United States District Court,

D. Massachusetts.

Robert NOBLE and Beverly Noble, Plaintiffs,

v.

WHEATON VAN LINES, Vanliner Insurance Company, and Walkerly Moving & Storage, Inc., Defendants.

Civil Action No. 09-10564-GAO.

 

Aug. 17, 2010.

 

OPINION AND ORDER

 

O’TOOLE, District Judge.

 

Beverly and Robert Noble (collectively, the “Nobles”) seek to recover against Walkerly Moving and Storage, Inc. (“Walkerly”), Wheaton Van Lines (“Wheaton”), and Vanliner Insurance Company (“Vanliner”) (collectively, the “defendants”) for damage caused to their household goods during transport from their home in Chagrin Falls, Ohio to a storage facility in Lincoln, Rhode Island. The Nobles assert claims under the Carmack Amendment, 49 U.S.C. § 14706, and Massachusetts state law. The defendants have all moved for summary judgment on the grounds (1) that the Nobles failed to “make a claim for payment of a specified and determinable amount of money,” a condition precedent to recovery under the Carmack Amendment and (2) that the state-law claims are either preempted or inadequately pled.

 

I. Statement of Undisputed Facts

 

The following is a statement of undisputed facts except as otherwise noted.

 

In the summer of 2006, Beverly and Robert Noble moved from their home in Chagrin Falls, Ohio to a condominium in Charlestown, Massachusetts. They hired Walkerly to move some of their household goods in July 2006. Certain goods were damaged during this move. After receiving a complaint from the Nobles, Walkerly faxed them a claim form. The Nobles returned to Walkerly “a completed claim form which did not specifically state the exact monetary amount [they] claimed but did set forth what items were damaged.” (Pls.’ Opp’n to Def. Walkerly Moving & Storage, Inc.’s Mot. for Summ. J. Ex. 1, ¶ 6 [hereinafter Walkerly Opp’n].) Without seeking more specific damage information from the Nobles, Walkerly voluntarily settled the claim.

 

The Nobles had left furniture, framed art and photographs, personal libraries, and other household items in their Ohio home so that it would look occupied until sold. When the house was sold, the Nobles again hired Walkerly in October 2006 to ship their remaining household goods to the storage facility in Lincoln, Rhode Island.

 

Between the July and October 2006 shipments, Walkerly entered into an agency agreement with Wheaton under which Walkerly was appointed to “represent [Wheaton] exclusively with respect to shipments in interstate commerce.” (Walkerly Moving & Storage, Inc.’s Statement of Undisputed Material Facts Ex. E, § I [hereinafter Walkerly SOF].) Walkerly registered the Nobles’ move with Wheaton as required by the agency agreement on October 20, 2006. Wheaton cancelled the move a week later, but Walkerly went ahead and moved the Nobles’ goods.

 

On October 31, 2006, Walkerly prepared and Beverly Noble signed a Wheaton World Wide Moving Combined Uniform Household Goods Bill of Lading and Freight Bill Order (the “Wheaton Bill of Lading”) for the move from Ohio to Rhode Island. Walkerly employees loaded the remaining household goods onto a Walkerly truck. The goods were delivered to the Rhode Island storage facility on or about November 9, 2006. Walkerly and Wheaton dispute whether Walkerly transported the goods as Wheaton’s agent or under its own interstate motor common carrier authority, but the dispute does not preclude resolution of present motions.

 

Upon delivery, the Nobles discovered that some of their household goods had been damaged. They allege that the goods had not been properly wrapped, had been exposed to the weather, and had been transferred into a second truck with an improvised top. Beverly Noble contacted Walkerly to complain. As with the July 2006 moving mishap, Walkerly faxed her a blank claim form. This form bore the Vanliner logo and was entitled “Presentation of Claim for Loss and Damage Under Agent’s Authority” (the “Vanliner Claim Form”). This form had space for the shipper to provide the “original cost” and “estimated cost of repairs/amount claimed” for all damaged goods. (Id. Ex. I.) On or about December 20, 2006, Beverly Noble returned the form to Walkerly, but “did not include an exact amount of money for each item in that claim….” (Walkerly Opp’n Ex. 1, ¶ 18.) The Nobles were not contacted by Walkerly for additional information or to indicate that the form was incomplete. In fact, the Nobles received no response from Walkerly. Walkerly soon went out of business.

 

Having not heard from Walkerly, the Nobles contacted Wheaton in April 2007 to file a claim. Wheaton sent them a blank “Wheaton World Wide Moving Verified Statement of Claim for Lost or Damaged Goods” (the “Wheaton Claim Form”). The Nobles contend that Wheaton did not inform them that an exact dollar amount was required; however, the Wheaton Bill of Lading incorporates by reference Wheaton’s tariff, which provides that a claim cannot be voluntarily paid unless the shipper submits a written claim “making claim for the payment of a specified or determinable amount of money .” (Reply of Def., Wheaton Van Lines, to Pls.’ Opp’n to Def.’s Mot. for Summ. J. Ex. 2, § 1(b).) The form also asked the shipper for the “original cost” of and “amount claimed” in damages for each item. (Statement of Undisputed Material Facts of Def., Wheaton Van Lines Ex. O [hereinafter Wheaton SOF].) When the Nobles returned the form, it did not contain either the original cost and amount claimed in regard to damaged goods. On September 6, 2007, Wheaton denied the Nobles’ claim because there was “no record of the damage occurring while in transit,” as opposed to after delivery to the Rhode Island storage facility. (Pls.’ Opp’n to Def. Wheaton Van Lines’ Mot. for Summ. J. Ex. H [hereinafter Wheaton Opp’n].)

 

Vanliner is an insurance company specializing in insuring interstate motor carriers, including Walkerly. On or about April 2, 2008, the Nobles’ attorney sent a letter to Vanliner detailing their claim against Walker ly. This letter was Vanliner’s first notice of the Nobles’ claim. On April 18, 2008, Vanliner denied the claim because federal law holds the carrier under whose bill of lading a shipment is transported responsible for the loss and Wheaton issued the bill of lading.

 

In the fall of 2009, as part of their answers to interrogatories in this case, the Nobles produced a spreadsheet identifying the household goods allegedly damaged during transport. The spreadsheet includes columns for information concerning the purchase price of, a description of the damage to, and the replacement cost of more than forty-five goods. The spreadsheet however merely approximates the purchase price of each item and provides the replacement cost of only four goods.

 

II. Carmack Amendment (Count I)

 

Count I presents a claim for damages under the Carmack Amendment against all defendants. The Carmack Amendment claim against Vanliner fails as a matter of law because Vanliner is an insurance company not a carrier. See 49 U.S.C. § 14706(d)(1), (2) (permitting civil actions to be brought against the “delivering carrier” or the “carrier alleged to have caused the loss”). Walkerly and Wheaton assert that the claim cannot succeed because t he Nobles failed to comply with the minimum filing requirements set forth in 49 C.F.R. § 370.3(b), a condition precedent to bringing suit under the Carmack Amendment. The Nobles counter that their claims pass muster under § 370.3(b) or, alternatively, that their failure to meet these regulatory requirements can be excused. Each argument is addressed in turn.

 

A. Whether the Nobles’ Claims Complied with the Minimum Filing Requirements of § 370.3(b)

 

The threshold question is whether the Vanliner Claim Form, the Wheaton Claim Form, or the spreadsheet submitted with the answers to interrogatories comply with § 370.3(b). That regulation, in pertinent part, requires the shipper to file:

 

A written or electronic communication (when agreed to by the carrier and shipper or receiver involved) … within the time limits specified in the bill of lading or contract of carriage or transportation and:

 

(1) Containing facts sufficient to identify the baggage or shipment (or shipments) of property,

 

(2) Asserting liability for alleged loss, damage, injury, or delay, and

 

(3) Making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage; Provided, however, That where claims are electronically handled, procedures are established to ensure reasonable carrier access to supporting documents.

 

49 C.F.R. § 370.3(b). The Wheaton Bill of Lading provides nine months to file a claim. Walkerly and Wheaton argue that the Nobles never made “a claim for the payment of a specified or determinable amount of money” as required.

 

Identical requirements are contained in Wheaton’s tariff, which is incorporated by reference into the Wheaton Bill of Lading.

 

The Nobles concede that neither the Vanliner Claim Form nor the Wheaton Claim Form satisfy this requirement. Both claim forms provided space to indicate the “amount claimed,” but the Nobles’ completed forms “did not specifically state the exact amount [they] claimed.” (Walkerly Opp’n Ex. 1, ¶ 18; Wheaton Opp’n Ex. J, ¶ 6 .) Nor did the claim forms supply information from which the amount claimed could be determined.

 

Nevertheless, the Nobles argue that the spreadsheet satisfies this filing requirement. They point to 49 C.F.R. § 370.9(b), providing that damages for irreplaceable goods are determined by “the original costs, augmented by a factor derived from a consumer price index, and adjusted downward by a factor depreciation over average useful life.” While the argument is muddled, the Nobles seem to suggest that the spreadsheet permits a determination of damages under § 370.9(b) because it indicates that the goods were irreplaceable and contains their purchase price.

 

Determinable “means an amount determinable, as a matter of mathematics, from a perusal of the documents submitted in support of the notice of claim.” Bo bst Div. o f Bo bst Champlain, Inc. v. IMLFreight, Inc., 566 F.Supp. 665, 669 (S.D.N.Y.1983).

 

This argument falters for two reasons: First, the spreadsheet does not contain the actual purchase prices, but merely approximates the purchases prices. (See Walkerly SOF Ex. K (noting that a “framed single yellow flower print” was purchased for “about $350”).) A calculation under § 370.9(b) would therefore only approximate the amount claimed. “[E]stimations and approximations [are] insufficient to meet the specific or determinable element of the minimum filing requirements.” McLaughlin Transp. Sys., Inc. v. Rubinstein, 390 F.Supp.2d 50, 59 (D.Mass.2005). Second, the Nobles did not produce the spreadsheet until the fall of 2009, or more than two years after the expiration of the nine-month claim period provided by the Wheaton Bill of Lading.

 

In sum, the Nobles did not make a timely claim “for the payment of a specified or determinable amount of money” as required by 49 C .F.R. § 370.3(b).

 

B. Whether the Nobles Can be Excused from Complying with the Minimum Filing Requirements of § 370.3(b)

 

The Nobles contend that even if they did not file a proper claim, their failure should be excused. Failure to comply with the minimum filing requirements can be excused “where conduct on the part of the carrier misled the shipper into believing that the filing of a timely written claim was unnecessary.” Nedlloyd Lines, B.V. Corp. v. Harris Transp. Co., 922 F.2d 905, 909 (1st Cir.1991). Because the Carmack Amendment seeks to promote uniformity, Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir.1997), excusing the shipper’s noncompliance with the minimum filing requirements “should not be lightly found,” Bobst Div. of Bobst Champlain, Inc. v. IML-Freight, Inc., 566 F.Supp. 665, 669 (S.D.N.Y.1983).

 

The Nobles do not and could not argue that Walkerly and Wheaton misled them into believing that filing a claim was unnecessary as this exception explicitly requires. Instead, they advance four arguments as to how Walkerly and Wheaton misled them into believing that the claims filed were adequate. Although it is unclear whether this exception covers such an argument, see R.T.A. Corp. v. Consol. Rail Corp., 594 F.Supp. 205, 211 (S.D.N.Y.1984) (rejecting the argument that the “defendant owed a duty to the plaintiff to inform it that the … letter was legally insufficient as a notice of claim”), that question need not be resolved here because no solace can be found in the four arguments advanced by the Nobles.

 

First, the Nobles assert that this exception applies because Walkerly and Wheaton did not independently investigate the value of the damage to their household goods as required by 49 C.F.R. § 370.3(d). Though unclear how a failure to investigate could have misled the Nobles as to the adequacy of their claim, it is not necessary to dwell on that point. Section 370.3(d), by its own terms, does not relieve shippers of their obligation to present a written claim for payment of a specified or determinable amount. That regulation provides that even when an independent investigation occurs, the carrier “shall not … voluntarily pay a claim … unless and until a formal claim in writing for a specified or determinable amount of money shall have been filed ….” Id.

 

Section 370.3(d) states:

 

Whenever a claim is presented against a proper carrier for an uncertain amount, such as “$ 100 more or less,” the carrier against whom such claim is filed shall determine the condition of the baggage or shipment involved at the time of delivery by it, if it was delivered, and shall ascertain as nearly as possible the extent, if any, of the loss or damage for which it may be responsible. It shall not, however, voluntarily pay a claim under such circumstances unless and until a formal claim in writing for a specified or determinable amount of money shall have been filed in accordance with the provisions of paragraph (b) of this section.

 

Second, the Nobles contend that this exception applies because Walkerly and Wheaton did not instruct them to obtain an appraisal, which they posit was the only way to ascertain the damage to their artwork and items of historical value. This argument stumbles out of the gate. The Wheaton tariff, incorporated by reference into its Bill of Lading, informed the Nobles of their obligation to make a “claim for the payment of a specified or determinable amount of money.” (Wheaton SOF Ex. M, at 2.) Having been informed of their obligation, the Nobles offer no explanation as to why Walkerly or Wheaton would have a duty to inform them how to satisfy their obligation. Especially where, as here, the Nobles already knew how to satisfy their obligation. The Nobles indicated on the Vanliner Claim Form that they were “schedul[ing] appraisals.” (Walkerly SOF Ex. I, at 4.)

 

The Nobles next contend that the exception applies because neither Walkerly nor Wheaton requested any additional information as required by 49 C.F.R. § 370.5(a). Section 307.5(a) recognizes that a proper claim may not contain sufficient information to resolve the claim, see Molloy v. Allied Van Lines, Inc., 267 F.Supp.2d 1246, 1254 (M.D.Fla.2003); therefore, “upon receipt in writing or by electronic transmission of a proper claim,” the carrier has an obligation to request any “additional documentary evidence or other pertinent information” necessary to process the claim, 49 C.F.R. § 370.5(a) (emphasis added). Because the Nobles never filed a “proper claim,” this regulation does not apply.

 

Section 370.5(a) provides:

 

Each carrier shall, upon receipt in writing or by electronic transmission of a proper claim in the manner and form described in the regulations in the past, acknowledge the receipt of such claim…. The carrier shall indicate in its acknowledgment to the claimant what, if any, additional documentary evidence or other pertinent information may be required by it further to process the claim as its preliminary examination of the claim, as filed, may have revealed.

 

Finally, the Nobles contend that this exception applies because Walkerly’s voluntary payment on their July 2006 claim, which also did not make a claim for a specific amount of money, led them to believe that specificity either was not required or would not be insisted upon. Put another way, the Nobles argue that Walkerly’s departure from the normal claims processing practice in July 2006 misled them into believing that their December 2006 claim did not have to meet the specificity requirement. That general argument might be availing, see, e.g., Perini-N. River Assocs. v. Chesapeake & Ohio Ry. Co., 562 F.2d 269, 274 (3d Cir.1977) (holding that the carrier’s “departure from its normal practice of forwarding claim forms and copies of the damage report” warranted excusing the shipper’s failure to file a proper claim), except that the Nobles’ evidence does not establish a departure from the normal claims processing practice.

 

Carriers can voluntarily pay claims seeking payment of a specified or determinable amount of money. 49 C.F.R. § 370.3(b). All Beverly Noble’s affidavit establishes is that the July 2006 claim “did not specifically state the exact monetary amount [ ] claimed.” (Walkerly Opp’n Ex. 1, ¶ 18.) Her affidavit gives no indication as to whether the July 2006 claim was accompanied by any supporting documents from which the amount claimed could be determined. Because the Nobles have not “proffer[ed] admissible evidence that could be accepted by a rational trier of fact as sufficient to establish the necessary proposition,” Gorski v. N.H. Dep’t of Corrs., 290 F.3d 466, 475-76 (1st Cir.2002), their argument must be rejected.

 

In sum, the Nobles have offered no evidence as to how the defendants’ actions misled them into believing that they had filed an adequate claim. The Nobles’ failure to “mak[e] claim for the payment of a specified or determinable amount of money” compels entry of summary judgment on Count I in favor of the defendants.

 

III. State-Law Claims Against Walkerly (Counts II-V)

 

With limited exceptions, the Carmack Amendment provides the exclusive cause of action against a carrier for loss or damage to goods that occurred as a result of interstate transport. See Rini, 104 F.3d at 506. “[A]ll state laws that impose liability on carriers based on the loss or damage of shipped goods are preempted” by the Carmack Amendment. Id. Walkerly argues that Counts II-V, alleging negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of Massachusetts General Laws chapter 93A, are preempted.

 

Because the Nobles’ state-law claims primarily allege that their household goods were damaged as a result of Walkerly’s failure to properly wrap them (in addition to its failure to inventory the goods and use of an ill-equipped truck), the Nobles suggest that their state-law claims fall outside the preemptive scope of the Carmack Amendment since the claims rest not on damage caused during transportation, but on damage caused before transportation. This argument is factually puzzling because even if the actual wrapping occurred before transport, the damage presumably occurred when the improperly wrapped goods bounced around during transport. Whether the loss or damage occurred during packaging, transport, or unloading is, moreover, irrelevant as all are vital steps in the transportation process. See id.; see also Glass v. Crimmins Transfer Co., 299 F.Supp.2d 878, 887 (C.D.Ill.2004) (finding state-law claims based upon damage occurring in carrier’s storage facility prior to being moved to be preempted by the Carmack Amendment). Counts II-V fall squarely within the preemptive scope of the Carmack Amendment.

 

In their opposition memorandum, the Nobles suggest that the state-law claims also rest on Walkerly’s false representations that it was acting as an agent of Wheaton. This fact is neither alleged in the complaint nor supported by the Nobles’ Concise Statement of Material Facts.

 

The Nobles nevertheless contend that a dispute of fact precludes resolution of the preemption issue. Preemption, according to the Nobles, turns on whether Walkerly was Wheaton’s agent, a fact currently disputed by those parties. The Nobles argue that if Walkerly was not Wheaton’s agent, Walkerly would not be entitled to preemption under the Carmack Amendment because it did not issue a bill of lading. Put another way, the Nobles appear to believe that the Carmack Amendment and by extension its preemptive force apply only to carriers issuing a bill of lading. The Amendment itself belies their argument. It states: “Failure to issue a receipt or bill of lading does not affect the liability of a carrier.” 49 U.S .C. 14706(a)(1); see also Kellaway Intermodal & Distribution Sys., Inc. v. Gillette Co., 578 F.Supp.2d 304, 311 (D.Mass.2008) ( “[N]othing in the Carmack Amendment requires a carrier to issue a bill of lading.”). Therefore, even though Walkerly did not issue a bill of lading, any such failure would not affect the applicability of the Carmack Amendment or its preemptive force. See also Gendler v. All Pro Van Lines, Inc., 464 F.Supp.2d 925, 930 (D.Ariz.2005) (applying similar reasoning).

 

Summary judgment shall enter on Counts II-V in favor of Walkerly.

 

IV. State-Law Claims Against Vanliner (Counts V and VI)

 

Counts V and VI allege that Vanliner engaged in unfair and deceptive practices in violation of Massachusetts General Laws chapters 93A and 176D, respectively. Vanliner is correct that no private cause of action exists under chapter 176D. Thorpe v. Mut. of Omaha Ins. Co., 984 F.2d 541, 544 n. 1 (1st Cir.1993). But alleged violations of chapter 176D, which defines unfair claim settlement practices in the insurance industry, is evidence of an unfair business practice under chapter 93A. Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 35 (1st Cir.2007). As a prerequisite to suit under chapter 93A, however, a plaintiff must submit a demand letter “reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered.” Mass. Gen. Laws ch. 93A, § 9(3). Vanliner argues that the Nobles’ demand letter fails to describe any unfair claim settlement practices committed by it.

 

Under Massachusetts law, a claimant cannot bring a direct lawsuit against an insurance company for the actions of the insured. See Metro. Prop. & Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20, 23 (1st Cir.2003). Consequently, Vanliner correctly notes that the demand letter would need to describe its, not Walkerly’s, unfair practices. The Nobles allege in their opposition memorandum that Vanliner failed to respond to their claim submitted to Walkerly, failed to investigate that claim, and failed to effectuate a prompt settlement of that claim, but none of these insurance practices are mentioned in the demand letter (or the amended complaint or statement of facts for that matter). The demand letter alleged only that Walkerly failed to properly wrap and inventory the goods and transported the goods in an ill-equipped truck. Failure to send an adequate demand letter is fatal to the Nobles’ chapter 93A claim.

 

Summary judgment shall enter on Count V and VI in favor of Vanliner.

 

V. Conclusion

 

For the foregoing reasons, the defendants’ Motions for Summary Judgment (dkt. nos. 27, 29, & 35) are GRANTED.

 

It is SO ORDERED.

United States District Court, E.D. Tennessee.

Janice G. THORNTON, Plaintiff,

v.

PHILPOT RELOCATION SYSTEMS, et al., Defendants.

No. 3:09-CV-329.

 

Aug. 16, 2010.

 

MEMORANDUM AND ORDER

 

THOMAS W. PHILLIPS, District Judge.

 

Defendant Atlas Van Lines, Inc., a moving company, entered into a contract with plaintiff to transport household goods and furniture from Flowery Branch, Georgia to Knoxville, Tennessee. The goods were first delivered to a storage facility in Tucker, Georgia, and ultimately delivered to a residence in Tennessee in September 2005. Plaintiff alleges that defendants allowed the goods to become damaged or destroyed in transit. This matter is before the court on various motions filed by the parties: (1) defendant Atlas Van Lines’ motion to dismiss and/or for summary judgment [Doc. 10]; (2) plaintiff’s motion to amend complaint [Doc. 16]; and (3) defendant’s motion to strike plaintiff’s supplemental response to the motion to dismiss and/or for summary judgment [Doc. 19].

 

I. Background

 

In 1998, plaintiff and her husband relocated their business from Georgia to Knoxville, Tennessee. In 1999, plaintiff contracted with defendant Philpot Relocation and its affiliates, to handle both the moving and the interim storage of her household goods. The household goods remained in storage for several years. On or about August 12, 2005, plaintiff requested that defendant Atlas Van Lines transport her household goods from storage in Tucker, Georgia to Knoxville, Tennessee. Atlas picked up plaintiff’s household goods for transportation from Georgia to Tennessee, pursuant to Atlas’ Uniform Household Goods Bill of Lading, which was issued on or about September 19, 2005.

 

When the household goods were delivered to plaintiff’s residence, she discovered that nearly all her household goods had been damaged. Many items displayed water and mildew damage, indicating that they had been placed or stored in standing water. Other items had been damaged as a result of rough handling. Plaintiff estimates that the replacement value of items that cannot reasonably be repaired and restored is in an amount of “not less than $150,000.” Plaintiff avers that the household goods were in good condition at the time they were placed with the defendants. Plaintiff further avers that defendants failed to use reasonable care in the storage and delivery of her household goods.

 

Plaintiff submitted a damage claim form to defendants on June 20, 2006. On or about March 20, 2007, Atlas gave written notice that it denied liability for a part of plaintiff’s claim. Counsel for plaintiff acknowledged receipt of the March 20, 2007 denial letter, and responded with letters dated April 13, and May 17, 2007. On or about May 25, 2007, Atlas reaffirmed its March 20, 2007 denial of a part of plaintiff’s claim. Plaintiff brought the instant action against defendants on June 26, 2009, alleging breach of contract, bailment, and breach of warranty under state law.

 

II. Motion to Amend Complaint

 

When there are pending before the court both a dispositive motion and a motion to amend the complaint, the court must first address the motion to amend the complaint. See Ellison v. Ford Motor Co., 847 F.2d 297, 300-01 (6th Cir.1988). Plaintiff’s original complaint alleges state common law claims of breach of contract, bailment, and breach of warranty. Plaintiff has moved to amend her complaint to add a claim for loss or injury to her household goods under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706.

 

Defendant Atlas opposes plaintiff’s motion to amend stating that the proposed amended complaint does not comply with the requirements of pleading a cause of action under the Carmack Amendment.

 

Rule 15(a), Federal Rules of Civil Procedure, permits amendments to pleadings at any time during the litigation, and leave shall be freely given “when justice so requires.” However, a court must balance harm to the moving party if she is not permitted to amend against prejudice caused to the other party if leave to amend is granted. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A court may deny leave to amend in some circumstances, including “undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to the opposing party by virtue of the allowance of the amendment and futility of the amendment.” Id.

 

Here, there does not appear to be undue delay in the filing or giving notice of plaintiff’s motion. The trial of this case has been set for August 23, 2011, and the parties indicate that they have undertaken little or no discovery to date. Moreover, plaintiff’s motion is timely under the scheduling order entered in this case, which requires all motions for leave to amend pleadings to be filed six months before trial. The court finds plaintiff’s motion to amend timely.

 

Second, there is no indication in the record that plaintiff is acting in bad faith in bringing the motion to amend. Plaintiff filed her motion following Atlas’ motion to dismiss alleging that the Carmack Amendment governs the claims alleged in her complaint. Third, there has been no repeated failures to cure pleading deficiencies by amendment and it appears that the amendment may be required in order for the proper resolution of this case on its merits. Fourth, it does not appear that the defendants will be unduly prejudiced by the amendment. The trial of this matter is scheduled for August 23, 2011, allowing ample time for the parties to conduct any necessary discovery.

 

This leaves only the question of whether the proffered amendment is futile. A motion for leave to amend may be denied for futility “if the court concludes that the pleading as amended cannot withstand a motion to dismiss.” Midkiff v. Adams Co. Regional Water District, 409 F.3d 758, 767 (6th Cir.2005). A motion to dismiss should not be granted unless taking all well-pleaded allegations as true and construing them in the light most favorable to the non-moving party, there are not sufficient facts to make out all material elements of the claims. Trezbuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir.2003).

 

To make a cognizable claim pursuant to the Carmack Amendment, a shipper must establish the following (1) the delivery of goods to the carrier in good condition, (2) the arrival of goods in damaged condition, and (3) the amount of damages measured by actual loss. Great West Cas. co. v. Flandrich, 605 F.Supp2d 955, 966 (S.D.Ohio 2009) (citing Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964)). Here, plaintiff’s original complaint, as amended, states that plaintiff delivered her household goods to defendants for shipment first from her residence in Georgia, to storage in Georgia, then to her residence in Tennessee. The complaint goes on to state that the household goods were in good condition at the time they were placed with defendants, but when plaintiff received her household goods and inspected them, “hardly a single item … had not been damaged. Many of the items have been destroyed.” The complaint further alleges that the damaged items included very expensive antiques and designer furniture, and that the amount of loss is “not less than $150,000.”

 

Based on the allegations of the original complaint, as amended, the court finds that plaintiff has sufficiently pleaded a claim for damages to her household goods under the Carmack Amendment. Accordingly, plaintiff’s motion to amend complaint [Doc. 16] is GRANTED. In accordance with Local Rule 15.1, plaintiff shall file her amended complaint in its entirety within ten (10) days of the entry of this order. The original complaint, as amended, is now the operative complaint for all purposes.

 

III. Motion to Dismiss and/or for Summary Judgment

 

Defendant Atlas Van Lines has moved to dismiss the complaint against it on the grounds that plaintiff’s state and common law claims are preempted by the Carmack Amendment, and that plaintiff failed to commence her action prior to the two year and one day contractual limitation period for bringing a cause of action against Atlas.

 

Plaintiff responds that there were two separate and distinguishable moves of the household goods, separated timewise by six years. The first move was from plaintiff’s residence in Georgia to the Atlas storage facility in Georgia. Plaintiff argues that move may not be subject to the Interstate Commerce Act and the Carmack Amendment if viewed as a separate move controlled by contract paperwork separate from the second move. Plaintiff states that it was her intention to ultimately accomplish a relocation of the household goods from Georgia to Tennessee. Moreover, defendants treated the transactions as separate relying on separate contractual paperwork. Therefore, if the move from the Georgia residence to the storage facility in Georgia is treated as a separate transaction, then any damages incurred in that movement and the related storage would not be preempted. In addition, plaintiff argues that the Carmack Amendment does not contain a statute of limitations. To the extent that Atlas is relying on its bill of lading to establish a statute of limitations, plaintiff points out that the bill of lading bears a hand-written notation that “customer would not sign.” Plaintiff further argues that because she did not sign the bill of lading, she never agreed to any contract with Atlas which limited her right to sue for damages to the period of two years and one day asserted by Atlas.

 

Atlas has moved for dismissal of plaintiff’s complaint pursuant to Rule 12(b)(6) and Rule 56, Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, requires the court to construe the complaint in the light most favorable to the plaintiff, accept all the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of her claims that would entitle her to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990). The court may not grant such a motion to dismiss based upon a disbelief of a complaint’s factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir.1990); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995) (noting that courts should not weigh evidence or evaluate the credibility of witnesses). The court must liberally construe the complaint in favor of the party opposing the motion. Id. However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir.1988). “[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Id. (citations omitted).

 

If, in a Rule 12(b)(6) motion to dismiss, “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Wysocki v. IBM, 607 F.3d 1102, 1104 (6th Cir.2010). Here, the parties have submitted matters outside the pleadings in support of their positions. Consequently, the court will consider the parties’ arguments under Rule 56(c), which provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party.   Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir.1987); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943 (6th Cir.1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943-44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 220 (6th Cir.1996).

 

A. Camack Amendment Preemption

 

Atlas contends that plaintiff’s state law claims are preempted as a matter of law by operation of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. In a uniform line of cases, the Sixth Circuit has held that the Carmack Amendment to the Interstate Commerce Act is broad in its preemptive effect on state tort claims arising out of the transportation and delivery of goods. Toledo Ticket Co. v. Roadway Exp., Inc., 133 F.3d 439, 441 (6th Cir.1998); W.D. Lawson & Co. v. Penn Central Co., 456 F.2d 419, 421 (6th Cir.1972); American Synthetic Rubber Corp. v. Louisville & N.R. Co., 422 F.2d 462, 465 (6th Cir.1970). The Carmack Amendment provides the exclusive means for a shipper to recover for any damages to delivered goods or for negligent performance by a carrier. Id. The United States Supreme Court has explained in detail the history and rationale behind the Carmack Amendment, holding that it is the express intent of Congress to provide nationwide uniformity to carrier liability. Adams Express Co. v. Croninger, 226 U.S. 491, 503-08, 33 S.Ct. 148, 57 L.Ed. 314 (1913).

 

Plaintiff’s argument that the move from her Georgia residence to the storage facility in Georgia should be treated as a separate intrastate transaction which would not fall under the purview of the Carmack Amendment, is unpersuasive. If a part of the commerce is interstate, the Carmack Amendment applies to the entire transaction. Green v. All Star Moving & Storage, Inc., 2000 WL 422339 (D.Kan. Mar.31, 2000); Schultz v. Auld, 848 F.Supp. 1497, 1504 (D.Idaho 1993) (holding that transportation of goods from San Francisco, California to an apartment in Hailey, Idaho, then from the apartment in Hailey to a storage unit in Hailey, involved interstate commerce even though the goods were damaged in the storage phase of the move which was purely intrastate. Here, plaintiff admits that her intention was to ultimately accomplish a relocation of her household goods from Georgia to Tennessee.

 

The court finds that plaintiff’s state law claims for breach of contract, bailment, and breach of warranty fall squarely within the exclusive ambit of the Carmack Amendment. Plaintiff requested that defendant Atlas, a common motor carrier engaged in transporting goods in interstate commerce, transport her household goods from Georgia to Tennessee. The case law dictates that the statutory federal remedy provided in the Carmack Amendment precludes plaintiff from pursuing her common law claims, and those claims are hereby DISMISSED with prejudice.

 

B. Statute of Limitations

 

Atlas contends that plaintiff’s claim under the Carmack Amendment should be dismissed as untimely, as it was filed beyond the contractual two year and one day statute of limitations. The Interstate Commerce Act requires a common carrier, such as Atlas, to issue a receipt or bill of lading for property it receives for transport. 49 U.S.C. § 11707(a)(1). The carrier is then liable to the party entitled to recover under the receipt or bill of lading for any “actual loss or injury to the property.” 49 U.S.C. § 11707(c)(4).

 

The only statutorily specified limitations relating to the time for filing a claim under § 11707 are restrictions imposed on the parties’ authority to contract for time limitations, as set forth in § 11707(e). That section provides:

 

A carrier or freight forwarder may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier or freight forwarder gives a person written notice that the carrier or freight forwarder has disallowed any part of the claim specified in the notice.

 

The Carmack Amendment thus contemplates that limitation periods are terms to be bargained over between shipper and carrier, so long as the minimum conditions of § 11707(e) are met. See Swift Textiles, inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 704 n. 4 (“The Carmack Amendment on its face contemplates that the choice of a statute of limitation is to lie with the shipper subject to the minimum time limit prescribed by the Act …. The Act clearly anticipates statutes of limitations and legislatively approves any limitation period exceeding two years.”)

 

Determining whether plaintiffs’ claim under the Carmack Amendment is contractually time-barred therefore requires examination of any bill of lading that may have been issued to plaintiff, as well as the documentation concerning the filing of her claim for damaged goods and the disallowal of that claim by the carrier. The bill of lading in this case states as follows:

 

You must file any lawsuit within two years and one day from the date when we give you written notice that we have disallowed your claim or any part of it.

 

Moreover, the bill of lading referenced and incorporated Atlas’ tariff that contains the same limitation. The tariff provision states as follows:

 

As a condition precedent to recovery, a claim for any loss or damage injury or delay, must be filed in writing with the carrier within nine (9) months after delivery to consignee as shown on face hereof, or in case of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice.

 

In a similar case, State Farm Fire & Cas. Co. v. United Van Lines, Inc., 825 F.Supp. 896 (N.D.Cal.1993), the court found that the Carmack Amendment does not require that a shipper sign the bill of lading. The bill of lading clearly identified the applicable tariff and reproduced the applicable statute of limitations, but neither the shipper nor the carrier signed the bill of lading. The court held that properly published tariffs are binding on both the shipper and the carrier, and that “it is evident that both the limitation period may be established absent any contract, provided it is incorporated in a lawful tariff, and that incorporation of that lawful tariff in a bill of lading will serve to bind the shipper contractually as well, even in the absence of a signature, at least where the shipper is provided a copy of that bill of lading or otherwise put on notice of its terms.” Id. at 901

 

Here, the bill of lading references and incorporates the applicable two year and one day limitations period. Plaintiff is bound to the terms of the bill of lading even though she did not sign it, because the Carmack Amendment does not require a shipper to sign the bill of lading to create an enforceable limitations period. State Farm Fire & Cas. Co., 825 F.Supp. at 899 (“It is sufficient if the shipper accepts the carrier’s bill of lading without himself signing it….”); Joseph Harrah v. Minnesota Mining & Mfg. Co., 809 F.Supp. 313 (D.N.J.1992) (holding that consignee that neither was a party to the shipping agreement nor had ever received a copy of the bill of lading was nonetheless legally bound by the provisions of the tariff, since the tariff constituted the contract between the parties to a transaction under the Interstate Commerce Act). Moreover, plaintiff did sign the first bill of lading in 1999 when she shipped her household goods from her residence in Georgia to the storage facility. This first bill of lading contains identical language to the second bill of lading, reproducing the tariff language that binds the shipper to a two year and one day period of limitation within which to bring a civil action. Plaintiff clearly received the first bill of lading and had reasonable notice of the limitations period. It is clear to the court that plaintiff was presented with the second bill of lading because it bears the notation “customer would not sign.” Thus, it is disingenious for plaintiff to argue that she did not have “reasonable notice” of the terms in the second bill of lading when she received and signed the first bill of lading, which contains an identical two year and one day limitations period, and was presented with the second bill of lading which she refused to sign.

 

Having established that plaintiff’s claims are governed by the two year and one day limitations period, the record shows that on June 20, 2006, plaintiff submitted a damage claim form to Atlas. On March 20, 2007, Atlas gave written notice to plaintiff that it denied liability for part of plaintiff’s claim. Following the March 20, 2007 denial, plaintiff then had two years and one day to file suit against Atlas pursuant to the contractual statute of limitations set forth in the bill of lading. Atlas reaffirmed its March 20, 2007 denial by letter to plaintiff’s counsel dated May 27, 2007. Plaintiff did not commence this action until June 26, 2009, which is more than two years and one day after the contractual statute of limitations for plaintiff to bring a civil action against Atlas. Accordingly, the court finds that plaintiff’s Carmack Amendment claim against Atlas is untimely and said claim is hereby DISMISSED with prejudice.

 

IV. Motion to Strike

 

Atlas has moved to strike plaintiff’s supplemental response to the motion to dismiss and/or for summary judgment on the grounds that the supplement response does not comply with Local Rule 7.1. However, subsequent to the filing of the motion, plaintiff moved the court for leave to file the supplemental response, which leave was granted by the court [Doc. 24]. The court notes that Atlas sought leave to supplement its reply to plaintiff’s response, which was also granted by the court [Doc. 26]. Therefore, the court finds that plaintiff has properly supplemented her response to the summary judgment motion and defendant has been afforded an opportunity to reply to the supplemented response. Accordingly, defendant’s motion to strike, is DENIED AS MOOT.

 

V. Discovery

 

As an alternative response to Atlas’ motion for summary judgment, plaintiff asks for a reasonable opportunity to conduct further discovery. A plaintiff must be able to show that she could have obtained information through discovery that would disclose material facts. Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997). Nebulous assertions that more discovery time would produce evidence to defeat summary judgment will be unavailing. Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 138 (6th Cir.1993). Plaintiff has failed to indicate what information she could gain through discovery to identify a material issue of fact with respect to the motion for summary judgment. Accordingly, plaintiff’s motion for additional time to conduct discovery is DENIED.

 

VI. Conclusion

 

For the reasons previously stated, plaintiff’s motion to amend complaint [Doc. 16] is GRANTED; defendant Atlas Van Lines’ motion for summary judgment [Doc. 10] is GRANTED, whereby Atlas Van Lines is DISMISSED as a defendant in this action; and defendant Atlas Van Lines’ motion to strike plaintiff’s supplemental response to the motion to dismiss and/or for summary judgment [Doc. 19] is DENIED AS MOOT.

 

IT IS SO ORDERED.