Witt v. Nation-Wide Horse Transportation, Inc.

197 F. Supp. 3d 1146, 2016 U.S. Dist. LEXIS 96943, 2016 WL 4033987
CourtDistrict Court, S.D. Iowa
DecidedJuly 25, 2016
Docket4:16-cv-108
StatusPublished
Cited by1 cases

This text of 197 F. Supp. 3d 1146 (Witt v. Nation-Wide Horse Transportation, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Witt v. Nation-Wide Horse Transportation, Inc., 197 F. Supp. 3d 1146, 2016 U.S. Dist. LEXIS 96943, 2016 WL 4033987 (S.D. Iowa 2016).

Opinion

ORDER

ROBERT W. PRATT, Judge, U.S. DISTRICT COURT

Plaintiffs filed a petition against Defendants in the Iowa District Court for Polk County on January 31, 2016. Clerk’s No. 1-1. Defendants removed the action to this Court on April 14, 2016, on the basis of diversity jurisdiction. Clerk’s No. 1. On April 22, 2016, Defendants filed a Motion to Transfer Venue. Clerk’s No. 3. Plaintiffs filed a resistance to the Motion on May 4, 2016. Clerk’s No. 6. Plaintiffs filed an Amended Complaint on May 9, 2016. Clerk’s No. 10. Plaintiffs filed a Second Amended Complaint on May 23, 2016. Clerk’s No. 20. Plaintiffs filed a supplemental resistance to Defendants’ Motion to Transfer Venue on May 25, 2016. Clerk’s No. 21. Defendants filed a Reply in support of their Motion on May 25, 2016. Clerk’s No. 22. Plaintiffs filed a sur-reply on June 2, 2016. Clerk’s No. 28. The Court also held a hearing on the Motion to Transfer Venue on June 2, 2016. Clerk’s No. 27. The matter is fully submitted.

I. FACTUAL BACKGROUND

Plaintiff Michael J. Witt (“Witt”) is the owner of a seven-year old male thoroughbred horse named Sebastian and also known as Purity Express. Second Am. Compl. ¶ 6. Witt purchased the horse intending it to be used by his daughter, Caroline M. Witt (“Caroline”). Id. ¶8. In May 2015, Sebastian was transported to a stable in Bethel, Pennsylvania so that he could undergo further training with instructor Lisa Bishop (“Bishop”), who along with other professionals, believed that Sebastian had potential to be a champion jumper. Id. ¶ 9-11.

In late summer 2015, Witt decided to return Sebastian to Des Moines for further boarding and training at Valley Park Stables. Id. ¶ 14. On or about August 18, 2015,1 Witt contacted Nation-Wide Horse [1148]*1148Transportation, Inc. (“NHT”) about the transport, and explained that Sebastian had special attributes and a high value.2 Id. ¶ 15. Witt also contacted three other equine transportation services, but ultimately made the decision to hire NHT because it had “promised the trip back to Iowa would take no more than two, or possibly two and a half, days, which was the shortest travel time offered by all of the interviewed transportation services.” Id. ¶ 16.

Witt asked Caroline to go on NHT’s website and determine what needed to be done to hire NHT for the transport of Sebastian. Clerk’s No. 6-1 (Caroline’s Certification) ¶ 4; Clerk’s No. 6-2 (Witt’s Certification) ¶ 4. On August 20, 2015, Caroline went to NHT’s website and saw there was an “authorization form” to be filled out. Id. Caroline told Witt about the form and, without looking at it himself, Witt told her to fill it out and submit it. Clerk’s No. 6-1 ¶ 5; Clerk’s No. 6-2 ¶ 5. Caroline observed that there was writing on the form submission page, which she later realized was NHT’s legal terms and conditions, but she did not read it before filling in the form and submitting it. Clerk’s No. 6-1 ¶ 6-7. In particular, when Caroline clicked on the “authorization form” tab, on the website, she was presented with the following pertinent language, which is all in the same font size, and which appears above the spaces to fill in the relevant information for the Sebastian’s transport;

Please read the terms and conditions before filling out the form at the bottom of this page.
The following Terms and Conditions govern the transportation of all horses by Nation-Wide Horse Transportation, Inc. (“Transporter”) and you (“Shipper”) pursuant to oral or written communications ....
Transporter will use reasonable efforts in accordance with industry standards to safely transport, feed and care for the shipped horse(s), but makes no guarantees as to the health or physical condition of the horse(s) upon departure or arrival. Transporter will make commercially reasonable efforts to deliver the horse(s) at or about the requested delivery date but is not responsible for delays due to inclement weather, road closures, mechanical failures, or other acts of force majeure whether or not of a class or kind mentioned herein and not reasonably within Transporter’s control ....
Transporter will provide, at no additional charge to Shipper, one thousand dollars ($1,000) of limited accidental collision mortality insurance per horse transported ... Shipper understands and acknowledges that the only insurance provided to the Shipper by Transporter is one thousand dollars ($1,000) of limited accidental mortality insurance per horse transporter. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRANSPORTER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, RELIANCE, INCIDENTAL, SPECIAL, DIRECT OR INDIRECT DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST [1149]*1149PROFITS OR FUTURE BREEDING VALUE, PERSONAL INJURY OR ANY OTHER LOSSES UNDER ANY LEGAL THEORY INCLUDING CONTRACT AND TORT, ARISING .FROM, OR IN CONNECTION WITH, THIS AGREEMENT.... The rate quoted is for stated delivery and care of the horse(s)....
This sale shall be deemed to have been made in the State of Colorado and shall be governed by the laws of Colorado notwithstanding any conflict-of-laws doctrines. Any claim related to this Agreement must be brought in the courts of El Paso County, Colorado or the tenth federal district courts in Denver, Colorado. The Parties stipulate that venue is proper therein, waive any other jurisdiction and venue whether by virtue of domicile or otherwise, and consent to the in personam jurisdiction of said courts....
This Agreement shall bind and inure to the benefit of the parties and their respective principals, agents,! heirs, successors, and permitted assigns. The parties agree that the terms and conditions stated herein shall set forth the entire agreement between the Shipper and the Transporter_

Clerk’s No. 8-3 at 1-2. Underneath this language was a form to fill in details of the requested transport. Id. at 3. In the section titled “Owner Information,” Caroline listed herself as “owner” of the horse, with no reference to Witt. Clerks’ No. 3-5 at 1. The transport was to cost $770, with half payable as a deposit and the balance due upon delivery of Sebastian to the stable in Des Moines. Id. at 2; Second Am. Compl. ¶ 20. Witt contacted NHT by telephone on August 31, 2015, and paid the deposit with his credit card. Clerk’s No. 3-2 (Aff. of NHT owner Brenda Steele) ¶ 8; Pis.’ Sur-Reply Br. at 6 (“On August 31, 2015 ... Witt had another telephone call with a man at [NHT]. in order to firm up the contract and make the required down payment, on his Visa® credit card.”).

Robert- Owens (“Owens”) "and Travis Turlo (“Turlo”), employees of NHT, picked up Sebastian in Pennsylvania at approximately 11:00 p.m. on September 4, 2015. Second Am. Compl. ¶ 21. Although expected earlier, Sebastian did not arrive in Des Moines until about 3:00 a.m. on September 9, 2016. Id. ¶ 29. Caroline and an employee of Valley Park Stables were present when the truck arrived. Id. ¶ 28. When the trailer door was opened, they observed that Sebastian was “shaking and the ribs on both sides of his body were jutting out, thus showing that he was underfed, undernourished, dehydrated and/or not given sufficient water during the trip.” Id. 1Í30. Sebastian was uncooperative when Owens and Turlo attempted to lead him out of the trailer. Id. ¶ 31.

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Bluebook (online)
197 F. Supp. 3d 1146, 2016 U.S. Dist. LEXIS 96943, 2016 WL 4033987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witt-v-nation-wide-horse-transportation-inc-iasd-2016.