United States District Court, D. Maryland
David Copperthite United States Magistrate Judge.
Access World (USA) LLC ("Defendant"), moves this
Court to dismiss Counts IV, V, and VI of the Amended
Complaint of Plaintiff, Agropex International, Inc.
("Plaintiff'), for fraudulent misrepresentation,
fraudulent concealment, and negligent misrepresentation,
respectively (the "Motion to Dismiss") (ECF No.
33). After considering the Motion to Dismiss and the
responses thereto (ECF Nos. 37, 41), the Court finds that no
hearing is necessary. See Loc.R. 105.6 (D.Md. 2018).
For the reasons stated herein, the Court DENIES
Defendant's Motion to Dismiss.
reviewing a motion to dismiss, this Court accepts as true the
facts alleged in the challenged complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). As
part of its business operations, Plaintiff arranges for the
import and export of bulk agricultural products, such as corn
and soya. ECF No. 31 at 2, ¶ 4. In early 2017, Plaintiff
entered a contract with Global Natural, LLC ("Global
Natural") to sell corn and soya to downstream buyers
after Plaintiff delivered the products to the United States.
Id. at 3, ¶ 8. The contract between Plaintiff
and Global Natural was for 21, 000 metric tons of corn and
17, 500 metric tons of soya (collectively the
"Cargo"). Id. at 2, ¶ 7. Global
Natural entered a contract with Defendant to store the Cargo
in Defendant's storage facility until Global Natural
arranged the transport of the Cargo to buyers. Id.
at 3, ¶ 9. In April 2017, when Plaintiff delivered the
Cargo to Defendant's facility an independent entity, SGS,
inspected the Cargo to ensure its quantity and quality; SGS
confirmed that the entirety of the Cargo was in good
condition upon delivery to Defendant's facility.
Id. at 3, ¶¶ 10-11.
quickly arose regarding the storage fees and whether the
Cargo was properly certified "organic," which led
to the Cargo remaining in Defendant's storage facility.
Id. at 3, ¶¶ 12-13. In a discussion about
the storage fees, Global Natural's employee Michael
Spangler informed Defendant employees Richard Jamison and
Spencer Jamison that Plaintiff was the owner of the Cargo as
early as April 7, 2017. Id. at 3, ¶ 12. Per
industry standards, the Cargo needed to be stored so it would
be free from moisture and identifiable for Plaintiffs future
sales. Id. at 4, ¶¶ 14-15.
11, 2017, Plaintiffs officer Darla Turner emailed
Defendant's employee Jennifer Lewis to ask specifically
about Defendant's storage methods for the Cargo.
Id. at 4, ¶ 16. The same day, Ms. Turner also
informed Defendant that Plaintiff had a buyer for the Cargo,
and she requested the Cargo be available for Plaintiff to
transport to the buyer. Id. at 4, ¶ 19. In a
separate exchange on July 12, 2017, Defendant's counsel
informed Plaintiff that Defendant would be responsible for
any damage to the Cargo under Defendant's "care,
custody, and control." Id. at 4, ¶ 18.
After Plaintiffs request that Defendant make the product
available for transport, Defendant refused to release the
product because its storage agreement was with Global
Natural, not with Plaintiff, and Global Natural would need to
consent to the release. Id. at 5, ¶ 20.
Although Defendant refused to release the Cargo to Plaintiff,
Defendant still simultaneously demanded Plaintiff pay Global
Natural's outstanding storage fees for the Cargo.
Id. at 5, ¶ 21. On July 14, 2017,
Defendant's counsel admitted to Plaintiff that Plaintiff
had title to the Cargo, and still demanded Plaintiff pay all
storage and handling costs. Id. at 5, -¶ 22.
17, 2017, Ms. Turner notified Defendant's employee Simon
Pollet that Plaintiff was in the process of securing a vessel
to transport the Cargo to buyers. Id. at 6, ¶
26. The same day, Mr. Pollet asked Ms. Turner to send him the
specifications of the vessel Plaintiff was considering, and
Ms. Turner immediately provided the information. Id.
On July 18, 2017, Ms. Turner provided even more vessel
specifications to Mr. Pollet, including its estimated arrival
in Baltimore on July 21, 2017. Id. at 6, ¶ 27.
Ms. Turner also informed Mr. Pollet that Plaintiff needed to
confirm with the vessel that day. Id. The same day,
Mr. Pollet replied to Ms. Turner's emails about the
vessel requesting she sign a business confirmation document,
indicating the vessel's specifications were acceptable,
and informing Ms. Turner he would send her the outstanding
storage invoices. Id. at 6, ¶ 28. At no point
did Mr. Pollet inform Ms. Turner, or any other employee of
Plaintiff s, the Cargo had been damaged while in storage.
Id. Also on July 18, 2017, Mr. Pollet verbally
informed Ms. Turner that Defendant would load the Cargo on
the vessel at a rate of twenty dollars per metric ton at a
pace of 3, 000 metric tons per day. Id. at 6-7,
¶ 29. Mr. Pollet confirmed these were the stated amounts
in an email on July 21, 2017, during which he informed Ms.
Turner Defendant was increasing its rates. Id.
20, 2017, Ms. Turner followed up via email with Mr. Pollet
and Ms. Lewis regarding her July 11th questions concerning
the Cargo's storage, to which no one had yet replied.
Id. at 7, ¶ 34. On July 21, 2017, aware that
Plaintiffs vessel was supposed to begin loading the Cargo
that day, Mr. Pollet informed Ms. Turner that Defendant still
had to weigh the Cargo, so the rates and pace he had quoted
to her for loading the Cargo needed to be modified.
Id. at 8, ¶ 36. Ms. Turner immediately
responded questioning the additional fees. Id. Also
on July 21, 2017, Defendant's counsel told Global
Natural's counsel that the Cargo belonged to Plaintiff,
which had paid all outstanding and applicable fees, but
Defendant still required that Plaintiff pay additional
"loading fees." Id. at 7, ¶ 35. On
July 24, 2017, Mr. Pollet informed Ms. Turner that Defendant
was increasing its loading rate to thirty-six dollars per
metric ton and decreasing its loading pace to 1, 900 metric
tons per day. Id. at 8, ¶ 37. Because Plaintiff
had already secured a buyer and a vessel for the Cargo, it
was forced to pay Defendant's new rates; Plaintiff was
also subject to a $345, 951.04 fee from the vessel for the
delay. Id. at 8, ¶¶ 38-39. Also on July
24, 2017, Ms. Lewis partially responded to Ms. Turner's
July 11th and 20th emails by stating only the Cargo was
stored outside. Id. at 8, ¶ 40.
25, 2017, Ms. Turner informed Mr. Pollet and Defendant's
employee Len Crescenzo via email that the United States
Department of Agriculture ("USDA") found that one
pile of corn that was part of the Cargo was damaged, and the
USDA would be performing inspections the next day.
Id. at 8, ¶ 41. Ms. Turner also informed Mr.
Pollet and Mr. Crescenzo that the vessel would not dock to be
loaded until the USDA reported on the quality of the Cargo.
Id. After this discovery, on July 27, 2017, Mr.
Pollet responded to Ms. Turner's July 11th email by
providing more information on Defendant's storage system.
Id. at 8-9, ¶ 42. Mr. Pollet stated that
Defendant had an aeration system, but Defendant "d[id]
not check quality, quantity, temperature, humidity, or for
infestation." Id. In the same email, Mr. Pollet
also sought to disclaim Defendant's previous assurances
that it was responsible for any damage to the Cargo while it
was stored in Defendant's facility. Id. at 9,
August 4, 2017, Plaintiff sent Defendant a formal protest
letter signed by Ms. Turner asking Defendant to accept
liability for the damage to the Cargo. Id. at 9,
¶ 45. Plaintiffs letter detailed the substandard
conditions to which Defendant subjected the Cargo as well as
Defendant's deficiencies compared to the expected loading
pace. Id. On August 17, 2017, Defendant sent
Plaintiff a letter signed by Mr. Pollet refusing to accept
responsibility, and alleging Global Natural was an agent for
Plaintiff as opposed to an intermediary. Id. at 9,
¶ 46. Defendant's letter also admitted for the first
time that the Cargo had been stored for five months in a
system only intended to be used for thirty days. Id.
on August 17, 2017, Mr. Crescenzo emailed Ms. Turner
inquiring as to Plaintiff's plans for the damaged Cargo:
Id. at 10, ¶ 50. Ms. Turner responded on August
18, 2017, that Plaintiff would keep Defendant updated on its
plans for the Cargo, and Ms. Turner requested that Mr.
Crescenzo confirm that the Cargo was being protected from
further harm. Id. at 10, ¶ 51. On August 21,
2017, after receiving no response, Ms. Turner again emailed
Mr. Crescenzo to inquire as to how the damaged Cargo was
being protected and to request that Defendant advise her of
the extent of the damage to the corn. Id. at 10,
¶ 52. Mr. Crescenzo responded that the damaged Cargo
would be stored in bins covered by a tarp, but there would be
no aeration system. Id. On August 22, 2017, Ms.
Turner informed Mr. Crescenzo that her calculation indicated
Defendant was still storing 4, 000 metric tons of damaged
corn. Id. at 11, ¶ 53. On August 23, 2017, Ms.
Turner responded to Mr. Crescenzo's email that the
damaged Cargo was not being aerated by stating the Cargo must
be stored in a way to prevent future damage and by stating
the newly discovered damaged Cargo must also be protected.
Id. at 11, ¶ 54. On August 28, 2017, Mr.
Crescenzo told Plaintiff the damaged Cargo "was
separated and protected." Id. at' 11,
¶ 55. Based on Mr. Crescenzo's statement, Plaintiff
arranged to sell the damaged Cargo to a buyer. Id.
at 11, ¶ 56.
November 2, 2017, Ms, Turner emailed Mr. Crescenzo and
Defendant's employee Adam Malinski requesting they
confirm the amount of Cargo was correct on a spreadsheet she
obtained from Defendant's employee Katlyn Ruble.
Id. at 11, ¶ 57. The spreadsheet stated
Defendant was storing 4, 390 metric tons of soya and 1, 891
metric tons of corn for Plaintiff, which Mr. Malinski
confirmed. Id. at 11, ¶¶ 58-59. On
November 2, 2017, Plaintiff arranged for the sale of 3, 900
metric tons of the damaged soya significantly less than the
standard market price for good soya. Id. at 11,
¶¶ 60-61. On November 6, 2017, Ms. Turner emailed
Mr. Crescenzo and Mr. Malinski requesting that Defendant
screen 3, 300 metric tons of soya being loaded from a
specific bin, which Mr. Malinski replied was unnecessary.
Id. at 12, ¶¶ 63-64. Because Defendant had
said screening was unnecessary, Plaintiff sold the soya to a
buyer without screening; the buyer refused delivery, and it
was only then that Plaintiff learned the Cargo was
"substantially more damaged" than Defendant had
represented and contained debris. Id. at 12, ¶
65. Plaintiff had to refund a portion of the purchase price
to the buyer, and its reputation with the buyer was damaged.
Id. at 12, ¶ 66. Plaintiff was unaware of the
full extent of the damage to the Cargo before the buyer
refused delivery, and Defendant did not inform Plaintiff of
the damage. Id. at 13-14, ¶¶ 75-76.
lost revenue as a result of the damage to the Cargo, and over
1, 800 metric tons of Plaintiffs corn was never recovered
from Defendant's facility. Id. at 12, ¶ 67.
Furthermore, almost 375 metric tons of Plaintiff s corn was
so damaged it needed to be destroyed. Id. at 12,
¶ 68. From June 2017 through February 2018, Defendant
charged Plaintiff approximately $1, 987, 163.48 for storage,
handling, loading/unloading, and overtime without considering
the damage to the Cargo. Id. at 13, ¶ 74. On
August 24, 2018, Defendant charged Plaintiff for storage and
disposal fees for the remaining damaged Cargo that Plaintiff
was unaware Defendant still retained. Id. at 14-15,
¶¶ 78, 80, 85. Plaintiffs financial losses are
attributable to lost revenue, storage and related fees,
vessel demurrage fees, and refunds to buyers; by Plaintiffs
calculations, these losses total $4, 152, 654.20.
Id. at 17, ¶ 96.
April 26, 2019, Plaintiff filed this lawsuit against
Defendant, seeking compensatory and punitive damages
exceeding $3, 500, 000 (ECF No. I). On June 7, 2019, Defendants
filed a motion to dismiss for failure to state a claim as to
all but Count I of the Complaint (ECF No. 19). On June 21,
2019, Plaintiff filed a response in opposition (ECF No. 20),
to which Defendant replied on July 5, 2019 (ECF No. 21). On
July 23, 2019, this Court entered a Memorandum Opinion and