2019 WL 1995292

United States District Court, D. New Mexico.
Lisa M. REHBURG, Plaintiff,
v.
BOB HUBBARD HORSE TRANSPORTATION, INC., Defendant.
No. 1:18-cv-00531-MV-JHR
|
Filed 05/06/2019
Attorneys and Law Firms
Raul A. Carrillo, Jr., Ramona J. Martinez, Carrillo Law Firm PC, Las Cruces, NM, for Plaintiff.
Casey S. Stevenson, Scott Hulse, PC, El Paso, TX, Robert D. Kinsey, Jr., Kinsey, Rowe, Becker & Kistler, LLP, Lincoln, NE, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND
THE HONORABLE JERRY H. RITTER, U.S. MAGISTRATE JUDGE
*1 This matter comes before the Court on Plaintiff’s Motion for Leave to Amend Her Complaint, filed October 9, 2018. [Doc. 23]. The Honorable Martha Vazquez designated the undersigned “to hear and determine Plaintiff’s Motion for Leave to Amend Her Complaint [Doc. 23].” [Doc. 24]; see 28 U.S.C. §§ 636(b)(1)(B), (b)(3); Fed. R. Civ. P. 72(b)(1). Having reviewed the Motion and the relevant law, the Court finds that the Motion is well taken and should be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed her Complaint in the Third Judicial District Court in the county of Dona Ana, New Mexico on May 2, 2017. [Doc. 1, pp. 16-19]. According to the Complaint, Plaintiff hired Defendant to transport her race horse, named Full Regalia, from Del Mar, California to Bosque, New Mexico. [Doc. 1, p. 17]. On August 6, 2016, Full Regalia arrived in Bosque, New Mexico. [Id.]. As he was unloaded from the trailer used to transport him, Full Regalia sustained an injury to his ankle which required surgical treatment. [Id.]. Plaintiff seeks compensatory damages for pain and suffering and medical expenses resulting from the injury. [Id. at pp. 17, 18-19]. Plaintiff also seeks damages for an alleged decrease in Full Regalia’s value as a race horse and potential stud. [Id. at pp. 18-19].

The case was removed on June 8, 2018 based on federal question jurisdiction. [Id. at pp. 1-9]. Specifically, Defendant asserted that Plaintiff’s state law negligence claim is preempted by the Carmack Amendment, 49 U.S.C. § 14706 et seq. (formerly 49 U.S.C. § 11707 et seq.). [Id. at pp. 3-8]. In its Scheduling Order the Court set Plaintiff’s deadline to move to amend pleadings or add additional parties for August 15, 2018. [Doc. 15]. Plaintiff filed a Motion to Remand on August 15, 2018, in which she acknowledged, to an extent, the applicability of the Carmack Amendment to her claims. [Doc. 11, pp. 4-9]. On October 9, 2018, Plaintiff sought leave to amend her Complaint to encompass the applicability of the Carmack Amendment to her claims, as acknowledged in her Motion to Remand. [Doc. 23, p. 2].

In accordance with D.N.M. LR-Civ. 7.1(a), Plaintiff advised that her Motion for Leave to Amend was opposed because (1) the proposed Amended Complaint was not filed prior to the August 15, 2018 deadline; (2) Defendant timely filed its Amended Answer (to the original Complaint) by its September 2, 2018 deadline; (3) an Amended Complaint would necessitate the preparation of a Second Amended Answer by Defendant; and (4) this would not further judicial economy. [Doc. 23, p. 3]. Notwithstanding Plaintiff’s statement of Defendant’s reasons to oppose, Defendant did not file a response to Plaintiff’s Motion for Leave to Amend. Nor did Plaintiff file a Reply in support of the Motion or a Notice that briefing on the Motion was complete. However, this does not preclude the Court from addressing the merits of the Motion, as “[t]he failure to file and serve a reply in support of a motion within the time prescribed for doing so constitutes consent that briefing on the motion is complete.” D.N.M. LR-Civ. 7.1(b).

II. DISCUSSION
*2 Federal Rule of Civil Procedure 15 permits a plaintiff to amend a complaint as of right within 21 days after serving it or 21 days after service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[T]his mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.,” leave should be granted. Id.

In this case, Plaintiff seeks to amend her Complaint in order to focus the allegations to the applicable federal question raised in litigating the Motion to Remand. [Doc. 23, pp. 2-3; Doc. 42]. There does not appear to be any undue delay, dilatory motive, or undue prejudice to Defendant relative to allowing the proposed amendment. See Foman, 371 U.S. at 182. Although Plaintiff sought leave to amend after the deadline set forth in the Court’s Scheduling Order, the Order provided that the Court would permit such requests. [See Doc. 15, p. 2, n.1 (“Federal Rule of Civil Procedure 16 requires that the Court set a deadline for amendment of pleadings and joinder of parties. A party seeking to amend the pleadings after the above dates must both demonstrate good cause to amend the scheduling order as required by Federal Rule of Civil Procedure 16(b) and satisfy the requirements for amendment under Federal Rule of Civil Procedure 15(a). See, e.g., Gorsuch Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1242 (10th Cir. 2014).”) ].

Further, Defendant has not responded to the Motion, as required under this Court’s local rules, which constitutes Defendant’s consent to grant the Motion. See D.N.M. LR-Civ. 7.1(b) (“The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion.”). While the Court applies this rule cautiously as a sole basis for granting motions,1 by failing to respond, Defendant has forgone its opportunity to articulate a reason “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.,” why leave to amend should not be granted in this case. Foman, 371 U.S. at 182.

III. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Leave to File Her Amended Complaint [Doc. 23] is granted. Plaintiff has 10 days from the entry of the Court’s Order in which to file her Amended Complaint.

IT IS SO ORDERED.

All Citations
Slip Copy, 2019 WL 1995292

Footnotes

1
This is especially true in the context of dispositive motions. See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (“[W]e conclude that a district court may not grant a motion to dismiss for failure to state a claim ‘merely because a party failed to file a response.’ ”); Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“[A] party’s failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party. The district court must make the additional determination that judgment for the moving party is ‘appropriate’ under Rule 56.”).

2019 WL 1858881

United States District Court, S.D. Texas.
ENBRIDGE ENERGY, LP, Plaintiff,
v.
IMPERIAL FREIGHT INC., et al., Defendants.
Civil Action H-14-2615
|
Signed 04/25/2019
Attorneys and Law Firms
Joshua Alexander Norris, Hang Kim-Thi Dinh, Jones Walker Waechter Poitevent Carrre Dengre LLP, Houston, TX, for Plaintiff.
Roland Gene Hamilton, Kane Russell Coleman & Logan PC, Houston, TX, for Defendants.

Opinion on Summary Judgment
Lynn N. Hughes, United States District Judge

1. Background.
*1 Enbridge Energy, LP, bought equipment from Toshiba International Corporation in 2012, including two 3,500 horsepower variable frequency drives used to control motor speed and torque applied in natural gas compression for pipelines. Under the contract between Enbridge and Toshiba, Toshiba was obliged to ship the drives and equipment to an Enbridge warehouse in Michigan.

Toshiba had contracted with C.H. Robinson in 2011 for Robinson to be its freight broker. Under this agreement, Toshiba engaged Robinson to hire a trucking company to haul the drives. Robinson retained Imperial Freight Inc. to retrieve the cargo from Toshiba in Houston, load it, and carry it to Michigan. While en route to Michigan, Imperial Freight’s driver left the highway so fast that the truck overturned on the off-ramp in Arkansas. The driver was cited for careless and prohibited driving and the drives were damaged beyond economic repair. The total value of the drives at that time was $643,981.80. It cost Enbridge $31,965.36 to tow it to a storage facility and store it until it could be delivered to the warehouse in Michigan, so Enbridge lost $675,947.16.

Enbridge timely filed a loss and damage claim form with Robinson on October 17, 2013. Robinson acknowledged receipt of the claim four days later and advised that it would begin the claims process with the carrier and its insurer. In December 2013, Imperial Freight’s insurer denied coverage for Enbridge’s claim because the policy did not cover the drives. Enbridge then filed this lawsuit.

2. Liability Under 49 U.S.C. § 14706.
Robinson can only be liable to Enbridge under the Carmack Amendment if it is a motor carrier – rather than an independent broker. The Carmack Amendment does not govern the role of brokers with respect to interstate cargo losses and damages.1 A broker is not liable for the negligence of its independent contractor trucking company or the driver hired and supervised by that company.2

Unlike a motor carrier, Robinson does not own or operate trucks or employ drivers. Instead, Robinson connects companies who need to ship goods with other, unrelated trucking companies qualified to haul those goods as independent contractors. That is the function of a broker.

Robinson located an independent motor carrier – Imperial Freight – and negotiated with it for the shipper. The only direction it gave to Imperial Freight was general instructions on the load, including its origin and destination. Further, the express terms of Robinson’s contract with Imperial Freight made Imperial Freight a contractor separate and apart from Robinson as the broker that arranged for the shipment.

Robinson fits squarely within the definition of a broker.3 It was not a motor carrier. Accordingly, it is not liable to Enbridge under 49 U.S.C. § 14706.

3. Preemption.
*2 The Federal Aviation Administration Authorization Act preempts state regulation of the trucking industry, including state-law private claims. It precludes states from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier [or] broker … with respect to the transportation of property.”4 The FAAAA preempts common-law negligent hiring claims against freight brokers.5 The claim that a broker failed to verify adequate insurance coverage of cargo also falls within the FAAAA and is, therefore, preempted by it.6

The FAAAA preempts Enbridge’s state law claims against Robinson. As discussed below, even if they were not preempted, they would still fail.

4. Negligent Hiring.
In bringing its negligent hiring claim, Enbridge alleges that Robinson failed to select a qualified carrier sufficiently insured to compensate Enbridge for the loss of the drives. Robinson acted as a reasonably prudent broker in selecting Imperial Freight.

To bring a successful negligent hiring claim, Enbridge must show that (a) Robinson breached a legal duty to protect Enbridge from the actions of its independent contractors and (b) Enbridge sustained damages proximately caused by Robinson’s breach.

A. No Breach.
The record shows that Imperial Freight was a qualified, federally-licensed motor carrier, and Robinson had no reason to believe anything to the contrary. Robinson confirms that each motor carrier it works with is both insured and qualified under the FMCSR. For Robinson to approve a motor carrier, the carrier must give Robinson a copy of its federal motor safety rating, evidence of its federal operating authority, and proof of insurance. Robinson then verifies that information with the FMCSR databases and requires the carrier to sign an agreement for motor contract carrier services. Robinson checks the carrier’s continued compliance with the FMCSR through a third-party contractor that vets each motor carrier through governmental databases and updates the carriers’ federal motor carrier status daily.

Further, Robinson had had no problems with Imperial Freight and had no part in hiring or supervising the driver. Brokers are not liable for the acts of an independent carrier’s drivers.7 Robinson chose Imperial Freight – not Imperial Freight’s driver. Negligence on the driver’s part cannot be ascribed to Robinson.8

Imperial Freight was a federally-licensed motor carrier authorized by the Federal Motor Carrier Safety Administration. Roberto Vargas – the driver in the crash – was Imperial Freight’s employee and held a valid commercial driver’s license at the time. When Robinson contracted with Imperial Freight for Toshiba, it confirmed that Imperial Freight maintained adequate insurance and was a federally-licensed motor carrier. No basis – legal or factual – exists for Enbridge’s claim that Robinson breached its duty to Enbridge by negligently using Imperial Freight.

B. No Proximate Cause
*3 No evidence appears that an act or omission of Robinson’s proximately caused Enbridge’s damages. Instead, the record shows that Vargas caused the accident. Vargas testified that he rolled the truck because he miscalculated the curve and exited too quickly. The Arkansas state trooper who investigated the incident agreed that Vargas’s miscalculation was the cause of the accident.

Robinson did nothing to cause Enbridge’s injury.

5. Negligent Misrepresentation.
Enbridge says Robinson negligently misrepresented that Imperial Freight was qualified to carry the cargo. As already mentioned, Robinson vetted and retained a qualified motor carrier that was insured both by the liability and cargo insurance Robinson requires of all motor carriers and the cargo insurance Toshiba specified.

A negligent misrepresentation claim requires Enbridge to show: (1) the defendant made a representation to the plaintiff in the course of the defendant’s business; (2) the defendant supplied false information for the guidance of others; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; (4) the plaintiff justifiably relied on the representation; and (5) the defendant’s negligent misrepresentation proximately caused the plaintiff’s injury.9

Enbridge has not identified what particular false information Robinson gave it on which it relied, nor shown that Robinson intended to guide Enbridge by misinformation. This court has found that the parties did not contract with Enbridge in mind, so it is not an intended beneficiary of the contract. The negligent misrepresentation legal theory does not apply to this situation. It fails.

6. Breach of Contract.
There was no express contract between Enbridge and Robinson, and Enbridge was not an intended beneficiary of Robinson’s contract with Toshiba. Accordingly, Enbridge’s breach of contract claim fails.

7. Breach of Fiduciary Duty.
Robinson owed no fiduciary duty to Enbridge. Robinson was not even contractually obliged to Enbridge. Fiduciary duty is an extraordinary duty well beyond ordinary commercial arrangements, and it certainly does not exist here. Without a fiduciary duty between Robinson and Enbridge, Robinson could not breach it.

8. Conclusion.
The accident and resulting loss were without the participation of the independent broker who played no role in it. Enbridge Energy, LP, will take nothing from C.H. Robinson.

All Citations
Slip Copy, 2019 WL 1858881

Footnotes

1
See, e.g., Harang v. Delta Moving Servs., LTD., No. CIV.A. H-10-1953, 2011 WL 1103650, at *3 (S.D. Tex. Mar. 23, 2011).

2
See Dragna v. KLLM Transp. Servs., L.L.C., 638 F. App’x 314, 316 (5th Cir. 2016).

3
A broker is “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2).

4
49 U.S.C. § 14501(c)(1) (emphasis added).

5
See, e.g., Alpine Fresh v. Jala Trucking, 181 F. Supp. 3d 250, 253 (D.N.J. 2016) (dismissing the common law negligent hiring claim against the broker alter finding that the FAAAA expressly prohibited state regulation of “interstate services of any … broker” and that the language “related to a price, route or service of any … broker” precluded the negligent hiring claim); Ameriswiss Tech., LLC v. Midway Line of Illinois, Inc., 888 F. Supp. 2d 197, 201 (D.N.H. 2012) (holding that the shipper’s tort claims against the broker – Robinson – were expressly preempted by 49 U.S.C. § 14501(c)(1) ).

6
See Huntington Operating Corp. v. Syhonney Exp., Inc., No. CIV.A. H-08-781, 2010 WL 1930087, at *3 (S.D. Tex. May 11, 2010).

7
See Hobbs v. Zhao, No. 13-CV-0673-CVE-FHM, 2015 WL 427819, at *2 (N.D. Okla. Feb. 2, 2015).

8
See id.

9
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999).