United States District Court,

E.D. Louisiana.

Mechelle CALLAIS

v.

SHELL OIL COMPANY, et. al.

 

Civil Action No. 10–2105.

Aug. 8, 2011.

 

Keith Michael Couture, Couture & Levesque LLC, Madisonville, LA, Wesley Joseph Levesque, Couture & Soileau, LLC, Mandeville, LA, for Plaintiff.

 

Thomas J. McGoey, II, Kindall C. James, Liskow & Lewis, New Orleans, LA, for Defendants.

 

ORDER AND REASONS

 

Natasha Manuel, a third year student at Loyola University New Orleans College of Law, assisted in the preparation of this order.

 

HELEN G. BERRIGAN, District Judge.

Before the Court is a Motion for Summary Judgment, filed by Defendant, Shell Oil Company (“Shell”). (Rec.Doc.27). Also before the Court is Defendant, Alford Services’ (“Alford”)Motion for Partial Summary Judgment. (Rec.Doc.28). Plaintiff Mechelle Callais (“Callais”) opposes both motions. (Rec. Docs. 30 & 31). Having reviewed the memoranda of the parties, the record in the case, and the applicable law, the Court GRANTS Defendant, Shell’s, motion for summary judgment, and GRANTS Defendant, Alfron’s, motion for partial summary judgment, for the following reasons.

 

I. BACKGROUND

Alford, a contract company which provided safety and emergency services at the Shell Refinery (“the Refinery”) in Norco, St. Charles Parish, Louisiana, employed Callais as an emergency medical technician (“EMT”). (Rec. Doc. 27–2 at 3). Through this employment, Callais worked as a contract EMT at the Refinery on August 22, 2006. Id. at 2; (Rec. Doc. 1–1 at 1).

 

In Spring 2007, Callais alleges that she began to experience sexual harassment at the Refinery from several male supervisors and co-workers. (Rec. Doc. 1 at 4). This sexual harassment allegedly involved physical and verbal harassment—including physical touching of her breasts, vagina, other areas of her body, as well as sexual propositioning and exposure of their genitalia to Callais. Id.

 

Callais filed an Equal Employment Opportunities Complaint (“EEOC”) for Title VII violations for sexual harassment and hostile working environment against Alford, Shell, and Malcolm Troxclair. Id. at 7. Additionally, she filed claims under the “Employment Discrimination Act,” 42 U.S.C. § § 1983 and 1985, and “under state law for conversion, ‘malicious actions,’ and abuse of process.” (Rec. Doc. 1 at 7–8). Following her sexual harassment report, Alford drug tested and on seven different occasions filed violations against Callais. (Rec.Doc.1–1). Eventually, Robbie Robinson, Shells’ Head Sight Supervisor, informed Callais that she would be replaced. Id. Her employment was later terminated. (Rec. Doc. 1 at 5).

 

II. LAW & ANALYSIS

a. Summary Judgment Standard

Summary judgment is proper when the record indicates that there is no “genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A genuine issue of fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); see also Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir.2001). When considering a motion for summary judgment, this Court “will review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

 

The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, however, “the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995). To satisfy its burden, the non-moving party must put forth competent evidence and cannot rely on “unsubstantiated assertions” and “conclusory allegations.” See e.g., Hopper v. Frank, 16 F.3d 92 (5th Cir.1994); Lujan v. Nat’l. Wildlife Fed’n ., 497 U.S. 871, 871–73 (1990); Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992).

 

Here, Shell argues that it is entitled to recovery because Shell did not act as Callais’ employer, hence, Callais cannot receive protection under Title VII. (Rec. Doc. 27–1 at 5). Shell also argues for recovery because of its status as a private corporation, making Callais’ 42 U.S.C. § 1983 inapplicable. Id. at 9. Shell also emphasizes that because there has neither been conspiracy nor race-based discrimination, as required by 42 U.S.C. § 1985, Callais cannot prevail on this claim. Id. Additionally, Alford argues that it is entitled to partial summary judgment with regards to Callais’ claims under 42 U.S.C. §§ 1983 and 1985 for the same reasons as Shell. (Rec. Doc. 28–1 at 2). Callais, on the other hand, argues that the presence of disputed material facts as to her employer-employee status with Shell renders this case unfit for summary judgment under Rule 56. (Rec. Doc. 34 at 4).

 

b. Classification of Defendant Shell as Employer of Callais

Callais alleges that Shell served as her employer, and thus she may bring claims under Title VII against Shell. (Rec. Doc. 1 at 6). To prevail on a Title VII claim against Shell, Callais must prove Shell was her employer. 42 U.S.C.2000–e(a). Shell does not dispute Callais’ allegations of sexual harassment, but does argue that it did not act as Callais’ employer at any point during her work at the Refinery.

 

Factors which this court has used to determine status as an employee under Title VII include:

 

(1) Ownership of the equipment necessary to perform their job; (2)responsibility for costs associated with operating that equipment and for license fees and taxes; (3) responsibility for obtaining insurance; (4) responsibility for maintenance and operating supplies; (5) ability to influence profits; (6) length of job commitment; (7) forms of payment; and (8) directions on schedules and performing work.

 

Additional relevant factors include: (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (4) whether annual leave is afforded; (5) whether the work is an integral part of the business of the “employer;” (6) whether the worker accumulates retirement benefits; (7) whether the “employer” pays social security taxes; and (8) the parties’ intention.

 

Cole v. Venture Transport, Inc., 2000 WL 3345743 (E.D.La., 2000). These factors make up the “economic realities” test, which looks to the “right to control” as the most important factor in determining employment status.   Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir.1986). If the employer controls most of the above factors, the worker will be considered a protected employee under Title VII. Id. No individual factor is determinative, though. Id. at 1158.

 

In Broussard v. L.H. Bossier the court found that Bossier did not act as an employer under Title VII because Bossier withheld no social security or taxes from Broussard; Broussard had responsibility over her equipment, including gas and oil; Broussard received no employment benefits from Bossier; and Bossier did not pay Broussard directly, instead paying the trucking company, which in turn paid Broussard. Id. at 1161. Additionally, the trucking company, and not Bossier, provided the trucks which the Broussards used at the site. Id. Bossier did not supervise or direct the actions of Broussard. Id. For these reasons, Bossier had little control over Broussard, which indicated that Bossier did not have an employer-employee relationship with Broussard. Id. Thus, the court held that Bossier did not serve as Broussard’s employer according the economic realities test and the additional factors noted above. Id. Therefore, Broussard received no protection by Title VII against Bossier. Id.

 

Similarly, in the case at hand, the economic realities test and the additional factors can be used to determine whether Callais served as an employee of Shell. The characteristics of the Shell–Callais employer-employee relationship parallels that of the Bossier–Broussard employment relationship in Broussard. First, like the defendant in Broussard, which did not participate in the decision to hire Broussard, Shell did not did not hire, have an employment contract with, or directly compensate Callais for her services, nor did Shell provide employment benefits to Callais. (Rec. Doc. 27–4 at 2). While Callais disputes this allegation, Callais presents no evidence to show that Shell had input in hiring her. (Rec. Doc. 30–1 at 1). Second, like in Broussard, Callais does not deny that Shell did not maintain employment records or withhold taxes or social security from compensation received by Callais. Id. at 2. Callais, in fact, acknowledged in her complaint that she worked for Shell “through Alford,” indicating her status as an employee of Alford, not Shell. (Rec. Doc. 1 at 4). Third, Callais argues that “the legislature has emphasized that statutory employment status was not to be determined by whether a core, business function was being accomplished …” (Rec. Doc. 30 at 4). As in Broussard, the court evaluated whether “the work [was] an integral part of the business of the employer,” finding that the truck driving by the plaintiff was not an integral part of the defendant’s business.   Broussard, 789 F.2d at 1160. While this factor was not solely determinative of employer-employee status, it strengthened the argument that Bossier did not act as an employer to Broussard. Id. Similarly, Callais’s work as an EMT did not serve as an integral part of Shell’s oil business, which allows for this factor to strengthen the various others which indicate that Shell did not act as Callais’ employer. Id.

 

The additional factors listed contribute in finding that Callais did not serve as an employee of Shell. Callais provides no evidence to show that Shell supervised Callais’ EMT services. (Rec. Doc. 1 at 4–5). Callais’ role at the refinery as an EMT does not appear to require supervision, as her occupation as an EMT involved specialized skills which the Refinery supervisors would likely have not possessed. Additionally, Callais merely claims that she informed two supervisors about the incidents of sexual harassment, yet fails to state that she reported to “her” supervisor, further indicating that she had no supervisor assigned to oversee her role as an EMT at the Refinery. Id.

 

Furthermore, with regards to the factor of hiring and firing, despite the fact that Callais argues in her opposition that a Shell employee informed her that she would not be permitted on the premises, no where in her pleadings or motions does Callais deny Shell’s allegation that Alford, her employer, officially terminated her employment. (Rec. Doc. 31 at 5). Therefore, for the reasons above, Shell did not act as an employer to Callais, and Callais cannot attain Title VII protection against Shell.

 

c. Shell’s Remaining Arguments for Summary Judgment

In its motion for summary judgment, Shell also addresses Callais’ Section 1985, Section 1983, conversion and malicious prosecution claims. (Doc. 27–1 at 9–10). Section 1985 address the conspiracy to interfere with civil rights, including: preventing an officer from performing their duties, “obstructing justice,” and “depriving persons of rights or privileges.” 42 U.S.C. § 1985. Section 1985 requires that facts be provided to show conspiracy and “conduct that directly affects parties, witnesses or grand or petit jurors.” Nealy v. Hamilton, 837 F.2d 210 (5th Cir.1988). “… [T]his court has limited cases brought by Section 1985(3) to those allegedly racial or class-based animus.” Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir.1981). Section 1983 creates a cause of action against “every person who, under color of any [state law] … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. “As a general rule, ‘[s]ection 1983 does not … prohibit the conduct of private parties acting in their individual capacities.” Le v. Atrium at Lafreniere, LLC, 2008 WL 1867419 (E.D.La., 2008).

 

Shell alleges that Callais does not have a claim under Section 1985 because: (1) the mere allegation without factual evidence made by Callais proves insufficient for a claim of conspiracy, an essential element to Section 1985; and (2) because according to Exhibit 2, Callais confirms that she did not experience race-based discrimination, another prerequisite for a Section 1985 violation. (Rec. Doc. 27–1 at 9). Shell also states that Callais’ claim of conversion could not prevail because Shell “did not interfere with any movable property owned or possessed by Callais.” (Rec. Doc. 27–1 at 10)(citing Rec. Doc. 27–2 at 3). Lastly, Shell states that Callais has no claim for malicious prosecution or abuse of process because Shell never initiated legal proceedings against Callais, and Callais failed to provide evidence to suggest otherwise. Id. These assertions shifted the burden to Callais to respond, yet, in her opposition to Shell’s motion for summary judgment, Callais failed to provide evidence that material issues of fact as to her claims of Section 1985, Section 1983, conversion or malicious acts remained. (Rec.Doc.31). Therefore, the court deems these claims waived. Shell’s motion for summary judgment is GRANTED.

 

d. Alford’s Motion for Partial Summary Judgment

Alford’s motion for partial summary judgment only addresses the issue of Callais’ § 1983, § 1985, conversion and “malicious acts,” claims. Id. Alford alleges that Callais does not have a claim under Section 1985 because: (1) Callais failed to provide insufficient for a claim of conspiracy, an essential element to Section 1985; and (2) because Callais states that she did not experience race-based discrimination, another requisite for a Section 1985 violation. (Rec. Doc. 28–1 at 2). Alford argues that Callais’ conversion claim must fail, as Callais provides no evidence that Alford “interfered with Callais’ possession or ownership of any movable property.” Id. Lastly, Alford states that Callais has no claim for malicious prosecution or abuse of process because Alford never initiated legal proceedings against Callais, and “in fact, Callais initiated this proceeding.” Id. As Plaintiff again failed to address these claims in her Memorandum in Opposition to Alford’s Motion for Partial Summary Judgment, the Court deems these claims waived for the same reasons as those listed in Section(c) above. Therefore, partial summary judgment is GRANTED in favor of Defendant, Alford.

 

III. Conclusion

Accordingly,

 

IT IS ORDERED that Defendant Shell Oil Company’s Motion for Summary Judgment is GRANTED and all of Plaintiff’s claims against Shell Oil Company are DISMISSED.

 

IT IS FURTHER ORDERED that Defendant Alford Services’ Motion for Partial Summary Judgment is GRANTED and Plaintiff’s 42 U.S.C. § 1983, 42 U.S.C. § 1985, conversion, malicious actions and abuse of process claims against Alford are DISMISSED.

United States District Court,

E.D. New York.

Melinda FREY and Yajaira Ruiz Mercedes, Individually and on behalf of all other persons similarly situated, Plaintiffs,

v.

BEKINS VAN LINES, INC. Triple Crown Mafucci Storage Corp., Triple Crown Moving & Storage, Inc., Judd Levine, Paul Levine and John Does # 1–10, Jointly And Severally, Defendants.

 

No. CV 09–5430.

Aug. 9, 2011.

 

Leeds Morelli & Brown, P.C., by Jeffrey K. Brown, Esq., Carle Place, NY, for Plaintiff.

 

The Cullen Law Firm by Joseph A. Black, Esq., Daniel E. Cohen, Esq., Washington, D.C., for Plaintiffs.

 

Gottlieb & Associates, by Jeffery M. Gottlieb, Esq., New York, NY, for Plaintiffs.

 

Barry N. Gutterman & Associates, P.C., by Barry N. Gutterman, Esq ., Bedford Hills, NY, for Defendant Triple Crown Mafucci Storage Corp ., Triple Crown Moving & Storage, Inc., Judd Levine, Paul Levine.

 

Dombroff Gilmore Jacques & French by Karen M. Berberich, Esq., New York, NY, for Defendants Bekins Van Lines, LLC.

 

WEXLER, District Judge.

This is an action commenced by three Plaintiffs alleging federal and state causes of action arising out of the Plaintiffs’ shipment of household goods by the Defendant companies. Plaintiffs claim, inter alia, that Defendants are engaged in a pattern and practice of quoting lower shipping prices than those ultimately charged—a practice referred to as “low-balling” estimates—with the intent of charging higher amounts. Defendants are also accused of overcharging their customers with respect to a variety of add-on services, including fuel supplements and insurance premiums on policies that Defendants are alleged never to have obtained.

 

Defendants have previously moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint. In the context of that motion, Defendants argued that Plaintiffs’ state law claims were preempted by a broad theory of field preemption, as well as by a specific statutory provision. In a Memorandum and Order dated October 25, 2010, this court rejected the preemption arguments raised, Frey v. Bekins Van Lines, Inc., 748 F.Supp.2d 176 (E.D.N.Y.2010). Presently before the court is Defendants’ motion, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Like the earlier motion, this motion seeks dismissal on the ground of preemption, albeit on a different ground. Upon review of this new argument, and for the reasons set forth below, the motion is granted.

 

BACKGROUND

I. The Parties and Plaintiffs’ Allegations

The court assumes familiarity with the identity of the parties and the facts as set forth in the court’s prior decision denying the motion to dismiss. Briefly stated, Plaintiffs are individuals who have used Defendants’ shipping services. Plaintiffs’ shipments originated in New York and terminated in their current states of residence. Defendant Bekins Van Lines, LLC (“Bekins”) is a motor carrier engaged in the business of transporting household goods. It is a party to an agency agreement with Defendant Triple Crown Mafucci Storage Corporation, (“Mafucci”), pursuant to which Mafucci acts as Bekins’ agent in the transportation of, inter alia, household goods.

 

All Plaintiffs question the veracity of Defendants’ statements regarding their shipments, including those as to estimates and the weight of their goods. In addition to alleging a variety of sharp business practices, it is alleged that the weight tickets submitted to customers were false, fraudulent and/or altered by Defendants.

 

II. The Prior Motion to Dismiss

As noted, Defendants’ first motion to dismiss, made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, sought dismissal of the state law claims on, inter alia, the ground of preemption. In the context of that motion, Defendants argued that the claims were barred by both “field preemption,” i.e., that Congress has evidenced an intent to occupy completely the field of matters arising out of the interstate transport of household goods, and by specific statutory preemption. The specific statutory preemption ground raised in the first motion argued that Plaintiffs’ state law claims were preempted by 49 U.S.C. § 14706(a)(1), referred to as the “Carmack Amendment,” a provision that imposes liability on carriers for “actual loss or injury to the property,” shipped. 49 U.S.C. § 14706(a)(1).

 

The first motion to dismissal also raised grounds not discussed herein. The court’s disposition of those arguments is not repeated here.

 

With respect to the specific statutory argument, the court held that the Carmack Amendment applied only to claims involving damage to goods. As no such claims are raised here, the court held that the Carmack Amendment did not preempt Plaintiffs’ state claims. See Frey, 748 F.Supp.2d at 181. Turning to the issue of field preemption, the court held that the federal government’s regulation evidenced no intent to preempt entirely all claims arising out of the shipment of household goods. Id. In so holding, the court relied on the plain language of 49 U.S.C. § 13103, which states, “except where otherwise provided in this part, the remedies provided under this part are in addition to remedies existing under another law or common law.” 49 U.S.C. § 13103, Thus, the court concluded that Plaintiffs’ claims can “easily stand side by side, and do not conflict with Federal shipping regulations.” Id.

 

III. The Present Motion

The motion presently before the court again relies on preemption. In this motion, Defendants again argue that Plaintiffs’ state law claims are preempted by a specific federal statute. While Plaintiffs first motion argued specific preemption based upon the Carmack Amendment, this motion argues for preemption based upon a different statute, 49 U.S.C. § 14501(c)(l) (“Section 14501(c)(1)”), a provision of the Interstate Commerce Commission Termination Act of 1995 (the “ICCTA”).

 

DISCUSSION

I. Preemption

 

A. Legal Principles

 

The Supremacy Clause of the United States Constitution “invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quotation omitted). Preemption of state laws can be either express or implied. State law is expressly preempted where “a federal statute expressly directs that state law be ousted.” Air Transport Ass’n of America. Inc. v. Cuomo, 520 F.3d 218, 220 (2d Cir.2008), quoting, Ass’n of Int’l Auto. Mfrs. v. Abrams, 84 F.3d 602, 607 (2d Cir.1996); see e.g., Island Park, LLC v. CSX Transp., 559 F.3d 96, 101 (2d Cir.2009) (referring to express statutory preemption provision of Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b), stating that “the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law”).

 

B. Section 14501(c)(1)

Section 14501(c)(1), is a broad preemption provision. It applies to “motor carriers of property,” and provides, in pertinent part, that a State may not “enact or enforce a law … related to a price, route, or service” of any such carrier. 49 U.S.C. § 14501(c)(l). Specifically exempt from this preemption provision are: (1) state safety regulatory powers; (2) insurance requirements and (3) intrastate shipment of goods. See 49 U.S.C. § 14501(2)(3). Those exemption and not relevant here.

 

II. Disposition of the Motion

The issue here is the proper interpretation of the phrase “related to a price, route, or service of any motor carrier.” 49 U.S.C. § 14501(c)(l). More specifically, the court here must determine whether Plaintiffs’ state law claims, which allege, inter alia, fraud, negligence, and the violation of state consumer protection laws, amount to enforcement of state law that is “related to a price, route, or service” of the named motor carriers. In support of the claim of preemption, Defendants argue that the language of the statute is, on its face, sufficiently broad to preempt the present action. Additionally, it is argued that the statute’s legislative history, a 2007 consumer protection report of the Government Accounting Office (the “GAO Report”), and case law interpreting an identically worded preemption provision that appears in the Airline Deregulation Act of 1978 (the “Airline Act”) all point to preemption.

 

Defendants’ last stated argument is most compelling, and the court finds it to be dispositive. The preemption clause in the Airline Act provides that no state may enforce any law “relating to rates, routes or services.” See 49 U.S.C. § 1305(a)(1). With exception of the fact that the Airline Act refers to “rates,” and the ICCTA refers to “price,” the language of preemption is identical. Most importantly, both preemption provisions use the broad term “relating to,” when describing the scope of preemption.

 

As recognized by the Supreme Court in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the ordinary meaning of “related to” is “a broad one -‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with….’ “ Morales, 504 U.S. at 383, quoting, Black’s Law Dictionary 1158 (5th ed.1979). Such words “express a broad pre-emptive purpose.” Id. In Morales, the Supreme Court held the Airline Act’s language of preemption sufficiently broad to bar state regulation of airline rate advertising. Id. at 391.

 

The Court held similarly in American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), when it held that the Airline Act preempted actions brought pursuant to state law consumer protection statutes. There, the court held that the Airline Act preempted actions alleging that the administration of a frequent flyer program was a deceptive practice that violated state consumer protection law. Wolens, 513 U.S. at 226.

 

The Court in Wolens was clear to hold that the Airline Act did not preempt routine breach of contract claims, as such claims are do not allege violation of state-imposed obligations, but of obligations that are contractually self-imposed. Wolens, 513 U .S. at 228–29. The viability of any breach of contract claim, however, is not at issue here, as any such claim was previously dismissed. See Frey 748 F.Supp.2d at 182.

 

In Rowe v. New Hampshire Motor Transport Ass’n., 552 U.S. 364 (2008), the Supreme Court made clear that its interpretation of the Airline Act’s broad language of preemption applies with equal force to the broad language at issue here, i.e., that set forth in the ICCTA. Rowe, 552 U.S. at 370. When this broad interpretation is applied to the claims here, the court can easily conclude that state laws with respect to fraud, negligence, unjust enrichment and consumer protection “relate” to the services of a motor carrier, and are therefore barred by Section 14501(c)(1). Any other interpretation of the “related to” language would be strained, and far too narrow to encompass the plain meaning of such a broad term.

 

Other courts faced with this issue are in agreement. Thus, in Huntington Operating Corp. v. Sybonney Exp., Inc., 2010 WL 1930087(S.D.Tex.2010), the court dismissed as preempted by Section 14501(c)(1), state law claims brought against an interstate shipper that, like those alleged here, were based upon state deceptive trade practices act, negligence, and negligent misrepresentation. Similarly in Yellow Transp., Inc. v. DM Transp. Management Services. Inc., 2006 WL 2871745 (E.D.Pa.2006), the court dismissed, on Section 14501(c)(1) preemption grounds, state law claims brought against a shipper of interstate goods. There, the dismissed claims alleged misrepresentation, unjust enrichment, quantum meruit, and fraud. Yellow Transp., 2006 WL 2871745 *3. Accord Mastercraft Interiors, Ltd. v. ABF Freight Systems, Inc., 284 F.Supp.2d 284, 288 (D.Md.2003) (dismissing as preempted by Section 14501(c)(1) state law claims brought against shipper of interstate goods alleging misrepresentation, negligent misrepresentation and unjust enrichment); Deerskin Trading Post. Inc. v. United Parcel Service of America. Inc., 972 F.Supp. 665, 672 (N.D.Ga.1997) (dismissing as preempted by Section 14501(c)(1) state law claims brought against shipper of interstate goods alleging common law fraud, statutory fraud, negligence, gross negligence, unjust enrichment and imposition of constructive trust). Each of these courts are in agreement in holding that non-contractual state law statutory and tort claims fall within the ICCTA’s language of preemption, and are therefore barred. As noted above, this court agrees.

 

Having held that the ICCTA preemption clause bars Plaintiffs’ state law claims, the court need not address Defendants’ other arguments. The court notes, however, that with respect to the GAO Report relied upon, the court agrees that the report evidences the concern of the agency as to the adequacy of federal protection of the rights of consumers who ship household goods. See generally “Consumer Protection Some Improvement in Federal Oversight of Household Goods Moving Industry Since 2001, but More Action Needed to Better Protect Individual Consumers,” GAO 07–586, Consumer Protection, available online at www.gao.gov/cgi–bin/getrpt?GAO–07–586. The GAO Report studied the protection afforded by federal law to interstate shippers of goods, as well as the protection afforded by certain state laws to consumers who ship goods on an intrastate basis. It was concluded that more action was necessary to protect consumer rights.

 

It is worth noting that when the GAO Report discusses state law, it refers to what might occur if state consumer protection laws were to be applied to the interstate shipment of goods, using phrases such as the “potential to enhance protection” for consumers “if state consumer protections were applied to interstate movers.” This language implies that the GAO study presupposes the fact that consumers shipping goods interstate are not afforded the protection of state law. The fact that the GAO Report concludes that consumers need greater protection, and that such protections might be afforded by allowing states to enforce consumer protection laws, does not mean that such laws are not preempted. It means only what it says—that greater protections are desirable. This conclusion does not speak to the preemption issue. Moreover, it matters not that the state laws sought to be enforced might be consistent with the purposes of the ICCTA and/or the concerns set forth in the GAO Report. Broad preemption displaces all state laws, not only those that further inconsistent purposes. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 387 (1992).

 

CONCLUSION

For the foregoing reasons, the Defendants’ motion to dismiss is granted with respect to all remaining state law claims. Thus, the court hereby dismisses Plaintiffs’ fifth cause of action, alleging violation of New York General Business Law Sections 349 and 350; the sixth cause of action alleging a violation of NYCRR § 814.7; the seventh cause of action alleging unjust enrichment; the eighth cause of action alleging fraud; the ninth cause of action alleging negligence; the tenth cause of action alleging negligent misrepresentation, and the eleventh cause of action alleging violation of good faith and fair dealing based upon the same factual allegations alleged in support of the dismissed causes of action. Discovery as to the remaining causes of action shall continue.

 

SO ORDERED