Superior Court of New Jersey,

Appellate Division.

Natalie HUFFIN, Plaintiff–Appellant,

v.

BEAM BROTHERS TRUCKING, INC., and Thomas Hostetter, Defendants–Respondents.

 

Argued Sept. 10, 2013.

Decided Sept. 19, 2013.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L–10382–08.

David S. Rochman argued the cause for appellant.

 

Daniel S. Jahnsen argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Mr. Jahnsen, on the brief).

 

Before Judges FISHER, ESPINOSA and KOBLITZ.

 

PER CURIAM.

*1 In this personal injury action, plaintiff, then employed by the United States Postal Service at its now closed transfer facility in Carteret, alleged she was struck by a “post-con” FN1 as a result of the negligence of defendant Beam Brothers Trucking’s driver, defendant Thomas Hostetter. Defendants’ position throughout this case and at trial was that the incident never occurred. At the conclusion of an eight-day trial, the jury agreed with defendants. In her appeal, plaintiff contends that defense counsel’s opening and closing statements were improper and that the trial judge erred in admitting a surveillance tape and certain medical and employment records. We find no error and affirm.

 

FN1. A “post-con” was described as a moveable metal cage with shelves for carrying mail. Witnesses testified differently about the precise size of a post-con. Plaintiff testified they are approximately six feet tall and four feet wide.

 

Plaintiff’s allegations as to the manner in which plaintiff was injured are not particularly germane to this appeal. It suffices to mention that, on December 15, 2006, plaintiff was working for the postal service as an expediter. An expediter meets incoming trucks and ensures the accuracy and integrity of the sealed incoming and outgoing mail containers. Plaintiff testified that while in the process of signing out a driver, she was struck by a post-con containing mail pushed by Hostetter; she claimed that impact caused her to be violently shoved three to five feet forward. Hostetter testified no such incident ever occurred, and defendants asserted no knowledge of plaintiff’s belief that Hostetter had caused her to be injured until served with the complaint in this action.

 

In appealing the jury’s defense verdict, plaintiff contends that defense counsel’s arguments to the jury—in both his opening statement and summation—were improper. We turn first to defense counsel’s opening statement.

 

The fundamental purpose of an opening statement is “to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence.” Farkas v. Board of Chosen Freeholders, 49 N.J.Super. 363, 367–68 (App.Div.1958); see also Passaic Valley Sew. Comm’rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960); Szczecina v. PV Holding Corp., 414 N.J.Super. 173, 178 (App.Div.2010). An opening statement should be “summary and succinct” and “[n]othing must be said which the lawyer knows cannot in fact be proved or is legally inadmissible.” Passaic Valley, supra, 32 N.J. at 605. Counsel, of course, must not “make derisive statements about parties, their counsel, or their witnesses.” Szczecina, supra, 414 N.J.Super. at 178. Defense counsel’s opening statement did not offend any of these principles.

 

In pursuing this aspect of the appeal, plaintiff alludes to defense counsel’s reference to a defense radiology expert, Dr. Douglas Noble. During pretrial discussions regarding a number of evidence issues, the judge directed defense counsel not to make reference to Dr. Noble because it had not been determined whether he would be permitted to testify. Indeed, defense counsel invited that ruling by advising the judge that he was leaning toward not calling the expert to testify. Defense counsel did, however, refer in his opening to Dr. Noble having been retained to interpret MRIs regarding plaintiff’s condition. To be sure, this discussion in the opening was contrary to the trial judge’s direction—and plaintiff objected for that reason—but plaintiff’s counsel opened the door. That is, despite counsel’s earlier consternation that defense counsel might refer to Dr. Noble in his opening statement, and despite successfully convincing the judge that no mention should be made, plaintiff’s counsel made the following argument in his opening:

 

*2 Now, defense counsel again is not without expert, and they’re not without expert in this realm, they have put us on notice that we may hear from Dr. Noble. I will suggest to you now and if we do hear from Dr. Noble that Dr. Noble has not reviewed the litany of the films, you’re going to hear that Dr. Noble never met Ms. Huffin, never evaluated Ms. Huffin, never saw Ms. Huffin, never examined Ms. Huffin.

 

In response, defense counsel made the following short comment about Dr. Noble:

Now, with respect to Dr. Noble, counsel is critical of the fact that I have a radiologist, all right. What am I supposed to I—I have no idea, I don’t read the films myself, and if I could read a film I couldn’t put it out there and tell you what it said—what an MRI said. I’m a lawyer, you know I—which means I can’t do math, and I can’t do medicine. Ask me how to multiply and still remainder, I’ve been carrying the one for years and I have no idea why. But I brought in Dr. Noble for one purpose what do these films say, that’s all, and he’ll be able to tell you what they say. But what you haven’t heard is that the MRIs—her MRIs of her lo—her lumbar spine that were taken 1999, years before this incident took place. And I’m not going to suggest to you what they say or even tell you what the doctor said, that’s his job. But why would you ever subject yourself to an MRI if you didn’t have (inaudible). Think about it. You know it’s like it’s not sitting on the beach. You know why would you go through a machine—why would someone write a prescription for you to go through a machine for no problem? And have (inaudible). There’s doctors here, I’m going to get some criticism with respect yes, I hired a radiologist, I don’t know how to read films.

 

Because plaintiff’s counsel opened the door and advised the jury that defendant might call Dr. Noble to the stand, and then criticized the scope of Dr. Noble’s involvement, defense counsel was thoroughly justified in responding as he did.

 

Plaintiff also argues that defense counsel exceeded the bounds of proper advocacy in his opening statement in numerous other respects. Specifically, plaintiff refers to defense counsel’s comments that: (1) plaintiff’s concerns about a surveillance videotape are “nonsense”; (2) plaintiff, when seen in the emergency room after the alleged incident, “doesn’t have so much as a bruise, not a single bruise on her body”; (3) the case “snowballs from obviously 2006 to now, it’s four and a half years”; (4) if the incident actually occurred, a driver such as Hostetter would have been required to “fill out” an incident report and no such report was filed; (5) plaintiff had filed prior workers’ compensation claims; (6) Hostetter is “about 5’10” I think, he never had a problem seeing on the other side” of post-cons; (7) defense counsel’s proclivity for catching a red light at a particular intersection as an example of why defendants would not be aware of something that was not out of the ordinary; (8) despite her claims of a significant personal injury, plaintiff “could sit for a day and a half and watch this jury get picked, she could be a jury consultant”; (9) this was “the third time she’s been hit by something in the postal facility, the third time”; (10) Hostetter was “ticked off at this” because the incident “didn’t occur”; (11) defense counsel was not in court “to win” but to see “that justice is done,” suggesting the only just verdict would be one in favor of defendants. We find plaintiff’s arguments regarding these statements—either individually or collectively—to be without merit and require no further discussion. R. 2:11–3(e)(1)(E). It may be arguable that some of these comments may be viewed as a departure from the essential purpose of an opening statement—to succinctly summarize the case so the jury may appreciate the evidence it is about to hear—particularly those comments in which defense counsel referred to his client as being “ticked off” at having to defend against a claim which had no basis in fact. We do not, however, view counsel’s brief comments as having any tendency to interfere with the fairness of the trial. Indeed, the experienced judge, in response to plaintiff’s many objections about defense counsel’s opening statement, immediately reminded the jury that what counsel had said was not evidentiary. Plaintiff was not prejudiced.

 

*3 Unlike an opening statement, which, as we have noted, is intended to succinctly map for the jury the nature of the allegations and defenses so the jury might better appreciate the evidence about to be presented, attorneys are given “broad latitude in summation,” Rodd v. Raritan Radiologic Assoc., P.A., 373 N.J.Super. 154, 171–72 (App.Div.2004), and “may argue from the evidence any conclusion which a jury is free to arrive at” and “draw conclusions even if the inferences that the jury are asked to make are improbable, perhaps illogical, erroneous or even absurd,” Spedick v. Murphy, 266 N.J.Super. 573, 590–91 (App.Div.), certif. denied, 134 N.J. 567 (1993). In summation, counsel must also refrain from using disparaging language of the parties, attorneys or witnesses. Rodd, supra, 373 N.J.Super. at 171.

 

Plaintiff’s counsel argues in this appeal—for the first time—that defense counsel was referring directly to plaintiff when in his summation he told the jury that “today … is the day where [defendant] finally got the ‘monkey off his back.’ “ There is not the slightest doubt that counsel was not making a reference to the fact that plaintiff is African–American in making this argument to what plaintiff asserts was an “all white jury.” FN2 Indeed, plaintiff’s counsel’s failure to object at trial or by way of a motion for a new trial demonstrates that plaintiff and her counsel understood that the comment was not intended to be offensive in the manner in which plaintiff now argues. As Chief Justice Weintraub explained for the Court in State v. Macon, 57 N.J. 325, 333 (1971), a failure to object at trial permits an inference that the appellant believed the offending event “was actually of no moment.” It is unimaginable that if the comment was meant to carry or could be understood as carrying the incendiary connotation plaintiff now urges that plaintiff’s counsel would have sat silently by and uttered no complaint or outrage until filing a brief in this court. Clearly, defense counsel was not referring to plaintiff but to this aged lawsuit as the monkey on defendants’ back.

 

FN2. Because the record provides no information as to the racial make up of the jury, we have only plaintiff’s counsel’s assertion in this regard to support the claim that the jury consisted only of Caucasians.

 

We lastly consider and find without merit plaintiff’s arguments regarding the admission of a surveillance videotape and certain medical records. The videotape is not contained in the record on appeal but it was thoroughly described by the trial judge after he reviewed it in order to rule on plaintiff’s objection prior to its use during the trial. The surveillance tape FN3 only showed images; there was no accompanying sound.

 

FN3. The video was created not by defendants but by the postal service, which was apparently suspicious of the legitimacy of plaintiff’s claim because of her many prior claims.

 

Useful surveillance tapes normally contain depictions of a plaintiff engaging in conduct inconsistent with the claimed injuries. See, e.g., Ostrowski v. Cape Transit Corp., 371 N.J.Super. 499, 503 (App.Div.2004), aff’d o.b., 182 N.J. 585 (2005). That was not the case here. The judge observed that the tape did not show plaintiff doing anything dramatic or inconsistent with her claims about the extent of her injuries, summarizing that the videotape was hardly a “smoking gun” for the defense. In fact, at trial, plaintiff was able to defuse any concerns about the videotape through testimony that plaintiff’s treating physician had recommended she not be sedentary at that time. The judge noted that “the visual images shown in [the] tape do not reflect [plaintiff] at all lifting anything or bending for more than a second or two, almost literally a second or two into … that [car] trunk without removing anything.” In fact, the experienced judge stated that “if I were the defense attorney … I would really have some thoughts about whether or not to use [the videotape], because it doesn’t show anything other than that she had the capacity to stand for a few minutes at a time outside her home…. All we know is that she was standing outside not lifting anything” as apparently others moved furniture or other property out of her home.

 

*4 Plaintiff argues that the foundation for the admission of this videotape was insufficient because the recording did not meet the requirements of State v. Driver, 38 N.J. 255, 287 (1962). In Driver, the Court reversed a first-degree murder conviction because, among other things, an audio recording of the defendant was admitted even though it “was garbled, full of static and other foreign sounds[,] … unintelligible and inaudible for the most part.” Id. at 288. The Court determined that, as a condition of admissibility, the proponent must show that

 

(1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.

 

[Id. at 287]

 

Plaintiff argues that these conditions were not met.

 

It is arguable that a rigorous application of these conditions is not required in light of the advances in technology since 1962 or in light of the fact that the jury in Driver was considering whether defendant was guilty of first-degree murder and here the jury was only considering whether plaintiff’s injuries were as severe as she alleged. We need not, however, contemplate whether some adjustment of Driver may be overdue in light of the passage of time or when applied to a videotape used in a civil case, particularly when, as here, plaintiff did not deny that the videotape accurately depicted her.

 

Ultimately, we leave evidence determinations to the discretion of the trial judge and review claims of error in this regard through application of the abuse of discretion standard. Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369, 383–84 (2010). The judge viewed the videotape and concluded that it was relevant, not prejudicial and, ultimately, rather inconsequential. We defer to the experienced judge’s exercise of discretion in this case.

 

Plaintiff lastly argues that the judge erred in admitting one page of an emergency room record regarding plaintiff’s treatment on the date of the alleged incident and one page of a postal ledger with an entry a short time after the incident that appears to memorialize plaintiff’s description of the event in question. The former arguably suggests that plaintiff’s claimed injury was not as severe as she alleged in this case; plaintiff’s concern with the latter was that it referred to prior back injuries. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E). We add only, with respect to the former document, that plaintiff made use of the entire emergency record during the examination of her expert witness, Dr. Andres Calderon, and as a result was able to draw out from the emergency record those hearsay statements helpful to her. We, therefore, find no appreciable prejudice to plaintiff in the fact that the defense was able to make use of another portion of the same record; any other ruling would have been fundamentally unfair to defendants. And plaintiff’s concern about the latter document—that it referred to prior injuries—is misguided because the trial judge ordered that the references to the prior injuries be redacted before the document was given to the jury for use in its deliberations.

 

*5 Affirmed.

United States District Court,

N.D. Illinois,

Eastern Division.

NATIONWIDE FREIGHT SYSTEMS, INC., Leader U.S. Messenger, Inc., and Stott Contracting, LLC, Plaintiffs,

v.

Thomas BAUDINO, Craig Baner, and Latrice Kirkland–Montague, Defendants.

 

No. 12 C 2486.

Sept. 23, 2013.

 

Tomasz Koziol, Tami J. Diamond, Kurt E. Vragel, Jr., Kurt E. Vragel, Jr., PC, Glenview, IL, for Plaintiffs.

 

Thomas A. Ioppolo, Deborah Morgan Beltran, Illinois Office of the Attorney General, Chicago, IL, for Defendants.

 

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge.

*1 Plaintiffs Nationwide Freight Systems, Inc. (“Nationwide”), Leader U.S. Messenger, Inc. (“Leader”), and Stott Contracting, LLC (“Stott”) (collectively “Plaintiffs”) are motor carriers that have been separately investigated and charged by the Illinois Commerce Commission (“ICC”). (Dkt. No. 41 (“Pls.’ SMF”) ¶ 2.) Plaintiffs are seeking declaratory and injunctive relief, and allege that document requests made by ICC agents Thomas Baudino (“Baudino”) and Craig Baner FN1 (“Baner”), later upheld by ICC Chief Administrative Law Judge Latrice KirklandMontague FN2 (“Kirkland–Montague”) (collectively “Defendants”), are preempted by 49 U.S.C. § 14501(c). The court’s jurisdiction over Plaintiffs’ claims is provided by 28 U.S.C. § 1331. (See 11/26/12 Order at 6.) Now before the court are Plaintiffs’ Motion for Summary Judgment (Dkt. No. 43) and Defendants’ Motion for Summary Judgment (Dkt. No 40). For the reasons set forth below, Defendants’ motion for summary judgment is granted and Plaintiffs’ motion for summary judgment is denied.

 

FN1. As previously recognized by the court, Craig Baner has been substituted for Odie Carpenter in his official capacity as a defendant in this lawsuit. (Dkt. No. 30 (“11/26/12 Order”) at 1, n. 1.)

 

FN2. Defendants have not pleaded or argued that Kirkland–Montague is protected by the doctrine of judicial immunity, thereby waiving this defense. See Boyd v. Carroll, 624 F.2d 730, 733–34 (5th Cir.1980) (“The failure to plead judicial immunity waived the affirmative defense.”); cf. Henry v. Jefferson County Personnel Bd., 519 F.Supp.2d 1171, 1181, n. 10 (N.D.Ala.2007) (“Defendant’s explicit assertion of the judicial immunity defense in a Rule 56 pre-trial motion is sufficient to avoid wavier.”).

 

BACKGROUND

Plaintiffs are motor carriers, as defined by federal law. (Pls.’ SMF ¶ 2l; see also 49 U.S.C. § 13102(14).) It is undisputed that each plaintiff was “the subject of an investigation, hearing, and determination by the [ICC],” and that “[t]he pleadings and orders were essentially the same in each case.” (Id. ¶¶ 2, 8.) This common sequence of events is detailed below.

 

Initially, ICC Police Officers FN3 issued each plaintiff a citation for “operat[ing] as an intrastate motor carrier of property without a license from the Commission,” in violation of 625 ILCS 5/18c–4104(1)(a). (Dkt. No. 45 (“Defs.’ SMF”) ¶¶ 4, 8, 12.) The ICC then began investigating each plaintiff’s operations. (Pls.’ SMF ¶ 9.) ICC Police Officers first requested that Plaintiffs produce certain records under 625 ILCS 5/18c–1703(2) (b), FN4 followed by a formal demand for records from the ICC Chief of Police seeking production of various documents “concerning the operations of those motor carriers.” (Pls.’ SMF ¶ 10.) Specifically, the formal demand provided to Leader required Leader to “produce documents and records regarding your company’s transportation operations within Illinois (for example, bills of lading, driver logs, invoices, pick-up tickets, etc.)” for the six-month time period preceding the initial citation. (Defs.’ Ex. C at ICC:00362 (“Leader Formal Demand”).) The formal demand provided to Stott and Nationwide only generally directed these motor carriers to “produce [their] books and records” for the relevant six-month time period. (Defs.’ Ex. A at ICC:00026 (“Stott Formal Demand”); Defs.’ Ex. B at ICC:00182 (“Nationwide Formal Demand”).)

 

FN3. The citations issued to Stott and Nationwide appear to have been issued by Officer Baudino. (See Defs.’ Ex. A at ICC:00043 (“Stott Initial Citation”); Defs.’ Ex. B at ICC:00199 (“Nationwide Initial Citation”).) The citation issued to Leader appears to have been issued by a different officer. (See Defs.’ Ex. C at ICC:00360 (“Leader Initial Citation”).)

 

FN4. Section 1703(2)(b) states, in relevant part:

 

Authorized employees of the [ICC] shall have the power at any and all times to examine, audit, or demand production of all accounts, books, records, memoranda, and other papers in the possession or control of a license or registration holder, its employees or agents.

 

625 ILCS 5/18c–1703(2)(b) (emphasis added).

 

Plaintiffs objected to the ICC’s requests for documents, partly on the grounds that the requests were preempted by 49 U.S.C. 14501(c). (Pls.’ SMF ¶ 11; Defs.’ SMF ¶¶ 7, 11, 15.) In response to Plaintiffs’ objections, the ICC submitted letters to Stott and Nationwide “renew[ing]” and clarifying its previous requests for documents:

 

*2 The Commission formally requests [Stott or Nationwide] to produce the following documents related to its intrastate, for-hire transportation operations within Illinois for the [specified] time period …:

 

a. Bills of lading;

 

b. Driver logs;

 

c. Invoices from any owner-operators leased on to [Stott or Nationwide]; and

 

d. Any other documents containing the origin and destination of cargo, the date(s) of the transportation, a description of the cargo transported, and the revenues generated by the transportation.

 

(Defs.’ Ex. A at ICC:00030 (“Stott Clarification”); Defs.’ Ex. B at ICC:00186 (“Nationwide Clarification”).) When Plaintiffs persisted in objecting to the ICC’s document requests, Plaintiffs were cited with violating 625 ILCS 5/18c–4104(1)(k),FN5 because of their alleged “fail[ure] to provide Records on demand.” (Defs.’ Ex. A at ICC:00015 (“Stott 2d Citation”); Defs.’ Ex. B at ICC:00175 (“Nationwide 2d Citation”); Defs.’ Ex. C at ICC:00333 (“Leader 2d Citation”).) In each case, the ALJ found the motor carrier guilty of the violations charged in the second citations, and ordered each plaintiff to pay a $500 civil penalty for failure to produce the requested records. (Defs.’ Ex. A at ICC:00129 (“Stott ALJ Decision”); Defs.’ Ex. B at ICC:00275 (“Nationwide ALJ Decision”); Defs.’ Ex. C at ICC:00381 (“Leader ALJ Decision”) .) Plaintiffs’ combined petition for rehearing was summarily denied by the ICC on March 21, 2012. (Pls.’ SMF at ¶¶ 14–15; see also Defs.’ Ex. A at ICC:00149 (“Tr. 3/21/12 ICC Bench Session”) .)

 

FN5. Section 4104(1)(k) states, in relevant part, that it “shall be unlawful for any person to … [o]therwise operate as a motor carrier of property in violation of any provision of this Chapter, Commission regulations and orders, or any other law of this State.” 625 ILCS 5/18c–4104(1)(k).

 

Plaintiffs filed this lawsuit two weeks later, on April 4, 2012, claiming that federal preemption barred the ICC from investigations of Plaintiffs that concerned “anything other than compliance with insurance requirements or demonstrated safety issues.” (Compl. at 8 (“Request for Relief”) at (b), (e).) Plaintiffs and Defendants have now both submitted cross motions for summary judgment, which have been fully briefed before this court.

 

LEGAL STANDARD

1. Summary Judgment

Summary judgment is appropriate “if the movant shows that 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). A party seeking summary judgment bears the initial responsibility of identifying materials in the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed.R.Civ.P. 56(c)(1). If the moving party adequately challenges the elements of the nonmoving party’s claim, it then becomes the nonmoving party’s burden “to identify specific facts in the record that demonstrate[ ] a genuine issue for trial.” Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 647 (7th Cir.2011). “A factual dispute is ‘material’ only if the dispute’s resolution might change the outcome of the suit under the governing law.”   Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th Cir.2010). “And a factual issue is ‘genuine’ only ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

 

*3 When ruling on a motion for summary judgment, the court “construe[s] all facts and draw[s] all reasonable inferences in a light most favorable to the nonmoving party.” Rosenbaum v. White, 692 F.3d 593, 599 (7th Cir.2012). This same standard applies when parties have filed cross motions for summary judgment, and the court “construe[s] all inferences in favor of the party against whom the motion under consideration is made.” Id. (citations omitted); accord Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 915 (7th Cir.2012) (the court “treat[s] the motions separately in determining whether judgment should be entered in accordance with Rule 56”).

 

2. FAAAA Preemption

Plaintiffs argue that Defendants’ enforcement of 625 ILCS 5/18c–1703(2)(b) and 625 ILCS 5/18c–4104(1)(k) is preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”). (Dkt. No. 42 (“Pls.’ Mem.”) ¶¶ 12, 22.) This argument is implicitly grounded in the Supremacy Clause of the U.S. Constitution, which states, in relevant part, “[the] Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.” U.S. Const. art. VI. The Supreme Court has interpreted the Supremacy Clause to allow for federal preemption of state law either expressly or implicitly, or in cases where there is a conflict between state and federal law. See New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (citations omitted). As explained in detail below, the FAAAA contains an express preemption clause, and it is this preemption clause that forms the basis of Plaintiffs’ claims.

 

ANALYSIS

1. No Genuine Dispute of Material Fact

The material facts of this case are not contested. Defendants admit “that the [ICC] sought documentary information, as part of its enforcement activities under Illinois law, concerning [Plaintiffs’] operations in Illinois, after [Plaintiffs] were cited for violating Illinois law.” (Dkt. No. 31 (“Defs.’ Ans.”) ¶ 18 .) Defendants further admit that “[t]he information sought included bills of lading, driver logs, invoices, pick-up tickets, and similar information concerning the origin and destination of cargo, dates of transportation, description of the cargo transported, and revenues generated by the transportation.” (Id.) Plaintiffs admit that the ICC sought the business records in question “to determine how long [each] company was operating without the required certificate, and to determine if the company had evidence of the required liability insurance coverage on file with the Commissioner during the period it was operating in the State of Illinois.” (Defs.’ SMF ¶ 17; see also Dkt. No. 48 (“Pls.’ Resp. to Defs.’ SMF”) ¶ 1.) FN6

 

FN6. Plaintiffs allege in their Complaint that the ICC Police Officer testifying at the Stott hearing “indicated that the Illinois Commerce Commission was NOT looking for any information on the carrier’s Insurance.” (Compl. ¶ 16 (emphasis in original).) Plaintiffs admit in their summary judgment briefing that the only evidence they have in support of this assertion is “a note made by [Plaintiffs’ counsel] at the hearing.” (Dkt. No. 53 (“Pls.’ SMF Reply”) ¶ 1).) Counsel’s notes of the Stott hearing, which have been submitted as part of the record, include the statement “nothing relative to insurance” among other handwritten words and phrases. (Id., Ex. 1 (bottom of page).) Plaintiffs have supplied no affidavit or declaration from counsel explaining this notation, or the context in which it was made. The court does not know the identity of the testifying officer, the pending question to which the officer was responding, or whether counsel’s notation reflects the officer’s exact words or counsel’s impression of the testimony. Without more, even viewing this evidence in the light most favorable to Plaintiffs, the court finds that counsel’s notation is inadequate to establish a genuine question of fact on this evidentiary point.

 

The parties dispute the legal significance of these undisputed facts, and whether Defendants’ actions were permissible under federal law. (See Defs.’ SMF ¶ 18; Pls.’ Resp. to Defs.’ SMF ¶ 1.)

 

2. FAAAA’s Express Preemption Clause

*4 The FAAAA contains an express preemption clause which states, in relevant part:

 

(1) General rule.—Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property.

 

49 U.S.C. § 14501(c)(1).FN7

 

FN7. Paragraph 2, the only relevant exception to the express preemption clause, is discussed in Section 3, infra.

 

Plaintiffs argue that Defendants sought records “related to” Plaintiffs’ “price[s], route[s], or service[s],” and Defendants’ enforcement of 625 ILCS 5/18c–1703(2)(b) and 625 ILCS 5/18c4104(1) (k) was therefore preempted based on the plain language of the FAAAA. Defendants contend that their enforcement actions were not “related to” Plaintiffs’ “price[s], route[s], or service[s]” as that phrase has been interpreted by the U.S. Supreme Court and other federal courts, and that Defendants’ enforcement actions are therefore not preempted by the FAAAA’s express preemption clause.

 

The language of the FAAAA’s express preemption clause is borrowed from the Airline Deregulation Act of 1978 (“ADA”), which contains a nearly identical provision for air carriers. Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 370, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) (citing 49 U.S.C. § 41713(b)(4)(A)). Courts have generally treated the preemption clauses of the FAAAA and the ADA as though they are interchangeable,FN8 and have attributed to Congress an intent to incorporate judicial interpretations of the ADA’s preemption provision into the FAAAA. Id. (citing Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006)); see also S.C. Johnson & Son, Inc. v. Transport Corp. of Am., 697 F.3d 544, 548 (7th Cir.2012) (“the Supreme Court has generally taken the position that the statutes deregulating the airline industry and those deregulating the trucking industry should be construed consistently with one another”). The purpose of both provisions is “[t]o ensure that States would not undo federal deregulation with regulation of their own.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

 

FN8. As originally enacted, the ADA referred to “rates, routes, or services.” 49 U.S.C.App. § 1305(a)(1). In 1994, the ADA was reenacted and revised to refer to “a price, route, or service.” American Airlines, Inc. v. Wolens, 513 U.S. 219, 223 n. 1, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (citing 49 U.S.C. § 41713(b)(1)); see also 49 U.S.C. § 41713(b) (4)(A) (applying same language to all carriers “affiliated with a direct air carrier”). This court finds no material difference between “price” and “rate” for purposes of its preemption analysis. Wolens, 513 U.S. at 223 n. 1 (noting “Congress intended the revision to make no substantive change”).

 

In Morales, the Supreme Court addressed whether a state attorney general’s threat to enforce a set of “detailed standards governing the content and format of airline advertising” through state law consumer protection statutes was preempted under the ADA. Morales, 504 U.S. at 379. Borrowing from ERISA cases to interpret the ADA’s express preemption clause, the Court held that “State enforcement actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted.” Id. at 384 (emphasis added). The Court noted that the state law at issue need not be “specifically addressed to the airline industry” and can be preempted even if the effect of the state law is “only indirect.” Id. at 386. At the same time, however, the Court cautioned that some state laws or enforcement actions could affect rates, routes, or services “in too tenuous, remote, or peripheral a manner” to qualify for preemption. Id. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)) (internal quotations omitted). On the specific facts in Morales, the Court concluded that the threatened enforcement action was preempted under the ADA because, “[a]ll in all, the obligations imposed by the guidelines would have a significant impact upon the airlines’ ability to market their product, and hence a significant impact upon the fares they charge.” Id.

 

*5 Three years later, in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the Supreme Court addressed the ADA preemption provision as a defense to a class of plaintiff claims brought under the Illinois Consumer Fraud and Deceptive Business Practices Act and Illinois common law for breach of contract, alleging that the defendant airline engaged in cutbacks on the utility or value of pre-earned frequent flyer miles. The Court in Wolens began by noting that “[t]he Morales opinion presented much more” than an interpretation of the phrase “relating to,” and that the Court in Morales also focused on the ADA’s “deregulatory purpose” and the strength of the state laws’ impact on airline rates, routes, or services.   Id. at 223–24. On the facts presented in Wolens, the Court easily concluded that the plaintiffs’ claims related to airline rates and services. Id. at 226 (“We need not dwell on the question whether plaintiffs’ complaints state claims ‘relating to [air carrier] rates, routes, or services.’ ”). Because the Illinois Consumer Fraud Act inherently permitted, though private litigation, “intrusive regulation of airline business practices” such as the marketing of rates and services, the Court deemed plaintiffs’ attempts to enforce the Illinois Consumer Fraud Act against the airline to be preempted under the ADA. Id. at 227–28. With respect to the common law breach of contract claims, on the other hand, the Court found no similar “state-imposed obligations” and thus no preemption. Id. at 228–29. As the Court noted in both Morales and Wolens, the ADA was designed to promote “maximum reliance on competitive market forces.” Id. at 230 (quoting 49 U.S.C.App. § 1302(a)(4)); Morales, 504 U.S. at 378 (same). State law claims based solely on an airline’s “own, selfimposed undertakings” and its “privately ordered obligations,” such as breach of contract claims, are not preempted because they promote “[m]arket efficiency” rather than hindering it. Wolens, 513 U.S. at 228–30.

 

In Rowe v. New Hampshire Motor Transport Association, the Court addressed whether the State of Maine was preempted under the FAAAA from enforcing a state statute regulating the delivery of tobacco products to minors. Rowe v. N.H. Motor Trans. Ass’n, 552 U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008). Because the state law at issue would “require carriers to offer a system of services that the market does not now provide,” the Court held that the statute had both “a direct ‘connection with’ motor carrier services” and “a ‘significant’ and adverse ‘impact’ in respect to the FAAAA’s ability to achieve its preemption-related objectives.” Id. at 371–72 (citing Morales, 504 U.S. at 384, 390). The Court identified the main preemption objective of the FAAAA as “avoid[ing] … a State’s direct substitution of its own governmental commands for ‘competitive market forces.’ “ Id. at 372 (quoting Morales, 504 U.S. at 378). In response to the state’s argument that it nevertheless retained the ability to “protect its citizens’ public health,” the Court noted in dicta that “state regulation that broadly prohibits certain forms of conduct and affects, say, truckdrivers, only in their capacity as members of the public (e.g ., a prohibition on smoking in certain public places)” would not qualify for preemption, because such laws affect “rates, routes, or services in ‘too tenuous, remote, or peripheral a manner.’ “ Id. at 375 (quoting Morales, 504 U.S. at 390). The Court emphasized “the state laws whose ‘effect’ is ‘forbidden’ under federal law are those with a ‘significant impact’ on carrier rates, routes, or services.” Id. at 375 (emphasis in original) (quoting Morales, 504 U.S. at 388, 390). The Court concluded that “Maine’s efforts directly to regulate carrier services” were preempted under this standard. Id. at 377.

 

*6 The Seventh Circuit has interpreted the relevant Supreme Court precedent as setting forth “two distinct requirements” for preemption under the ADA/FAAAA framework. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir.1996). First, a state must “enact or enforce” a law. Id. This requirement is satisfied by all sources of state law, including plaintiffs’ efforts to enforce state laws of general applicability and common law torts. United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 607–08 (7th Cir.2000). Second, as applied in the context of specific cases, the state law at issue must relate to carrier rates, routes, or services “either by expressly referring to them or by having a significant economic effect upon them.” Travel All Over the World, 73 F.3d at 1432. Laws that have “a generalized effect on transactions in the economy as a whole” and that “provide the backdrop for private ordering,” such as embezzlement, bribery, and racketeering statutes, are considered “too tenuously related to the regulation of the rates, routes, and services in the trucking industry to fall within the FAAAA’s preemption rule.” S.C. Johnson & Son, Inc. v. Transport Corp. of Am., Inc., 697 F.3d 544, 558–59 (7th Cir.2012). Thus, “an effect on price may be necessary for preemption, but it is not sufficient.” Id. at 558–59. On the other hand, laws of general application that have an “industry-wide effect on prices and services,” such as consumer fraud laws, are generally preempted under the FAAAA to the extent they affect rates, routes, or services. Id. at 559; see also Mesa Airlines, 219 F.3d at 611 (claims of tortious interference with contract, breach of fiduciary duty, and fraudulent inducement preempted under the ADA because, as alleged by regional airlines against a major air carrier, these claims “would have a significant effect on” the major air carrier’s rates, routes, or services). As a general rule, any law or claim that “seeks to substitute a state policy … for the agreements that the parties had reached” is preempted. S.C. Johnson, 697 F.3d at 557.

 

In this case, there is no question that Illinois has enacted and enforced 625 ILCS 5/18c1703(2)(b) and 625 ILCS 5/18c–4104(1)(k), and that these laws are specific to motor carriers. On their face, the Illinois statutes do not expressly refer to the rates, routes, or services of motor carriers. In enforcing Section 1703(2)(b), however, Defendants sought “bills of lading, driver logs, invoices, pick-up tickets, and similar information concerning the origin and destination of cargo, dates of transportation, description of the cargo transported, and revenues generated by the transportation.” (Defs.’ Ans. ¶ 18.) At a broad level, viewing this evidence in the light most favorable to Plaintiffs, as the court must do at this stage of the litigation, the court finds that Defendants’ requests for documents could be reasonably construed as requests for Plaintiffs to produce information about their rates, routes, or services. (See Dkt. No. 50 (“Defs.’ Resp.”) at 2 (“There is no dispute the Commission sought documents about cargo and prices, driver logs, etc.”) (emphasis in original).) Defendants’ enforcement of Illinois law can therefore be considered “related to” Plaintiffs’ rates, routes, or services in the sense that the enforcement actions have “a connection with” Plaintiffs’ rates, routes, or services. Morales, 504 U.S. at 384.

 

*7 Even under Morales, however, “the breadth of the words ‘related to’ does not mean the sky is the limit.” Dan’s City Used Cars, Inc. v. Pelkey, ––– U.S. ––––, ––––, 133 S.Ct. 1769, 1778, 185 L.Ed.2d 909 (2013). This court must also consider the deregulatory purpose of the FAAAA, and wither the statutes at issue have “a significant impact on carrier rates, routes, or services.” Rowe, 553 U.S. at 375 (emphasis in original) (internal quotation marks omitted); see also Travel All Over the World, 73 F.3d at 1430 (“The Congressional intent to preempt state law should be the ultimate touchstone in our preemption analysis.”). In this case, there is no evidence that Defendants’ actions affected Plaintiffs’ rates, routes, or services in any way, or that the Illinois statutes and their enforcement by Defendants are an attempt to substitute Illinois’s “own governmental commands for ‘competitive market forces.’ “ Rowe, 553 U.S. at 372 (quoting Morales, 504 U.S. at 378). Pursuant to the state statute at issue, Defendants sought “production of all accounts, books, records, memoranda, and other papers in the possession or control of” Plaintiffs. 625 ILCS 5/18c–1703(2)(b) (emphasis added). Plaintiffs were not required to maintain any particular records or forms, other than those already maintained in the ordinary course of their businesses, nor were Plaintiffs required to charge certain rates, take specific routes, or offer any special services. Plaintiffs do not actually claim any effect on rates, routes, or services in this case, instead taking the position “it is impossible at this time to articulate the particular effect which those investigations may have on the actual rates, followed routes, or offered services which the motor carriers may offer.” (Dkt. No. 42 (“Pls.’ Mem.”) ¶ 21.) Plaintiffs’ speculation that the ICC might prescribe special forms or punish motor carriers for not providing specific information, (id.), is entirely speculative and is not supported by the record. Additionally, Plaintiffs’ argument that “[i]f a state law or enforcement activity relates in any way to motor carrier rates, routes or service, that state law and that enforcement activity are preempted,” (id. ¶ 19 (emphasis added)), is not supported by the Supreme Court and Seventh Circuit case law set forth above. See S.C. Johnson, 697 F.3d at 558–59 (describing an “effect on price [or routes, or services]” as a condition “necessary for preemption”).

 

As the Seventh Circuit has noted, “the broad applicability of the preemption statutes should be understood in light of their deregulatory purpose.” S.C. Johnson, 697 F.3d at 559. Because the Illinois statutes at issue on their face do not attempt to regulate motor carrier rates, routes, or services, and, as enforced, do not impact Plaintiffs’ rates, routes, or services in any way, the court finds no preemption under the FAAAA’s express preemption clause.

 

3. Safety Regulatory Authority and Insurance Exception

*8 In the alternative, even if Defendants’ enforcement of 625 ILCS 5/18c–1703(2)(b) and 625 ILCS 5/18c–4104(1)(k) is properly considered to be preempted under Paragraph 1 of the FAAAA’s express preemption clause, the court finds that Defendants qualify for the exception set forth in Paragraph 2. The relevant exception states:

 

[The FAAA’s general rule regarding preemption] shall not restrict the safety regulatory authority of a State with respect to motor vehicles … or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.

 

49 U.S.C. § 14501(c)(2)(A). This exception preserves “the preexisting and traditional state police power over safety,” and state laws that are “genuinely responsive to safety [or insurance] concerns” are included within the exception. City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 339, 442, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002).

 

It is undisputed that Illinois law requires motor carriers to have proof of liability insurance coverage on file with the ICC. See 625 ILCS 5/18c–4901; 625 ILCS 5/18c–4904. It is also undisputed that motor carriers may not operate in Illinois without first obtaining a license from the ICC. See 625 ILCS 5/18c–4104(1)(a). Defendant Baner states in his sworn declaration that the purpose of seeking the requested documents from motor carriers is two-fold: “to determine how long the commercial motor carrier has been operating in Illinois without a certificate … [and] to determine if it had the required insurance coverage and that this insurance coverage was on file with the Illinois Commerce Commission for this period.” (Dkt. No. 44–9, Defs.’ Ex. F (“Baner Decl.”) ¶ 4.) There is no evidence in the record suggesting that Baner’s explanation is untrue, or that Defendants were not genuinely attempting to ascertain Plaintiffs’ compliance with Illinois’ licensing and insurance requirements by issuing their requests for documents. Plaintiffs’ argument that “[n]othing in those documents concern insurance or safety matters,” (Pls.’ Mem. ¶ 13), is unpersuasive in light of the undisputed fact that Defendants requested “information concerning the origin and destination of cargo, dates of transportation, description of the cargo transported, and revenues generated by the transportation.” (Defs.’ Ans. ¶ 18.) As a matter of common sense, this type of information is relevant to ascertaining whether a motor carrier is properly licensed and insured.

 

Because the enforcement actions at issue in this case fall squarely within the exception set forth in Paragraph 2, the court grants summary judgment in favor of Defendants on this alternative basis, as well.

 

CONCLUSION

For the reasons set forth above, Plaintiffs’ motion for summary judgment (Dkt. No. 40) is denied and Defendants’ motion for summary judgment (Dkt. No. 43) is granted. Judgment is entered in favor of Defendants pursuant to Federal Rule of Civil Procedure 56. Civil case terminated.