2020 WL 4226756

United States District Court, D. Minnesota.
Dubow Textile, Inc., Plaintiff,
v.
Western Specialized, Inc., and Twin Cities Logistics I, Inc. Defendants.
Civil No. 18-2963 (DWF/LIB)
|
Filed 07/23/2020

MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge

INTRODUCTION
*1 This case is before the Court on cross-motions for summary judgment filed by Defendant Western Specialized, Inc. (“Western”) (Doc. No. 69) and Plaintiff Dubow Textile, Inc. (“Dubow”) (Doc. No. 90).1 For the reasons discussed below, the Court denies both motions.

BACKGROUND
Dubow is a Minnesota corporation that provides custom embroidery and digital printing services to customers worldwide. (Doc. No. 16 (“Am. Compl.”) ¶ 8.) On April 3, 2018, Dubow purchased a pre-owned digital printer (the “Printer”) for $100,000. (Am. Compl. ¶¶ 9-10; Doc. No. 79 (“Wills Aff.”) ¶ 2, Ex. A (“Printer Invoice”).) Dubow hired Total Logistics, Inc. (“Total Logistics”), a transportation broker, to arrange for the shipment of the Printer from Los Angeles to St. Cloud, Minnesota. (Doc. No. 71 (“Smith Aff.”) ¶ 3, Ex. D (“Thompson Dep.”) at 9-12.) Total Logistics hired Twin Cities Logistics I, Inc. (“TCL”) to arrange transport. (Id. at 13.) TCL then hired Western to ship the printer. (Smith Aff. ¶ 3, Ex. E (“Post Dep.”) at 8, 15.)2

Dubow also hired Hydra Ink, LLC (“Hydra Ink”) to prepare the Printer for shipping. (Smith Aff. ¶ 3, Ex. B (“Hopper Dep.”) at 39.) Hydra Ink had successfully packaged and loaded printers for Dubow before. (Id. at 32-33.) Keith Thompson, of Total Logistics, spoke with Scott Hopper, of Hydra Ink, several times before shipment. (Smith Aff. ¶ 3, Ex. D (“Thompson Dep.”) at 42.) They discussed logistics, such as the timing of the pickup and requirements to load the Printer into the trailer. (Id.) In addition, Thompson understood that Hydra Ink’s role included testing the Printer to make sure it was running properly, loading the Printer into the trailer, and securing the Printer for transit. (Id. at 46-47.)

On April 15, 2018, Hopper and Charles Gray, both of Hydra Ink, examined the Printer in Los Angeles before packaging the Printer. (Id. at 54-55; Wills Aff. ¶ 6, Ex. E.) On April 17, 2018, a truck driver for Western, Kelly Hauser, arrived to pick up the Printer. (Smith Aff. ¶ 3, Ex. H (“Hauser Dep.”) at 10-12.) Hauser was driving a semi-truck with an attached trailer. (Id.) Hauser picked up a load of air conditioners in Los Angeles before picking up the Printer. (Id. at 13.) The air conditioners were in the front of the trailer. (Id.) When she first arrived at the facility to pick up the Printer, Hauser had trouble pulling into the loading area. (Hopper Dep. at 92-93.) Once at the loading dock, Hopper and Gray used a forklift to load the Printer into the trailer. (Id.) They loaded the Printer with the back of it entering the trailer first, so that it was “pressed up tight” against the freight on the truck, and the front of the Printer was facing towards the rear of the trailer. (Id. at 74.) After the Printer was loaded, Hauser attempted to pull away from the dock to allow Hydra Ink’s employees to secure the Printer and take pictures. (Id. at 93-94.) However, Hauser forgot that she had set the brakes, so her first attempt to pull away failed. (Id.) She then released the brakes and pulled away, and Hopper and Gray finished loading the trailer. (Id.)

*2 Dubow asserts that Hopper and Gray pressed the Printer up against the air conditioners and placed inflatable bladders on the sides and the back of the Printer. (Id. at 73-74, 94.) Hopper claims that he bolted the Printer to the floor of the trailer. (Id. at 94.) Hopper submits that they bolted down the feet of the Printer—as opposed to using a wood block—because they knew the block would crack due to the Printer’s weight. (Id. at 144-45.)

Before Hauser left with the Printer, Hopper and Gray took photos showing that the Printer was not damaged. (Id. at 72; Wills Aff. ¶ 8, Ex. G.) Hauser closed the trailer doors after looking into the trailer and confirming that the Printer was secure inside. (Hauser Dep. at 25-27.) Before Hauser left, Hopper realized that there was not a bill of lading. (Wills Aff. ¶ 9, Ex. H.) Hopper contacted Total Logistics, who then sent the bill of lading via email. (Id.) Hopper checked the bill of lading, confirmed the information, signed it, and gave it to Hauser. (Hopper Dep. at 124-25; Hauser Dep. at 71.) The bill of lading identified Hydra Ink as the “SHIPPER” and Dubow as the “CONSIGNEE.” (Smith Aff. ¶ 3, Ex. E at Dep. Ex. 4.) Next, Hauser picked up a load of household goods and, while they were being loaded, Hauser again confirmed that the Printer was not damaged. (Hauser Dep. at 38.)

Hauser then left Los Angeles and drove three days to reach Mankato, Minnesota. (Id. at 41.) In Mankato, Hauser separated the trailer from her truck and connected it to that of another driver, Duane Hanson. (Smith Aff. ¶ 3, Ex. I (“Hanson Dep.”) at 11-15.) Hanson inspected the truck and exterior of the trailer. (Hanson Dep. at 12-14.) He did not see any issues. (Id.) Hanson first delivered the household goods to a stop in Chaska, Minnesota. (Id. at 15.) In Chaska, Hanson discovered an air leak on a rubber hose that operates the brake system on the trailer. (Id. at 17-18.) Hanson fixed the leak but did not immediately inform Western. (Id. at 20-21.) While in Chaska, Hanson did not inspect the Printer. (Id. at 23.)

Hanson then drove the Printer to St. Cloud. (Id. at 24.) Hanson does not recall anything remarkable about the trip or any sudden stops. (Id.) Dubow employees came out to unload the Printer and discovered that it was severely damaged. (Id. at 25-26.) Robert Dubow, the owner of Dubow, examined the damage and called his insurance agent, David Dilley. (Smith Aff. ¶ 3, Ex. A (“Dubow Dep.”) at 34-35.) Dilly visited that same day. (Wills Aff. ¶ 11, Ex. J (“Dilley Dep.”) at 6.) Dilley testified that the Printer had slid four to five feet forward and damaged some air conditioners. (Id. at 7.) He also testified that he was “surprised that there was no tie downs or anything on it,” that he saw some holes in the floor of the trailer, and that it looked as though some type of screws had been pulled out of the holes. (Id. at 7-8.) They took photographs of the damaged Printer. (Wills Aff. ¶ 12, Ex. K.)

Hopper visited Dubow a few weeks later to look at the damage. (Hopper Dep. at 87-88.) Hopper observed “extreme damage” to the Printer, the most significant being damage to the extruded I-beams. (Id. at 42-43, 88.) There was additional damage to the Printer’s steel box frame, the arm to which the monitor of the Printer was mounted, the fiberglass frame, and the pallets on the Printer. (Id. at 169.) The Printer was considered a total loss. (Id. at 42, 106.) Hopper testified that printers like the one at issue here are not easily damaged because they are so heavy (over 4500 pounds), and that the extensive damage to the Printer must have been caused by an extremely heavy object falling “top down” on its front side. (Id. at 42-43, 46-47.) In addition, Hopper explained that this level of damage could not have been caused by the Printer moving around inside the trailer or by something hitting the side of the Printer. (Id.) According to Hopper, this is because the damage primarily involved components from the top of the Printer down, not the side of the machine. (Id. at 106-107, 138.) Hopper further explained that because of the Printer’s weight, it would not move around after being secured under normal driving conditions, and even without proper securing, it would not usually move. (Id. at 105-06, 192.) Moreover, Hopper stated that even if the Printer was not secure and it moved inside the trailer, it would not have caused the damage that the Printer sustained. (Id. at 105-106.)

*3 Dubow purchased the Printer for $100,000. (Dubow Dep. at 93.) It is rare to find a Printer in good condition for this price. (Id.) Dubow replaced the Printer for just over $650,000, including installation and shipping. (Wills Aff. ¶ 13, Ex. L.) Dubow also claims it took fourteen months to find a suitable replacement, during which time Dubow sustained a net profit loss of $314,212.50. (Dubow Dep. at 80.)

After learning that the Printer was damaged, Robert Bjerke, Western’s owner, began an investigation. (Wills Aff. ¶ 15, Ex. N (“Bjerke Dep.”) at 28.) The electronic log, which records and contains various information, including speed and braking, shows that Hauser did not make any sudden stops—or “hard brakes”—while transporting the Printer from Los Angeles to St. Cloud. (Wills Aff. ¶ 16, Ex. O (“Electronic Log”); Bjerke Dep. at 17-20, 28, 32-33.) Hanson’s truck, which is older than Hauser’s, only keeps electronic data for so long, and the data was not preserved. (Id. at 28-31.) Hanson, however, denies any sudden stops on the trip. (Hanson Dep. at 45.)

Dubow filed its Third Amended Complaint and Demand for Jury on January 24, 2019. Presently, one claim remains in this case—a Carmack Amendment claim against Western. Both parties move for summary judgment. The Court considers the motions below.

DISCUSSION

I. Summary judgment
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Weitz Co. v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009). However, as the Supreme Court has stated, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996) (citing Fed. R. Civ. P. 56(c)). The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but … must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

II. Liability
The sole remaining claim in this case is one under the Carmack Amendment of 1906 to the Interstate Commerce Act (the “Carmack Amendment”). The Carmack Amendment generally makes interstate carriers liable for damages to property carried in interstate commerce unless the carrier can prove certain defenses. See 49 U.S.C. § 14706; Missouri Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964); Just Take Action, Inc. v. GST (Americas) Inc., Civ. No. 04-3024, 2005 WL 1080597, at *4 (D. Minn. May 6, 2005). Under the Carmack Amendment, a plaintiff establishes a prima facie case by showing: “(1) the goods were undamaged prior to shipment; (2) the goods arrived in a damaged condition; and (3) the action caused plaintiff’s damages.” Just Take Action, Inc., 2005 WL at *4. Once a plaintiff establishes a prima facie case, the burden shifts to defendant to demonstrate that the damage was caused by an excepted cause, including the act of the shipper himself. See Minneapolis, St. P. & S.S.M.R. Co. v. Metal-Matic, Inc., 323 F.2d 903, 905 (8th Cir. 1963). The carrier’s burden is very heavy because “it has peculiarly within its knowledge the facts which may relieve it of liability.” Cont’l Grain Co. v. Frank Seitzinger Storage, Inc., 837 F.2d 836, 841 (8th Cir. 1988).

*4 There is no dispute that the Printer was undamaged before being shipped by Western. The Printer’s undamaged condition was confirmed before Western’s truck driver left Los Angeles with the Printer. There is also no dispute that the Printer arrived in St. Cloud in a damaged condition. Further, there is evidence that the damaged condition of the Printer resulted in some amount of damages to Dubow. Thus, Dubow has established a prima facie case under the Carmack Amendment.

Western argues that it has pointed to evidence in the record that establishes that the sole cause of damage to the Printer was shipper Hydra Ink’s failure to secure the Printer. Western argues that Hydra Ink was exclusively responsible for securing the Printer, Hydra Ink failed to properly secure the Printer, and that this failure caused the damage to the Printer. In support, Western points to the deposition testimony of Scott Hopper, wherein he states that Hydra Ink was responsible for loading and securing the Printer and that Hydra Ink did not seek any assistance from Western while doing so. (Hopper Dep. at 38.) In addition, Western points to record evidence that the manner in which the Printer was secured—bolted down and using inflatable bladders—“looks funny,” but nonetheless Hydra Ink represented that it was ready for transport. (Hopper Dep. at 38; Hauser Dep. at 21.) Western argues that while Hopper claims that he bolted the Printer to the trailer floor, all other evidence suggests the opposite. For example, Western points out that upon inspection after the damage was discovered, Dubow’s insurance agent remembered seeing some empty holes where it appeared that some screws had been pulled out.

Dubow, on the other hand, argues that Western has failed to satisfy its burden of proof. Dubow maintains that there is no evidence that tends to show that the damage was caused by the Printer moving around or that Western’s drivers drove without negligence, but rather the evidence shows that the Printer was damaged by something heavy falling on the Printer. Moreover, Dubow submits that Western did not rebut testimony that the Printer was bolted down. Thus, having stated a prima facie case, Dubow argues that it is entitled to summary judgment on its Carmack Amendment claim.

The Court concludes that fact issues remain with respect to liability, and in particular regarding who caused the damage to the Printer. The record contains conflicting evidence that must be weighed and considered by the fact finder. In particular, there is evidence in the record that could lead a reasonable juror to two different conclusions—that Hydra Ink was solely responsible for the damage to the Printer by failing to properly secure the Printer or that it was not solely responsible, in which case Dubow would prevail. Therefore, the Court denies both motions for summary judgment.

III. Damages
Damages under the Carmack Amendment include damages for delay, lost profits, and all reasonably foreseeable consequential damages. Am. Nat. Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 931 (7th Cir. 2003). Dubow argues that is has established recoverable damages in the amount of $980,895.71. This amount reflects the replacement cost for the Printer, Dubow’s lost net profit, costs for damage assessment, and shipping costs. Western claims that Dubow’s recoverable loss is significantly less. Western argues that Dubow cannot recover the requested $651,300 for the replacement printer that was purchased fourteen months after the Printer was damaged or the claimed $314,212.50 in lost profits. Instead, Western argues that the Court should hold that Dubow’s alleged damages are limited to $100,000, the purchase price of the Printer.

*5 The Court finds that a fact issue remains as to the amount of Dubow’s damages, and relatedly what the fair market value of the Printer was considering the difficulty in finding a suitable replacement. The Court will leave those decisions for the jury. The Court will also leave for the jury any determination regarding the foreseeability of harm related to lost profits and the reasonableness of waiting fourteen months before replacing the Printer.3

In its motion for partial summary judgment, Western argues that its liability for the Printer’s shipment is limited to $1.50 per pound under the Carmack Amendment, for a total of $7,500 ($1.50 × 5,000 lbs). The $1.50 per pound amount is in accordance with the Accessory Changes document given to TCL by Western. Western argues that the dispute over damages centers on whether Western obtained the shipper’s agreement as to its choice of liability and whether the shipper was given a reasonable opportunity to choose between two or more levels of liability. Western further argues that the evidence shows that TCL had the opportunity to choose between a limited liability rate of $1.50 per pound and a higher rate, and having not chosen the higher rate, Western’s liability is limited.

Dubow argues that there is no evidence that Western gave Dubow a reasonable opportunity to choose between two or more levels of liability or that Western obtained Dubow’s agreement as to its choice of liability. Dubow further argues that there is no evidence that anyone associated with Western, TCL, or Total Logistics told Dubow that Western’s liability would be limited as stated in the Accessory Changes document, which was not referred to or incorporated into the Contract Carrier Agreement. Dubow also contends that Western cannot rely on a liability limitation agreement between Western and TCL, of which Dubow was unaware, to limit Dubow’s recovery. Moreover, Dubow points to evidence casting doubt on whether the Accessory Changes document constitutes an agreement, as there is no indication that TCL accepted the proposed Accessory Changes document for consideration and there is no evidence that the document was signed or dated or that any other relevant agreements reference or incorporate the document.

The Court is not persuaded, on the record before it, that summary judgment is warranted in Western’s favor on this point. Instead, the issue of damages and any limitation on liability will be for the jury.

CONCLUSION
The Court denies both parties’ motions for summary judgment. Accordingly, this case will proceed to trial. However, the Court feels that it would be in the best interests of the parties to attempt to settle this dispute.

ORDER
Based upon the foregoing, and on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

1. Dubow’s Motion for Leave to File an Untimely Summary Judgment Motion (Doc. No. [89] ) is GRANTED.

2. Western’s Motion for Summary Judgment (Doc. No. [69] ) is DENIED.

3. Dubow’s Motion for Summary Judgment (Doc. No. [90] ) is DENIED.

All Citations
Slip Copy, 2020 WL 4226756

Footnotes

1
Dubow also filed a Motion for Leave to File an Untimely Summary Judgment Motion. (Doc. No. 89.) The Court grants the motion.

2
Western submits that TCL possessed Western’s Accessory Changes terms and conditions, which specified that “Bills of Lading not indicating value will be valued by Western” and “[v]alue will be assigned 1.50 per pound of the order.” (Smith Aff. ¶ 3, Ex. E at Dep. Ex. 2.) This document is not signed by TCL or Western and there is no evidence that Dubow was provided, or otherwise knew of, this document.

3
The Court will consider relevant motions in limine related to the proper measure of damages, which is an issue of law for the Court, not a fact issue for the jury.

Bryant v. Core Contents Restoration
United States District Court for the Eastern District of North Carolina, Southern Division
July 21, 2020, Filed
No. 7:20-CV-40-M

Reporter
2020 U.S. Dist. LEXIS 128277 *

CATHLEEN BRYANT, Plaintiff, V. CORE CONTENTS RESTORATION, LLC. , YVONNE D. McCORMICK, NICOLE S. McCORMICK, KAREN J. KOSS, and ADRIANE B. NULL, Defendants.

Notice: Decision text below is the first available text from the court; it has not been editorially reviewed by LexisNexis. Publisher’s editorial review, including Headnotes, Case Summary, Shepard’s analysis or any amendments will be added in accordance with LexisNexis editorial guidelines.

[*1] ORDER
This matter is before the Court on the preliminary injunction portion of Plaintiff Cathleen
Bryant’s “Motion for Temporary, Preliminary and Permanent Injunctive Relief’ [DE-4 (the “Motion”)] ,
requesting injunctive relief against Defendants Core Contents Restoration, LLC . (“Core Contents” or
“Core”), Yvonne D. McCormick, Nicole S. McCormick, Karen J.Koss, and Adriane B. Null
(collectively, the “Defendants”). The Court previously granted the portion of the Motion requesting a
temporary restraining order. [DE-8; DE-14.] The parties have fully briefed Plaintiffs request for a
preliminary injunction, and the issues raised are ripe for ruling. At the hearing on the motion for a
preliminary injunction, Defendants did not object to the entry of a preliminary injunction. The portion
of Plaintiff’s Motion requesting a preliminary injunction is GRANTED for the reasons set forth below.
I. Preliminary Injunction Standard
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7,
22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). “The standard for granting either a
TRO or a preliminary injunction is the same.” ABC Phones ofNorth Carolina, Inc. [*2] v. Yahyavi, No. 5:20-CV-0090-BR, 2020 WL 1668046, at *2 (E.D.N.C. Apr. 3, 2020) (citation omitted). Where a plaintiff seeks to maintain the status quo, here by prohibiting Defendants from selling Plaintiffs goods in their possession, “Plaintiff[] must demonstrate that (1) [she is] likely to succeed on the merits; (2)
[she] will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in [her] favor; and (4) the injunction is in the public interest. ” League of Women Voters ofN Carolina v.North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter, 555 U.S. at 20).
II. Irreparable Harm, Balance of Hardships, and Public Interest
Defendants do not appear to contest that Plaintiff has met her burden on three of the four prerequisites for a preliminary injunction: that Plaintiff is likely to suffer irreparable harm, that the balance of hardships weigh in her favor, and that the injunction is in the public interest. [DE-33.] The
Court also finds no reason to depart from its earlier conclusion that Plaintiff has demonstrated each of these requirements. [See DE-8 (“Second, Plaintiff is likely to suffer irreparable harm .. .. Third, the Court finds that the harm Plaintiff may suffer . .. exceeds the harm that Defendants will suffer . .. .
Fourth, a temporary restraining order is in the public [*3] interest.”).]
Defendants sole argument against granting the preliminary injunction is that, for the reasons set out in their motion to dismiss [DE-31], “Plaintiff is unlikely to succeed on the merits of her claim, and therefore, the injunctive relief sought is unwarranted. ” [DE-33 at 2.]
III. Likely to Succeed on the Merits
Plaintiff has alleged over twenty independent causes of action ranging from negligence to conversion to North Carolina deceptive trade practices to Florida statutory violations to claims under the Carmack Amendment, 49 U.S.C. § 14706. [See DE-1.] However, where the Carmack Amendment,
2
which governs certain claims for lost or damaged goods arising out of interstate shipment, see Ward v.
Allied Van Lines, Inc., 231 F.3d 135, 138 ( 4th Cir. 2000), applies, “[m]ost courts … have taken the
view that virtually every kind of state cause of action relating to the contract of shipment …. is
preempted.” Richter v. N Am. Van Lines, Inc., 110 F. Supp. 2d 406,411 (D. Md. 2000) (citations
omitted).
Recognizing that most, if not all, of Plaintiffs claims may be preempted by the Carmack
Amendment, the Court ordered supplemental briefing on the applicable scope of Carmack preemption.
[DE-44 .] Defendants have taken the position that Defendant Core ‘ s primary business is restoration, not
transportation, and that Core is therefore [*4] exempt from Carmack claims (and, in tum, its preemptive
power) under 49 U.S.C. § 13505 [DE-49 at 2], which exempts transportation “further[ing] a primary
business (other than transportation).” Plaintiff has moved for partial summary judgment on the issue,
but her motion is not yet ripe. [DE-64. ] At least at this juncture and for purposes of the instant request
for relief, the Court preliminarily finds that Defendant Core is subject to Carmack, 1 and thus, because
the remainder of Plaintiffs claims may be preempted, addresses only whether Plaintiff has demonstrated
a likelihood of success on her Carmack claim. See Nelson v. Beaufort Liquidation Center, LLC, No.
9:07-811-PMD, 2007 WL 9747705, at *2 (D.S.C. Apr. 2, 2007) (Plaintiff need only “demonstrate[]
likelihood of success on the merits for at least one cause of action”). Although the Court declines to rule
on Defendants’ motion to dismiss at this juncture- whether and to what extent Carmack applies will
1 Most of Plaintiffs allegations have nothing to do with restoration, but instead arise out of Defendants’ agreement to transport Plaintiffs goods to her temporary house and to Florida for storage and then back. [DE-1 ,r,r 306-07.] Further, the fust estimate that Plaintiff received for Defendants’ services [*5] from Defendants [DE-1 ,r 694], was for a total cost of $61,560 .91 [DE-1, Exh. E], and only $16,280.72, or approximately 26.4%, of the $61 ,560.01 is attributable to cleaning or restoration [DE-1, Exh. E]. Moreover, Plaintiff has asserted that Defendant “Core is a Motor Carrier” and a “household goods Motor Carrier,” and that the contract and Defendant Core’ s primary purpose is ” [t]he packing, transportation, and storage of property.” [DE-1 ,r,r 32, 34, 93]; see also Syracuse Plastics, Inc. v. GuyM Turner, Inc., 959 F. Supp. 147, 151 (N.D.N.Y. 1997).
3
heavily shape the Complaint and this action- it briefly addresses each of Defendants ‘ relevant
arguments raised therein.
A. Failure to State a Claim
Defendants argue that Plaintiff has failed to state a claim. [DE-32 at 9-11.] “In order to recover
under Carmack, shippers need only make out a prima facie case. A prima facie case requires that
[Plaintiff] show ‘ good origin condition, damaged destination condition, and the amount of damages .’ If
established by the shipper, aprimafacie case ‘ shift[s] the burden to the carrier to prove that it was not
negligent and that the damage was caused by an event excepted by the common law. ‘” Saacke N Am.,
LLC v. Landstar Carrier Servs., Inc., No. 5:l 1CV107-RLV, 2013 WL 7121197, at *5 (W.D.N.C. Dec.
19, 2013) [*6] (citations omitted). ” [T]he Carmack Amendment imposes what is akin to a strict liability
scheme, under which a carrier is held liable, without proof of negligence, for the loss or damage to
goods transported.” McKesson Corp. v. Longistics Transp, Inc. , No. 5:09-CV-250-F, 2010 WL
11564989, at *9 (E.D .N.C. Nov . 4, 2010).
Here, Plaintiff has alleged that she and Core agreed that Core was to “load, transport and unload
some of’ Plaintiffs goods from her current home “to a temporary house approximately 4 miles away,
load and transport the remaining [goods] to transport to Florida for safe, careful, appropriate storage, as
long as Plaintiff needs .. . and then transport Plaintiffs [goods] from both Florida and the temporary
house in North Carolina, back to her Home in North Carolina when requested by Plaintiff, [and] unload,
unpack and inventory all of Plaintiffs [goods] at Plaintiffs Home. ” [DE-1 ~ 306.] Plaintiff has also
alleged that Defendants lost [e .g., DE-1 ~ 489, 581] and damaged [e.g. , DE-1 ~~ 293 , 373,405 , 598] her
goods. Further, Plaintiff alleges that Defendants have started converting her goods, valued at over
$200,000 [DE-1 ~ 21] , through private auction [e.g. , DE- 1 ~ 568, [*7] 590] for failure to pay additional
storage costs that Plaintiff was reassured would not accrue [DE-1 ~ 285 (“Yvonne responded that Core
4
did not charge monthly for storage”)]-“Adriane specifically stated in writing that none of Plaintiffs
[goods] would be released unless Core received all of what Core was demanding to be paid.” [DE-1 1
649; see also DE-11661 (” Yvonne and Adriane threatened to sell Plaintiffs (goods] to satisfy
unreasonable, unjustified, and predatory charges that Plaintiff didn’t owe”) .]
B. Standing
Defendant next argues that Plaintiff has failed to allege standing under Article III of the
Constitution and that Plaintiff is not the real party in interest under Federal Rule of Civil Procedure Rule
17(a). [DE-32 at 6-7.] Defendants argue that Plaintiff is not party to the contract is at issue, which was
instead signed by Plaintiffs mother, Mary Ann Collins. [DE-32 at 6-7, Ex. A.] Plaintiff responds that
the contract Defendants refer to in their motion to dismiss is not the operative agreement nor the subject
of the pleadings, and that, instead, “Pltf did not sign any documents-and had a verbal agreement with
Defs.” [DE-38 at 10; see also DE-38 at 5 (“Neither the alleged WAuth [*8] nor any other agreement Defs
may have with any other person is the basis of Pltfs complaint. “).]
Contrary to Defendants ‘ arguments concerning standing, under the Carmack Amendment,
” [c ]ourts have held that … persons beneficially interested in the shipment although not in possession of
the actual bill oflading … have standing to sue,” including “the owner of the property that is the subject
of this lawsuit. ” Shamoun v. Old Dominion Freight Line, Inc., No. 3:19-CV-2034-G, 2020 WL 570903,
at *5-6 (N.D. Tex. Feb. 4, 2020) (citations omitted). Here, Plaintiff has alleged that no bill of lading or
receipt has been issued, and that she is the owner of the home [DE-40110] and goods [DE-119; DE-
38, Ex. A] that are the subjects of this action.
Next, with respect to Rule 17, ” (t]he meaning and object of the real party in interest principle
embodied in Rule 17 is that the action must be brought by a person who possesses the right to enforce
the claim and who has a significant interest in the litigation. Whether a plaintiff is entitled to enforce the
5
asserted right is determined according to the substantive law.” Virginia Elec. & Power Co. v.
Westinghouse Elec. Corp., 485 F.2d 78, 83 (4th Cir. 1973) (footnote omitted). “The rule abides, as it
originally was: A simply-worded capture [*9] of the fundamental premise that a complaint should be
brought by the person who, according to the governing substantive law, is entitled to enforce the right.”
In re New Bern Riverfront Dev. , LLC, No. 09-10340-8-SWH, 2018 WL 4381516, at *3 (Bankr.
E.D.N.C. Sept. 12, 2018) (internal quotation marks and citations omitted). Here, Plaintiff appears
authorized to bring a claim under Carmack, see supra, and she has a “significant interest” in vindicating
the alleged loss, damage, and conversion of her goods by Defendant Core.
C. Improper Venue
Defendants argue that venue is improper because the contract they state is at issue contains a
provision requiring “that venue for any legal proceedings shall be in St. Lucie County, Florida and that
Florida law shall govern all disputes relating to this agreement.” [DE-32 at 8, Ex. A.] But, as prose
Plaintiff observes, binding Supreme Court precedent establishes that a venue objection based upon a
forum-selection clause may not be asserted under Rule 12(b)(3). ” [I]nAtlantic Marine [Const. Co. v.
US. Dist. Court for W Dist. of Texas, 571 U.S . 49 (2013)], the Supreme Court clarified that a party may
not seek to enforce a forum selection clause by moving to dismiss for improper venue.” BAE Sys. Tech.
Sol. & Servs. , Inc. v. Republic ofKorea’s Def Acquisition Program Admin., 884 F.3d 463,470 (4th Cir.
2018). [*10] “[T]ransfer pursuant to§ 1404(a) is the prescribed enforcement mechanism of a forum-selection
clause that ‘point[s] to a particular federal district”‘ and ‘the doctrine offorum non conveniens … is the
appropriate means for enforcement of a forum-selection clause that ‘ point[ s] to a state or foreign forum .”‘ EarthKind, LLC v. Lebermuth Co. Inc. , No. 5:19-CV-00051-KDB-DCK, 2020 WL 1815903,
at *3 (W.D.N.C. Apr. 9, 2020) (quoting At!. Marine, 571 U.S. at 59-60).
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D. Failure to Join a Necessary Party
Defendants also assert that the estate of Mary Ann Collins2 is an indispensable party to this
action under Fed. R. Civ. P. 19, and that the Complaint should be dismissed for failure to join a
necessary party under Fed. R. Civ. P. 12(b)(7). [DE-32 at 11.] As an initial matter, “[t]he party making
the Rule 12(b)(7) motion bears the burden of showing that required parties have not been joined.”
Mortg. Payment Prot. , Inc. v. Genworth Mortg. Ins. Corp., No. 5:l 1-CV-00075-D, 2012 WL 569906, at
*12 (E.D.N.C. Jan. 20, 2012) (citing Am. Gen. Life & Accident Ins. Co. v. Wood, 429 F.3d 83, 92 (4th
Cir. 2005)), report and recommendation adopted, No. 5: 11-CV-75-D, 2012 WL 569895 (E.D .N .C. Feb.
22, 2012). Although the Court declines to rule on the issue here, Defendants mere recitation of the
potentially applicable Federal Rules has likely not carried their burden. See Williamson v. Prime Sports
Mktg. , LLC, No. [*11] l:19-CV-593, 2020 WL 1975406, at *3 (M.D.N.C. Apr. 24, 2020) (“Here, Defendants
have not met their burden of showing that the Absentees are needed for a just adjudication.”). The
general rule is that ” [i]n cases in which the beneficiary is a party, the courts uniformly reject the
argument that all of the original parties to the contract must be joined,” and Defendants have provided
no compelling reason to depart from that general rule. Mary K. Kane, 7 Fed. Prac. and Pro . (Wright &
Miller), § 1613 – Application of Rule 19 in Particular Actions and Proceedings-Contracts (3d ed., Apr.
2020).
2 After Defendants filed their motion to dismiss, which references Mary Ann Collins, they discovered that Mary Ann Collins had died prior to the filing of the instant lawsuit. [DE-36 at 1-2.] Defendants thereafter filed a motion to amend their memorandum of law filed in connection with their motion to dismiss. [DE-36.] The amended memorandum replaces references to ‘Mary Ann Collins’ with ‘ the Estate of Mary Ann Collins’ and includes documentation of Mary Ann Collins’ death and will as an additional exhibit. In accordance with the Court’s oral ruling at the hearing on Plaintift’s motion for a preliminary injunction, Defendants’ motion to amend their memorandum [*12] of law in support of their motion to dismiss [DE-36] is GRANTED for good cause shown. The Court has considered Defendants’ amended memorandum of law here. As set forth below, Defendants are instructed to separately file their amended memorandum of law and additional exhibit.
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IV. Security Requirement
Fed. R. Civ. P. Rule 65 specifies that a “court may issue a preliminary injunction .. . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. ” Fed. R. Civ. P. 65(c).
” [T]he district court retains the discretion to set the bond amount as it sees fit or waive the security
requirement. ” Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013) (citations omitted). The Court finds that the monthly additional cost for Defendants to continue to store Plaintiffs goods is the appropriate amount of security. [DE-11733 (“Adriane and Yvonne claimed Plaintiffs charges will increase by
$889 each month starting February 3, 2020. “)]; cf Eberling v. R.M Sterling Mortg. Servs., Inc., No. SACV 10-1831 AG RNBX, 2011 WL 2419465, at *2 (C .D. Cal. Apr. 6, 2011) (“The Court finds that in
setting the bond in a foreclosure case, monthly payments are an appropriate alternative.”); [*13] Amazon Web
Servs., Inc. v. United States, 147 Fed. Cl. 146, 159 (2020) (imposing security based on monthly cost to defendant) .
V. Conclusion
For the foregoing reasons, the portion of Plaintiffs Motion [DE-4] requesting a preliminary injunction is GRANTED. Defendants are ENJOINED during the pendency ofthis litigation from selling, concealing, converting, removing, or in any way disposing of any of Plaintiffs goods in Defendants’ possession, custody, or control.
It is further ORDERED that Plaintiff Cathleen Bryant is DIRECTED to pay to the Clerk eight hundred eighty-nine (889) dollars as security, pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, by the fourth of the month or the first business day after if the fourth falls on a weekend or court holiday, beginning August 4, 2020, every month for the pendency of this case.
As stated above, see supra n.3, Defendants’ motion to amend their memorandum oflaw filed in
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connection with their motion to dismiss [DE-36] is GRANTED. Defendants are DIRECTED to docket the amended memorandum of law and its accompanying exhibits within seven (7) days of the date of entry of this order.
Finally, pursuant to Local Rule 72.3(h)(2), this matter is hereby REFERRED to United States Magistrate Robert B. Jones, Jr. to conduct a court-hosted settlement conference. The conference [*14] shall
take place as soon as reasonably practicable, but not later than August 11 , 2020.
Ir
So ORDERED this the~ day of July, 2020.
RICHARD E. MYERS II
UNITED STATES DISTRICT illDGE
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