JOY FLOWERS CONTI, Chief District Judge.
This action was commenced on September 19, 2013, against the above-captioned defendants in the Allegheny County Court of Common Pleas, and was removed to this court by defendant Allstates Worldcargo, Inc. ("Allstates"), on October 17, 2013, pursuant to the Carriage of Goods by Sea Act ("COGSA"), 46 U.S.C. § 30701 note. (ECF Nos. 1, 1-2). The case was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.
The magistrate judge's Report and Recommendation dated April 1, 2014 (ECF No. 28) recommended that defendant Allstates' motion to dismiss Counts I and III of the complaint (ECF No. 5) be granted without prejudice, and that plaintiff N.A. Water Systems, LLC ("NA") be granted leave to file an amended complaint. NA filed timely objections to the Report and Recommendation. (ECF No. 32). The matter is now ripe for disposition. For the reasons set forth below, the Report and Recommendation will be not be adopted, and the motion to dismiss will be denied.
When objections to a report and recommendation have been filed, under 28 U.S.C. § 636(b)(1), the court must make a de novo determination of those portions of the report to which objections are made. See Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Fed. R. Civ. P. 72(b)(3). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
NA objects to the magistrate judge's recommendation granting the motion because the COGSA is applicable to this case and NA failed to state a claim within the context of COGSA. In support of its argument, NA primarily relies on Davis Elliot International, Inc. v. Pan American Container Corp., 705 F.2d 705 (3d Cir. 1983) ("Davis"). Objections (ECF No. 32), at 3-5, 7. The court notes that NA did not previously cite Davis or argue its applicability to the magistrate judge in its response brief or sur-reply brief. Consequently, the magistrate judge did not have the benefit of reviewing NA's newly raised argument on objection. The court could remand the matter to the magistrate judge for further consideration in light of NA's argument in connection with Davis. However, because Allstates already had the opportunity to respond to this argument, in the interests of judicial economy, the court will proceed to decide the pending motion at this time.
As the Report and Recommendation discussed, COGSA generally "applies to a carrier engaged in the carriage of goods to or from any port in the United States." 46 U.S.C. § 30702. "By its terms, COGSA governs bills of lading for the carriage of goods `from the time when the goods are loaded on to the time when they are discharged from the ship.'" Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 29 (2004) (quoting COGSA § 1(e), 46 U.S.C. § 30701 note). "But COGSA also gives the option of extending its rule by contract." Id.; see COGSA § 13, 46 U.S.C. § 30701 note ("any bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea between such ports, containing an express statement that it shall be subject to the provisions of this chapter, shall be subjected hereto as fully as if subject hereto by the express provisions of this chapter").
In Davis, the plaintiff alleged in its complaint that it had contracted with the defendant "to ship hardware to plaintiff's customer in Nigeria." Davis, 705 F.2d at 706. The complaint also alleged that the defendant "represented that the goods would be containerized; that [the defendant] failed to containerize the goods; and that as a result merchandise was lost and plaintiff sustained damages of $18,000." Id. The plaintiff in Davis argued that the defendant's "undertaking to containerize constituted a valid contract covering pre-loading activities to which COGSA is inapplicable." Id. at 708. The court of appeals stated that "[b]y its terms, COGSA applies to the pre-loading stage only if the parties so agree," and "[i]f plaintiff proves its version of the facts, the parties never agreed to apply COGSA to the pre-loading stage." Id. at 709. Therefore, the court of appeals concluded that dismissal at such an early stage of the case would be inappropriate, and plaintiff's legal theory "must be examined in light of the factual development."
With respect to Allstates' motion for more definite statement pursuant to Rule 12(e), the court concludes that the motion must be denied. The complaint is neither "so vague [n]or ambiguous that [Allstates] cannot reasonably prepare a response." See Fed. R. Civ. P. 12(e).
After de novo review of the pleadings in this case, together with the Report and Recommendation, and the objections thereto, the motion to dismiss will be denied, and an appropriate order will be entered.