November 2024

Bradley v. Big’s Trucking

United States District Court, M.D. Alabama, Northern Division.

Desmond BRADLEY, individually and as father and next friend of C.B. and A.B., minors, et al., Plaintiffs,

BIG’S TRUCKING, et al., Defendants.

Charasma Moseley, et al., Plaintiffs,

Big’s Trucking, et al., Defendants.

CIVIL CASE NO. 2:23-cv-122-ECM, CIVIL CASE NO. 2:23-cv-262-ECM

Signed September 4, 2024

Attorneys and Law Firms

Andrew Ted Citrin, Brett W. Aaron, William Bradford Kittrell, Andy Citrin Injury Attorneys, PC, Daphne, AL, Rickman Edgar Williams III, Pitts Williams & Jones, Selma, AL, for Plaintiffs Desmond Bradley, Andrea Thomas, Paul C. Harris, Brian Buerkle in No. 2:23-cv-122.

William Bradford Kittrell, Andy Citrin Injury Attorneys P.C., Daphne, AL, for Plaintiff Tracy Powell in No. 2:23-cv-122.

Eric David Bonner, Clark Hair & Smith PC, Birmingham, AL, for Defendant Ricky Gray.

Big’s Trucking, Grand Ridge, FL, Pro Se.

Ricky Gray, Milton, FL, Pro Se.

Pamela Tarter, Grand Ridge, FL, Pro Se.

Jeffrey Tarter, Grand Ridge, FL, Pro Se.

Outlaw Express, LLC, Grand Ridge, FL, Pro Se.

Michael Glen Strickland, Strickland & Kendall LLC, Montgomery, AL, for Plaintiffs in No. 2:23-cv-262.

MEMORANDUM OPINION and ORDER

EMILY C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE

*1 Now pending before the Court are motions for summary judgment filed by Defendant Commercial Express, Inc. (“Commercial Express”) on June 18, 2024 (doc. 105 in Bradley v. Big’s Trucking, 2:23-cv-122-ECM (“Bradley”)); Defendant AmerisourceBergen Drug Corporation (“ABDC”) on May 29, 2024 (doc. 98 in Bradley); Commercial Express on June 18, 2024 (doc. 82 in Moseley v. Big’s Trucking, 2:23-cv-262 (“Moseley”)); and ABDC on June 13, 2024 (doc. 77 in Moseley).¹ The motions are fully briefed and ripe for review. For the reasons that follow, ABDC and Commercial Express’ motions for summary judgment (docs. 77, 82, 98, and 105) are due to be GRANTED.

I. JURISDICTION

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

II. LEGAL STANDARD

“Summary judgment is proper if the evidence shows ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “[A] court generally must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then there is no genuine dispute as to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The movant bears the initial burden of demonstrating that there is no genuine dispute as to any material fact, and the movant must identify the portions of the record which support this proposition. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The movant may carry this burden “by demonstrating that the nonmoving party has failed to present sufficient evidence to support an essential element of the case.” Id. The burden then shifts to the non-moving party to establish, by going beyond the pleadings, that a genuine issue of material fact exists. Id. at 1311–12.

The Court construes the facts in the light most favorable to the non-movant plaintiffs and draws all reasonable inferences in their favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000) (“In assessing whether there is any ‘genuine issue’ for trial, the court ‘must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party’ and ‘resolve all reasonable doubts about the facts in favor of the non-movant.’ Moreover, the court must avoid weighing conflicting evidence or making credibility determinations.” (citations omitted)).

III. BACKGROUND

*2 These matters arise from a series of vehicular accidents that occurred in Lowndes County, Alabama. On March 13, 2022, a collision caused all northbound traffic to completely stop on Interstate 65 (“I-65”) near mile marker 154. Following this collision, at approximately 3:44 p.m., a tractor-trailer driven by Defendant Ricky Gray (“Gray”) crashed into a line of stopped vehicles, which included Charasma Moseley’s vehicle (“Moseley”). Moseley allegedly sustained physical injuries in the accident and her eleven-year-old daughter, K. A. H. M., died. The Moseley Plaintiffs² subsequently filed their lawsuit in the Circuit Court of Lowndes County, Alabama on March 24, 2023, (doc. 1-2 at 3 in Moseley), and ABDC removed the case to federal court on April 26, 2023 (doc. 1 in Moseley).³

The Bradley Plaintiffs,⁴ also in the line of stopped vehicles, similarly allege that they sustained injuries as the result of Gray’s conduct. Accordingly, they filed their lawsuit in the Circuit Court of Lowndes County, Alabama on March 18, 2022, (doc. 1-2 at 3 in Bradley), and ABDC removed the case to federal court on March 2, 2023, following service of the third amended complaint (doc. 1 at 3, para. 9 in Bradley).⁵

According to Gray, he was working for Big’s Trucking⁶ and driving from Commercial Express’ warehouse in Pensacola, Florida to ABDC’s distribution center in Buford, Georgia. (Doc. 98-2 at 10, 29:7–9; id. at 49:16–51:12). ABDC contracted with Commercial Express to transport its products. Because Commercial Express has no transport trucks of its own, it contracts with hundreds of vendors across the country to transport goods for a variety of customers. In 2009, Kenneth Branch on Branch LLC’s behalf, entered into a contractual agreement with Commercial Express. Branch LLC then coordinated with Pamela Tarter and Jeffrey Tarter d/b/a Big’s Trucking for Gray to drive the tractor-trailer involved in the March 13, 2022 crash. The Tarters, Brian Lipford, and Kenneth Branch are all family members.

*3 The Moseley Plaintiffs assert claims of negligence and wantonness under Alabama state law as to ABDC and Commercial Express for the selection and supervision of Gray, along with their alleged failure to comply with Federal Motor Carrier Safety regulations. (Doc. 1-2 at 14–16, paras. 52–58 in Moseley). And the Bradley Plaintiffs assert a litany of claims against ABDC and Commercial Express for negligent/wanton selection, failure to provide/verify insurance, and loss of consortium due to negligence—all of which sound in Alabama state law. (Doc. 42 at 9–15, paras. 30–45 in Bradley).

IV. DISCUSSION

ABDC and Commercial Express⁷ move for summary judgement in both Moseley and Bradley, in part, on the basis that the claims asserted by the Plaintiffs⁸ against them are preempted by federal law. (Doc. 82-1 at 7 in Moseley) (Commercial Express’ brief in support of motion for summary judgment in Moseley); (doc. 78 at 1 in Moseley) (ABDC’s brief in support of motion for summary judgment in Moseley); (doc. 99 at 1 in Bradley) (ABDC’s brief in support of motion for summary judgment in Bradley); (doc. 105-1 at 8–9 in Bradley) (Commercial Express’ brief in support of motion for summary judgment in Bradley). Specifically, ABDC and Commercial Express contend that the Federal Aviation Administration Authorization Act of 1994’s (“FAAAA”) preemption provision, codified at 49 U.S.C. § 14501(c)(1), applies and that its subsequent savings clause, codified at 49 U.S.C. § 14501(c)(2)(A), does not apply. (Doc. 82-1 at 7 in Moseley); (doc. 78 at 1 in Moseley); (doc. 99 at 1 in Bradley); (doc. 105-1 at 8–9 in Bradley). Because this issue is dispositive, the Court’s analysis of the motions for summary judgment begins—and ends—with preemption.

Under the Supremacy Clause, the United States Constitution and federal law “made in Pursuance thereof” are the “supreme law of the Land.” U.S. Const. art. VI, cl. 2. Thus, the Supremacy Clause invalidates any “state laws that ‘interfere with, or are contrary to’ federal law.” Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1266 (11th Cir. 2023) (quoting Gibbons v. Ogden, 22 U.S. 1, 211 (1824)). “Put simply, federal law preempts contrary state law.” Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150, 162 (2016). This Court may consider preemption when evaluating a motion for summary judgment. See Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1337 (11th Cir. 2004). The Eleventh Circuit recognizes three types of preemption in which state law must yield to federal law: express preemption, field preemption, and conflict preemption. Aspen, 65 F.4th at 1266 (citing Marrache v. Bacardi U.S.A., Inc., 17 F.4th 1084, 1094 (11th Cir. 2021)). Here, the Court only considers express preemption, which “occurs when Congress displaces state law ‘by so stating in express terms.’ ” Id. (quoting Taylor v. Polhill, 964 F.3d 975, 981 (11th Cir. 2020)).

*4 The FAAAA expressly preempts contrary state law and bars states from “enact[ing] or enforc[ing] a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier …, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1) (emphasis added). After concluding that state governance of intrastate transportation of property burdened interstate commerce and American consumers, Congress enacted the FAAAA’s preemption provision to limit states’ reach into the trucking industry. Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 256 (2013) (citing City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 440 (2002)). In Dan’s City Used Cars, Inc., the Supreme Court held that § 14501(c)’s phrase “related to a price, route, or service of any motor carrier” embraces state laws that have “a connection with or reference to carrier rates, routes, or services, whether directly or indirectly.” Id. at 260 (quotations omitted) (emphasis added). Put differently, the breadth of the preemption provision is expansive. See Aspen, 65 F.4th at 1266–67.

Although the FAAAA’s preemption provision is expansive, it is not without limit. For example, though “a connection with or reference to carrier rates, routes, or services” may be direct or indirect, it does not preempt state laws that do so “in only a ‘tenuous, remote, or peripheral … manner.’ ” Dan’s City Used Cars, Inc., 569 U.S. at 261 (quoting Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 371 (2008)). In addition, the FAAAA’s preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles … or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.” 49 U.S.C. § 14501(c)(2)(A). This savings clause’s first component stating that the preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles” is known as the FAAAA’s “safety exception.” Aspen, 65 F.4th at 1268. And for the safety exception to apply to negligence claims, (1) the negligence standard must constitute an exercise of the state’s “safety regulatory authority,” and (2) that authority must have been exercised “with respect to motor vehicles.” Id. at 1264.

In enacting the FAAAA’s express preemption provision, Congress borrowed language from the Airline Deregulation Act of 1978 (“ADA”), which sought to deregulate the domestic airline industry years earlier. Dan’s City Used Cars, Inc., 569 U.S. at 255. Because the sole difference between the ADA and FAAAA preemption provisions is the FAAAA’s inclusion of the phrase “with respect to the transportation of property,” the Eleventh Circuit looks to ADA preemption case law to interpret the FAAAA preemption provision at issue here. Aspen, 65 F.4th at 1266 n.2.

The FAAAA’s preemption provision expressly references industry participants, including motor carriers, brokers, and freight forwarders. For those unfamiliar with the trucking industry, a “shipper” is the “ ‘person who … owns the goods being transported’—like a manufacturer, retailer, or distributor,” id. at 1264 (quoting 49 U.S.C. § 13102(13)); a “broker” is “one who ‘sells, offers for sale, negotiates for, or holds itself out … as selling, providing, or arranging for, transportation by motor carrier for compensation,’ ” id. at 1267 (quoting 49 U.S.C. § 13102(2)); a “motor carrier” is “a person providing motor vehicle transportation for compensation,” 49 U.S.C. § 13102(14); and a “freight forwarder” is “a person holding itself out to the general public … to provide transportation of property for compensation,” who typically “assembles and consolidates … shipments,” and “assumes responsibility for the transportation from the place of receipt to the place of destination[,] and [ ] uses for any part of the transportation a carrier …” id. at § 13102(8). The FAAAA further defines “transportation” to include “services related to” “the movement of … property,” “including arranging for, receipt, delivery, elevation, transfer in transit, … and interchange of … property.” Aspen, 65 F.4th at 1267 (citing 49 U.S.C. § 13102(23)).

*5 With this background in mind, the Court proceeds to whether the FAAAA preempts the Plaintiffs’ claims against ABDC and Commercial Express. To do so, the Court considers whether the Plaintiffs’ claims fall within the scope of the FAAAA preemption clause and whether those same claims fall outside the scope of the FAAAA’s safety exception. Importantly, this means that the Court must assess the type of claims asserted by the Plaintiffs, rather than the precise factual scenario surrounding the claims. See Gauthier v. Hard to Stop LLC, 2024 WL 3338944, at *2 (11th Cir. July 9, 2024) (“Our holding in Aspen that a challenge to a broker’s front-end selection of a motor carrier is preempted in no way turned on the back-end injury suffered as a result of the allegedly negligent selection.”). As such, though the motions at issue are for summary judgment, the Court references the Plaintiffs’ operative complaints to elucidate the types of claims which the Plaintiffs assert against ABDC and Commercial Express, and not to determine factual issues. At the same time, the Court keeps in mind that “[a] plaintiff may not amend [their] complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).

A. Preemption as to Claims Against ABDC

In their operative complaint, the Bradley Plaintiffs describe ABDC as being a “broker and/or shipper” liable for their injuries because ABDC “negligently/wantonly breached their duty of care by hiring and/or contracting with [Pamela Tarter, Jeffrey Tarter, Big’s Trucking, and/or Outlaw Express, LLC] to transport said load when [D]efendants [Pamela Tarter, Jeffrey Tarter, Big’s Trucking, and/or Outlaw Express, LLC] had a demonstrated disregard for safety.” (Doc. 42 at 6, paras. 22–23 in Bradley). Similarly, in their complaint, the Moseley Plaintiffs describe ABDC as “the broker and/or shipper for the load being transported … at the time of the crash,” (doc. 1-2 at 5, para. 8 in Moseley), who breached its “duty of care by hiring and/or contracting with Defendants Big’s Trucking, Outlaw Express[, LLC], Pamela Tarter, Jeffrey Tarter, and/or Fictitious Defendants … to transport a load of cargo from Buford, Georgia when Defendants Big’s Trucking, Outlaw Express[, LLC], Pamela Tarter, Jeffrey Tarter, and/or Fictitious Defendants had a demonstrated disregard for safety and compliance with [Federal Motor Carrier Safety Act].” (Id. at 9, para. 27 in Moseley).

The FAAAA preempts state law claims regarding negligent hiring of a motor carrier in a personal injury case. In a 2023 case about cargo theft, the Eleventh Circuit examined the FAAAA’s preemption provision and held that a state law negligent hiring claim is connected to broker services regarding the transportation of property, and such a claim is thus preempted by the FAAAA. Aspen, 65 F.4th at 1264, 1272. The FAAAA’s preemption provision expressly applies when a claim relates to the “service of any motor carrier …, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1) (emphasis added). In Aspen, the selection of a motor carrier to transport shipments, “is precisely the brokerage service that” a negligent hiring claim against a broker challenges: the broker’s “allegedly inadequate selection of a motor carrier to transport … shipment[s].” See id. at 1267. Indeed, an allegation of negligence “against a transportation broker for its selection of a motor carrier to transport property in interstate commerce” relates to a broker’s “core transportation-related services.” Id. at 1268. Accordingly, Aspen held that a plaintiff’s state law negligent hiring claim against a broker is preempted by § 14501(c)(1) of the FAAAA. Id. at 1268, 1272. Similarly, the Plaintiffs’ state law negligent hiring claims against ABDC are preempted.

The Court next considers whether the FAAAA’s safety exception applies to the Plaintiffs’ claims against ABDC. The FAAAA’s preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A) (emphasis added). Although the FAAAA’s preemption provision is limited by the safety exception, that limit does not apply here because claims regarding negligent hiring are not “with respect to motor vehicles.” Aspen, 65 F.4th at 1272. Here, the gravamen of the Plaintiffs’ claims in their complaints against ABDC are its selection of a motor carrier while it was acting as a “broker and/or shipper.” The preemption clause of § 14501(c)(1) is designed to capture this exact scenario because, like Aspen, the claims stem from an entity’s “core transportation-related services,” and do not directly relate to a motor vehicle, even if ABDC acted solely as a shipper.⁹ See id. at 1268, 1272; Creagan v. Wal-Mart Transp., LLC, 354 F. Supp. 3d 808, 813 n.6 (N.D. Ohio 2018) (“Although Wal-Mart is a shipper rather than a broker, the negligent hiring claim against Wal-Mart stems entirely from Kirsch’s broker services [of hiring the motor carrier]. Because the claim against Wal-Mart indirectly attempts to regulate broker services, it must be preempted as well.”); Rowe, 552 U.S. at 372 (holding that a Maine regulation on shippers would ultimately result in carriers altering their services, thus the claims at issue were preempted by the FAAAA).

*6 The Bradley and Moseley Plaintiffs argue that Aspen is only applicable to claims involving cargo theft and not claims that involve tort claims for personal injury. (Doc. 107 at 11 in Bradley)¹⁰. Subsequent to the Plaintiffs making these arguments, a panel of the Eleventh Circuit found such arguments to be unavailing in Gauthier. 2024 WL 3338944, at *2. Specifically, the Gauthier panel wrote:

[The Gauthier plaintiff] also contends that cases arising from traffic accidents (like this one) should be treated differently than cases arising from property loss (like Aspen). But the nature of the injury is not what matters for purposes of the [FAAAA’s] preemption provision. Any claim that a broker negligently selected a driver to haul a load of property clearly falls within Section 14501(c)(1) because, as just noted, that claim seeks to regulate the broker’s “performance of [its] core transportation-related services.” [Aspen, 65 F.4th at 1268.] And such claims do not arise from an exercise of “the safety regulatory authority of a State with respect to motor vehicles,” 49 U.S.C. § 14501(c)(2)(A), which requires that the relevant state law “have a direct relationship to motor vehicles,” Aspen, 65 F.4th at 1271. We made that clear in Aspen by holding that negligent-selection-of-broker claims necessarily lack a direct relationship because “the services [a broker] provides have no direct connection to motor vehicles.” Id. at 1272 (quoting Miller[v. C.H. Robinson Worldwide, Inc.], 976 F.3d [1016,] 1031 [(9th Cir. 2020)] (Fernandez, J., concurring in part and dissenting in part)). Our holding in Aspen that a challenge to a broker’s front-end selection of a motor carrier is preempted in no way turned on the back-end injury suffered as a result of the allegedly negligent selection.

Id. Particularly persuasive to this Court is that Gauthier directly addresses allegations which mirror the Plaintiffs’ allegations against ABDC. Compare id. at *1 (stating that the Gauthier plaintiff alleged that the broker at issue failed to “ensure that the motor carriers with whom it arranged transportation of goods were reasonably safe”), with (doc. 42 at 6, paras. 22–23 in Bradley; doc. 1-2 at 9, para. 27 in Moseley).

In supplementary briefing, the Plaintiffs argue that the Gauthier panel “made the wrong decision on FAAAA preemption as it relates to common law negligence claims because the Aspen panel got its decision wrong.” (Doc. 116 at 2 in Bradley).¹¹ In so doing, the Plaintiffs stack a series of arguments about the interplay between the phrases “with respect to” and “related to” to conclude that Aspen does not control here because it ignores Supreme Court precedent. (Id. at 2–7). The Court disagrees and finds these arguments unconvincing. Putting aside that the Court finds both Aspen and Gauthier to be persuasive, the fact remains that Aspen is binding precedent and Gauthier—though unpublished and not binding—further clarified what Aspen already held.

With that said, the evidentiary record and the parties’ filings offer a different account of ABDC’s role than the version described in the Plaintiffs’ complaints. Instead of demonstrating that ABDC directly selected Big’s Trucking, Outlaw Express, LLC, Pamela Tarter, and Jeffrey Tarter to transport ABDC’s products, the record indicates that ABDC (acting as a shipper) selected Commercial Express (acting as a motor carrier/freight forwarder),¹² who in turn selected Branch LLC, and so forth until the hiring of Big’s Trucking or Outlaw Express, LLC as the ultimate motor carrier which, as alleged by the Plaintiffs, was the problematic choice in the chain. (Doc. 107 at 4–6 in Bradley (Plaintiffs’ joint response describing the relationships amongst the various parties); doc. 98-7 in Bradley (carrier services agreement between ABDC and Commercial Express);¹³ doc. 98-5 at 6, 14:6–15:5 in Bradley; doc. 42 at 7, para. 23 in Bradley; doc. 1-2 at 9, para. 27 in Moseley). As such, the Plaintiffs are attempting to hold ABDC (the shipper) liable for the selection of a motor carrier by an entity at some point in the chain between ABDC and Gray—a claim which is preempted regardless of which entity in the chain made the problematic selection. See Creagan, 354 F. Supp. 3d at 813 n.6 (“Although Wal-Mart is a shipper rather than a broker, the negligent hiring claim against Wal-Mart stems entirely from Kirsch’s broker services [of hiring the motor carrier]. Because the claim against Wal-Mart indirectly attempts to regulate broker services, it must be preempted as well.”).

*7 Again, even if the Court took the Plaintiffs’ complaints at face value while ignoring their later representations and the evidentiary record,¹⁴ the Court would reach the same conclusion because the Plaintiffs’ claims in their complaints stem from ABDC’s alleged negligent selection of a motor carrier to transport property in interstate commerce. In other words, ABDC essentially acted as a broker by selecting a carrier, as acknowledged by the Plaintiffs’ complaints referring to ABDC as a “broker and/or shipper.” (See doc. 1-5 at 9, para. 21 in Bradley; doc. 1-2 at 5, para. 8 in Moseley). Accordingly, while officially a shipper, holding ABDC liable for its alleged selection of a motor carrier would allow states to indirectly intervene into the services market of the trucking industry in a manner which the FAAAA sought to prevent. See Creagan, 354 F. Supp. 3d at 813 n.6; Rowe, 552 U.S. at 372 (holding that a Maine regulation on shippers would ultimately result in carriers altering their services, thus the claims at issue were preempted by the FAAAA); see also Aspen, 65 F.4th at 1267 (citing Rowe, 552 U.S. at 370).

At bottom, the claims against ABDC by the Plaintiffs stem from the actions of entities acting as motor carriers or freight forwarders, entrusted with arranging and transporting ABDC’s products and selecting other motor carriers. The claims against ABDC by the Plaintiffs are expressly preempted by the FAAAA, as codified at § 14501(c)(1), and the safety exception in § 14501(c)(2)(A) does not apply here because the Plaintiffs’ negligent hiring claims are not “with respect to motor vehicles.” See Aspen, 65 F.4th at 1272. Therefore, ABDC’s motions for summary judgment (doc. 98 in Bradley and doc. 77 in Moseley) are due to be granted.

B. Preemption as to Claims Against Commercial Express

The Court now turns to the Plaintiffs’ claims against Commercial Express. In their operative complaint, the Bradley Plaintiffs describe Commercial Express as the “broker and/or shipper” liable for their injuries because Commercial Express “negligently/wantonly breached their duty of care by hiring and/or contracting with [Pamela Tarter, Jeffrey Tarter, Big’s Trucking, and/or Outlaw Express, LLC] to transport said load when [D]efendants [Pamela Tarter, Jeffrey Tarter, Big’s Trucking, and/or Outlaw Express, LLC] had a demonstrated disregard for safety.” (Doc. 42 at 6, paras. 22–23 in Bradley). And in their respective complaint, the Moseley Plaintiffs describe Commercial Express as “the broker and/or shipper for the load being transported … at the time of the crash,” (doc. 1-2 at 6, para. 9 in Moseley), who breached its “duty of care by hiring and/or contracting with Defendants Big’s Trucking, Outlaw Express[, LLC], Pamela Tarter, Jeffrey Tarter, and/or Fictitious Defendants … to transport a load of cargo from Buford, Georgia when Defendants Big’s Trucking, Outlaw Express[, LLC], Pamela Tarter, Jeffrey Tarter, and/or Fictitious Defendants had a demonstrated disregard for safety and compliance with [Federal Motor Carrier Safety Act].” (Id. at 9, para. 27 in Moseley).

Plaintiffs’ claims against Commercial Express—like their claims against ABDC—are preempted because the FAAAA preempts state law claims regarding negligent hiring of a motor carrier. Taking the operative complaints at face value, the claims lodged against Commercial Express by the Plaintiffs are preempted by the FAAAA because Commercial Express would be a broker¹⁵ defending against claims which stem from the alleged negligent hiring of a motor carrier. As previously discussed, the Eleventh Circuit held that a state law negligent hiring claim is connected to a broker’s services regarding the transportation of property, thus, such a claim is preempted by the FAAAA. Aspen, 65 F.4th at 1272. Indeed, such claims relate to a broker’s “core transportation-related services,” rather than in its capacity as a general member of the public. Id. at 1268.

*8 Much like the Plaintiffs’ varied descriptions of ABDC’s role, the complaints’ characterizations of Commercial Express’ role differ slightly from what the record evidence shows and what the parties now represent. In its motion for summary judgment briefing, Commercial Express characterized itself as blurred between a motor carrier and a freight forwarder. (Doc. 82-1 at 8 in Moseley and doc. 105-1 at 8 in Bradley) (both citing 49 U.S.C. § 13102(8)); (doc. 88 at 7 n.2 in Moseley and doc. 111 at 7 n.2 in Bradley) (“The possession of the product in which they are distributing blurs Commercial Express[ ]’ role between that of a motor carrier and freight forwarder.”). And, for their part, the Plaintiffs characterize Commercial Express as a freight forwarder. (Doc. 107 at 22). Moreover, the agreement between ABDC and Commercial Express indicates that Commercial Express blurred the line between motor carrier and freight forwarder by taking possession of ABDC’s products. (See generally doc. 98-7 in Bradley) (carrier services agreement between ABDC and Commercial Express).¹⁶ Indeed, additional record evidence demonstrates that the arrangement required Commercial Express to coordinate shipment of ABDC’s product, hold the product in Commercial Express’ warehouse, and complete final mile deliveries¹⁷ by other motor carriers. (See, e.g., doc. 105-4 at 21, 75:7–11 in Bradley).¹⁸ Under this arrangement, Commercial Express’ role closely resembles that of a freight forwarder. See 49 U.S.C. § 13102(8) (defining freight forwarder).

Despite the parties’ characterization of Commercial Express’ role, the relevant interpretive question is whether Plaintiffs’ negligent hiring claims relate to a “service of any motor carrier …, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1) (emphasis added). Here, Commercial Express’ alleged actions that form the basis of the Plaintiffs’ claims against it stem from its “core transportation-related services,” rather than in its capacity as a general member of the public. See Aspen, 65 F.4th at 1268. If Commercial Express was a freight forwarder, then it “assum[ed] responsibility for the transportation from the place of receipt to the place of destination[,] and [ ] use[d] for any part of the transportation a carrier,” by hiring or contracting with Pamela Tarter, Jeffrey Tarter, Big’s Trucking, and/or Outlaw Express, LLC. See 49 U.S.C. § 13102(8). And if Commercial Express was a motor carrier, then it contracted with another motor carrier to further transport the shipment it was legally bound to transport, which is permissible under certain conditions. See Morales v. OK Trans, Inc., 2023 WL 2495065, at *2 (S.D. Tex. Jan. 3, 2023); 49 C.F.R. § 371.2(a). Therefore, it is unnecessary to determine whether Commercial Express was a freight forwarder or motor carrier because the Plaintiffs’ claims are preempted under either scenario as falling squarely within the FAAAA’s preemption provision regarding the respective core transportation-related services of a freight forwarder or motor carrier. See Aspen, 65 F.4th 1268.

Finally, Plaintiffs’ claims find no refuge in the FAAAA’s safety exception. Plaintiffs’ claims against Commercial Express fall outside the FAAAA’s safety exception because claims regarding negligent hiring are not “with respect to motor vehicles.” Aspen, 65 F.4th at 1272. Like Plaintiffs’ claims against ABDC, their negligent hiring claims against Commercial Express do not directly relate to a motor vehicle and thus remain preempted by the FAAAA.

For the foregoing reasons, the Plaintiffs’ claims against ABDC and Commercial Express are expressly preempted by the FAAAA’s preemption provision found at § 14501(c)(1) and are not captured by the subsequent savings clause at § 14501(c)(2)(A). Therefore, ABDC and Commercial Express’ motions for summary judgment (docs. 77, 82, 98, and 105) are due to be granted.

V. CONCLUSION

For the reasons discussed above, it is hereby ORDERED as follows:

1. ABDC’s motion for summary judgment in Bradley (doc. 98 in Bradley) is GRANTED, and all claims against ABDC are DISMISSED;

2. Commercial Express’ motion for summary judgment in Bradley (doc. 105 in Bradley) is GRANTED, and all claims against Commercial Express are DISMISSED;

*9 3. ABDC’s motion for summary judgment in Moseley (doc. 77 in Moseley) is GRANTED, and all claims against ABDC are DISMISSED;

4. Commercial Express’ motion for summary judgment in Moseley (doc. 82 in Moseley) is GRANTED, and all claims against Commercial Express are DISMISSED.

Done this 4th day of September, 2024.

All Citations

Slip Copy, 2024 WL 4045467

Footnotes
¹	Pursuant to its authority under Federal Rule of Civil Procedure 42(a)(3), the Court consolidates the two actions for the limited purpose of considering ABDC and Commercial Express’ motions for summary judgment. See Fed. R. Civ. P. 42(a)(3).
²	The Moseley Plaintiffs are Charasma Moseley and Ronald Moseley, as administrator Ad Litem for the Estate of K. A. H. M., deceased. (See generally doc. 1-2 in Moseley).
³	The Moseley Defendants are: ABDC, Commercial Express, Ricky Gray, Big’s Trucking, Pamela Tarter, Jeffrey Tarter, Outlaw Express, LLC, and several fictitious defendants. (See generally doc. 1-2 in Moseley). State Farm Mutual Automobile Insurance Company (“State Farm”) was a defendant, but upon motion of the Moseley Plaintiffs and State Farm, the Court dismissed State Farm from this case on September 18, 2023. (Doc. 40 in Moseley). Only ABDC and Commercial Express filed motions for summary judgment.
⁴	The Bradley Plaintiffs consist of Desmond Bradley and Andrea Thomas, individually and as parents and next friends of C.B. and A.B., minors; Paul C. Harris; Brian Buerkle; and Tracy Powell. (See generally doc. 42 in Bradley).
⁵	The Bradley Defendants are: ABDC, Commercial Express, Ricky Gray, Big’s Trucking, Pamela Tarter, Jeffrey Tarter, Outlaw Express, LLC, and several fictitious defendants. (See generally doc. 42 in Bradley). Geico Casualty Insurance Company (“Geico”) was initially a defendant, but on April 26, 2022, the Circuit Court of Lowndes County dismissed Geico upon a joint stipulation of dismissal by the parties. (Doc. 1-3 at 34 in Bradley). Only ABDC and Commercial Express filed motions for summary judgment.
⁶	In his deposition, Gray stated that Outlaw Express, LLC rebranded as Big’s Trucking. (Doc. 98-2 at 10, 29:7–21 in Bradley). This rebranding occurred between 2018 and 2019. (Doc. 107 at 5 in Bradley). Brian Lipford was the manager and registered agent of Outlaw Express, LLC prior to its dissolution. (Doc. 5-1 at 2 in Bradley; doc. 1-3 at 2 in Moseley).
⁷	Though not addressed by the parties, Commercial Express never filed an answer in either case. Failure to file an answer by a defendant moving for summary judgment does not preclude a court from entertaining such a motion. See Marquez v. Cable One, Inc., 463 F.3d 1118, 1120 (10th Cir. 2006); HS Resources, Inc. v. Wingate, 327 F.3d 432, 440 (5th Cir. 2003); INVST Fin. Grp., Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 404 (6th Cir. 1987) (“Courts and commentators have acknowledged that no answer need be filed before a defendant’s motion for summary judgment may be entertained.”); Jones v. U.S. Dep’t of Just., 601 F. Supp. 2d 297, 302 (D.D.C. 2009) (“A defendant, however, is not required to respond in the form of an answer before making a motion for summary judgment, which may be made by a defending party ‘at any time.’ ”); see also Fed. R. Civ. P. 56(b) (authorizing a party to move for summary judgment “at any time” until 30 days after the close of discovery, unless otherwise specified by the court or local rule); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 299 (1968) (affirming summary judgment for a defendant despite said defendant’s failure to file an answer). The Court here, and elsewhere in the Opinion, cites to non-binding authority. While the Court recognizes that these cases are not precedential, the Court finds them persuasive.
⁸	The Court collectively refers to the Moseley Plaintiffs and the Bradley Plaintiffs as “the Plaintiffs.”
⁹	Contentions regarding the alleged failure to verify adequate insurance coverage are included within the same claim(s) as the alleged negligent/wanton hiring because conduct regarding the verification of insurance coverage would be encapsulated by the “services” of such actors. See Enbridge Energy, LP v. Imperial Freight Inc., 2019 WL 1858881, at 2 (S.D. Tex. Apr. 25, 2019) (citing Huntington Operating Corp. v. Sybonney Exp., Inc., 2010 WL 1930087, at 3 (S.D. Tex. May 11, 2010)).
¹⁰	The Bradley and Moseley Plaintiffs filed a joint response to ABDC’s motions to dismiss, which is document 107 in Bradley and document 84 in Moseley. Thus, the responses filed in each case are identical and the Court will refer solely to the document in Bradley for consistency.
¹¹	The same document is filed as document 94 in Moseley.
¹²	As later discussed in the Opinion, Commercial Express, at times, blurred the line between motor carrier and freight forwarder.
¹³	This is document 77-7 in Moseley.
¹⁴	This standard is more akin to the standard for a motion to dismiss rather than summary judgment. However, the Court uses this hypothetical to underscore that the Plaintiffs’ claims would be preempted regardless of the evidentiary standard utilized by the Court.
¹⁵	Though the complaints describe Commercial Express as a possible shipper, elsewhere in the complaints, the Plaintiffs state that the trailer (i.e., the goods) was owned by ABDC, (doc. 1-2 at 8, para. 24 in Moseley; doc. 42 at 3, para. 10 in Bradley), which would make ABDC the shipper in said scenario. See 49 U.S.C. § 13102(13) (defining “individual shipper”). And, of course, both parties now acknowledge that ABDC owned the goods and was the shipper. (Doc. 107 at 4) (stating that Gray was delivering drugs on behalf of ABDC); (doc. 105-1 at 4, para. 13 in Bradley; doc. 82-1 at 4, para. 14 in Moseley).
¹⁶	This is document 77-7 in Moseley.
¹⁷	“Final mile deliveries” refers to the final phase of transportation to a shipment’s ultimate destination. See Hamrick v. Partsfleet, LLC, 1 F.4th 1337, 1340 (11th Cir. 2021).
¹⁸	This is document 82-4 in Moseley.

End of Document

Frutera Agrosan Export SPA v. GT USA Wilmington, LLC

United States District Court, D. Delaware.

FRUTERA AGROSAN EXPORT SPA, Plaintiff,

GT USA WILMINGTON, LLC, et. al., Defendants.

C.A. 23-cv-000248-SRF

Signed September 27, 2024

Attorneys and Law Firms

Arthur D. Kuhl, Reger Risso & Darnall, LLP, Wilmington, DE; Stephen J. Galati, Mattioni Ltd., Philadelphia, PA, Attorneys for Plaintiff.

David Phillip Primack, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Wilmington, DE; Joseph G. Grasso, Leah Mantei, Susan M. Kennedy, Wiggin and Dana, LLP, Philadelphia, PA, Attorneys for Defendant.

MEMORANDUM OPINION

FALLON, UNITED STATES MAGISTRATE JUDGE:

*1 The present case is a maritime cargo shipping action brought by Frutera Agrosan Export SPA (“Frutera”) against Defendant GT USA Wilmington, LLC (“GT”) and various other Defendants who do not join the present motion.

Presently before the court is GT’s motion to dismiss Counts III through VII of Frutera’s first amended complaint (“FAC”) (D.I. 21) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, (D.I. 25)¹ For the reasons that follow, GT’s motion is DENIED.

I. JURISDICTION

GT filed the present motion to dismiss on August 14, 2023, seeking to dismiss all counts asserted against it, Counts III through VII of the FAC. (D.I. 25) The motion was fully briefed on September 12, 2023, and is ripe for review, (D.I. 33) The court has jurisdiction over these claims, pursuant to 28 U.S.C. § 1333(1), as this is an admiralty and maritime claim. On October 4, 2023, the District Judge referred this case to the undersigned Magistrate Judge. (D.I. 36) On October 19, 2023, the parties consented to the jurisdiction of the undersigned Magistrate Judge to conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (D.I. 38)

II. BACKGROUND

This case arises from a transaction to ship fresh grapes from Chile to Wilmington, Delaware. (E.g. D.I. 21 at ¶ 5) Frutera is a shipper and exporter organized in Chile. (See id. at ¶ 1) GT operates and manages cargo at the Port of Wilmington. (Id. at ¶ 19)

Grapes are perishable food items which require specific temperature and atmospheric conditions during transit and storage. (Id. at ¶ 6) Plaintiff alleges it was GT’s responsibility to warehouse, fumigate, and deliver the grapes to Frutera’s contract consignees following their delivery in Wilmington from Chile. (Id. at ¶ 20) Frutera avers that GT failed to fumigate and timely deliver sixteen shipments of grapes in March and April of 2022. (Id. at ¶¶ 31–46; see id. at ¶ 7) Consequently, GT’s alleged failure to fulfill its obligations resulted in damage to the grapes and caused Frutera to sustain monetary losses in excess of $400,000. (See id. at ¶ 47)

Frutera filed this case in the District of Delaware on March 7, 2023. (D.I. 1) In addition to GT, Frutera named the following Defendants: Trans Global Shipping N.V., B&M Agencia Maritima S.A., and Seatrade Group N.V.² (logistic companies and carriers); Sole Seas Corp., Ecuadorian Line, Inc., Inaugua Shipping, Ltd., Swedish Stream Shipping Co, Ltd., Hellas Stream Shipping Co., Ltd., and Autumn Stream Shipping Co., Ltd. (vessel owners); M/V Emerald, M/V Duncan Island, M/V Swedish Stream, M/V Hellas Stream, and M/V Autumn Stream (vessels) (collectively “Carrier Defendants”). (D.I. 21 at ¶¶ 12–15) The terms of the contracts between the Carrier Defendants and Frutera at issue in this case are memorialized in multiple Sea Waybills of Lading. (See id. at ¶ 51; see also id. Exs. A, B; D.I. 26 Ex, A (“Sea Waybills”)) GT is not a signatory to the Sea Waybills, and its duty to fumigate, store, and deliver Frutera’s grape shipments is alleged by Plaintiff to be based on a separate contract with the carriers and consignees. (See D.I. 21 at ¶¶ 61–62)

*2 Frutera amended its complaint on July 18, 2023, the FAC pleads five Counts against GT: Count III asserts GT breached its duties as a marine terminal operator, warehouseman, and bailee by failing to care for the grapes, provide for fumigation, and promptly deliver the grapes; Count IV asserts negligence for the same conduct; Count V asserts breach of contract for the same conduct; Count VI asserts breach of duties as a logistics brokers/service provider for the same conduct; and Count VII asserts breach of warranty of workmanlike services for the same conduct. (Id. at ¶¶ 60–80)³

This case is one of five similar cases filed initially in the Eastern District of Pennsylvania by Chilean grape shippers against carriers and receiving ports. (D.I. 26 at 1 n.1) The other four matters all had pending motions to dismiss in the Eastern District of Pennsylvania. On April 8, 2024, subsequent to the completion of briefing on this motion, the Eastern District of Pennsylvania transferred the cases, sua sponte, to the Southern District of New York. The court determined it was unnecessary to address the merits of the motions to dismiss, given its decision to transfer. See Frutera Agrosan Exp. S.A. v. MSC Mediterranean Shipping Co. SA, et al., C.A. No. 23-CV-885-MRP, D.I. 45 (ED. Pa. Mar. 29, 2024).⁴ Once in the Southern District, on May 30, 2024, five related cases were consolidated into one docket, No. 24-CV-2643, and the court ordered a new round of briefing on the motions to dismiss. See Frutera Agrosan Exp. S.A. v. MSC Mediterranean Shipping Co. SA, et al., C.A. No. 24-CV-2643, D.I. 59 (S.D.N.Y. May 30, 2024). Briefing was completed on July 25, 2024, and is now pending a decision. (Id. at D.I. 72)

III. LEGAL STANDARD

Rule 12(b)(6) permits a party to seek dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To state a claim upon which relief can be granted pursuant to Rule 12(b)(6), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set forth sufficient factual matter, accepted as true in the light most favorable to the plaintiff, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A claim is facially plausible when the factual allegations allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 663; Twombly, 550 U.S. at 555–56.

The court’s determination is not whether the non-moving party “will ultimately prevail,” but whether that party is “entitled to offer evidence to support the claims,” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (cleaned up). This “does not impose a probability requirement at the pleading stage,” but instead “simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [the necessary element].” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556), “[A] complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Id. at 231.

IV. DISCUSSION

*3 GT makes two arguments in support of their motion to dismiss. First, GT asserts that in deciding this motion the court may consider the Sea Waybills’ terms and conditions it attached to the opening brief because they are incorporated by reference into the complaint. (D.I. 26 at 7–10; D.I. 26 Ex. A) Second, the Carriage of Goods by Sea Act (“COGSA”) preempts all of Frutera’s state and common law claims asserted against GT, based on the terms and conditions of the Sea Waybills, (Id. at 10–19)

A. Consideration of the Sea Waybills’ Terms and Conditions

“In evaluating a motion to dismiss, [the court] may consider documents that are attached to or submitted with the complaint … and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal quotations omitted).

Defendant argues that the court can consider the attached Sea Waybills’ terms and conditions without converting this motion to dismiss to a motion for summary judgment because they are incorporated by reference into the FAC. (Id. at 7) Defendant also argues that there are additional terms to the contract that the Plaintiff omitted from its complaint. Frutera does not respond to this argument in its answering brief, (See D.I. 30) For purposes of the instant motion, the court considers the Sea Waybills incorporated by reference.

B. Preemption by COGSA

The Carriage of Goods by Sea Act (“COGSA”) is a federal law governing the international shipment of goods to or from United States ports, 46 U.S.C. § 30702(a). COGSA preempts all state and common law claims and limits a carrier’s liability. Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 28–29 (2004). The United States Supreme Court has held that COGSA preempts state law because the application of state law would “undermine the uniformity of general maritime law” and “confusion and inefficiency [would] inevitably result if more than one body of law govern[ed] a given contract’s meaning.” Id.

COGSA applies to all bills of lading that concern carriage of goods by sea to or from ports in the United States, E.g. Ferrostaal, Inc. v. M/V Sea Phoenix, 447 F.3d 212, 218 (3d Cir. 2006). By default, “COGSA applies from tackle to tackle, meaning the period of time when the goods are loaded on to the time when they are discharged from the ship,” MS Midstream LLC v. S. Jersey Port Corp., 1 F. Supp. 3d 289, 294 (D.N.J. 2014) (quotations omitted). But the carrier may extend COGSA protections to its onshore agents through the inclusion of a “Himalaya clause” in the bill of lading. See Kirby, 543 U.S. at 28–29. The addition of Himalaya clause can contractually extend maritime liability limitations to downstream parties expected to take part in the contract’s execution. In re Imperial Towing, Inc., 2012 WL 5409831, at *3 (W.D. Pa. Nov. 6, 2012). To determine whether COGSA should be extended beyond the vessel’s tackles, courts will review the bill of lading, which is the operative contract for the transportation of goods, to determine the scope of the agreement contracted between the parties. See Kirby, 543 U.S. at 21 (2004).

GT argues that COGSA governs the Sea Waybills and provides an exclusive remedy for damage to cargo, preempting Counts III through VII of the FAC, which are state and common law claims. (D.I. 26 at 10–11) Additionally, GT asserts that the Sea Waybills’ terms and conditions show that COGSA was meant to apply to the pre-loading and post-discharge periods via a Himalaya clause. (Id. at 11–18) Specifically, GT relies on § 4(8) of the Sea Waybills, which states that:

*4 The Carrier shall be entitled to subcontract on any terms the whole or any part of the carriage. Anything done in accordance with this clause or any delay arising therefrom shall be deemed to be within the scope of the carriage herein and the performance of the Contract by the Carrier, and shall not be deemed as a deviation. The terms and conditions of Contract and the ensuing Sea Way Bill of Lading shall continuously cover the entire carriage.

(Sea Waybills § 4(8))

GT further cites § 5, which states that:

[The] Carrier shall be responsible for the custody of the goods from their receipt up to their delivery, whether they occur in the ports or in any other place (of receipt or delivery), and shall be responsible of their loss, damage or delay, in accordance to the applicable provisions of § 3 “Contract for the carriage of goods by sea” of Title V of the Book Third of the Chilean Code of Commerce, including Carrier’s right to limit its liability in the event of loss, damage or delay.

(Id § 5)

GT argues that these provisions show the intent of the Sea Waybills’ signatories to extend COGSA coverage to all downstream entities, including GT (D.I. 26 at 15) Furthermore, GT contends that “delivery,” as the term appears in Sea Waybills § 5, refers to transference of the grape shipments to the consignees, not transference of the grape shipments from the Carrier Defendants to GT (Id.) Therefore, the Defendant argues that COGSA applies to GT via a Himalaya clause within the Sea Waybills, making COGSA the operative law, preempting Plaintiff’s state law claims. (E.g. id. at 17)

Frutera responds that GT is not a signatory to the Sea Waybills and may not rely on their terms. (D.I. 29 at 7) Frutera also argues that “delivery” is a maritime contract term of art, and factual development is necessary to determine when the grape shipments were “delivered” under the terms of the Sea Waybills. (Id at 6 n.7) Furthermore, Frutera asserts that GT is classified as a shoreside service provider, and argues that shoreside service providers are not covered by COGSA. (Id. at 11–12)

Next, Frutera states that the Sea Waybills do not incorporate COGSA via a clause paramount, because the Sea Waybills explicitly incorporate Chilean law instead. (Id. at 16–17; see also Sea Waybills § 10) Finally, the Sea Waybills do not contain a Himalaya clause, and even if they did, it would not extend to GT, whose actions were not contemplated in the drafting of the Sea Waybills, as a nonparty shoreside services provider. (See id. at 17–18)

The parties ask the court to make determinations inappropriate on a motion to dismiss. Specifically, GT asks the court to determine that COGSA applies to the Sea Waybills, that the Sea Waybills §§ 4.8 and 5 create a Himalaya clause, and then to apply its terms to GT, even though it is not a party to the Sea Waybills. (D.I. 26 at 13–15) GT also asks the court to interpret the term “delivery” in the Sea Waybills to mean delivery to the consignees, rather than delivery at port. (Id. at 15)

In addition, Frutera asks the court to interpret the Sea Waybills to find that they incorporate Chilean law and to find that §§ 4.8 and 5 do not create a Himalaya clause that extends downstream to GT. (D.I. 29 at 14–19)

The arguments submitted by both parties revolve around “questions [that] involve disputed issues of fact and contract interpretation not suitable to resolution on a motion to dismiss[.]” Univ. Am. Corp. v. Partners Healthcare Sols. Holdings, L.P., 61 F. Supp. 3d 391, 400 (D. Del. 2014); see also Winfield v. Eloxx Pharms., Inc., 2020 WL 1333008, at *1 (D. Del. Mar. 23, 2020) (“[I]ssues of contract interpretation raised by Defendants cannot be resolved against Plaintiff on a motion to dismiss.”). In determining if Chilean law or COGSA is meant to apply to the Sea Waybills, the court must assess the contracting parties’ intent, which is a fact question. CoorsTek Korea Ltd. v. Loomis Prods. Co., 586 F. Supp. 3d 331, 336 (D. Del. 2022) (declining to dismiss because a question of fact existed regarding the contracting parties’ intent).

*5 Furthermore, the parties provide no case authority for making these determinations at the motion to dismiss stage. At this stage in the proceedings, the court, viewing the pleadings in the light most favorable to the Plaintiff assess whether the, “[f]actual allegations [are] enough to raise a right to relief above the speculative level,” though the Plaintiff only needs to “nudge[ ] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 569. Furthermore, the court must accept the facts as set forth in the complaint, even if actual proof of those facts is improbable, and that a recovery is very remote and unlikely. Id. at 557.

Nearly all of the cases discussed by the parties, and relied on by the Defendant, were decided after factfinding was complete. E.g. Kirby, 543 U.S. at 14 (summary judgment); Ferrostaal, 447 F.3d at 212 (summary judgment); Polo Ralph Lauren, L.P. v. Tropical Shipping & Const. Co., Ltd., 215 F.3d 1217 (11th Cir. 2000) (partial summary judgment); La Salle Mach. Tool, Inc. v. Maher Terminals, Inc., 611 F.2d 56 (4th Cir. 1979) (on appeal from final judgment). The cases that were decided before factfinding took place are outside of the Third Circuit and contain distinguishable facts. E.g. Diamond v. State Farm Mut. Auto. Ins. Co., 2010 WL 2904640, at *5 (E.D. Cal. July 26, 2010) (interpreting a contract that included an unambiguous clause paramount extending COGSA liability); Alpina Ins. Co., Ltd. v. Trans Am. Trucking Servs., Inc., 2004, WL 1673310, at *3 (S.D.N.Y. July 28, 2004) (motions to dismiss converted to motions for summary judgment); Cosa Exp. Co. v. Transamerican Freight Lines, Inc., 1968 A.M.C. 1351, 1357 (N.Y. Sup. Ct.) (finding that a stevedore was not covered by the bill of lading on a motion to dismiss on account of defenses asserted in the defendants’ answer when there was no potential Himalaya clause at issue).

At this point in the proceedings, Frutera must only plead a plausible claim for relief. E.g. Iqbal, 556 U.S. at 678–79. GT attempts to argue factual matters, such as when the fumigation process would typically take place in a “delivery,” as evidence their services were part of the carriage. (D.I. 33 7–8) These additional fact arguments, while proper subjects of discovery and summary judgment, are improper at the motion to dismiss stage. See In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1424–25 (when ruling on a motion to dismiss, a district court is “not permitted to go beyond the facts alleged in the Complaint and the documents on which the claims made therein were based”).

Moreover, the Defendant noted that the Kirby court explicitly rejected the specific language requirement for a Himalaya clause, noting; “contract for carriage of goods by sea must be construed … by [its] terms and consistent with the intent of the parties.” (D.I. 33 at 10); Kirby, 543 U.S. at 16, 31–32. This supports the finding that a decision on the applicability of the Himalaya clause is premature, as the intent of the parties in entering the Sea Waybills is undeveloped and currently unknown. Furthermore, the respective positions of the Carrier Defendants, who are parties to the Sea Waybills, are presently unknown, as they have not joined in GT’s motion.

Therefore, GT’s arguments are best left for determination upon a more fully developed factual record.

V. CONCLUSION

Accordingly, the court DENIES GT’s motion to dismiss Counts III through VII of Frutera’s First Amended Complaint pursuant to Rule 12(b)(6). An Order accompanying this Memorandum shall issue.

All Citations

Slip Copy, 2024 WL 4333141

Footnotes
¹	The briefing submitted for the motion can be found at D.I. 26, D.I, 29, and D.I. 33.
²	Seatrade Group N.V. replaced Seatrade Groningen B.V. as a party on December 15, 2023. (D.I. 50)
³	Counts I through II have been asserted against the carrier Defendants only. (See id. at ¶¶ 50–59) Plaintiff states that only Count I is based on the bills of lading. (D.I. 29 at 8)
⁴	See also C.H. Robinson Co. Inc. v MSC Mediterranean Shipping Co. SA, et al., C.A. No. 24-CV-2649, D.I. 26 (S.D.N.Y. Apr. 8, 2024); Dole S.A. v MSC Mediterranean Shipping Co. SA, et al., C.A. No. 24-CV-2651, D.I. 40 (S.D.N.Y. Apr. 8, 2024); C.H. Robinson Co. Inc. v. MSC Mediterranean Shipping Co. SA, et al., C.A. No. 24-CV-2653, D.I. 36 (S.D.N.Y. Apr. 8, 2024)

End of Document