United States District Court,

N.D. Indiana.

KEYSTONE LOGISTICS, INC., Plaintiff,

v.

STRUBLE TRUCKING LLC, Defendant.

 

Civil No. 3:14cv1938.

Signed Dec. 1, 2014.

 

Timothy J. Abeska, Eric Robley Thomason, Barnes & Thornburg LLP, South Bend, IN, for Plaintiff.

 

Keith A. Gaston, Sally R. Hubbard, Bruce D. Jones, Cruser Mitchell & Gaston LLC, Indianapolis, IN, for Defendant.

 

OPINION AND ORDER

WILLIAM C. LEE, District Judge.

*1 This matter is before the court on a motion to remand filed by the plaintiff, Keystone Logistics, Inc. (“Keystone”), on October 16, 2014. The defendant, Struble Trucking LLC (“Struble Trucking”), filed its response on October 29, 2014, to which Keystone replied on October 31, 2014.

 

For the following reasons, the motion will be granted.

 

Discussion

Keystone alleges the following. On September 2, 2014 Keystone filed its Complaint against Struble Trucking in the St. Joseph Circuit Court. The Complaint alleges that Struble Trucking, a company offering motor carrier services, breached its contract with Keystone, which was acting as a broker of motor carrier services. Keystone and Struble Trucking are parties to a Contract for Transportation of Property Between Broker and Carrier. The Complaint alleges that after Struble Trucking failed to properly deliver a load of frozen ice cream, a claim of $33,109.82 was submitted to Keystone by Coyote Logistics, LLC (the party which originally tendered the shipment to Keystone), triggering an indemnity clause in the Contract. Struble Trucking failed to indemnify Keystone for the claim.

 

On October 6, 2014, Struble Trucking filed a Notice of Removal with this Court. As the party invoking federal jurisdiction, Struble Trucking “bears the burden of demonstrating its existence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). See also Am. Bankers Life Assurance Co. of Fla. v. Evans, 319 F.3d 907, 909 (7th Cir.2003). In its Notice of Removal, Struble Trucking asserts that this Court has jurisdiction under 28 U.S.C. § 1337, which grants original jurisdiction to federal district courts over actions “brought under section 11706 or 14706 of title 49.”

 

49 U.S.C. § 14706 (the “Carmack Amendment”) gives federal courts jurisdiction over suits involving claims against motor carriers who have caused a loss to a party entitled to recover under a “receipt or bill of lading.” See Transcorr Natl. Logistics, LLC v. Chaler Corp., 2008 WL 5272895 at *1–2 (S.D.Ind. Dec.19, 2008). In such an action, the Carmack Amendment preempts state law. Id. However, this preemption does not extend to disputes between a broker and carrier over a broker-carrier contract. Id. In Transcorr, plaintiff, a motor carrier broker, entered into a broker-carrier agreement with defendant, a motor carrier. Id. at *1. When defendant failed to timely deliver a load for a third party and that third party demanded an overnight air delivery, plaintiff paid the air delivery cost and sought indemnity from defendant in accord with the terms of their broker-carrier contract. Id. Defendant refused to pay and plaintiff brought a breach of contract claim in Indiana state court. Id. The Transcorr defendant removed the case under 28 U.S.C. § 1337, and plaintiff sought remand. Id. The court granted the remand, noting that “many courts have held that the Carmack Amendment does not apply to claims brought against brokers.” Id. at *2 (collecting cases). Relying on these cases, the court reasoned that 49 U.S.C. § 14706(a)(1) references a right of recovery under bills of lading and receipts, but not under broker-carrier contracts. Id. at *2–3. Because the plaintiff broker was not seeking to recover as a shipper for lost or damaged cargo but instead as a broker for a breach of contractual indemnity, the Carmack Amendment did not apply, there was no preemption of state law, and remand was warranted.

 

*2 Similarly, in Intransit, Inc. v. Excel North American Road Trans., Inc., 426 F.Supp.2d 1136 (D.Or.2006), the court held that the Carmack Amendment did not apply to a broker’s breach of contract claim against a carrier and therefore remanded the case to state court. In Intransit, like in Transcorr, the plaintiff broker sought indemnity from a carrier after the carrier failed to make a timely delivery. 426 F.Supp.2d at 1138. Employing the same reasoning as the Transcorr court, the Intransit court found that the Carmack Amendment did not reach disputes over broker-carrier agreements and stated:

 

The purpose of Carmack is to prevent carriers from being placed in the untenable position of having to determine what their liability may be in many jurisdictions with differing laws. But, in this case, the alleged liability arises from a contract that will not be interpreted differently from one jurisdiction to the next—the jurisdiction of the state in which the contract was made will apply.

 

426 F.Supp.2d at 1141.

 

Based on these cases, Keystone argues that this court has no jurisdiction over this case, and thus the case should be remanded.

 

Struble Trucking, in opposition, argues that since Keystone was a broker, and not a shipper, then the Carmack Amendment preempts state law and jurisdiction is proper in this court. Struble Trucking first relies on Propak Logistics, Inc. v. Landstar Ranger, Inc., 2012 WL 1068118 (W.D. Ark. Mar 29, 2012). In Propak, after cargo destined for Pace Edwards sustained damage during its shipment by a carrier, the broker involved in the transaction demanded payment from the carrier, but the carrier refused. The broker then filed an insurance claim. The broker’s insurer paid the broker, the broker paid Pace Edwards, and then the insurer and broker brought a claim against the carrier on the bill of lading as subrogee of Pace Edwards. Id. The court held that even though the “literal” language of the Carmack Amendment mentions claims between a “shipper” and a “carrier,” it was appropriate to go beyond the statutory language in this case in which there had been a “clear assignment of rights by the shipper.” Id. at *2–3 (emphasis added). The court said: “Having stepped into the shoes of Pace Edwards, [the broker’s] claims against Landstar, the carrier, arise entirely out of the alleged damage sustained to Pace Edwards’ goods shipped via interstate commerce.” Id. at *3.

 

As Keystone points out, the facts in this case are not analogous to the facts in Propak. In the present case, Keystone is not a party to the bill of lading, and the shipper in this case has not assigned its right under the bill of lading to Keystone. Rather, Keystone is seeking to recover under the terms of its entirely separate contract with Struble Trucking.

 

Struble Trucking also relies on Dominion Resource Servs., Inc. V. 5K Logistics, Inc., 2010 WL 679845 (E.D. VA Feb 24, 2010. In Dominion Resource, the plaintiff hired the defendant to provide logistical and transportation services to Dominion during a construction project. Pursuant to this arrangement, the defendant engaged carrier Daily Express to move equipment for the plaintiff from one facility to another. The Rate Agreement between the defendant and the carrier “stated the pickup location for the vessel, the delivery point, the pickup and delivery times, and the amount to be paid to Daily Express. No other terms were stated.” Id., at *1. A piece of equipment fell off the Daily Express truck and sustained significant damage. Plaintiff then demanded payment from defendant, and the defendant in turn sought compensation from Daily Express. Id., at *2. The court held that the claim was preempted by the Carmack Amendment because the Rate Agreement was the only agreement between the defendant and Daily Express, and “since there were not separate contractual obligations for Daily Express to breach, independent of its obligations as a carrier, [defendant’s] contract claim must be preempted by the Carmack Amendment.” Id. at *5.

 

*3 Again, as Keystone points out, this case is not on point. In the present case, unlike the situation in Dominion Resource, there are two contracts: the broker-carrier contract between Keystone and Struble Trucking, and a bill of lading contract signed by Struble Trucking as carrier and issued by the shipper. As the cases above all illustrate, the Carmack Amendment preempts claims on bills of lading, but not claims on other agreements. Because Keystone is seeking to recover on a contract which is not a bill of lading, the Carmack Amendment does not apply and there is no preemption. Consequently, this court lacks jurisdiction and remand is appropriate. Keystone also seeks an award of attorney fees and costs. The removal statute provides that the court may award cost and expenses, including attorney fees, to a successful remanding party. 28 U.S.C. § 1447(c) FN1. Historically, the award of attorney’s fees has been treated as “normal incidents” to a remand for lack of jurisdiction.   Citizens for a Better Env’t v. The Steel Co., 230 F.3d 923, 927 (7th Cir.2000). This fee shifting provision reflects Congress’ intent to shift the burden of attorney fees in some cases. Martin v. Franklin Capital Corp., 546 U.S. 132, 140, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). When the removing party “lacked an objectively reasonable basis for seeking removal,” a court may award attorney’s fees. Id. Further, in the Seventh Circuit, “if, at the time the defendant filed his notice in federal court, a clearly established law demonstrated that he had no basis for removal, then a district court should award a plaintiff his attorney’s fees.” Lott v. Pfizer, Inc., 492 F.3d 789, 793 (7th Cir.2007) (emphasis added).

 

FN1. 28 U.S.C. 1447(c) states, in part, that: “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”

 

Struble Trucking does not dispute that, in the event of remand, an award of expenses and costs is appropriate. Considering the established law that demonstrates that the Carmack Amendment is not applicable to this case, the court finds that an award of fees and costs is appropriate. Keystone has not submitted an affidavit detailing its costs and expenses. However, considering the abundance of case law on this issue detailing the appropriate rates and hours for a matter of this nature, the court trusts that the parties will be able to come to an agreement as to the fees and costs. If the parties should somehow fail in this simple task, Keystone may, within 20 days, file a petition and supporting affidavit. Struble may then file its response 15 days thereafter, with a reply, if necessary, to be filed within 10 days of the response.

 

Conclusion

On the basis of the foregoing, the motion to remand [DE 10], including the request for expenses and costs, is hereby GRANTED. This cause is hereby REMANDED to the St. Joseph Circuit Court, South Bend, Indiana.

 

United States District Court,

E.D. Texas, Tyler Division.

Tang, Inc.

v.

Thomas Trucking, LLC, Timothy Dewayne Pugh, Shreveport Spring, Brake & Axle, Inc.

 

6:13–cv–407

6:13–cv–00407Signed December 2, 2014

 

Gregory Scott Porter, The Porter Law Firm, PC, Jeffrey Todd Embry, Hossley & Embry LLP, Tyler, TX, John Chadwick Gauntt, Gauntt Earl & Binney LLP, The Woodlands, TX, for Tang, Inc.

 

John Scott Smith, Smith Smith & Smith LLP, Mesquite, TX, Snow Eugene Bush, Jr., Snow E. Bush, Jr., P.C., Longview, TX, for Thomas Trucking, LLC, Timothy Dewayne Pugh, Shreveport Spring, Brake & Axle, Inc.

 

MEMORANDUM OPINION AND ORDER

MICHAEL H. SCHNEIDER, UNITED STATES DISTRICT JUDGE

*1 Currently before the Court are Defendants Thomas Trucking, LLC’s and Timothy Dewayne Pugh’s Motion to Exclude (Doc. No. 99) and Motion to Strike (Doc. No. 110). This is a negligence action defended by three defendants, but they are not all aligned. Two aligned defendants seek to have the Court exclude a portion of Plaintiff’s expert opinion that is unfavorable to them. They contend the opinion is unreliable because the expert cannot render his opinion with absolute certainty. Having considered the parties’ arguments and the applicable law, the Court DENIES Defendants’ Motion to Exclude and Motion to Strike (Doc. Nos. 99, 110).

 

Background

This case arises out of an accident that took place outside of Nacogdoches, Texas. The accident occurred when the right front wheel of a truck snapped off its axle, rolled into Plaintiff Tang, Inc.’s liquor store, and started a fire. The truck was a Peterbuilt tractor-trailer driven by Defendant Timothy Dewayne Pugh and owned by Defendant Thomas Trucking, LLC (the aligned Defendants).

 

Just days before the accident, Thomas Trucking had the truck serviced by Defendant Shreveport Spring, Brake and Axle, Inc. (“Shreveport Brake,” the unaligned defendant) because the truck’s wheel had been pulling toward the right. The owner of Thomas Trucking, Anthony Thomas, picked the truck up after its servicing. The parties do not dispute that a mechanic at Shreveport Brake overly tightened the bearings on the right front wheel.

 

As Thomas drove away from Shreveport Brake, he noticed that the truck continued pulling to the right. Thomas called the owner of Shreveport Brake to find out if there was a problem. Thomas and the owner of Shreveport Brake offer conflicting accounts of what was said during that conversation.

 

Thomas testified that the owner of Shreveport Brake told Thomas not to worry because the bearings would loosen as Thomas drove further. But Shreveport Brake’s owner testified that he did not and would not have given that advice. Instead, the owner testified that he would have told Thomas to bring the truck back for further inspection.

 

Thomas returned to his shop, jacked the truck up, inspected the wheels, and put extra grease in the right front wheel. When Thomas had Pugh drive the truck for a job, Thomas warned Pugh about the truck pulling to the right and told Pugh to keep an eye on the issue. Thomas also gave Pugh extra oil to keep the wheel bearings lubricated if the issue persisted.

 

Plaintiff’s expert, Robert S. Arnold, offered an opinion that Shreveport Brake over tightened the wheel bearing, which created the dangerous condition that led to the accident. Arnold, who holds numerous certifications in automobile safety and has years of experience with automotive engineering, also opined that the aligned Defendants contributed to the accident because they operated the truck even though they knew a dangerous condition existed. The aligned Defendants take issue with and seek to exclude only Arnold’s opinion implicating their liability.

 

Legal Standard

*2 Under Federal Rule of Evidence 702, the Court must make a preliminary determination, when requested, as to whether the requirements of the rule are satisfied with regard to a particular expert’s proposed testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999). District courts are accorded broad discretion in making Rule 702 determinations of admissibility. Id. at 152. The ultimate inquiry is whether the expert’s testimony is sufficiently reliable and relevant to be helpful to the finder of fact, warranting admission at trial. United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).

 

In a jury trial setting, the Court’s role is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role. Instead, the Court’s role is limited to that of a gatekeeper, ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue before the jury that it is appropriate for the jury’s consideration. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249–50 (5th Cir. 2002). As the Supreme Court explained in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993), “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Accord Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).

 

Analysis

The aligned Defendants attack the reliability of Arnold’s opinion that their acts and omissions contributed to the accident. They do not focus on whether Arnold’s credentials and methodology are adequate. Instead, they argue Arnold’s opinion is not reliable because he could not offer it with absolute certainty. To support their contention, the aligned Defendants point to several instances during Arnold’s deposition where Arnold admits that he does not know certain things to be absolutely true.

 

Arnold offered several opinions regarding the aligned Defendants’ acts and omissions in this case. Based on his years of experience and certifications in automobile safety and engineering, Arnold opined that a truck pulling to the right is a warning sign of an over-tightened wheel bearing. Arnold also opined that the owner of a truck exhibiting signs of an over-tightened wheel bearing should not operate that truck until a mechanic inspects and resolves the issue. Arnold ultimately concluded that Thomas could have avoided the accident by taking the truck to be re-checked, either by Shreveport Brake or, preferably, by a certified mechanic.

 

The aligned Defendants contend that Arnold’s opinion cannot be reliable because he is speculating that taking the truck back for re-inspection would have prevented the accident. Indeed, Arnold acknowledged in his deposition that he cannot say with 100% certainty that taking the truck back to be re-inspected would have prevented the accident. But Arnold does state that he strongly believes that a mechanic inspecting the truck under the circumstances would have caught and corrected the issue because of the signs indicating an over-tightened wheel bearing.

 

Arnold’s admission that he does not know with 100% certainty whether a re-inspection would have avoided the accident does not render his opinion unreliable. See Pipitone, 288 F.3d at 249. Absolute certainty is not the goal of expert testimony. See Daubert, 509 U.S. at 589. Instead, reliability and the ability to assist the trier of fact are the goals of expert testimony. See Valencia, 600 F.3d at 424. Arnold based his opinion on his education and experience as applied to the facts of the case. Therefore, Arnold’s opinion is both sufficiently reliable and relevant to assist the trier of fact. See id.

 

*3 Further, some of the uncertainty in Arnold’s opinion is the result of divergent testimony between employees of Thomas Trucking and Shreveport Brake, whose interests are adverse to one another. Those factual disputes are credibility questions for the jury and are not appropriately resolved by a Daubert challenge. See Pipitone, 288 F.3d at 249–50. Such issues are appropriately resolved through vigorous cross-examination during trial. See Mathis, 302 F.3d at 461. Accordingly, the Court DENIES Defendants’ Motion to Exclude.

 

As to the aligned Defendants’ Motion to Strike (Doc. No. 110), the Court finds the motion to be without merit. The aligned Defendants filed a motion to strike the evidence Plaintiff relied on in responding to their motion to exclude under a variety of admissibility rules. But, as the aligned Defendants concede in their reply (Doc. No. 114 at 1), Federal Rule of Evidence 104 does not require the Court to determine the admissibility of evidence while acting as a gatekeeper in a Daubert challenge. Accordingly, the Court DENIES Defendants’ Motion to Strike (Doc. No. 110).

 

Conclusion

For the reasons stated more thoroughly above, the Court DENIES the aligned Defendants’ Motion to Exclude and Motion to Strike (Doc. Nos. 99, 110).

 

It is SO ORDERED.