that instance cannot be
said to arise out of the contractual relationship” but
“the tortious conduct.”) (abrogated by
Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md.
1992) on different grounds). Because the place of Auto
USA's alleged injury is Maryland, the company is
incorporated and has ...