2020 WL 1069731

United States District Court, M.D. Alabama, Southern Division.
KENDALL PETERS and SHARON DANNEN-PETERS, Plaintiffs,
v.
LIBERTY BELL MOVING GROUP and DIRECT VAN LINES SERVICES, INC., Defendants.
CASE NO. 1:19-CV-182-WKW
|
Filed 03/05/2020

MEMORANDUM OPINION AND ORDER
W. Keith Watkins UNITED STATES DISTRICT JUDGE
*1 Before the court is Defendant Liberty Bell Moving Group’s motion to dismiss for failure to state a claim and for improper venue. (Doc. # 2.) A review of that motion and Plaintiffs’ response to it (Doc. # 16) reveals that this action, which arises out of the interstate transportation of household goods, needs a roadmap. Defendant Direct Van Lines Services, Inc., the motor carrier that transported and allegedly damaged and lost Plaintiffs’ personal property, has been off the map for more than eleventh months without any service (of process). Plaintiffs and Liberty are operating with a map, but the jurisdictional coordinates are wrong. The parties are making little progress on the litigation roadway. A repleading of the complaint to update the roadmap, as well as proper service, will go a long way in aiding the navigation of this case.

I. BACKGROUND
Plaintiffs allege that, in March 2018, they contracted with Defendant Liberty Bell Moving Group (“Liberty”) and Direct Van Lines Services, Inc. (“Direct Van Lines”) to move their personal belongings 834 miles from Fairfax, Virginia, to Coffee County, Alabama. When Direct Van Lines showed up belatedly with the delivery, many of Plaintiffs’ belongings were lost or damaged. Plaintiffs sued Liberty and Direct Van Lines for breach of contract in the Circuit Court of Coffee County, Alabama. Liberty promptly removed the action, contending that a federal question existed based upon the complete preemptive effect of the Carmack Amendment to the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. § 14706, or, alternatively, under the preemption provision of the Federal Aviation Administration Authorization Act (“FAAAA”), 49 U.S.C. § 14501(c)(1).1 Denying Plaintiffs’ motion to remand, the court found that removal jurisdiction was proper under the Carmack Amendment. (Doc. # 13.) Liberty now moves to dismiss the claim against it for failure to state a claim or, alternatively, for improper venue based on a contractual forum-selection clause.

II. DISCUSSION
The purpose of this Order is to give the parties step-by-step directions on how to get this case back on the litigation route. Plaintiffs must file an amended complaint alleging proper grounds for jurisdiction and claims that comply with notice pleading. They also must serve Direct Van Lines or risk the dismissal of this defendant.

First, a prior order established the jurisdictional highway (Doc. # 13), but Plaintiffs have not amended their complaint to reflect the circumstances. In their complaint, Plaintiffs allege a state-law, breach-of-contract claim against Direct Van Lines. But, as previously explained, Direct Van Lines is a carrier to which the Carmack Amendment applies. See Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1300 (11th Cir. 2018) (“[T]he Carmack Amendment preempts state-law claims against interstate motor carriers who ‘provide motor vehicle transportation or service subject to jurisdiction under [the Interstate Commerce Act]’ and replaces those state-law claims with its strict-liability provision.”). The breach-of-contract claim against Direct Van Lines is to be replaced by the Carmack Amendment claim, which confers federal question jurisdiction. Plaintiffs never filed an amended complaint. The complaint remains in its original format.

*2 Second, Plaintiffs must replead the breach-of-contract claim against Liberty. Plaintiffs plead that Liberty is a broker. (See Doc. # 1-1, ¶ 7 (alleging that Liberty is “the brokerage company that contracted the business out to Plaintiffs” and “is … responsible and liable for the damaged and missing property”).) The Carmack Amendment “does not apply to brokers”; it only applies to carriers. Essex Ins. Co., 885 F.3d at 1300. While Liberty advanced the FAAAA as an alternative jurisdictional route for removal, there is caselaw that this Act does not preempt state-law, breach-of-contract claims against brokers. See Chatelaine, Inc. v. Twin Modal, Inc., 737 F. Supp. 2d 638, 642–43 (N.D. Tex. 2010) (finding that the FAAAA preempted state-law claims arising from the interstate transportation of goods other than for breach of contract). Liberty cites no authority to the contrary; its briefing is silent on this point. Hence, the state-law, breach-of-contract claim against Liberty remains, but the jurisdictional route is 28 U.S.C. § 1367. Plaintiffs must amend the complaint to add § 1367 as a jurisdictional basis.

Third, the parties’ briefing has uncovered that two contracts are at issue, not one as implied by the complaint. (See Doc. # 2-1, 2-2.) As Liberty points out, and as Plaintiffs acknowledge, there was an interstate bill of lading between Kendall Peters and Direct Van Lines, and there was a Binding Moving Estimate between Kendall Peters and Liberty. Plaintiffs must specify which contracts are the bases for which claims.

Fourth and relatedly, Plaintiffs must identify the basis for Plaintiff Sharon Dannen-Peters’s claims. There is no mention of her in the contracts.

Fifth, Liberty represents that it is now named Relocate US, LLC, but that it was formerly known as Liberty Moving Group, LLC. Plaintiffs should explore whether Liberty needs a new description in the complaint.

Sixth, the Binding Moving Estimate contains a forum-selection clause, which Liberty has invoked. (Doc. # 2.) Plaintiffs gave short shrift to the forum-selection clause. (Doc. # 16, at 7.) Because the state-law, breach-of-contract claim against Liberty is not preempted, Liberty’s enforcement of the forum-selection clause appears to stand on solid footing. Cf. Kawasaki Kisen Kaisha Ltd. v. Regal–Beloit Corp., 561 U.S. 89, 98 (2010) (stating in dicta that, “if [the Carmack Amendment’s] terms apply to the bills of lading here, the cargo owners would have a substantial argument that the Tokyo forum-selection clause in the bills is preempted by Carmack’s venue provisions”).

Plaintiffs must amend the complaint to identify (1) a short and plain statement of the grounds for the court’s jurisdiction, (2) a short and plain statement of the Carmack Amendment claim against Direct Van Lines, showing that each Plaintiff is entitled to relief, and (3) a short and plain statement of the state-law, breach-of-contract claim against Liberty (with Liberty’s correct legal name), showing that each Plaintiff is entitled to relief. See Fed. R. Civ. P. 8(a).

Liberty’s motion to dismiss will be denied without prejudice. However, should Liberty reassert its venue argument, Plaintiffs should be prepared to respond. The court will not extend deadlines further, absent extraordinary circumstances. Finally, Plaintiffs must address the status of Direct Van Lines.

III. CONCLUSION
Based on the foregoing, it is ORDERED as follows:
(1) Plaintiffs are GRANTED to and including March 31, 2020, to file an amended complaint that complies with the Federal Rules of Civil Procedure and the requirements set out in this Order;
(2) Defendant Liberty’s motion to dismiss (Doc. # 2) is DENIED without prejudice to reassert any arguments that may be relevant to the amended complaint; and
(3) Plaintiffs are DIRECTED to show cause, on or before March 31, 2020, why their action against Defendant Direct Van Lines, should not be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

*3 DONE this 5th day of March, 2020.

All Citations
Slip Copy, 2020 WL 1069731

Footnotes

1
Hereafter, 49 U.S.C. § 14706 is referred to as the “Carmack Amendment,” and 49 U.S.C. § 14501(c)(1) is referred to as “FAAAA.”

2020 WL 1332944

United States District Court, E.D. Louisiana.
TEMEKA JONES ET AL.
v.
NATIONAL LIABILITY & FIRE INSURANCE CO. ET AL.
CIVIL ACTION NO: 19-4353
|
c/w 19-9980
|
03/23/2020

JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

SECTION “H”

ORDER AND REASONS
*1 Before the Court is Defendants Tony Smith, Southern Miss Trucking, Inc., and National Liability & Fire Insurance Company’s Motion for Partial Summary Judgment (Doc. 47). For the following reasons, the Motion is GRANTED.

BACKGROUND
Plaintiffs Temeka, Dwanda, and Lorraine Jones allege that they were injured in an automobile accident when an 18-wheeler operated by Defendant Tony Smith hit their rental car.1 Plaintiffs allege, and Defendants admit, that Smith was in the course and scope of his employment with Southern Miss Trucking, Inc. (“Southern Miss”) at the time of the accident. Plaintiffs claim that Smith was negligent in causing the accident and that Southern Miss is vicariously liable for that negligence.

Plaintiffs’ Complaints do not expressly bring claims of independent negligence against Southern Miss. However, Plaintiffs have sought discovery regarding Southern Miss’s hiring, training, and supervision of Smith. Accordingly, Defendants have moved to dismiss any claim for independent negligence of Southern Miss. Plaintiffs oppose, arguing that consideration of the instant motion should be deferred until they can conduct a Rule 30(b)(6) deposition of Southern Miss.

LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”2 A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”3

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.4 “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”5 Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.”6 “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party’s claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.”7 “We do not…in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”8 Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”9

LAW AND ANALYSIS
*2 Defendants ask this Court to dismiss Plaintiffs’ claim that Southern Miss is independently liable for Plaintiffs’ damages because of its negligent hiring, training, supervision, or entrusting of Smith. Defendants argue that when an employer admits, as it has here, that the employee was in the course and scope of employment when he committed the alleged negligence, the plaintiff cannot simultaneously pursue vicarious liability and direct negligence claims against an employer.

Louisiana law applies to this diversity action.10 There is no binding precedent under Louisiana law controlling this issue.11 “If there is no ruling by the state’s highest court on the specific question, the Court must make an Erie guess as to how the state’s highest court would decide the issue.”12 Several courts, including this one, have recently engaged in making an Erie guess on this issue and have sided with Defendants.13 Indeed, “[s]ections of this Court and other federal district courts in Louisiana have uniformly held that, when an employer is indisputably vicariously liable for the negligent acts of its employee, the plaintiff cannot also maintain a direct negligence claim against the employer.”14

In Thomas v. Chambers, the plaintiff was injured in a car accident involving a tractor-trailer operated by Randall Chambers, an employee of God’s Way Trucking, LLC (“God’s Way”).15 Plaintiff brought claims against Chambers for his negligence and against God’s Way for vicarious liability and its independent negligence for negligently hiring, training, supervising, and entrusting Chambers.16 The court held “that plaintiffs may not maintain both a direct negligence claim against God’s Way and a claim that God’s Way is vicariously liable for Chambers’s negligence, because God’s Way readily admits that it is vicariously liable for Chambers’s alleged negligence.”17 In so holding, the court made an Erie guess in reliance on the Louisiana Third Circuit Court of Appeal’s decision in Libersat v. J & K Trucking, Inc.18 In Libersat, the appellate court held that the district court did not err in failing to instruct the jury on the employer’s duty regarding hiring and training when it “equated respondeat superior to all possible theories of recovery.”19 The court explained that:
If Mr. Mitchell [the employee] breached a duty to the Appellants, then Patterson [his employer] is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.20

*3 Judge Vance reasoned in Thomas “that, if a jury charge on the employer’s standard of care is unnecessary under the scenario at issue, then summary judgment on direct negligence claims is also appropriate.”21 This Court adopted this reasoning in Coffey v. Knight Refrigerated.22 Plaintiffs do not point this Court to any case reaching a contrary conclusion. “The facts of this case are directly analogous to Thomas [and Coffey], and the same principles necessitate summary judgment here.”23

Plaintiffs present only one argument in their opposition. They argue that Defendants’ Motion is premature and that this Court should defer ruling to allow additional time for discovery. Federal Rule of Civil Procedure 56(d) allows a court to defer consideration of a motion or allow the nonmovant additional time for discovery if the nonmovant can demonstrate “(1) why the movant needs additional discovery; and (2) how the additional discovery will likely create a genuine issue of material fact.”24 The issue before the Court in this motion is a legal issue and further development of the facts would have no bearing on its outcome. Accordingly, Plaintiff’s claims for independent negligence against Southern Miss are dismissed.

CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and Plaintiffs’ claims for independent negligence against Southern Miss Trucking, Inc. are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 23rd day of March, 2020.

JANE TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2020 WL 1332944

Footnotes

1
Lorraine Jones filed suit separately (Case No. 19-9980), and her case was consolidated with the main action brought by Temeka and Dwanda Jones.

2
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

3
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4
Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

5
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

6
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

7
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004) (internal citations omitted).

8
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

9
Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

10
Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675,681 (5th Cir. 2011).

11
Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 WL 5157537, at *2 (E.D. La. Nov. 7, 2017).

12
Thomas v. Chambers, No. CV 18-4373, 2019 WL 1670745, at *6 (E.D. La. Apr. 17, 2019)

13
Id.; Wright, 2017 WL 5157537, at *2; Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016); Coffey v. Knight Refrigerated, LLC, No. CV 19-3981, 2019 WL 5684258, at *3 (E.D. La. Nov. 1, 2019); Franco v. Mabe Trucking Co., Inc., No. 17- 871, 2018 WL 6072016, at *4 (W.D. La. Nov. 20, 2018); Vaughn v. Taylor, No. 18-1447, 2019 WL 171697, at *3 (W.D. La. Jan. 10, 2019); Wilcox v. Harco Int’l Ins., No. CV 16-187-SDD- EWD, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017).

14
Pigott v. Heath, No. CV 18-9438, 2020 WL 564958, at *3 (E.D. La. Feb. 5, 2020) (cases cited therein).

15
Thomas, 2019 WL 1670745, at *1.

16
Id.

17
Id. at *7.

18
772 So. 2d 173 (La. App. 3 Cir. 2000).

19
Id. at 179.

20
Id.

21
Giles v. ACE Am. Ins. Co., No. CV 18-6090, 2019 WL 2617170, at *2 (E.D. La. June 26, 2019) (discussing Thomas, 772 So. 2d 173).

22
Coffey, 2019 WL 5684258, at *3.

23
Giles, 2019 WL 2617170, at *2.

24
Weaver v. Harris, 486 F. App’x 503, 505 (5th Cir. 2012).