2020 WL 5199263

United States District Court, S.D. Georgia, Savannah Division.
CARAVELS, LLC, d/b/a Georgia Transformer, d/b/a Virginia Transformer Corp., Plaintiff,
v.
ATS LOGISTICS SERVICES, INC., Demase Trucking Co., Inc., a/k/a Demase Warehouse Systems, Inc., and Bay Crane Service of Long Island, Inc., Defendants.
CV420-110
|
Signed 08/31/2020
Attorneys and Law Firms
Adam Gajadharsingh, James J. Leonard, Barnes & Thornburg, LLP, Atlanta, GA, for Plaintiff.
Blair Joseph Cash, Moseley Marcinak Law Group, LLP, Kennesaw, GA, for Defendant ATS Logistics Services, Inc.
Brantley Cole Rowlen, Lewis, Brisbois, Bisgaard & Smith, LLP, Savannah, GA, for Defendant Demase Trucking CO. Inc.
Carrie Coleman, Jeffrey S. Ward, Drew, Eckl & Farnham, LLP, Brunswick, GA, Douglas K. Burrell, Drew, Eckl & Farnham, LLP, Atlanta, GA, for Defendant Bay Crane Service of Long Island, Inc.

ORDER
Christopher L. Ray, United States Magistrate Judge
*1 This case concerns damages to a transformer manufactured by plaintiff Caravels, LLC at its Rincon, Georgia facility. See doc. 1-1. The defendants in this case were responsible for various aspects of the shipping and delivery of that transformer to plaintiff’s client in New York. See doc. 1-1 at 6-7, 11-12. Defendant ATS Logistics Services, Inc. removed this case from the State Court of Effingham County, Georgia. See doc. 1 (Notice of Removal). Thereafter, defendants Demase Trucking Co.1 and ATS filed motions to dismiss the state court complaint. Docs. 5 & 6. Apparently in response to those motions, Caravels moved to amend its complaint. Doc. 8. Also pending are several motions related to defendant Bay Crane Service of Long Island, Inc.’s assertion that this Court lacks personal jurisdiction. See doc. 21 (Bay Crane’s Motion to Dismiss), doc. 22 (Plaintiff’s Motion to Strike), doc. 29 (Bay Crane’s Motion to Transfer). Finally, ATS and Demase seek a stay of discovery pending resolution of the dispositive motions. Doc. 40. Plaintiff opposes the stay. Doc. 43.

As discussed more fully below, the merit of the motions to dismiss and the motion to amend the complaint turn on the viability of state-law claims in the face of federal preemption standards. Since plaintiff’s Motion to Amend its complaint recognizes, at least implicitly, that several claims asserted in the original state-court complaint are preempted by federal statutes, at least some of the arguments raised in defendants’ respective motions to dismiss are moot. In the interest of judicial economy, therefore, the Court proceeds to consider whether plaintiff should be permitted to amend its complaint.

The complaint plaintiff filed in the state court includes ten causes of action: (1) a negligence claim against ATS, (2) a breach of contract claim against ATS, (3) a claim against ATS under the “Carmack Amendment,” codified at 49 U.S.C. § 14706, et seq., (4) a breach of contract claim against Demase, (5) a negligence claim against Demase, (6) a Carmack Amendment claim against Demase, (7) a breach of contract claim against Bay Crane, (8) a negligence claim against Bay Crane, (9) a claim asserting that the three defendants can be deemed joint tortfeasors under a state-law theory of res ipsa loquitor, and (10) a claim for attorney’s fees. ATS has moved to dismiss several of the state-law claims against it on the grounds that those claims are preempted by the Federal Aviation Administration Authorization Act of 1994, specifically 49 U.S.C. § 14501(c)(1). See doc. 5 at 16-20. ATS also argues that, because of its role in the transaction at issue, plaintiff’s Carmack Amendment claim against it should be dismissed. See id. at 23-24. Demase, for its part, concedes that plaintiff’s Carmack Amendment claim against it is properly pleaded, but that the state-law claims are preempted by the Carmack Amendment and the FAAAA. See doc. 6 at 1-2.

*2 Shortly after defendants filed their respective motions to dismiss, plaintiff moved to amend its complaint. See doc. 8. Plaintiff seeks to amend either as a matter of course, pursuant to Federal Rule of Civil Procedure 15(a)(1), because the motions to dismiss were not properly served, or with the Court’s leave, pursuant to Rule 15(a)(2). See generally, doc. 8. The proposed amended complaint adds jurisdictional allegations, background facts, and specific damages allegations. See doc. 8-1 at 3-8. However, it substantially alters the claims asserted against the defendants. None of the state-law negligence claims remain. The claims that do remain are (1) a breach of contract claim against ATS, (2) a breach of contract claim against Demase, (3) a Carmack Amendment claim against ATS and Demase, (4) a breach of contract claim against Bay Crane, and (5) a negligence claim against Bay Crane. Id. at 8-15.

ATS has not responded to the motion to amend. See S.D. Ga. L. Civ. R. 7.5 (“Failure to respond within the applicable [fourteen-day] time period shall indicate that there is no opposition to a motion.”); see also doc. 26 at 2 (noting ATS’s lack of opposition to amendment). The Court construes ATS’s silence as conceding that, regardless of its contention that the Carmack Amendment claim against it is subject to dismissal, the amendment including that claim is proper.2 Demase has responded in opposition on the grounds that the amendment is futile. See doc. 23 at 4. In light of ATS constructive consent, whether plaintiff is permitted to amend its complaint depends upon whether Demase is correct that the amendment is futile.

Amending pleadings, prior to a scheduling order’s deadline, is governed by Federal Rule of Civil Procedure 15. As relevant here, the Rule permits amendment of a complaint, i.e., a pleading “to which a responsive pleading is required,” within 21 days after service of a responsive pleading or a motion under one of several enumerated subsections of Rule 12. Fed. R. Civ. P. 15(a)(1)(B). Rule 15 also provides, “[i]n all other cases,” amendment requires either opposing parties’ written consent or the court’s leave, but “[t]he Court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Plaintiff’s entitlement to amendment as a matter of course depends upon its argument about the effectiveness of service of ATS’s motion to dismiss on its state-court counsel. See doc. 8 at 3-6. The Court expresses no opinion on the merit of that argument. The Court also recognizes that there has been no consent. Since the Court finds that leave to amend is warranted, pursuant to Rule 15(a)(2), the issue is moot.

Generally, Rule 15 effects courts’ preference for adjudication of claims on their merits. See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.”). Nevertheless, leave to amend may be denied “(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryand v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). No party here contends that there has been any undue delay or that amendment would cause prejudice. The only basis asserted for denying leave to amend is futility. “[D]enial of leave to amend is justified by futility when ‘the complaint as amended is still subject to dismissal.’ ” Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (citation omitted).

*3 Demase does not contend that the amendment is futile, in toto. It argues that because “the proposed First Amended Complaint still includes a breach of contract claim against [Demase],” which is preempted by the Carmack Amendment, leave to amend should be denied. See doc. 23 at 1-2. Plaintiff responds that, because its breach of contract claim against Demase is based on a theory that it is a third-party beneficiary to the contract between ATS and Demase, the breach of contract claim is not subject to dismissal on preemption grounds. See doc. 26 (incorporating arguments in response to Demase’s Motion to Dismiss); doc. 25 at 5-8. Alternatively, it argues that the breach of contract claim is subject to the statute’s “savings clause,” at 49 U.S.C. § 13103. Doc. 25 at 8. Without expressing any view on the merits of those arguments, they are colorable.

Put simply; Demase’s argument depends upon whether an amendment is futile when a portion of an amended complaint, but not the complaint as a whole, is subject to dismissal. “In some circumstances, it may be preferable for the Court to consider the futility of a proposed amendment on a claim-by-claim basis.” Teran v. GB Intern. S.P.A., 2012 WL 1435300, at *2 (D. Kan. Apr. 25, 2012). Where amendment is sought early in a case, however, and defendants would retain their opportunity to test the legal sufficiency of a claim through a motion under Rule 12(b), “[a]llowing the filing of an amended complaint … comports with the liberal amendment policy of [Rule 15], without prejudice to anyone opposing the amendment.” Id.; see also Johnston v. Prairie View, Inc., 2019 WL 5291174, at *4 (D. Kan. Oct. 18, 2019) (“Permitting the filing of the proposed amendment ‘comports with the liberal amendment policy of Fed. R. Civ. P. 15(a)’ where Defendants may later challenge the claim …” (citation omitted)). The Court finds such a holistic approach persuasive.

The particular claim at issue only emphasizes the prudence of the holistic approach. Plaintiff’s original breach of contract claim against Demase is vague. See doc. 1-1 at 9. It alleges that Demase “was a subcontractor of ATS,” refers to “[s]aid agreement,” without clear antecedent, and that “ATS[, not Demase] has breached [‘]said Supplemental Agreement[’]….” Id. The incorporated document—which is the only indication of what “said agreement” is—includes a Bill of Lading from plaintiff, under its d/b/a Georgia Transformer, and a Straight Bill of Lading from Demase. See doc. 1-1 at 18-20. The terse allegations and attached documents might reasonably be construed as alleging that an agreement between plaintiff and Demase was breached, albeit somehow by ATS. The proposed amended complaint clarifies that “ATS executed the Demase Straight Bill of Lading,” which corresponds to a portion of the documents incorporated into the original complaint. See doc. 8-1 at 10, ¶ 48. Compare doc. 1-1 at 18-20 (“Exhibit B”), with doc. 8-4 at 2 (“Exhibit C”). The proposed amendment further alleges that “Demase[, not ATS,] breached” the relevant agreement. See doc. 8-1 at 11, ¶ 54. Finally, the proposed amendment adds the allegation that plaintiff “is a third[-]party beneficiary,” of, and not a party to, the relevant agreement. Id. at 10, ¶ 51. The breach of contract claim that Demase sought to dismiss on preemption grounds, therefore, is at least facially different from the breach of contract claim in the proposed amendment. Plaintiff argues, and cites supporting case law for the proposition that, the difference between a breach of contract claim and a third-party beneficiary claim makes a difference for the preemption analysis. See doc. 25 at 7-8. Demase’s argument that plaintiff’s breach of contract claim is preempted is, therefore, much better resolved in the context of a motion to dismiss the amended claim than in opposition to a motion to amend.

*4 Plaintiff’s motion to amend its complaint is, therefore, GRANTED. Doc. 8. Since the plaintiff is permitted to amend its complaint, the motions to dismiss the original complaint are DISMISSED as moot. Docs. 5 & 6. As those motions are dismissed, the Motion to Stay pending their disposition is also DISMISSED as moot. Doc. 40.

Plaintiff is DIRECTED to file the Amended Complaint within seven days of the date of this Order. Upon filing of the Amended Complaint, the parties are DIRECTED to confer and identify available dates for a Status Conference before the undersigned to discuss scheduling discovery and further motions practice in this case. Proposed dates for that conference must be communicated to the undersigned’s courtroom deputy clerk within fourteen days. All deadlines in this case, including both the deadline to respond to discovery requests and the deadline to respond to the Amended Complaint are STAYED, pending that Status Conference. See Fed. R. Civ. P. 15(a)(3) (fourteen-day response period applies, “[u]nless the court orders otherwise”), Fed. R. Civ. P. 33(b)(2) (“A shorter or longer time [to respond to interrogatories] may … be ordered by the court.”), Fed. R. Civ. P. 34(b)(2)(A) (same requests to produce documents), Fed. R. Civ. P. 36(a)(3) (same for requests for admissions). At that conference, the Court will also expect that the parties are prepared to discuss whether defendant Bay Crane’s motion to dismiss, doc. 21, and plaintiff’s motion to strike that motion, doc. 22, are moot, given Bay Crane’s opportunity to respond to the amended pleading.

SO ORDERED, this 31st day of August, 2020.

All Citations
Slip Copy, 2020 WL 5199263

Footnotes

1
The Court will refer to the defendant as “Demase,” but its pleadings inconsistently refer to it as “Demase” and “DeMase.” Compare, e.g., doc. 6 (Defendant’s Motion to Dismiss, referring to “Defendant Demase Trucking Co., Inc.”), with doc. 23 (Defendant’s opposition to plaintiff’s proposed amendment referring to “DeMase”). Defendant’s most recent filings only compound the inconsistency. See doc. 46 at 7 (referring to both “DeMase” and “Demase”).

2
As discussed below, the Court’s leave to file the amended complaint in no way limits ATS’s ability to seek dismissal of that claim by subsequent motion.

2020 WL 5076803

United States District Court, E.D. Pennsylvania.
CAULFIELD ASSOCIATES, INC., Plaintiff,
v.
D&F TRANSFER, LLC; Elicio Diaz; and Total Quality Logistics, LLC, Defendants.
CIVIL ACTION NO. 20-0861
|
Signed August 21, 2020
Attorneys and Law Firms
Stephen J. Galati, Mattioni, Ltd, Philadelphia, PA, for Plaintiff.
Suzanne R. Fisher, Cipriani & Werner PC, Blue Bell, PA, for Defendants D&F Transfer, LLC, Elicio Diaz.
Zachary Joseph Ballard, Salmon Ricchezza Singer & Turchi LLP, Philadelphia, PA, Arnold E. Capriotti, Jr., Mullica Hill, NJ, for Defendant Total Quality Logistics, LLC.

MEMORANDUM OPINION
Wendy Beetlestone, J.
*1 Plaintiff Caulfield Associates, Inc. (“Caulfield”) hired Defendant Total Quality Logistics, LLC (“TQL”) to arrange shipment of some merchandise which were damaged in transportation. Plaintiff sued TQL for damages and TQL moves to dismiss all claims against it.

I. BACKGROUND1
Plaintiff entered into a contract with TQL to provide for the transportation of decks and boardwalks to a buyer in Delaware. TQL, acting as a broker, hired D&F Transfer, LLC (“D&F”) to transport the goods. On August 26, 2019, D&F’s employee Elicio Diaz picked up the merchandise in Doylestown, Pennsylvania. While in transit, the cargo shifted and was damaged. When TQL learned of the damage it sent out representatives who used a forklift to move the merchandise onto a different truck (or trucks) for final delivery. Then, according to Plaintiff, a TQL employee drove the goods to their final destination. In this process, the cargo was further damaged. Upon delivery, the buyer observed the damage and rejected the shipment.

Plaintiff brings claims against all Defendants, acting as carriers, pursuant to the Carmack Amendment, 49 U.S.C. § 14706 et seq., for damaging the merchandise. Plaintiff also sues TQL in its capacity as a broker for common law negligence and breach of contract/warranty for hiring D&F and Diaz. Finally, it asserts an alternative negligence claim against TQL acting as neither a broker nor a carrier for their handling of and damage to the merchandise.2 Defendant TQL moves to dismiss all counts of Plaintiff’s Amended Complaint, arguing that the contract contains a forum-selection clause, which it asserts grants exclusive venue over any disputes to state courts in Clermont County, Ohio. It also challenges Plaintiff’s allegations that TQL was acting as a “carrier” of the goods, pointing to the Bill of Lading, which lists only D&F as the carrier, and to provisions of the contract providing that TQL was acting only as a broker.3

II. LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim, the complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). The Complaint is construed in the light most favorable to the non-moving party, and all reasonable inferences are drawn in their favor. Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011). When deciding a motion to dismiss, undisputedly authentic exhibits attached to the Complaint and matters of public record may be considered. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999); Pension Ben. Guar. Corp., 998 F.2d at 1196.

III. DISCUSSION
*2 TQL argues that, because the contract between it and Plaintiff provides that “state courts located in Clermont County, Ohio … shall be the exclusive venue with respect to any claim, counterclaim, dispute or lawsuit arising in connection with” the agreement, this case must be dismissed and re-filed in Ohio state court.4

A valid forum-selection clause will be enforced in “all but the most exceptional cases.” Atlantic Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 63 (2013). The plaintiff opposing application of the clause bears the burden of establishing why enforcement of the forum selection clause is “unwarranted.” Id. Plaintiff points to two reasons in support of its assertion that the selection clause is inapplicable. First, it argues that the Carmack Amendment has special venue provisions that govern the forum for suits filed pursuant to the statute and that trump forum-selection clauses—therefore precluding the enforcement of the clause. Second, it argues that, even if the Carmack Amendment does not preclude enforcement of the provision, per the language of the contract, the provision does not apply to all of Plaintiff’s claims.

A. The Forum-Selection Clause is Enforceable
Interstate transportation of goods is governed at the federal level by a detailed statutory scheme commonly referred to as the Carmack Amendment. See generally 49 U.S.C. § 14706 et seq. As relevant here, the Amendment governs the relationship between a shipper—the party that sends the goods—and a carrier—the party that transports the goods. It generally does not apply, however, to brokers—the party whose sole function is to arrange the transportation. It is intended to create a uniform standard of liability for a carrier’s transport of goods, replacing the patchwork of state laws that formerly made it “practically impossible” for shippers and carriers to predict a carrier’s liability for interstate shipments. Adams Express Co. v. Croninger, 226 U.S. 491, 504-05 (1913).

As part of that scheme, the Carmack Amendment contains “special venue provision[s]” that displace the general federal venue provision codified at 28 U.S.C. § 1391(b). Ponce De Leon Hosp. Corp. v. Avalon Logistics, Inc., 117 F. Supp.3d 124, 128-29 (D.P.R. 2015). The venue provisions, which apply to claims against carriers, distinguish between the “delivering carrier,” the party that brought the goods to the final destination, and any other “carrier responsible for the loss” that may have transported the goods at another point. 49 U.S.C. § 14706(d)(1)-(2). Thus, as a preliminary matter, TQL’s status must be determined. TQL argues that, that because it is only registered with the United States Department of Transportation as a broker, its contract with Plaintiff describes it as a “broker only,” and it is not listed on the Bills of Lading as the delivering carrier, it cannot be considered a carrier under the Carmack Amendment. Plaintiff, however, contends that, despite the contract’s descriptor of TQL, in effect, once TQL took over transportation following the damage to the cargo on D&F’s watch, it stepped into the role of a carrier.

*3 Whether a party is a broker or carrier is a question of fact. See, e.g., Louis M. Marson Jr., Inc. v. All. Shippers, Inc., 438 F. Supp.3d 326, 334 (E.D. Pa. 2020). The dispositive inquiry is “whether the party has legally bound itself to transport goods by accepting responsibility for ensuring the delivery of the goods.” Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 286-87 (3d Cir. 2019) (emphasis added); accord Louis M. Marson Jr., 439 F. Supp.3d at 331-32. Plaintiff plausibly alleged that when TQL sent its own employees to transport the goods and deliver them to their final destination, it stepped into the role of carrier. While TQL may dispute this characterization of what occurred, such a disputed issue of fact cannot be resolved on a motion to dismiss.5 See Iqbal, 556 U.S. at 678.

Plaintiff has thus plausibly alleged that TQL was the carrier responsible for delivering the goods to their final destination, so the delivering carrier provision found in Section 14706(d)(1) applies to this case. That section provides that a “civil action under this section may be brought against a delivering carrier in a district court of the United States or … in a State through which the defendant carrier operates.” 49 U.S.C. § 14706(d)(1) (emphasis added).6 Thus, by a plain reading of the statute, venue is appropriate in a state court in which the delivering carrier operates. See Ponce De Leon, 117 F. Supp.3d at 129 (noting that, to decide venue, “it must be determined who was the delivering carrier and where that delivering carrier ‘operates’ ”); see also Tokio Marine & Nichido Fire Ins. Co. v. Flash Expedited Servs., Inc., 2012 WL 5721163, at *1 (D.N.J. Nov. 15, 2012) (providing that, for the delivering carrier, venue is appropriate “in any judicial district where [the carrier] operates”); Donaldson Tech. Grp. LLC. v. Landstar Ranger, Inc., 347 F. Supp.2d 525, 527 (S.D. Ohio 2004) (“[Section 14706(d)(1)] places emphasis on the location of the operations of the carrier….”).

As Defendant TQL is incorporated and headquartered in Ohio, Ohio is a “State through which [it] operates.”7 Thus, although Plaintiff is correct that the Carmack Amendment contains special venue regulations, the choice-of-venue provision at issue here is not rendered unenforceable by the Amendment’s requirements.

B. The Forum-Selection Clause Applies to All of Plaintiff’s Claims Against Defendant TQL
*4 Plaintiff also argues that, even if the Carmack Amendment does not preclude enforcement of the choice-of-venue provision, per the language of the contract, the provision does not apply to all of Plaintiff’s claims. Specifically, Plaintiff asserts that the forum-selection clause only applies to its claims against TQL in its capacity as a broker—thus, its Carmack Amendment claim against TQL as a carrier and its alternative negligence claim against TQL as neither a carrier nor a broker do not fall under it. In relevant part, the contract states:
7. Customer understands that TQL is a transportation broker only who arranges the transportation of freight by an independent third party motor carrier. Customer agrees that TQL will not fill out Bills of Lading and cannot be listed on Bills of Lading as the delivering carrier.
…
11. The state courts located in Clermont County, Ohio shall have exclusive and irrevocable jurisdiction and shall be the exclusive venue with respect to any claim, counterclaim, dispute or lawsuit arising in connection with any transactions, loads, or other business between Total Quality Logistics and Customer.
Plaintiff argues that the statement in Paragraph 7, explicitly providing that TQL is a broker, narrows the applicability of the forum-selection clause to claims against TQL as a broker. A focused review of Paragraph 11 yields a contrary conclusion. It explicitly provides that “any claim, counterclaim, dispute or lawsuit arising in connection with any transactions, loads, or other business” (emphasis added) shall be brought in Ohio state court. Under Plaintiff’s reading, despite the use of the word any, the forum selection clause would only apply to some “claim[s], counterclaim[s], dispute[s] or lawsuit[s]”—the ones against Defendant TQL as a broker. Words found in a contract are to be given their “commonly accepted and plain meaning.” See Darrington v. Milton Hershey Sch., 958 F.3d 188, 193 n.4 (3d Cir. 2020) (quoting LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (2009)). “Any” claim thus means that all of Plaintiff’s claims are governed by the forum-selection clause—including those against TQL in its capacity other than as a broker.

Thus, neither of Plaintiff’s grounds for arguing that the forum selection clause is inapplicable carry the day and, accordingly, Defendant TQL’s motion to dismiss will be granted.8

An appropriate order follows.

All Citations
Slip Copy, 2020 WL 5076803

Footnotes

1
For purposes of this motion to dismiss, all facts are drawn from Plaintiff’s Complaint and all reasonable inferences are taken in its favor. See, e.g., Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 370 (3d Cir. 2019).

2
Defendants D&F and Diaz filed an Answer and crossclaimed against Defendant TQL, alleging that TQL caused the damage to the merchandise and is either solely liable to the Plaintiff or jointly and severally liable to the other Defendants.

3
Because these documents were attached to the Complaint and their authenticity is not questioned, they may be considered on a motion to dismiss. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

4
Because the forum selection clause at issue dictates the appropriate forum as a state court, the federal transfer-of-venue provision, 28 U.S.C. § 1404(a), does not apply. Thus, if the forum selection clause applies, it is appropriate “to dismiss the action so it can be filed in the appropriate forum.” Salovaara v. Jackson Nat’l Life. Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001). Nonetheless, courts “should evaluate a forum-selection clause pointing to a nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal forum.” Atlantic Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 61 (2013).

5
To the extent TQL argues that Plaintiff’s allegations in its Amended Complaint fail because they contradict the original Complaint, this argument fails—the Amended Complaint removed all legal effect from Plaintiff’s original filing. See, e.g., W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 171 (3d Cir. 2013).

6
In contrast, Section 14706(d)(2) provides that, when action is brought against a carrier who was not the deliverer, venue is appropriate “in the judicial district in which such loss or damage is alleged to have occurred.” Plaintiff cites this provision in support of its position that Pennsylvania is the only appropriate forum—but its own Complaint and briefing, which identifies TQL as the delivering carrier, belies that position. See Tokio Marine & Nichido Fire Ins. Co. v. Flash Expedited Servs., Inc., 2012 WL 5721163, at *1 (D.N.J. Nov. 15, 2012) (noting that, where a party is alleged to have been both the delivering carrier and the carrier responsible for the loss, venue is appropriate where the loss occurred or any judicial district in which the carrier operates).

7
See Articles of Organization for Total Quality Logistics, LLC, Ohio Secretary of State, https://bizimage.ohiosos.gov/api/image/pdf/200618402670 (last visited Aug. 6, 2020). Although the Complaint does not address TQL’s place of incorporation, this information is of public record and can be considered on a motion to dismiss. See S. Cross Overseas Agencies, 181 F.3d at 426.

8
TQL also argues that the Carmack Amendment preempts all of Plaintiff’s state law claims. Having determined that this is not the correct venue for this action, this argument need not be addressed.