IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

DA YTOON, INC.

Plaintiff,

V.
COMPLAINT
TAZMANIAN FREIGHT FORWARDING,
INC. and (JURY TRIAL DEMANDED)
LANDSTAR EXPRESS AMERICA, INC,

Defendants.

Plaintiff DA YTOON, INC. by and through its undersigned counsel, hereby files its

Complaint against Defendants TAZMANIAN FREIGHT FORWARDING, INC. and

LANDSTAR EXPRESS AMERICA, INC. and states as follows:

INTRODUCTION

1. This is a civil action for damages in excess of $75,000.00, exclusive of interest,

costs, and attorneys' fees, arising out of a dispute between Plaintiff DA YTOON, INC.

("Daytoon"), as owner and shipper, Defendant TAZMANIAN FREIGHT FORWARDING, INC.

("Tazmanian"), a freight forwarder and Defendant LANDSTAR EXPRESS AMERICA, INC.

("Landstar"), a motor carrier, for loss of goods tendered pursuant to 49 U.S.C. § 14706.

PARTIES, JURISDICTION, VENUE

2. Daytoon is a Delaware corporation with its principal place of business in New

Hanover County, North Carolina.

3. Daytoon is a distributor of spiritous liquor.

4. Daytoon is a citizen of Delaware for the purpose of diversity jurisdiction pursuant

to 28 U.S.C. § 1332(c)(l).

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 1 of 9

 5. Tazmanian is an Ohio corporation with its principal place of business m

Middleburg Heights, Ohio.

6. Tazmanian is a for hire freight forwarder, upon information and belief, authorized

by the Federal Motor Carrier Safety Administration (with a USDOT number of 533092) to

transport property in interstate commerce.

7. Tazmanian is a citizen of Ohio for the purpose of diversity jurisdiction pursuant

to 28 U.S.C. § 1332(c)(l).

8. Landstar is a Florida corporation with its principal place of business located in

Jacksonville, Florida.

9. Upon information and belief, Landstar is a motor carrier authorized by the Federal

Motor Carrier Safety Administration that transports property (with a motor carrier number of

MC-178439) that transports property in interstate commerce. Landstar also holds federal

authority as an authorized freight forwarder.

10. Landstar is a citizen of Florida for the purpose of diversity jurisdiction pursuant

to 28 U.S.C. § 1332(c)(l).

11. Because parties are citizens of different states, and because the amount in

controversy, exclusive of interest, costs and attorneys' fees, is over $75,000.00, this Court has

subject matter jurisdiction over this dispute pursuant to 28 U.S.C. § 1332.

12. This Court also has original jurisdiction, pursuant to 28 U.S.C § 1337(a), over

claims for cargo loss and damage brought under the Carmack Amendment, 49 U.S.C § 14706

where the amount in controversy exceeds $10,000.00, as it does here.

GENERAL ALLEGATIONS
13. On or about December 15, 2023, Daytoon, upon information and belief, verbally

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 2 of 9

tendered a load consisting of 16 pallets of bottled and labeled Tequila Reposado (hereinafter the

"Load") as the owner of the Load to Tazmanian for the shipment of the Load from Jamay, Jalisco,

Mexico to Laredo, Texas and then from Laredo, Texas to Wilmington, North Carolina (USA).

14. Upon information and belief, Tazmanian, as a freight forwarder, accepted the

tendered Load in good condition and the Load was successfully transported from Jamay, Jalisco,

Mexico to Laredo, Texas.

15. Tazmanian then issued a Load/Rate Confirmation Sheet attached hereto as

Exhibit A to Landstar as a motor carrier dated December 15, 2023, in which it tendered the load

to Landstar for pick up on December 18, 2023, in Laredo, Texas for delivery on December 20,

2023, to Daytoon in Wilmington, North Carolina.

16. Upon information and belief, Landstar accepted the Load and terms of the pick-

up and delivery as contained on the Load/Rate Confirmation Sheet.

17. Daytoon was unaware of the tender of the load by Tazmanian to Landstar and

Daytoon was never presented with a billing of lading or any terms and conditions related to the

transport of the Load and was never provided an opportunity to choose two or more levels of

liability and did not agree to any level of liability below the Carmack Amendment's default

measure of full liability.

18. Upon information and belief, Landstar after accepting the load assigned it to a

subcontractor motor carrier or owner operator without the knowledge or consent of Daytoon.

Again, Daytoon was never presented with a billing of lading or any terms and conditions related

to the transport of the Load and was never provided an opportunity to choose two or more levels

of liability and did not agree to any level of liability below the Carmack Amendment's default

measure of full liability.

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 3 of 9

 19. The Cargo was accepted by Tazmanian and Landstar through their agent motor

carrier or owner operator in Laredo, Texas on or about December 18, 2023, in good condition as

evidenced by a waybill attached hereto as Exhibit B containing the driver's signature denoting

receipt in good condition.

20. After being picked up on December 18, 2023, and while in transit from Texas to

North Carolina and under the exclusive care, custody, and control of Tazmanian as the freight

forwarder and Landstar as the motor carrier, the Cargo was stolen or otherwise lost.

21. The theft was reported to the police and ultimately, a portion of the load was

located in a warehouse in Fontana, California by the Los Angeles Police Department in

connection with an unrelated investigation. Attached hereto as Exhibit C is a receipt for release

of the remaining pallets from the LAPD Commercial Crimes Division impound. Upon

information and belief, Landstar also hired investigators related to the theft of the Load and

confirmed the load was stolen and in California.

22. The pallets located in a warehouse in Fontana, California had been tampered with

and the wrapping removed, in part, and bottles removed and opened. The Load was intended to

be consumed by the public and was now unmarketable and had to be destroyed as evidenced by

the certificate of destruction attached hereto as Exhibit D. Further, upon information and belief,

as part of the claim process Landstar advised and instructed Daytoon to destroy the remainder of

the load and provide a certificate of destruction.

23. The Load of 16 pallets of bottled and labeled Tequila Reposado contained 11,250

bottles and had a value of $28.50 per bottle for a total value to Daytoon of $325,125.00.

24. Further, the costs of recovery, delivery to Wilmington, North Carolina and

disposal of the remainder of the Load resulted in foreseeable expenses and damages which

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 4 of 9

include cost of storage, towing, transportation and destruction after the theft totaling $17,075.00.

25. After reasonable investigation to locate the remainder of the load and disposal of

it, Daytoon submitted a written demand, pursuant to 49 C.F.R. § 370, to Tazmanian and Landstar

for damages incurred by Daytoon. The demands set forth that the load was tendered in good

condition, the Load was stolen or lost, the damages incurred were stated in a sum certain and

demanded for payment of that amount to Daytoon was made.

26. To date both Landstar and Tazmanian have denied liability for the loss or asserted

limitations of liability that are not applicable to Daytoon's claim. While asserting a limitation of

liability, Landstar has refused to provide its shipping documents related to the Load despite

request by Daytoon for such documents.

27. As a result of the actions of Tazmanian and Landstar, Daytoon has sustained

significant damages, in excess of $75,000.00 (USD).

28. All conditions precedent to this action have occurred, been satisfied, or

have been waived.

COUNT ONE - CARMACK AMENDMENT CLAIM VERSUS TAZMANIAN

29. Daytoon incorporates paragraphs 1 through 2 8 as if fully set forth herein.

30. 49 U.S.C. § 14706(a) provides that a freight forwarder is both the receiving and

delivering carrier and that when a provides service and uses a motor carrier providing

transportation to receive property from the consignor, the motor carrier may execute the bill of

lading or shipping receipt for the freight forwarder with its consent and may deliver property for a

freight forwarder on the freight forwarder's bill of lading, freight bill or shipping receipt to the

consignee named in it.

31. Further, 49 U.S.C. § 14706(a) provides that liability imposed for the actual loss or

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 5 of 9

injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another

carrier over whose line or route the property is transported in the United States under a through

bill of lading can occur even when there is a failure to issue a receipt or bill of lading and that

absence of a receipt or bill of lading issued to Daytoon does not affect the liability of Tazmanian

for the load.

32. Tazmanian as a freight forwarder received the Load and it was obliged to transport

it and deliver it in good condition but the load was stolen and was never delivered.

33. Tazmanian took the Load into its care, custody, and control and failed to deliver

the Load in the same good condition in which it was received. Daytoon as an owner of the property

and as the shipper is entitled to recover under 49 U.S.C. § 14706.

34. Tazmanian is liable for the loss of the Cargo pursuant to 49 U.S.C.§ 14706.

35. After reasonable investigation and disposal of the remainer of the load, Daytoon

made a proper and timely demand for the loss of the load which has been denied by Tazmanian or

Tazmanian has asserted limitations of liability that are not applicable to Daytoon's claim.

36. Daytoon was never presented with a billing of lading or any terms and conditions

related to the transport of the Load and was never provided an opportunity to choose two or more

levels of liability and did not agree to any level of liability below the Carmack Amendment's

default measure of full liability.

37. Accordingly, Daytoon has suffered damages in excess of $75,000.00 exclusive

of interest, attorneys' fees, and costs for which Tazmanian is liable.

COUNT TWO - CARMACK AMENDMENT CLAIM VERSUS LANDSTAR

38. Daytoon incorporates paragraphs 1 through 3 7 as if fully set forth herein.

39. 49 U.S.C. § 14706 provides that a motor carrier shall issue a receipt or bill oflading

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 6 of 9

and is liable to the person entitled to recover under the receipt or bill of lading.

40. Daytoon as an owner of the property and as the shipper is entitled to recover under

49 U.S.C. § 14706 as against Landstar as the receiving carrier or a carrier over whose line or route

the property was transported even though a bill oflading or receipt was never provided to Daytoon

by Landstar.

41. The Load was tendered to Landstar in good condition but was never delivered.

42. Landstar took the Load into its care, custody, and control and failed to deliver the

Load in the same good condition in which it was received. Daytoon as an owner of the property

and as the shipper is entitled to recover against Landstar under 49 U.S.C. § 14706.

43. Landstar is liable for the loss of the Cargo pursuant to 49 U.S.C.§ 14706.

44. After reasonable investigation and disposal of the remainer of the load, Daytoon

made a proper and timely demand for the loss of the load which has been denied by Landstar or

Landstar has asserted limitations of liability that are not applicable to Daytoon' s claim.

45. Daytoon was never presented with a billing of lading or any terms and conditions

related to the transport of the Load and was never provided an opportunity to choose two or more

levels of liability and did not agree to any level of liability below the Carmack Amendment's

default measure of full liability.

46. Even after submission of Daytoon's claim, Landstar has refused to provide copies

of documentation concerning the load and its transport while asserting a limitation of liability.

47. Accordingly, Daytoon has suffered damages in excess of $75,000.00 exclusive

of interest, attorneys' fees, and costs for which Landstar is liable.

48. All conditions precedent to this action have occurred, been satisfied, or have

been waived.

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 7 of 9

 WHEREFORE, Daytoon respectfully requests that this Honorable Court enter judgment

in its favor against Landstar and Tazmanianjointly and severally for damages as set forth herein,

plus prejudgment and post-judgment interest in amounts to be established by this Honorable

Court, all consequential damages allowed by law, along with any fees and costs authorized by

statute, and such other and further relief as deemed just by this Court.

Respectfully Submitted,

This the 26th day of April, 2024. ls/Christopher M. Kelly

Christopher M. Kelly (NC Bar No. 24346)
Cameron S. Williams (NC Bar No. 60365)
GALLIVAN, WHITE & BOYD, P.A.
One Morrocroft Centre
6805 Carnegie Blvd, Suite 200
Charlotte, NC 28211
(704) 552-1712 -Telephone
ckelly@gwblawfirm.com
cswilliams@gwblawfirm.com
Attorneys for Plaintiff.

Plaintiff demands a jury trial for all issues triable by a jury.

ls/Christopher M. Kelly

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 8 of 9

 VERIFICATION

I, Mark Bloomquist, do hereby swear and affirm that I am the CEO and President of

Daytoon, Inc., and am competent to testify and verify the allegations contained in the Verified

Complaint and that they are true and accurate to the best of my knowledge and that, if called as a

witness, I can testify to the same.

DAYT

Its: ----=C=E:. .O
:::......=a=
nd=-=-P-=-re=-=s=id=e=n=t _

Sworn to and Subscribed before me this

~ day of~' 20l.4.
JACOB ANDERSON
Notary Public
North Carolina
New Hanover County
fJC
Notary Public for ~---------
My Commission expires: ~-r
f 11, lOt 7

Case 7:24-cv-00371-FL Document 1 Filed 04/26/24 Page 9 of 9

EXHIBIT A TO COMPLAINT

Case 7:24-cv-00371-FL Document 1-1 Filed 04/26/24 Page 1 of 2

 Load/Rate Confirmation Sheet
Date: 12/15/2023 Refffaz #: 2592166

To: LANDSTAR From: LAS OFFICE

Attn: POC: ALEXANDER MARSHALL

Phone: 5218671921 388 Phone: (800) 860-2861
Fax: Fax: (702) 289-4111

Equipment Type:

Truck Number:
------------------------
Driver Cell #

Rate: $ 3,250.00
Pieces: 16 Weight: 18128

Pick-Uo Info: Delivery Info:

P/U Date: 12/18/2023 Delivery Date: 12/20/2023
Ready Time: 08: 00 Close: 14: 00 Delivery Time: NLT 8:00 AM
Company Name: WA REHOUSE SOLUTIONS Company Name: DAYTON INC

Street Address: 14102 TRANSPORTATION AVE Street Address: 6600 WINDMILL WAY

City, St. Zip: LAREDO TX, 78045 City, St. Zip: WILMINTON NC 28405
Attention: Attention:
Contact: 523929241925 Contact: (562) 416-4489
Ref: Ref:

Special Instructions:

PLEASE CHECK INFO FOR ANY SPECIAL REQUIREMENTS. SIGN, RATE &
FAX BACK ASAP. PLEASE CALL ALEXANDER MARSHALL@ (800) 860-2861 IF
ANY PROBLEMS OR DELAYS OCCUR!!

Authorized Signature:

Case 7:24-cv-00371-FL Document 1-1 Filed 04/26/24 Page 2 of 2

EXHIBIT B TO COMPLAINT

Case 7:24-cv-00371-FL Document 1-2 Filed 04/26/24 Page 1 of 2

 - Corporai. Office
• C'8veland Hopkins Inti Alrport Date I Origin Code Desi.Cod~ • . W~billNo.
2592166
'l~.\ZIIANI1IN AMF• P.O. Box 611090
Cle~eland, OH 44181-1090
2023-12-14 GDL • ILM-A

__ . __ . 1111111 Ill__
Wllt> S~te, www.tazm8llian.com For shipment inquiries
~ freight systems inc. Toll Free: (800) 860-2861
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Fax:
(702} 289-4110
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(702) 289-4111 _..._,_. . ,.......
Name BILL TO: IONUO.Ola,H.A,.,_,,_,,. ___ ,_ ___ ,
s INTERAMERICA I WAREHOUSE SOLUTIONS
....,_....,.,. ___ .......,_..__ pold __

H Address
©SHIPPER □CONSIGNEE DECLARED VALUE. rOR CARRI.A.a.£ let'\W ~•rt:,v,"11 ) I
0 THIRD PARTY
81LU!O re SHll'l'l!R IF NOT MARKl!O
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(9,AljOatoN_.,..,_.._0,q,1"'-""--
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p City
LAREDO
State
TX
I Zlp (R~..i)
78045
PICK UP TYPE REQsro
Tu- ••I.eta If not martted

II Regular
SERVICE TYPE REQST'O
Ottvr'd 2nd dav If nol mari<od
0 Charter
DELIVERY TYPE REQUESTED
DtlIV9f' td 81fore ,:PM if not m,rk~

B Regular
p
Soni by (N~I) Phone fvwy Importan t) 0 '8us_Hr.i Speci al 0 No><1Flighl t:l'AM
E 0 'M_Hrs Specia l 0 Next Day 0 ·eus_Hrs Special

R
Taz Acct No. I Rel No. (Flt$l 30 ~" ,.;ii tppMt on in~)
0 'Saturday
0 °Sunday
Cl 2nd Day
0 3rd Day 0
0 'M_Hrs Special
'Saturday
0 'Holiday 0 4 -5 Day 0 'Sunday
C Name 0 Shipper Drop-Off 0 E•pedlted Truck ~ .. S>,ol) 0 'Holiday

-
CAYTON INC
0
Address
0 'Inside
o ·ungat11 [§] 0 tntematlOOal
0 TI\ICk Load 0
0 Hold for Picllup
'lrlalde
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6600 WINDMILL WAY

City State I Zip (Requlntdf

0 '2 Man
0 'Limited Acoess
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!:I t.ocat Cartage
0 W11r9houslng
0 Other
0 'llftgate
0 "2Man
0
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'Lim ited Access
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WILMINTON NC 28405
G coo
N Attn {Name/O&pl) Phone t;vory Importan t)
5624'18«89 X
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SlllPPER S S~Sl.6.IECT TO TERMS N40 OO NIJHIONS iOIN>

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Taz Acct No. Rel No. {F'nt 30 ctwa<:ten wa appear on lrwok:e) I
E OESCRIPTION WEIOHT PCS
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T SPECIAL !NSTIIUCTIONS TEQUILA BLANCO 100% AGAVE AZUL 18128 16 48 40 90

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;A~B;;~ 661 :g:- ~

1.4.N FREl?\H.T SYSTEMS. INC. OR AGENT

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HO.PCS
TIME

I
DATE

Your Complete
WHEN CALLING IN YOUR SHIP>~tSE HAVE THE fOLLOWl~W INFORMATION READY Transportation
1 c,1y, Staie &_ Zip of your pick-up our delivery locahons An identified problem is a gift in that it presents And
2 Number of pieces end total weight or lhs sh1pmen1 . .
3 Exact dimon,ilons of 811 pieces (always round up to tho next inch) an opportunity for improvement Please let us Logistics Provider
4 Type or service you are requesting know how we can improve.

Received By (Consignee) No. PCS Date Time

Slonature:
S!gnatu..- lndlc■lea ■II pcs received
Print Name: In good order unless otherwlH noted.

ws-~(?J;, A C,.,rltt Name 1/Q-//e. /l' S Tf!..,., )

PU~ 1592 \66 OrlYtlr Nam• f/t:dr-o l±Jtf!'Z..
UITltl / ti/ MX nu.10 z.➔D Drlv.r ,ho,,. 7t'f- ~ lip- (t, j &
...1, /9U I 01 Date r2-()'~ Z, '3

Case 7:24-cv-00371-FL Document 1-2 Filed 04/26/24 Page 2 of 2

EXHIBIT C TO COMPLAINT

Case 7:24-cv-00371-FL Document 1-3 Filed 04/26/24 Page 1 of 2

1/11/24, 1 :14 PM lnvo·ce

Pepe's Towing Service Recovery Invoice

PO Box 7450, Moreno Valley CA 92552
Printed 1/11/2024
Phone: (951) 682-5682 I Fax: (951) 682-5030

Released To KEJUAN D BUTTS 3605 PISA MEWS DALLAS TX 75236 Phone:910.332.0820 E><T 1074
Invoice II 24-0107-27996 TEQUILA CARGO
Call# 27996 Reason 22651-C RECOVERY/STOLEN
Account LAPD- COMMERCIAL CRIMES DIVISION Notes 9 PALLETS
Date/Time Requested 1/7/2024 2:00 PM Drivable Yes
Date/Time Dispatched 1/7/2024 4:55 PM Keys No
Date/Time Arrived to scene: 1/7/2024 S:23 PM Incident Location 401 E VALLEY
Date/Time Completed: 1/7/2024 5:00 PM Stored at Fontana Yard
Date/Time Impounded: 1/7/2024 4:55 PM 8828 Beech Ave , Fontana CA 92335
Driver Christopher N.
Truck TRK29
Date/Time Released: 1/11/2024 1:11 PM
Days Held In Impound 5 days

Notes

Towing chal'les Quantity Price UneTotal

(Towing) TRACTOR TRAILER 3 $550.00 $1,650.00
(Towing) FORKLIFT 3 $125.00 $375.00
(Towing) FLATBED FOR FORKLIFT 3 $350.00 $1,050.00
(Towing) STORAGE $10/DAY PER PALLET X 9 PALLETS AS OF 1/7/24 5 $90.00 $4S0.00 1

(Towing) 6 MAN LABOR TEAM $60/HR PER PERSON 2.5 $360.00 $900.00
(Towing) TRANSLOAO ONTO CUSTOMER'S TRAILER (LABOR ANO EQUIP. INLCUDED) 1 $850.00 $850.00 I

Subtotal $5,275.00
Taxes $0.00
Grand Total $5,275.00
Amount Due: $0.00 / Paid
Visa payment (Ref# S75543) of $5,275.00 applied on 1/11/2024
Pepe's Towing Service appreciates your business; if you have any questions regarding this invoice, please contact us at 951•682•5682. Thank you.
Damage Disclaimer:
I Have been advised that my vehicle may be damaged If winched, towed, unlocked, jump started, tire changed or lelt on unattended premises. I recognize the
difficulty involved and I agree not to hold Pepe's Towing Service responsible for such damages should It result. I, the undersigned do hereby certify that I am legally
authorized and entitled to take possession of the vehfcle described and all personal property therein. I have received the vehicle and all personal property in
satisfactory condition.

'--J-?'/
Signature: _-'I~
!-~
--
---~
_.,_
.....,,_ - CA# 117433
_ Date: /////
USDOT: 100S694 /
L,f/2- f

Upon request, you are entitled to receive a copy of the Towing and Storage Fees and Access Notice

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Case 7:24-cv-00371-FL Document 1-3 Filed 04/26/24 Page 2 of 2

EXHIBIT D TO COMPLAINT

Case 7:24-cv-00371-FL Document 1-4 Filed 04/26/24 Page 1 of 2

 PROOF OF SERVICE/CERTIFICATE OF DESTRUCTION

AYTOON, Inc.
This certifies that our company received 9 pallets of Tequila from your company on January 2211<1, 2024. You transferred custody to
our company and we as sume all liabilities. Destruction is certified. We have custody of said items and assume responsibility for
proper destruction and disposal.

Invoice: ~~~1) 7~

Work Order: '{<.;. < \yi

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Case 7:24-cv-00371-FL Document 1-4 Filed 04/26/24 Page 2 of 2