Sanchez v. UPS
United States District Court for the Southern District of Florida
November 6, 2019, Decided; November 7, 2019, Entered on Docket
CASE NO. 19-23704-CIV-ALTONAGA/Goodman

Reporter
2019 U.S. Dist. LEXIS 195140 *
DENNYS SANCHEZ, Plaintiff, v. UNITED PARCEL SERVICE INC. and J.C. PENNY CORPORATION, INC., Defendants.

ORDER
THIS CAUSE came before the Court on Plaintiff, Dennys Sanchez’s Motion to Remand [ECF No. 20], filed September 26, 2019. Defendant, United Parcel Service, Inc., filed a Response [ECF No. 26], to which Plaintiff filed a Reply [ECF No. 27]. The Court has carefully considered the parties’ written submissions, the record, and the applicable law.

I. BACKGROUND
Plaintiff brings this negligence action against Defendants, United Parcel Service, Inc. (“UPS”) and J.C. Penny Corporation (“JCP”). (See generally Notice of Removal, Ex. 1, Complaint [ECF No. 1] 8-11).1 The facts are straightforward. Plaintiff purchased a glass lamp from JCP, shipped to him via UPS. (See id. ¶ 6). On June 2, 2019, [*2] Plaintiff suffered a severe laceration when his hand met broken glass while opening the package containing the lamp. (See id. ¶ 7). Plaintiff asserts his injuries are a result of UPS’s failure to handle the package in a reasonably safe manner. (See id. ¶ 14). Specifically, Plaintiff alleges UPS packaged the lamp in an unsafe manner; failed to properly inspect the package it shipped; and failed to implement or enforce proper policies and procedures for packing, shipping, and inspecting its packages. (See id.).
On July 24, 2019, Plaintiff filed his Complaint in state court, alleging a single negligence claim against UPS2 (see id. ¶¶ 12-15) in excess of $15,000.00 (see id. 11). On September 5, 2019, UPS timely filed a Notice of Removal. According to Defendant, the Court has subject matter jurisdiction under 28 U.S.C. section 1331. (See id. ¶ 1). Defendant states Plaintiff’s claim for damages is preempted by the Carmack Amendment, 49 U.S.C. section 14706, because it “seeks damages for an alleged failure by UPS in connection with an interstate shipment by ground transportation.” (Id. ¶ 6). Under 28 U.S.C. section 1337, the Court has original jurisdiction of any action arising under the Carmack Amendment if the matter in controversy exceeds $10,000.00.
Plaintiff now brings this Motion, contending [*3] the action properly belongs in state court because there is no federal question on the face of the well-pleaded Complaint and the Carmack Amendment does not apply to claims of bodily injury. (See generally Mot.).

II. LEGAL STANDARD
Under 28 U.S.C. section 1441, an action filed in state court may be removed to federal court if the district court has original jurisdiction. Original jurisdiction exists in civil actions presenting federal questions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. To determine whether a claim “arises under” federal law, courts look to “whether a federal question appears on the face of the plaintiff’s well-pleaded complaint.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009) (citing Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (1908)). “‘As a general rule, a case arises under federal law only if it is federal law that creates the cause of action.'” Id. (quoting Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996)). Where, as here, a complaint alleges exclusively state-law claims, “there is no jurisdiction under the well-pleaded complaint rule.” Id.
One exception to the well-pleaded complaint rule is complete preemption, which arises when “the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987) (citation [*4] and footnote call number omitted). “When Congress comprehensively occupies a field of law, ‘any civil complaint raising this select group of claims is necessarily federal in character’ and thus furnishes subject-matter jurisdiction under 28 U.S.C. [section] 1331.” Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211-12 (11th Cir. 1999) (alteration added; citation omitted). In other words, district courts have subject-matter jurisdiction over state-law claims that have been completely preempted, and “defendants may remove to federal court those actions that contain such claims.” Id. at 1212 (citation omitted).

III. ANALYSIS
Plaintiff argues (1) the Court does not have subject matter jurisdiction because the Complaint does not allege that the lamp was shipped through interstate commerce; and (2) as a matter of substantive law, the Carmack Amendment does not preempt Plaintiff’s claim for bodily injury. (See generally Mot.). The Court addresses each argument in turn.
A. Complete Preemption and the Carmack Amendment
Plaintiff argues the Complaint does not “allege or even suggest” the lamp ordered from JCP was shipped in interstate commerce. (Id. 3). Plaintiff states Defendant does not claim the lamp was shipped through interstate commerce in its Notice of Removal, nor is there any evidence to support Defendant’s position. (See id.). Plaintiff asserts there is no [*5] federal jurisdiction as there is no federal question presented on the face of the well-pleaded Complaint. (See id.). Plaintiff acknowledges state-law claims — like the claim in this action — may be subject to federal jurisdiction if the federal law completely preempts the state law claim. (See id.). Nevertheless, Plaintiff insists the Carmack Amendment only preempts state-law claims arising out of the interstate shipment of goods. (See id. 3-4).
Defendant argues Plaintiff’s insistence that his Complaint does not allege whether the package was shipped interstate is of no significance.3 (See Opp. 11). Defendant states the doctrine of complete preemption allows the Court to look beyond the Complaint’s allegations. (See id.). According to Defendant, the package tracking number provided by Plaintiff’s counsel shows the package originated at Ashley Furniture’s warehouse in Advance, North Carolina. (See Declaration of James R. Lomax, Jr. [ECF No. 26-2] ¶ 3). Because the package was shipped interstate from North Carolina to Florida, Defendant contends Plaintiff’s argument regarding an intrastate shipment must fail. (See Opp. 11). The Court agrees with Defendant.
Plaintiff does not respond directly to Defendant’s [*6] argument regarding the Carmack Amendment and the doctrine of complete preemption. (See generally Reply). Rather, Plaintiff seems to argue the Carmack Amendment does not completely preempt his claim because the Carmack Amendment only applies when the Complaint contains allegations of interstate commerce. (See Mot. 3-4). This is a misunderstanding of complete preemption.
When a “federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003). Complete preemption therefore allows a defendant to properly remove an action to federal court when the allegations giving rise to federal jurisdiction are not apparent on the face of the well-pleaded complaint. See Caterpillar Inc., 482 U.S. at 393. The Court can thus exercise jurisdiction over Plaintiff’s claim — notwithstanding the state-law nature of the allegations in the Complaint — if the claim is completely preempted under the Carmack Amendment.
The undersigned is mindful the complete preemption doctrine is a “narrowly drawn means of assessing federal removal jurisdiction[.]” Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 F.3d 851, 854 (11th Cir. 1999) (alteration added). The Eleventh Circuit has cautioned that complete preemption should be applied hesitatingly and without enthusiasm. [*7] See id. at 856. Still, in Beneficial National Bank, the Supreme Court addressed complete preemption, extending the doctrine to embrace claims arising under the National Bank Act. See 539 U.S. at 11. In determining whether a cause of action is completely preempted, the Court noted “the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive . . . .” Id. at 9 n.5 (alteration added).
Although the Eleventh Circuit has not addressed whether the Carmack Amendment triggers complete preemption, other circuits have determined it does. See, e.g., Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th Cir. 2003); Hall v. N. Am. Van Lines, Inc, 476 F.3d 683 (9th Cir. 2007). In Hoskins, the court considered complete preemption and “whether Congress intended the Carmack Amendment to provide the exclusive cause of action for claims arising out of the interstate transportation of goods by a common carrier.” Id. at 776 (emphasis in original; citing Beneficial National Bank, 123 S. Ct. at 2067). Given “the broad reach of the Carmack Amendment” and the “purpose of the statute, which was to create uniformity out of disparity,” the Fifth Circuit held the complete preemption doctrine applies to claims arising under the Carmack Amendment. Id. at 777-778 (quotation marks and citations omitted).
Numerous district courts within the Eleventh Circuit have come to the same conclusion. See D’Angola v. GoBucks, Inc., No. 07-60864-CIV, 2007 U.S. Dist. LEXIS 104402, 2007 WL 9709730, at *5 (S.D. Fla. Aug. 8, 2007) (“[T]he complete preemption [*8] doctrine does apply to the Carmack Amendment, based on the Supreme Court’s reasoning in Beneficial and the unusually powerful preemptive effect of the Carmack Amendment.” (alteration added)); Cherry v. Hayden Bonded Storage Warehouse, Inc., No. 08-80645-CIV, 2008 U.S. Dist. LEXIS 131665, 2008 WL 11409902, at *1 (S.D. Fla. July 23, 2008) (holding the Carmack Amendment completely preempts state law claims and that “the court may acquire jurisdiction . . . notwithstanding that [the claims] are pled under state law.” (alterations added)); Bear MGC Cutlery Co. v. Estes Exp. Lines, Inc., 132 F. Supp. 2d 937, 947 (N.D. Ala. 2001) (“In light of its pervasive preemption of state law, Supreme Court and circuit court interpretations of Congressional intent, persuasive authority from other district courts, and the interest of judicial economy, this court hereby holds that the Carmack Amendment completely preempts state law so as to give the court removal jurisdiction.”). The Court agrees claims arising under the Carmack Amendment are subject to complete preemption and removal to federal court.
Plaintiff nevertheless insists complete preemption does not apply because the Complaint does not implicate the Carmack Amendment, silent as it is about whether the lamp Plaintiff ordered was “shipped in interstate commerce.” (Mot. 3). The argument misses the mark. Complete preemption is an exception to the well-pleaded complaint rule, and the [*9] Court “must independently analyze whether preemption applies.” In re Managed Care Litig., No. 00-1334-MD, 2009 U.S. Dist. LEXIS 27272, 2009 WL 855967, at *5 (S.D. Fla. Mar. 30, 2009) (citation omitted). What is more, in ruling on a motion to remand, the Court may consider “post-removal evidence in assessing removal jurisdiction.” Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000). Indeed, Defendant “may submit a wide range of evidence in order to satisfy the jurisdictional requirements of removal.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir. 2010) (citations omitted); see also Fowler v. Safeco Ins. Co. of Am., 915 F.2d 616, 617 (11th Cir. 1990) (“Defendants have the opportunity to submit affidavits, depositions, or other evidence to support removal.” (citation omitted)).
Defendant has provided evidence the package was, in fact, shipped interstate from North Carolina to Florida. (See Lomax Decl. ¶¶ 3-4). Plaintiff does not refute the declaration or provide any evidence to the contrary. (See generally Reply). Plaintiff’s argument the Carmack Amendment does not preempt his claim because of the absence of an interstate shipment allegation fails to persuade.
B. The Carmack Amendment and Allegations of Bodily Injury
Plaintiff next argues the Carmack Amendment does not preempt bodily injury claims. (See Mot. 4-6). Plaintiff describes a “physical injury exception” to the Carmack Amendment that applies when the claim does not arise out of damage to or loss of goods during transportation, but instead physical injury to the plaintiff caused [*10] by the goods as delivered. (See id. 5). Relying on Smith v. United Parcel Service, 296 F.3d 1244 (11th Cir. 2002), Plaintiff asserts the Carmack Amendment only preempts claims arising out of damage to or loss of the goods themselves. (See Mot. 5-6).
Defendant maintains there is no physical injury exception and the Carmack Amendment supersedes all state laws that regulate an interstate package carrier’s transportation services, including state laws that impose liability on such services. (See Opp. 12 (citations omitted)). Defendant also relies on the Eleventh Circuit’s decision in Smith, arguing it supports Defendant’s position the Carmack Amendment preempts all claims arising from conduct relating to Defendant’s transportation and delivery services. (See id. 13). Defendant contends Plaintiff must allege conduct separate and distinct from the delivery, loss of, or damage to goods in order to escape preemption under the Carmack Amendment. (See id. 14-15). Defendant also suggests the factual premise of the Motion — that Plaintiff’s claim does not arise from loss of or damage to the package — is erroneous, as Plaintiff alleges his injury was caused by damage to the package. (See id. 14).
The parties correctly identify Smith as the Eleventh Circuit’s controlling authority regarding the reach of Carmack Amendment preemption. Smith involved a contentious altercation [*11] between residential homeowners, the Smiths, and a UPS delivery driver. See 296 F.3d at 1245. Following this altercation, UPS allegedly refused to make regular deliveries to the Smiths’ home. See id. As a result, the Smiths were forced to pick up many of their packages from the local UPS office, which resulted in some packages being returned to their senders. See id. 1245-46.
The Smiths filed suit in Alabama state court, alleging claims of fraud, negligence, wantonness, or willfulness, and outrage; claims of discrimination in violation of section 27-2-1, Alabama Code; and claims of suppression and conspiracy. See id. at 1246. Upon removal, the district court dismissed the case after finding the Carmack Amendment preempted all the claims. See id. On appeal, the Smiths challenged whether the Carmack Amendment preempted the state law claims of fraud, negligence, wantonness, or willfulness, and outrage based upon UPS’s allegedly wrongful acts. See id.
The Smiths argued UPS committed fraud by accepting shipments for delivery to the Smiths’ home while knowing it had no intention of delivering the shipments; UPS was liable for negligence, wantonness, or willfulness because it undertook a duty to deliver packages and then breached that duty by refusing to make the deliveries; and UPS committed [*12] outrage by intentionally denying deliveries with the purpose of inflicting emotional distress on the Smiths. See id. at 1247-49. The court rejected these arguments, concluding the Smiths’ claims were preempted by the Carmack Amendment. See id. at 1249.
The court found “Carmack Amendment preemption embraces all of [the Smiths’] claims because it embraces ‘all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation[.]'” Id. at 1247 (alterations added; citations omitted). In addressing the claim for outrage, the court explicitly rejected the argument that the Carmack Amendment does not preempt stat-law claims seeking to remedy an injury to a person rather than an injury to goods. See id. at 1248. The court reiterated the “Carmack Amendment embraces all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation.” Id. at 1249 (emphasis added; internal quotation marks and citation omitted).
Given the Eleventh Circuit’s analysis in Smith, the Court concludes there is no physical injury exception to the Carmack Amendment. While “situations may exist in which the Carmack Amendment does not preempt all state and common law claims . . . only claims based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption.” Id. at 1248-49 (citations [*13] omitted). “In other words, separate and distinct conduct rather than injury must exist for a claim to fall outside the preemptive scope of the Carmack Amendment.” Id. at 1249.
Here, Plaintiff’s claim is predicated on Defendant’s failure to package the lamp in a reasonably safe manner; failure to properly inspect the package; and failure to implement or enforce proper policies and procedures for packing, shipping, and/or inspecting packages. (See Compl. ¶ 14). As noted by Defendant, “[t]here is no allegation that UPS did anything separate from the transportation of the subject package.” (Opp. 15 (alteration added)). The Carmack Amendment thus preempts the claim because it arises solely from Defendant’s conduct regarding the transportation and delivery of the lamp. See Smith, 296 F.3d at 1245 (“[T]he Carmack Amendment preempts all of [the plaintiffs’] claims because the claims arise from conduct involving [the defendant’s] transportation and delivery services.” (alterations added)).
The Court is not persuaded by Plaintiff’s attempt to recharacterize his claim. (See generally Reply). Plaintiff states Defendant’s “‘distinct conduct’ as alleged in this case is in its creating, and subjecting Plaintiff to, a dangerous condition in the form of the broken lamp which lacerated his [*14] hand.” (Id. 1). This is purportedly different from the situation in Smith because Plaintiff’s injuries were caused by the goods themselves. (See id. 2). Plaintiff insists his negligence claim for bodily injury arises out of a dangerous condition created by UPS and this provides a basis to escape preemption. (See id.).
Plaintiff entirely fails to show any conduct by Defendant that is separate and distinct from Defendant’s transportation and delivery services. Plaintiff makes the conclusory assertion Defendant created and subjected Plaintiff to a dangerous condition. (See id. 1). Yet, Plaintiff does not address the conduct that allegedly created this dangerous condition. Instead, Plaintiff simply states his bodily injury claim falls within the list of claims the court in Smith pointed to as the type of situation in which the Carmack Amendment does not preempt all state and common law claims. (See Reply 2 (citation omitted)). The Court disagrees.
In Smith, the Eleventh Circuit addressed a nearly identical argument when determining whether the Smiths’ claim for outrage escaped Carmack Amendment preemption. See 296 F.3d at 1248. The Smiths insisted a claim of outrage provides a remedy for an injury to a person rather than a good, falling outside the scope [*15] of the Carmack Amendment. See id. The court rejected the argument, stating “[a]lthough the Smiths seek a remedy for an injury to their person, the claim results solely from the loss of and misdelivery of their goods. Therefore, the Smiths’ outrage claim is embraced by the preemptive effect of the Carmack Amendment.” Id. at 1249 (alteration added). Because the Smiths “allege no conduct separate and distinct from UPS’s failure to transport and deliver packages . . . the Carmack Amendment preempts the Smiths’ state law tort claims.” 296 F.3d at 1249 (alterations added). So too here.
Plaintiff’s claim is based on allegations concerning Defendant’s negligence in delivering a package. (See Compl. ¶¶ 12-15). As in Smith, it makes no difference whether Plaintiff alleges a bodily injury rather than an injury to goods. To escape preemption, it is separate conduct that matters. See Smith, 296 F.3d at 1249. As the Carmack Amendment “embraces all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation,” Plaintiff’s state-law negligence claim is subject to Carmack Amendment preemption. Id. (internal quotation marks and citation omitted).
Plaintiff’s reliance on Meyer v. Suitable Movers, LLC, No. 19-60816-CIV, 2019 U.S. Dist. LEXIS 127201, 2019 WL 3457614 (S.D. Fla. July 31, 2019), is equally unpersuasive. Plaintiff selectively quotes Meyer to argue a separate [*16] injury — not separate conduct — is what allows a state-law claim to escape preemption under the Carmack Amendment. (See Reply 2 (citing Meyer, 2019 U.S. Dist. LEXIS 127201, 2019 WL 3457614, at *3)). But Plaintiff glosses over the numerous statements in Meyer contradicting his position. See, e.g., Meyer, 2019 U.S. Dist. LEXIS 127201, 2019 WL 3457614, at *2 (“The Carmack Amendment thus preempts all state-law claims arising from the inter-state transportation and delivery of goods.” (citations omitted)); see also id. (“[T]he Eleventh Circuit has said that only claims ‘based on conduct separate and distinct from the delivery, loss of, or damage to goods escape preemption.'” (alteration added; citation omitted)).
As in Smith, Plaintiff’s claim relates to Defendant’s “transportation and delivery services . . . [and] fall[s] squarely within the preemption coverage of the Carmack Amendment.” 296 F.3d at 1247 (alterations added; citation omitted). Consequently, Defendant properly removed the action, and the Court has subject matter jurisdiction. See Bear MGC Cutlery Co., 132 F. Supp. 2d at 947 (“[T]he Carmack Amendment completely preempts state law so as to give the court removal jurisdiction.” (alteration added)).

IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion to Remand [ECF No. 20] is DENIED.
DONE AND ORDERED in Miami, Florida, this 6th day of November, 2019.
/s/ Cecilia M. Altonaga [*17]
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE

2019 WL 6134391
NOT FOR PUBLICATION
United States District Court, D. New Hampshire.
David Burrill
v.
XPO Logistics Freight, Inc.
Civil No. 19-cv-765-LM
|
Filed 11/19/2019

ORDER
Landya McCafferty United States District Judge
*1 Plaintiff David Burrill, a snowmobile dealer, ordered snowmobile parts and accessories from a distributor. The defendant, XPO Logistics Freight, Inc., (“XPO”) delivered some, but not all, of Burrill’s order. Burrill filed a complaint in state court alleging that he was entitled to damages because XPO’s actions violated both state and federal law. XPO removed the action to this court and now moves to dismiss the state law counts, arguing the counts are preempted by federal law. Burrill objects.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff’s favor, and “determine whether the factual allegations in the plaintiff’s complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citations and internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See also Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011) (applying comparable standard when analyzing motion to dismiss on grounds of preemption).

BACKGROUND
David Burrill lives in Pittsburg, New Hampshire, and is a long-time dealer of Arctic Cat snowmobiles, parts, and accessories. In March 2018, he ordered various parts and accessories from Arctic Cat. On June 5, 2018, XPO delivered a pallet containing some, but not all, of the items that Burrill had ordered. Burrill understood that the rest of his order would arrive at a later time in two additional pallets. Although Arctic Cat subsequently told Burrill that the missing items had been shipped, he never received the missing items.

On June 13, 2018, just over a week after XPO delivered the first pallet, an authorized agent of XPO procured Burrill’s signature on an invoice which states that the “ORIGINAL BILL WAS 2 PIECES SHORT.” Doc. no. 3-2 at ¶¶ 27, 28. Burrill alleges that XPO then used the invoice deceptively to claim that he “had received the Missing Items, when he had not.” Id. at ¶ 29. XPO denied responsibility for failing to deliver the missing items and denied a claim from Burrill on December 10, 2018.1

On April 6, 2019, Burrill filed a complaint in state court seeking damages for the missing items, and additional damages for XPO’s alleged “deceptive act” involving the June 13, 2018 invoice. Doc. no. 3-5. In July 2019, XPO removed the case to this court. Doc. no. 3-11.

DISCUSSION
Burrill’s amended complaint alleges three claims: (1) conversion (Count I); (2) violation of the New Hampshire Consumer Protection Act (“CPA”), N.H. Rev. Stat. Ann. (“RSA”) § 358-A (Count II); and (3) violation of the Carmack Amendment, a federal law that governs the liability of carriers for lost or damaged goods, 49 U.S.C. § 14706 (a)(1) (Count III). XPO moves to dismiss Counts I and II, Burrill’s state law claims. Burrill concedes that Count I should be dismissed, but objects to dismissal of Count II. The only question before the court, then, is whether Burrill’s CPA claim survives.

*2 In Count II, Burrill alleges that XPO committed a “deceptive act” that violates the CPA. The CPA makes it “unlawful for any person to use … any deceptive act or practice in the conduct of any trade or commerce within this state.” RSA 358-A:2. Burrill alleges that XPO committed a “deceptive act” when—more than a week after XPO delivered the first pallet and before Burrill invoked the claims process—XPO had Burrill sign an invoice indicating that some items had not been delivered, and then used that invoice as a “gotcha” to claim falsely that Burrill had received the missing items.2 XPO moves to dismiss the CPA claim, arguing that it is preempted by both the Carmack Amendment, 49 U.S.C. § 14706, and the Interstate Commerce Commission Termination Act, 49 U.S.C. § 14501.

The Carmack Amendment states:
A carrier3 providing transportation or service … shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service … are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or 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 …
49 U.S.C. § 14706.

“ ‘It is accepted … that the principal purpose of the [Carmack] Amendment was to achieve national uniformity in the liability assigned to carriers.’ ” Ameriswiss Tech., LLC v. Midway Line of Illinois, Inc., 888 F. Supp. 2d 197, 203 (D.N.H. 2012) (quoting Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir. 1997)). As the Supreme Court explained in Adams Express Co. v. Croninger, allowing state regulations to affect the liability of carriers “would be to revert to the uncertainties and diversities of rulings which led to the [Carmack] amendment.” 226 U.S. 491, 506 (1913). Accordingly, the Carmack Amendment preempts state laws where, “in the absence of an injury separate and apart from the loss or damage of goods, [the law] increases the liability of the carrier.” Rini, 104 F.3d at 506.

The First Circuit considered the preemptive scope of the Carmack Amendment in Rini, 104 F.3d at 503. In Rini, the plaintiff brought several state law claims, including a consumer protection act claim, against a carrier that allegedly lost some of her items during a cross-country move. Id. The jury found for the plaintiff, and the district court awarded damages. The defendant appealed to the First Circuit, arguing that the plaintiff’s state law claims were preempted by the Carmack Amendment. Id.

The First Circuit agreed with the defendant and reversed the verdict. The court held that the Carmack Amendment preempts state law claims where liability stems from the damage or loss of goods, the claims process, or is related to the payment of claims. Id. The court explained that a claim is not preempted where liability arises from harms separate and apart from the loss or damage of goods. Id. “For example, if an employee of the carrier assaulted and injured the shipper, state law remedies would not be preempted.” Id. In so holding, the First Circuit is in accord with other circuits which have considered the issue. See, e.g., Gordon v. United Van Lines, Inc., 130 F.3d 282, 290 (7th Cir. 1997); Cleveland v. Beltman North American Company, 30 F.3d 373, 379 (2d Cir. 1994).

*3 In Rini, the carrier’s liability under the Massachusetts consumer protection act arose from misrepresentations that the carrier made to the plaintiff “in the course of settling a claim for damages stemming from the move.” Rini, 104 F.3d at 506. Specifically, the trial court had awarded treble damages to the plaintiff under that statute because the carrier had engaged in unfair and deceptive actions when attempting to persuade the plaintiff to abandon a valid claim against it. Rini v. United Van Lines, Inc., 903 F. Supp. 224, 233 (D. Mass. 1995). Because liability under the consumer protection act stemmed from the claims process, the First Circuit ruled that the claim was preempted. Rini, 104 F.3d at 506.

Similarly, in this case, XPO’s alleged liability under the CPA stems from the loss of goods and is related to the claims process. Burrill alleges that the invoice XPO had him sign more than a week after the initial delivery stated that some items were missing. Burrill asserts that XPO subsequently used that invoice to claim that Burrill had received the items. Construed favorably to the plaintiff, the alleged wrongful act, as was the case in Rini, is a misrepresentation made by the carrier to shield itself from liability and diminish the plaintiff’s ability to recover for the loss of goods.

Burrill argues that his claim is different from Rini because XPO’s wrongful act occurred before Burrill had initiated the claims process. Burrill’s timing argument misses the mark. Preemption under the Carmack Amendment focuses not on the timing of the wrongful act, but on the nature of the alleged injury: whether the injury stems from the loss of goods, the claims process, or is related to the payment of claims. Id. As in Rini, Burrill’s CPA claim stems from his underlying assertion that he never received the missing items—that XPO lost the goods. Burrill’s claim is also related to the claims process since XPO’s wrongful act was presumably designed to cover up the loss of goods and vindicate XPO in any future claims process. As such, like the claim in Rini, the CPA claim here is preempted by the Carmack Amendment.

Burrill also argues that his CPA claim escapes preemption because additional damages are available under the CPA, and XPO’s alleged wrongful use of the invoice truly constitutes an injury separate and apart from the loss of goods. However, it is precisely because additional damages “could have a dramatic impact on carrier’s liability and seriously enlarge a shipper’s remedy,” that state laws allowing for such damages are preempted. Cleveland, 30 F.3d at 379 (concluding punitive damages preempted by the Carmack Amendment); Rini, 104 F.3d at 506. “To hold otherwise would only defeat the purpose of the statute, which was to create uniformity out of disparity.” Moffit v. Bekins Van Lines Co., 6 F.3d 305, 307 (5th Cir. 1993) (affirming that state consumer protection act claim was preempted by the Carmack Amendment); see also Rini, 104 F.3d at 506. Accordingly, the availability of additional damages does not transform Burrill’s CPA claim into an “injury separate and apart from the loss or damage of goods.” See Rini, 104 F.3d at 506.

Burrill makes a procedural argument as well. Specifically, Burrill argues that it is premature to find preemption at this early stage in the case, where no discovery has taken place. Burrill does not explain how any evidence adduced in discovery could bear on the preemption analysis. Moreover, several courts have relied on Carmack Amendment preemption to dismiss state consumer protection claims. See, e.g., Grehan v. Am. Holiday Van Lines, Inc., No. 3:05-CV-138, 2005 WL 1242061, at *2 (E.D. Tenn. May 25, 2005); Werner v. Lawrence Transp. Sys., Inc., 52 F. Supp. 2d 567, 569 (E.D.N.C. 1998).

*4 For the foregoing reasons, the court finds that Count II of the amended complaint is preempted by the Carmack Amendment. Having so held, the court need not separately analyze whether the claim is also preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 14501.

CONCLUSION
For the foregoing reasons, XPO’s partial motion to dismiss (doc. no. 5) is granted.

SO ORDERED.

All Citations
Slip Copy, 2019 WL 6134391, 2019 DNH 194

Footnotes

1
The complaint provides little information about this “claim,” stating only that Burrill, “on his own, made a claim against Defendant denied by way of email dated December 10, 2018.” The court assumes Burrill pursued this claim via some kind of XPO internal claim process.

2
Neither the complaint nor Burrill’s objection specifies when or how XPO used the June 13, 2018 invoice to claim Burrill had received the items. On this point, the complaint states only that “Defendant has attempted to use Plaintiff’s signature on the Invoice to claim that Plaintiff had received the Missing Items, when he had not.” Doc. no. 3-2 at ¶ 29. The objection states that “the Defendant later used [the second invoice] to say ‘Gotcha!’ and ‘because you signed this second Invoice, we don’t have to pay’ (paraphrasing).” Doc. no. 7-1 at 4.

3
“Carrier” is the term of art that denotes an entity serving as, among other things, “a person providing motor vehicle transportation for compensation.” See 49 U.S.C. § 13102 (3)(14). There is no dispute that XPO is a carrier under the Carmack Amendment.