United States District Court,

C.D. California.

PERSONAL COMMUNICATIONS DEVICES, Plaintiff,

v.

PLATINUM CARGO LOGISTICS, INC., Defendant.

 

No. SACV 09–00516 DDP (ANx).

July 29, 2011.

 

Carl Henry Delacato, Jr., Michael S. O’Reilly, Nick P. Christopher, Gibbons PC, New York, NY, Charles Stephen Donovan, Paul Lyman Seeley, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, Serena F. Martinez, Sheppard Mullin Richter & Hampton LLP, Costa Mesa, CA, Jason David Bosch, Alhambra, CA, for Plaintiff.

 

Cameron W. Roberts, Roberts & Kehagiaras LLP, Los Angeles, CA, Richard L. Furman, Carroll McNulty & Kull LLC, New York, NY, Christopher Chad McNatt, Jr., Scopelitis Garvin Light Hanson & Feary LLP, Pasadena, CA, Stephen M. Uthoff, Uthoff Law Corporation, Long Beach, CA, Miles L. Kavaller, Miles L. Kavaller Law Offices, Encino, CA, William C. Saacke, McNulty and Saacke, Torrance, CA, for Defendant.

 

ORDER DENYING PLAINTIFF’S MOTIONS FOR RECONSIDERATION

DEAN D. PREGERSON, District Judge.

Presently before the court are Plaintiff’s Motion for Reconsideration of Partial Summary Judgment Entered in Favor of Platinum Cargo Logistics, Inc. (Dkt. No. 87) and Plaintiff’s Motion for Reconsideration of Partial Summary Judgment Entered in Favor of Celestial Freight Solutions, Inc. (Dkt. No. 88). Having reviewed the submissions of the parties, the court DENIES the motions and adopts the following order.

 

I. Background

As described more fully in this court’s earlier orders, Plaintiff Personal Communications Devices (“PCD”) tendered seven shipments of mobile phones to Defendant Platinum Cargo Logistics, Inc. (“Platinum”) for transportation from California to Kentucky. Rather than accept Platinum’s standard limitation of liability, PCD elected a higher declared value of $35,000 per shipment, totaling $245,000. PCD also obtained insurance of $5 million per truckload.

 

Platinum subcontracted carriage to defendant Celestial Freight Solutions, Inc. (“Celestial”).

 

According to PCD, the parties agreed to follow certain security procedures, including separate transportation of the seven phone shipments. However, contrary to the agreement of the parties, PCD alleges, Platinum consolidated the seven phone shipments into one truckload, valued at approximately $7.7 million. One day after Celestial picked up the shipment for transport, the truck, trailer, and phones were stolen from an unlocked truck yard. The phones were never recovered.

 

PCD brought suit against Platinum, Celestial, and the truck drives asserting causes of action for (1) breach of contract 1 (against Platinum only); (2) breach of bailment obligations; (3) negligence, gross negligence, recklessness and/or wilfulness; and (4) conversion. On October 6, 2009, this court dismissed Platinum’s state law claims as preempted by the Carmack Amendment to the Interstate Commerce Act of 1887, 49 U.S.C. § 14706. (Dkt. No. 37).

 

Platinum then moved for partial summary judgment, seeking to establish that Platinum’s liability under the Carmack Amendment is limited to $245,000.  (Dkt. No. 56). On September 22, 2010, the court granted the partial motion for summary judgment with respect to both Platinum and Celestial. (Dkt. No. 75). PCD now moves for reconsideration of the court’s September 22 order.

 

Celestial joined in Platinum’s Motion for Partial Summary Judgment. (Dkt. No. 58).

 

II. Legal Standard

“[A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003). In addition, Local Rule 7–18 provides that:

 

A motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.

 

C.D. Cal. L.R. 7–18.

 

III. Discussion

 

A. Platinum

 

In its motion for reconsideration, PCD argues that compliance with the agreed-upon security procedures is a condition precedent to Platinum limiting its liability to $245,000. (Memorandum in Support of Plaintiff’s Motion for Reconsideration (Dkt. No. 87) at 6). PCD asserts that this court failed to consider these security agreements in granting partial summary judgment to Platinum. (Plaintiff’s Reply at 1, 3).

 

The Carmack Amendment generally limits a carrier’s liability to the actual loss or injury caused by the carrier. 49 U.S.C. § 14706(a). A carrier may, however, under certain circumstances, limit its liability to some other reasonable value. 49 U.S.C. § 14706(c)(1)(A). In order to successfully limit liability under the Carmack Amendment, a carrier must (1) give the shipper a reasonable opportunity to choose between levels of liability, (2) obtain an agreement as to the shipper’s choice of carrier liability, and (3) issue a bill of lading prior to shipment. See, e.g. Hughes Aircraft Co. v. North Am. Van Lines, 970 F.2d 609, 611–12 (9th Cir.1992); see also Atlantic Mut. Ins. Co. v. Yasutomi Warehousing and Distribution, Inc., 326 F.Supp.2d. 1123, 1126–27. (C.D.Cal.2004).

 

In granting partial summary judgment to Platinum, this court concluded that Platinum satisfied the three Carmack Amendment requirements. Amended Order Granting Defendant’s Partial Motion for Summary Judgment (Dkt. No. 75) at 8. In its motion for reconsideration, PCD does not contest this conclusion. Instead, PCD suggests that Platinum must meet an additional requirement: compliance with the terms of the contract (namely, the security provisions).

 

PCD points to out of circuit precedent for the contention that liability provisions must be “strictly construed” and “carefully scrutinized” and “strictly construed.” Emerson Elec. Supply Co. v. Estes Express Lines, Corp., 451 F.3d 179, 186 (3d Cir.2006); St. Paul Fire & Marine Ins. Co. v. Schneider Nat’l Carriers, Inc., 2006 WL 522455 at(S.D.N.Y.2006). Regardless of the level of scrutiny applied, however, courts agree that the factors relevant to the liability inquiry are the three factors set out in Hughes. See Emerson Electric, 451 F.3d at 186, St. Paul Fire, 2006 WL 522455 at *8. PCD does not cite, nor is the court aware of, any authority supporting the proposition that carriers must go beyond the Hughes requirements to successfully limit liability under Carmack.

 

Furthermore, PCD’s argument suffers from circular reasoning. PCD’s only remaining claim is a Carmack Amendment for breach of contract. PCD argues here that (1) Platinum failed to limit its liability for breach of contract because (2) Platinum breached the contract. Such an approach, under which a carrier could only limit its liability through compliance with the terms of the contract, would render Hughes, and any attempt at limitation of liability, meaningless.

 

B. Celestial

Though PCD did not object to Celestial’s joinder in Platinum’s Motion for Partial Summary Judgment, PCD now argues that Celestial, as a subcontractor, does not enjoy the benefit of Platinum’s limitation of liability. (Memorandum in Support of Plaintiff’s Motion for Reconsideration of Partial Summary Judgment Entered in Favor of Celestial Freight Solutions, Inc. (Dkt. No. 88) at 4. To support this argument. PCD cites to Royal & Sun Alliance Ins. PLC v. UPS Supply Chain Solutions, Inc., 2010 WL 3000052 (S.D.N.Y.) July 23, 2010. Royal, however, was decided in the Southern District of New York, and is not binding on this court. Furthermore, Royal was decided prior to PCD’s opposition to Platinum’s Motion for Partial Summary Judgment, and roughly five weeks prior to this court’s hearing on the matter. Accordingly, Royal provides no basis for granting reconsideration of this court’s order with respect to Celestial. See Carroll, 342 F.3d at 945; C.D. Cal. L.R. 7–18.

 

IV. Conclusion

The court has considered the security provisions of the contract of carriage referenced in PCD’s Motion for Reconsideration. Those provisions do not affect the court’s conclusion that Platinum complied with the requirements of the Carmack Amendment, and successfully limited its liability to $245,000. There has been no intervening change in controlling law. Accordingly, PCD’s Motions for Reconsideration are DENIED.

 

IT IS SO ORDERED.

United States District Court,

E.D. New York.

Aston BAKER, pro se, Plaintiff,

v.

UNITED VAN LINES, Nassau Worldwide Movers, and Tim Knuth, Defendants.

 

No. 10–CV–1425 (DLI)(LB).

July 29, 2011.

 

Kiva V. James, Global Wealth Foundation, New York, NY, for Plaintiff.

 

SUMMARY ORDER

DORA L. IRIZARRY, District Judge.

Pro se Plaintiff Aston Baker brought this action against United Van Lines (“United”), Nassau Worldwide Movers (“Nassau”) and Tim Knuth (“Knuth”), alleging, in essence, that they “fail[ed] to return [his] personal belonging[s] and furniture.” (Compl. at 2.) In reviewing Plaintiff’s request for entry of default against Defendants, it appeared that subject matter jurisdiction might be lacking. Accordingly, the court directed Plaintiff to demonstrate a basis for jurisdiction. (See Docket Entry 19.)

 

Although Plaintiff is apparently represented by Kiva James, Esq., (see Docket Entries 14, 20), he filed the complaint pro se and prepared the May 12 Memorandum, (see Docket Entry 21), himself.

 

Familiarity with the court’s April 15, 2011 Order, as well as the facts and background of this matter, is assumed and, thus, will not be discussed in detail herein. Only those facts necessary to the discussion shall be set forth herein.

 

Plaintiff now alleges federal question jurisdiction based on the Carmack Amendment to the Interstate Commerce Act of 1887, 49 U.S.C. § 14706 (“the Carmack Amendment”), and, in the alternative, the Fair Credit Billing Act, 15 U.S.C. § 1666–1666j. (Pl. Mem. of Law at 2.) Plaintiff additionally alleges jurisdiction based on diversity jurisdiction. (Pl. Mem. of Law at 3.) As a pro se litigant, Plaintiff’s pleadings are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Thus, the court will construe his pleadings and papers “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (emphasis omitted).

 

 

Federal question jurisdiction is invoked where the plaintiff’s claim arises “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under federal law within the meaning of the general federal question statute only if the federal question appears in the facts of the plaintiff’s well-pleaded complaint. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). As an initial matter, the complaint in this case contains no reference to either the Carmack Amendment or the Fair Credit Billing Act.

 

The Carmack Amendment, which governs interstate shipments of goods, states: “[a] carrier providing transportation or service subject to jurisdiction … shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier … [is] liable to the person entitled to recover under the receipt or bill of lading.” 49 U.S.C. § 14706. See Shapiro v. Prime Moving & Storage, 2007 WL 2572116 (E.D.N.Y. Aug.31, 2007) (citing Cleveland v. Beltman N. Am. Co., 30 F.3d 373 (2d Cir.1994) (married couple’s claim against movers for damage to household belongings that occurred during interstate move arose under the Carmack Amendment)); see also Ideal Steel Supply Corp. v. Jan Trucking & Rigging, Inc., 2006 WL 1120608, at(E.D.N.Y. Apr.26, 2006).

 

Plaintiff asserts that the Defendants are liable for the loss of his personal property arising from the transportation of those goods from New Jersey to New York. (Pl. Mem. at 2.) The Complaint and attached exhibits contain the following relevant facts. In December 2005, Plaintiff contacted Nassau, an agent of United, (see Compl.; Ex. B), and met with Knuth regarding the removal and storage of Plaintiff’s personal property from his home in Wall, New Jersey. (Compl. at 1; Ex. B.) Sometime thereafter, Plaintiff removed nine boxes from the storage facility in Branchburg, New Jersey, and Nas $2100 … [which] was in addition to the approximately $35,000 they have collected to remove our personal belongings and furniture to their storage facilities for a monthly rental of $1500.” (Comp. at 1.) On November 12, 2007, Plaintiff wrote to Knuth, contesting the $2100 storage fee and requesting that the remainder of his property be prepared for his retrieval. (Comp. at 1–2; see Exs. A, B.) Plaintiff alleges that he “never heard from [Knuth] again until [he] received a certified letter stating that the things were removed from South Jersey to Long Island and will be auctioned off for $10,607.29.” (Compl. at 2; Ex. C.) The letter from Nassau, dated September 24, 2008, advises Plaintiff of an outstanding balance of $10,607.29 and advises that, if full payment is not received within thirty days from receipt of the letter, his storage will be turned over to an auction agency. (Ex. C.) Neither the Complaint nor Plaintiff’s Memorandum contain any reference to an agreement for the interstate shipment of goods. Thus, Plaintiff has failed to establish a claim arising under the Carmack Amendment. See 49 U.S.C. § 14706.

 

The Fair Credit Billing Act provides for individual consumer rights with regard to billing where credit has been extended. 15 U.S.C. §§ 1666 et seq. Plaintiff contends that: (i) the Defendants “repeatedly bungled the billing for storage of property during the time that [his] household items were in Defendants’ possession,” (ii) the Defendants “eventually improperly converted and sold [his] property, and (iii) “[Plaintiff] was a victim of fraud and misrepresentation on the part of the Defendants.” (Pl. Mem. at 2.) Construing these allegations to raise the strongest arguments they suggest, these conclusory allegations are insufficient to provide this court with a basis for determining jurisdiction under the Fair Credit Billing Act.

 

Finally, Plaintiff asserts jurisdiction based on diversity, alleging that Plaintiff is a citizen of New York, United is a citizen of New Jersey, and, “upon information and belief,” Defendants Nassau and Knuth are also citizens of New Jersey. (Pl. Mem. at 3.) However, those allegations are not borne out by Plaintiff’s pleadings or service upon Defendants.

 

Diversity jurisdiction exists where there is complete diversity of citizenship between the parties and the amount in controversy exceeds the sum or value of $75,000, exclusive of costs and interest. See 28 U.S.C. § 1332(a). To have complete diversity, “each plaintiff’s citizenship must be different from the citizenship of each defendant.” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir.2009). It is well established that the party seeking to invoke diversity jurisdiction bears the burden of demonstrating the grounds for diversity exist and that diversity is complete. See Advani Enter. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir.1998).

 

“An individual’s citizenship … is determined by his domicile…. Domicile is the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.”   Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir.2000). A corporation, however, is “deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business …. 28 U.S.C. § 1332(c)(1); see also Advani, 140 F.3d at 161 (2d Cir.1998). See also IGY Ocean Bay Props., Ltd. v. Ocean Bay Props. I Ltd., 534 F.Supp.2d 446, 448 (S.D.N.Y.2008) (holding that for diversity purposes, a corporation is deemed to be a citizen both of the state in which it has its principal place of business and of any state in which it is incorporated).

 

Accordingly, in order for there to be complete diversity of citizenship, a corporate defendant cannot be incorporated, nor have its principal place of business, in the same state in which the plaintiff is a citizen at the time the action is filed. Drake v. Lab. Corp. of Am. Holdings, 323 F.Supp.2d 449, 451 (E.D.N.Y.2004). Baker asserts that he is a citizen of New York. Nassau’s printed letterhead indicates the address 63 Lamar Street, West Babylon, New York 11704. (Compl., Ex. C.) Plaintiff originally attempted service upon Knuth and Nassau at that same West Babylon address. (See Docket Entry 5.) Defendant also served Nassau at the Office of the Secretary of State of New York. (See Docket Entry 6.) It is clear from these facts that Nassau was a citizen of New York at the time the action was filed, thus defeating diversity jurisdiction. Because Plaintiff has not met his burden of demonstrating diversity, we need not address the amount in controversy requirement.

 

For the foregoing reasons, Plaintiff has failed to establish federal subject matter jurisdiction. Accordingly, Plaintiff’s complaint must be dismissed for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(h)(3). See Petway v. N.Y.C. Transit Auth., 2010 WL 1438774, at(E.D.N.Y. Apr.7, 2010).

 

Moreover, the complaint is dismissed with prejudice. Ordinarily, a district court should not dismiss a pro se complaint without granting leave to amend. Cruz v. Gomez, 202 F.3d 593, 597–98 (2d Cir.2000); Gomez v. USAA Federal Sav. Bank, 171 F.3d 794, 796 (2d Cir.1999). However, amendment would be futile and, therefore, the complaint should be dismissed with prejudice.

 

CONCLUSION

For the reasons set forth above, Plaintiff’s complaint is dismissed with prejudice. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

 

SO ORDERED.