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28JOSHUA E. KIRSCH (1 79110)
GIBSON ROBB & LINDH LLP
201 Mission Street, Suite 2700
San Fran cisco, Cal ifornia 94105
Telephone:(415) 348-6000
Facsimile:(415) 348-6001
Email: [email protected]
Attorneys for Plaintiff
AFFILIATED FM INSURANCE
COM PANY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AFFILIATED FM INSURANCE
COM PANY, a co rporation;
Plaintiff,
v.
OVERNIGHT LOGISTICS, INC., , a
corporation; FREIGHT ALL KINDS,
INC., a co rporation; FAK, INC., a
corporation; DANIEL M ONTALVO
VILLA, an individual (dba Un ited
DM Express); and DOES ONE
through TEN;
Defen dants.
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)Case No .: 2:18-cv-08359
COMPLAI NT FOR NON-
DELIVERY OF CARGO
________________________________
($70,942.04)
Plaintiff’s complaint follows:
GENERAL ALLEGATI ONS
1. Plaintiff AFFILIATED FM INSURANCE COM PANY
(“AFFILIATED”) i s now, an d at all times herein material was, a co rporation duly
organized and existing by virtue of law an d was the insurer of the hereinafter
described shipment.
COMPLAINT FOR NON-DEL IVER Y OF CARGO
Case No. 2 :18-cv-08359; Our File No. 5 724.15Case 2:18-cv-08359-ODW-SK Document 1 Filed 09/27/18 Page 1 of 3 Page ID #:1
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282. Plaintiff is informed and believes and on the basis of that information
and belief alleges that OVERNIGHT LOGISTICS, INC., a co rporation; FREIGHT
ALL KINDS, INC., a co rporation; FAK, INC., a co rporation; DANIEL
MONTALVO VILLA, an individual (dba Un ited DM Express); and DOES ONE
through TEN are n ow an d at all times herein material were en gaged in business as
brokers and/or common carriers for hire in the county of San Bern ardino, State of
California.
3. The true names of defendants sued herein as DOE ONE t hrough DOE
TEN, each of whom is or may be responsible for the events and matters herein
referred to, and each of whom caused or may have cau sed or contributed to the
damage herein complained of, are u nknown to plaintiff, wh o therefo re sues said
defendants by such fictitious names. Plaintiff wi ll amend its complaint to show
the true names of said defendants when the same have been ascertained.
4. The claims alleged herein contain a cau se of action for non-delivery
of carg o and is a claim under the Carm ack Amendment, 49 U.S.C. § 14706.
Acco rdingly, this Court has jurisdiction over this claim pursuant to 28 U.S.C.
§1331. Ven ue is proper under 28 U.S.C. § 1391(b).
5. Plaintiff is informed and believes and on the basis of such
information and belief alleges that on or about August 11, 2017, at Fontana,
California, defendants OVERNIGHT LOGISTICS, INC., FREIGHT ALL KINDS,
INC., FAK, INC., DANIEL M ONTALVO VILLA (d ba Un ited DM Express), and
DOES ONE t hrough TEN, recei ved a carg o of 1,147 tires and wheels belonging to
plaintiff’s insured, Tireco, Inc. an d/or related entities. Un der bill of lading no.
51344 and others, said defendants, and each of them, agreed, orally and in writing,
and in return for good and valuable consideration, to carry said carg o from
Fontana, Cal ifornia, to Westwego, Louisiana, an d there d eliver said carg o in the
same good order, co ndition, and quantity as when recei ved.
/ / /
COMPLAINT FOR NON-DEL IVER Y OF CARGO
Case No. 2 :18-cv-08359; Our File No. 5 724.15 - 2 -Case 2:18-cv-08359-ODW-SK Document 1 Filed 09/27/18 Page 2 of 3 Page ID #:2
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286. Thereaft er, in breach of and in violation of said agreem ents, said
defendants did not deliver said carg o in the same good order, co ndition, and
quantity as when recei ved at Fontana, Cal ifornia. To the contrary, said
defendants, and each of them, failed to deliver the subject shipment at all, to its
intended destination of Westwego, Louisiana, as a res ult of which the carg o was
lost. The value of the undelivered carg o was $71,942.04.
7. Prior to the shipment of the herein described carg o and prior to any
loss thereto, plaintiff issued its policy of insurance wh ereby plaintiff agreed to
indemnify the owner of said carg o, and its assigns, against loss of or damage to
said cargo while in transit, including mitigation expenses, and plaintiff has
therefo re become obligated to pay, and has paid, to the person entitled to payment
under said policy the sum of $70,942.04, which is the value of the non-delivered
cargo (net of the $1,000 policy deductible), on acco unt of the herein described
loss.
8. Plaintiff has therefo re been damaged in the sum of $70,942.04, no
part of which has been paid, despite demand therefo r.
WHEREFORE, p laintiff prays that this Court enter judgment in its fav or
and against defendants; that this Court decree p ayment by defendants to plaintiff
in the am ount of $70,942.04, together wi th prejudgment interest thereon and costs
of suit herein; and that plaintiff have such other an d further rel ief as in law an d
justice it may be entitled to recei ve.
Respectfully submitted,
Dated: September 27, 2018 GIBSON ROBB & LINDH LLP
/s/ JOSHUA E. KIRSCH
Joshua E. Ki rsch
Attorneys for Plaintiff
AFFILIATED FM INSURANCE
COM PANY
COMPLAINT FOR NON-DEL IVER Y OF CARGO
Case No. 2 :18-cv-08359; Our File No. 5 724.15 - 3 -Case 2:18-cv-08359-ODW-SK Document 1 Filed 09/27/18 Page 3 of 3 Page ID #:3