United States District Court,

D. Massachusetts.

Ca’Ryna BOWMAN

v.

MAYFLOWER TRANSIT, LLC.

 

Civil Action No. 11–11212–RWZ.

Oct. 4, 2012.

 

Justin S. St. James, The Law Office of Justin St. James, Andover, MA, for Ca’Ryna Bowman.

 

Wesley S. Chused, Looney & Grossman LLP, Boston, MA, for Mayflower Transit, LLC.

 

MEMORANDUM OF DECISION

ZOBEL, District Judge.

*1 Ca’ryna Bowman (“Bowman”) hired Mayflower Transit, LLC (“Mayflower”), to move her belongings from California to New Hampshire and Massachusetts. During the move, Bowman alleges, many of her things were lost or damaged. Mayflower now seeks summary judgment on her complaint because she failed to file a written claim for a specified amount of money within nine months after the move.

 

I. Background

Except as indicated, the following facts are undisputed. In May 2008, Bowman hired Mayflower to ship her furniture and household goods from North Hollywood, California, to a storage facility in Nashua, New Hampshire, and to Bowman’s residence in Chelmsford, Massachusetts. She paid $8,880.16 for the move. The goods were loaded onto Mayflower’s truck on May 30, 2008, and delivered by June 9, 2008.FN1 As soon as Bowman saw her articles being delivered, she realized some of them were damaged or missing. Bowman claims she attempted to contact Mayflower by telephone several times to report the problem, but was never able to get through.

 

FN1. The parties apparently dispute whether the goods were delivered on June 8 or June 9. The difference is not material.

 

On March 5, 2009, Mayflower received a letter from Bowman identifying the shipment and asserting Mayflower’s liability for the lost and damaged goods. The letter stated that she had not yet determined the cost of replacement of the goods, and indicated she would forward that information to Mayflower when it was available. The letter also stated that Mayflower was liable for $8,880.16, the amount Bowman had paid for the move, as “full restitution on the services of the contract,” in addition to the cost of replacement. Docket # 1, Ex. A. Finally, the letter sought interest on the amount due and treble damages.

 

Mayflower refused to compensate Bowman to the extent she believed she deserved. She therefore filed this suit, asserting a claim against Mayflower under the Carmack Amendment, 49 U.S.C. § 14706, as well as various state law claims. The court dismissed Bowman’s state law claims as preempted, leaving only her claim under the Carmack Amendment. Mayflower now moves for summary judgment on that last remaining claim.

 

II. Legal Standard

Summary judgment will be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The court must view the record in the light most favorable to the non-moving party, and draw all justifiable inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

 

III. Analysis

The Carmack Amendment and its implementing regulations prohibit interstate carriers (such as Mayflower) from reimbursing a customer for “loss, damage, injury, or delay” to shipped goods unless the customer files a qualifying written claim with the shipper. 49 C.F.R. § 370.3(a); see Nedlloyd Lines v. Harris Transport Co., 922 F.2d 905, 908 (1st Cir.1991). The statute also permits carriers to set a period of no less than nine months within which such claims must be filed. 49 U.S.C. § 14706(e)(1). Based on that provision, Mayflower’s shipping contract required any such claim against it to be filed within nine months from delivery. Because Bowman’s goods were delivered by June 9, 2008, she had until March 9, 2009 to file her claim.

 

*2 Bowman did send Mayflower one written communication about her lost and damaged goods before the claim period expired, namely the letter that Mayflower received on March 5, 2009. However, that letter does not qualify as a “claim” under the Carmack Amendment’s implementing regulations.

 

Under 49 C.F.R. § 370.3(b)(3), a claim for loss or damage to shipped goods must demand “the payment of a specified or determinable amount of money.” That provision is strictly construed in the First Circuit; the claim must demand an exact dollar value. See, e.g., Delphax Sys. v. Mayflower Transit, 54 F.Supp.2d 60, 64 (D.Mass.1999) (estimate of “$40,000 to $50,000” failed to state a specified or determinable amount). Furthermore, the amount demanded must be “relate[d] to the actual damage.” McLaughlin Transp. Sys. v. Rubinstein, 390 F.Supp.2d 50, 59 (D.Mass.2005).

 

Here, Bowman’s letter failed to claim a “specified or determinable amount” for the damage to her goods; instead, it explicitly stated that Bowman had not yet determined the cost of replacing her lost and damaged items. Bowman did claim specific dollar values for “restitution” on her contract, and for fraudulent business practices. However, those amounts are not related to the actual value of the damage to her goods; instead, they are based on the price Bowman paid for shipping. They therefore cannot satisfy 49 C.F.R. § 370.3(b)(3). McLaughlin Transp. Sys., 390 F.Supp. at 59.FN2

 

FN2. To the extent that Bowman’s suit seeks a refund of her shipping charges, her claim is apparently time-barred. See 49 U.S.C. § 1705(a) (civil action for refund of shipping charges must be filed within 18 months from when claim accrues).

 

The First Circuit has recognized two situations in which the failure to file a claim might be excused: if the shipper was unable despite due diligence to ascertain the extent of its loss within the claim filing period, or if the carrier misled the shipper into believing that filing a timely claim was unnecessary. Nedlloyd Lines, 922 F.2d at 909. Bowman does not argue that the former exception applies, nor would the evidence in the record support it. Bowman briefly argues that the second exception applies, based on Mayflower’s instruction in its moving booklet telling customers to complete the written claim form “to the best of your ability.” But given the same booklet’s explicit instructions that a proper claim must demand a specific or determinable amount of money, the record cannot support a reasonable inference that Mayflower misled Bowman into believing her letter would suffice. Bowman also points to Mayflower’s conduct after the filing deadline expired, including investigating Bowman’s claim and offering her a settlement; but Bowman does not explain how that conduct could excuse her prior failure to file a timely claim.

 

If Bowman’s allegations are true, Mayflower’s clumsy and unprofessional movers caused substantial damage to her property. But Congress and the Federal Motor Carrier Safety Administration have decided that shippers in Bowman’s position shall have no recourse unless they file a timely written claim demanding a specific amount related to the actual property damage suffered. Because Bowman never filed such a claim, summary judgment must enter for Mayflower.

 

IV. Conclusion

*3 Mayflower’s motion for summary judgment (Docket # 23) is ALLOWED. Bowman’s motion to compel (Docket # 22) and Mayflower’s motion to file a reply brief (Docket # 30) are DENIED as moot. Judgment shall enter accordingly.

 

United States District Court,

W.D. Oklahoma.

Dwight BURCH, Plaintiff,

v.

Yuniesky PAYNE–JIMENEZ, TLT Trucking, Inc., and Travelers Property & Casualty Insurance Company, Defendants.

 

No. CIV–12–748–M.

Oct. 4, 2012.

 

Deeann L. Germany, Derek K. Burch, James A. Scimeca, Burch & George, Oklahoma City, OK, for Plaintiff.

 

Benjamin J. Oxford, James K. Secrest, II, Jennifer L. Struble, Secrest Hill & Butler, Tulsa, OK, for Defendants.

 

ORDER

VICKI MILES–LaGRANGE, Chief Judge.

*1 Before the Court is Plaintiff’s Motion to Remand and Brief in Support filed, August 1, 2012. Defendant TLT Trucking, Inc.’s response was filed on August 23, 2012. Plaintiff’s reply was filed on August 29, 2012. Based upon the parties submissions the Court makes its determination.

 

I. Introduction

On or about June 9, 2010 in Caddo County, Oklahoma defendant Yunieski Payne–Jimenez and plaintiff were involved in an automobile accident. Plaintiff contends that at the time of said automobile accident defendant Yunieski Payne–Jimenez was an agent, servant and/or employee of defendant TLT Trucking, Inc. Plaintiff contends as a result of this accident and defendants’ negligence he sustained personal injuries. Plaintiff contends at the time of this accident, defendant Travelers Property & Casualty Insurance Company had a motorist coverage insurance policy providing coverage to plaintiff for his injuries.

 

On October 28, 2011, plaintiff filed a lawsuit in the District Court of Caddo County, State of Oklahoma seeking judgment against the defendants, Yuniesky Payne–Jimenez, TLT Trucking, Inc., and Travelers Property & Casualty Insurance Company (“defendants”) jointly and severely, in amounts in excess of Seventy–Five Thousand Dollars ($75,000.00) for actual damages, plus costs and interest and any other relief the court deemed just and reasonable. Summons were issued on October 28, 2011 with TLT Trucking, Inc.’s return of service dated January 14, 2012 and the Oklahoma Insurance Department’s return of service dated January 17, 2012. On February 8, 2012, counsel of record, D Lynn Babb filed entry of appearance in the case as counsel for defendant Travelers Property & Casualty Insurance Company. Defendant TLT Trucking Inc. filed its Notice of Removal from the District Court of Caddo County, number CJ–2011–135 on July 2, 2012. Plaintiff now seeks remand based on defendant’s untimely filed notice of removal.FN1

 

FN1. In light of the Court’s ruling, plaintiff’s request for remand based on defendant Travelers Property & Casualty Insurance Company’s failure to join co-defendants will not be addressed in the Court’s order.

 

II. Standard of Review

In order to timely remove a case,

 

[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

 

28 U.S.C. § 1446(b)(1). However, § 1446(b)(3) provides, in pertinent part:

[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

 

28 U.S.C. § 1446(b)(3). “Under § 1446(b), the removal period does not begin until the defendant is able to intelligently ascertain removability so that in his petition for removal he can make a simple and short statement of the facts.” Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1078 (10th Cir.1999) (internal quotations omitted).

 

III. Discussion

*2 Plaintiff contends this lawsuit should be remanded to the District Court of Caddo County, Oklahoma, because defendant TLT Trucking Inc. did not timely remove the case from state court. Plaintiff contends TLT Trucking Inc. was served on January 14, 2012 and filed its Notice of Removal five months after it was served. Plaintiff contends TLT’s notice of removal filed on July 2, 2012 was not timely under 28 U.S.C. § 1446(b), and therefore this matter should be remanded to the state court. Plaintiff also contends defendants were made aware of plaintiff’s residency prior to the lawsuit even being filed by defendants receipt of the vehicle accident report. Defendant TLT Trucking, Inc. contends it was unable to ascertain plaintiff’s residency from his petition filed in this matter. Defendant TLT contends that it was not until it contacted co-defendant, Travelers Property & Casualty Insurance Company and requested copies of discovery responses from plaintiff on June 1, 2012 was it made aware of plaintiff’s residency, and thus, whether the case was one which is removable. TLT contends its July 2, 2012, Notice of Removal was therefore, filed timely.

 

IV. Conclusion

Having carefully reviewed the parties’ submissions, and pursuant to 28 U.S.C. § 1446(b), the Court finds defendant TLT Trucking, Inc .’s Notice of Removal untimely. Specifically, the Court finds TLT Trucking Inc.’s receipt of the vehicle accident report prior to the filing of this lawsuit and its subsequent return of service dated January 12, 2012 provided TLT Trucking, Inc. notice that this case is one which is or has become removable prior to June 1, 2012. Accordingly, for the reasons set forth above, the Court GRANTS Plaintiff’s Motion to Remand [docket no. 14] and REMANDS this matter to the District Court of Caddo County, State of Oklahoma.

 

IT IS SO ORDERED.