United States District Court,

D. Maryland.

AIG EUROPE LTD., Plaintiff,

v.

GENERAL SYSTEM, INC., et al., Defendant.

Civil Action No. RDB–13–0216. | Filed March 19, 2015.

 

 

MEMORANDUM OPINION & ORDER

RICHARD D. BENNETT, District Judge.

*1 Presently pending before this Court is TBB Global Logistics, Inc.’s Motion to Dismiss Defendant General System, Inc.’s Cross–Claim (ECF No. 53). The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D.Md .2014). For the reasons that follow, TBB Global Logistics Inc.’s (“TBB Global”) Motion to Dismiss (ECF No. 53) is GRANTED, and TBB Global is dismissed from this action.

 

 

BACKGROUND

This Court accepts as true the facts alleged in the defendant’s crossclaim. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir.2011). Initially, this action pitted Plaintiff AIG Europe Ltd. (“AIG Europe”) against Defendant General System, Inc. (“General System”) for a claim arising under the Carmack Amendment to the Interstate Commerce Act (“Carmack Amendment”),1 49 U.S.C. § 14706, due to General System’s alleged loss of a tractor trailer filled with pharmaceuticals.

 

Specifically, TBB Global, a transportation brokerage service, arranged for General System to transport shipments for TBB Global’s clients. Crosscl. ¶¶ 5–6, ECF No. 52. General System obtained insurance for its cargo, with a limit of $100,000 per occurrence, and General System alleges that TBB Global “agreed” to refrain from arranging transportation of any shipment exceeding that insurance coverage. Id. ¶¶ 9, 10.

 

On October 11, 2011, TBB Global directed General System to pick up a shipment of pharmaceuticals from Actavis Elizabeth, LLC (“Actavis”)2 and deliver it to UPS in Louisville, Kentucky. Id. ¶ 11. TBB Global did not inform General System that the value of the shipment exceeded the $100,000 limit of General System’s insurance coverage or that the shipment contained controlled substances. Id. ¶¶ 12–16. A driver for General System picked up the shipment that same day. Id. ¶ 17. In route, the driver stopped at a truck stop to purchase cigarettes around 11:00 p.m. Id. ¶ 18. When he emerged from the store, both the truck and trailer were gone. Id. The truck was eventually located, but the goods had been removed from the trailer and were not recovered. Id. ¶ 19. Actavis made a claim against its insurance carrier, AIG Europe, for the loss of the goods, and one of the terms for payment of the claim was that Actavis subrogated its rights to AIG Europe. Id. ¶ 20.

 

The pending motion marks the parties’ third attempt to asserts claims against TBB Global in this litigation. In this instance, it is General System that has attempted to bring a cross-claim against TBB Global in order to assert a breach of contract claim. Specifically, after AIG Europe filed the pending action in this Court on January 22, 2013 against General System, see generally Pl.’s Compl., ECF No. 1, General System sought to file a third party complaint against TBB Global, National Insurance Agency, Inc. (“National”), and Marine MGA, Inc. (“Marine MGA”) asserting breach of contract and negligence claims.. See Mot. Leave File Third Party Compl., ECF No. 10. On June 26, 2013, this Court granted the Motion, and Global System filed its Third Party Complaint (ECF No. 12) against TBB Global and the other third-party defendants that same day. Subsequently, TBB Global moved to dismiss the Third Party Complaint for failure to state a claim and improper venue. See generally TBB Global’s Mem. Supp. Mot. Dismiss Counts I and II, ECF No. 19. This Court granted that motion and dismissed TBB Global from the action. See generally Order Granting TBB’s Mot. Dismiss, ECF. No. 38.

 

*2 Subsequently, Plaintiff AIG Europe filed an Amended Complaint naming TBB Global as a defendant to AIG Europe’s original action. See generally Pl.’s Am. Compl., ECF No. 39. In response, TBB Global filed a motion to dismiss AIG Europe’s claim against it (Count II of the Amended Complaint). See TBB Global’s Mot. Dismiss Count II, ECF No. 45. Thereafter, General System filed a Cross-claim against TBB Global. See ECF No. 52. In essence, General System asserted that this Court could claim supplemental jurisdiction over its cross-claim against TBB Global despite this Court’s previous order to dismiss the AIG Europe’s claim against TBB Global. See Def.’s Cross-claim ¶ 1, ECF No. 52. TBB Global then filed the currently pending Motion to Dismiss General System’s Cross-claim. See generally TBB Global’s Mem. Supp. Mot. Dismiss Cross-claim, ECF No. 57; TBB Global’s Reply, ECF No. 60. On July 22, 2014, while the pending motion to dismiss General System’s cross-claim remained unripe, this Court granted TBB Global’s motion to dismiss AIG Europe’s claim against it. See Mem. Op., ECF No. 58.

 

 

STANDARD OF REVIEW

TBB Global seeks to be dismissed from this matter pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

 

As the legal sufficiency of the complaint is challenged under a Rule 12(b)(6) motion, the court must accept as true all the factual allegations contained in the complaint, but legal conclusions drawn from those facts are not afforded such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim); see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir.2012) (“Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments.” (internal quotation marks omitted)). Rule 12(b)(6) authorizes dismissal of a complaint must if it does not allege “a plausible claim for relief.” Iqbal, 556 U.S. at 679.

 

Rule 13(g) permits a litigant to file crossclaims against co-parties “if the claim arises out of the same transaction or occurrence that is the subject matter of the original action.” Fed.R.Civ.P. 13(g). Crossclaims are not compulsory, and the court retains discretionary power over their assertion in any particular action. See Arguetta v. McGill Airflow, LLC, Civ. A. No. JKB–11–1102, 2012 WL 34049, at *2 (Jan. 4, 2012) (“The decision whether to allow a crossclaim that meets the test of subdivision (g) is a matter of judicial discretion.” (quoting Charles Allan Wright, et al., 6 Fed. Prac. & Proc. Civ. § 1431 (3d ed.))); see also Charles Allan Wright, et al., 6 Fed. Prac. & Proc. Civ. § 1433 (3d ed.) (“Of course, as is true for other claims involving supplemental jurisdiction, the assertion of jurisdiction is discretionary and the court may determine that although the crossclaim meets the transaction standard, jurisdiction should not be exercised.”).

 

 

ANALYSIS

*3 General System’s cross-claim is based on Federal Rule of Civil Procedure 13(g). In its Response brief, General System acknowledged that its crossclaim was proper if, and only if, this Court found that AIG alleged a viable cause of action against TBB Global. Def. General System’s Opp’n to TBB Global’s Mot. Dismiss at 3, ECF No. 57 (“TBB asserts that if this Court dismisses AIG’s Complaint against TBB, it must also dismiss GSI’s Crossclaim since TBB will no longer be a co-party. GSI does not disagree with TBB’s general statement.”). This Court declined to exercise jurisdiction, under Federal Rule of Civil Procedure 14, over AIG’s cause of action against TBB Global and dismissed the claim. See Mem. Op., ECF No. 37. As a result of that determination, TBB Global is no longer a “co-party” to Defendant General System, and General System has conceded that it would be inappropriate for it to maintain its crossclaim under these circumstances.3

 

Indeed, additional considerations weigh in favor of this Court’s dismissal of General System’s crossclaim. Due to the parties’ procedural wrangling, this case has been stalled in the preliminary pleading stage for quite some time. Inclusion of TBB Global in this litigation would only slow this case further. As is clear from the parties’ briefs on the pending motion, General System’s crossclaim would require the Court to address disputes of fact and complicated issues of Pennsylvania law regarding contract formation and integration. These issues are totally separate from whether General System is strictly liable to AIG Europe pursuant to the Carmack Amendment-the main issue raised by the Plaintiff’s Complaint in this case. Accordingly, this Court finds that consideration of General System’s crossclaim would be inappropriate in this action, and the crossclaim will be dismissed without prejudice.

 

 

CONCLUSION

Accordingly, for the reasons stated above, it is this 19th day of March, 2015, ORDERED that:

 

1. Defendant TBB Global Logistics, Inc.’s Motion to Dismiss General System’s Cross-claim (ECF No. 53) is GRANTED, and TBB Global is DISMISSED from this case; and

 

2. The Clerk of the Court transmit copies of this Order to Counsel.

 

 

 

Footnotes

 

1

 

Congress passed the Carmack Amendment in 1906 in order to create “a nationally uniform system of liability for common carriers shipping goods within the stream of interstate commerce.” Brightstar Int’l Corp. v. Minuteman Int’l, No. 10–C–230, 2011 U.S. Dist. LEXIS 114149, at *5 (E.D.Ill. Oct. 4, 2011). While the Carmack Amendment relieves carriers from the burden of differing state regulations, “it also facilitates claims by shippers, requiring them to make only a prima facie case in order to shift the burden to the carrier to prove that it was not negligent and that the damage was caused by an event excepted by the common law.” 5K Logistics, Inc. v. Daily Exp., Inc., 659 F.3d 331, 335 (4th Cir.2011).

 

2

 

The Third–Party Complaint identifies the shipper as “Actavis Elizabeth, LLC.” Third Party Compl. ¶ 18. AIG Europe’s original complaint, however, identifies the shipper as “Actavis, Inc.” Pl.’s Compl. ¶ 2. The precise identity of the shipper does not appear to be disputed however.

 

3

 

The Court notes that there is some authority to support the notion that a crossclaim may still be maintained against a party who has been dismissed from an action. See Charles Allan Wright, et al., 6 Fed. Prac. & Proc. Civ. § 1431 (3d ed.) (“No crossclaim may be brought against a person who has been eliminated or who has withdrawn from the action, since that person no longer is a party. The subsequent dismissal of the original claim itself, or the dismissal of that claim against the coparty, does not require that a previously interposed crossclaim also be dismissed, however.” (internal footnotes omitted) (citing, inter alia, Adams v. NVK Homes, Inc., 135 F.Supp.2d 675, 708 (D.Md.2001))). In this case, however, AIG Europe’s claims against TBB Global were already subject to an unripe motion to dismiss at the time General System filed its cross-claim, and the case was (and still remains) at the initial pleading stage.

 

 

 

 

 

United States District Court,

C.D. California.

Esther Reta MONTES DE OCA, Plaintiff,

v.

EL PASO–LOS ANGELES LIMOUSINE EXPRESS, INC., et al, Defendants.

No. CV 14–9230 RSWL (MANx). | Signed March 17, 2015.

 

 

ORDER Re: PLAINTIFF’S MOTION TO REMAND [36]

RONALD S.W. LEW, Senior District Judge.

*1 Now before the Court is Plaintiff Glenda Garcia, et al’s Motion to Remand Case to Superior Court [36]. Having reviewed the papers submitted on this issue, the Court hereby GRANTS Plaintiffs’ Motion.

 

 

I. BACKGROUND

This Action for personal injuries was commenced on October 21, 2014 in California Superior Court for the County of Los Angeles. See Compl., Exh. 1 to Notice of Removal. Plaintiff has alleged that Defendants’ negligent conduct caused him bodily injury. See id. Defendants then removed this Action to federal court, asserting a federal question under 28 U.S.C. § 1331. See Notice of Removal. Specifically, Defendants have argued that the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C .A. § 14501(c)(1), preempts state jurisdiction because claims for personal injury “are a veiled attempt at regulating the ‘services’ offered by a freight broker.” Notice of Removal ¶ 7.

 

 

II. LEGAL STANDARD

Under 28 U.S.C. § 1331, the district court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The “strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (per curiam) (internal quotation marks omitted).

 

 

III. DISCUSSION

Once again, the Court has noted in multiple opinions arising from the events that led to the litigation against these Defendants, “[w]here a plaintiff invokes traditional elements of tort law and the issue of preemption arises, ‘the courts almost uniformly have resolved against federal preemption.’ “ Jimenez–Ruiz v. Spirit Airlines, Inc., 794 F.Supp.2d 344, 348 (D.P.R.2011) (quoting Dudley v. Bus. Exp., Inc., 882 F.Supp. 199, 206 (D.N.H.1994)); see, e.g., Owens v. Anthony, No. 2–11–0033, 2011 WL 6056409, at *1 (M.D.Tenn. Dec. 6, 2011) (finding that personal injury negligence claims are not preempted by the FAAAA); Gill v. JetBlue Airways Corp., 836 F.Supp.2d 33, 42 (D.Mass.2011) (state law negligence claim was not preempted by ADA). The Supreme Court has argued that “is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.” Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 251 (1984).

 

Defendants argue that notwithstanding the near-universal refusal of the courts to find personal injury actions preempted, Plaintiff’s claim is an attempt to regulate the services of a freight carrier in violation of the ICCTA. In attempting to define the word “service,” as used in the Airline Deregulation Act (“ADA”), the Ninth Circuit has warned that a broad interpretation would “ignore the context of its use” and effectively “result in the preemption of virtually everything” a transporter does. Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir.1998), opinion amended on denial of reh’g, 169 F.3d 594 (9th Cir.1999). The Ninth Circuit concluded that ADA regulations were “intended to insulate the industry from possible state economic regulation,” not to “immunize the airlines from liability for personal injuries caused by their tortious conduct.” Id. Accordingly, the Ninth Circuit defines “service” “in the public utility sense-i.e., the provision of air transportation to and from various markets at various times.” More specifically, the court explained, “Congress used the word ‘service’ … to refer to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.” Id.

 

*2 Importantly, precedent from this District holds that “Section 14501(c)(1) is nearly identical to 49 U.S.C. § 41713 [formerly § 1305], part of the Airline Deregulation Act (“ADA”). Therefore, interpretations of this part of the ADA are applicable to § 14501(c) (1).” Works v. Landstar Ranger, Inc., 2011 WL 9206170 at *1 (C .D. Cal., Apr. 13, 2011 (citing Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 368, 370 (2008)). Thus, the same line of logic that rejects ADA preemption of personal injury claims applies to the argument that the ICCTA preempts Plaintiff’s personal injury claims. Plaintiff’s claims for negligence, peculiar risk, and non-delegable duty are not sufficiently related to Defendants’ “service” to be preempted by § 14501(c)(1). See id. at *2. To hold otherwise would do exactly as the Supreme Court of the United States warned against in Silkwood-it would prevent a plaintiff from obtaining any recourse against illegal and/or tortious conduct.

 

Defendant has responded to this reality by arguing that brokers are somehow different, and that Congress must necessarily have intended for them to be insulated in a way that the courts have determined that all other motor carriers specified in the act are not-that is, insulated for tort liability. It is in this argument that Defendant has missed the forest for the trees. As many courts have noted, 49 U.S.C. 14501(c)(1) is an attempt to prevent the states from regulating carrier rates, routes, or services-in short, to prevent states from interfering with federal economic deregulation related to carriers. See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 2033, 119 L.Ed.2d 157 (1992) (“Congress, determining that maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety [and] quality … of air transportation services, enacted the Airline Deregulation Act….”); Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 372, 128 S.Ct. 989, 996, 169 L.Ed.2d 933 (2008) “the effect of the regulation is that carriers will have to offer … services that differ significantly from those that, in the absence of the regulation, the market might dictate”; City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 426, 122 S.Ct. 2226, 2229, 153 L.Ed.2d 430 (2002) (explaining that the statute’s purpose is to ensure that the preemption of States’ economic authority over motor carriers of property does not restrict the preexisting and traditional state police power over safety, a field which the states have traditionally occupied). Unsurprisingly, Defendant can cite no legal authority for its proposition. As has been discussed in previous opinions against Defendant, the courts have consistently held that a state’s police power for ensuring safety is not preempted by the Act, and traditional tort actions are still within a state’s jurisdiction.

 

*3 The sole case to which Defendant cites, Ameriswiss Tech., LLC v. Midway Line of Illinois, Inc., 888 F.Supp.2d 197, 207 (D.N.H.2012), is inapposite. First, it does not address personal injury claims, but instead claims for cargo loss, which are not at issue here. Id. Indeed, in the paragraph to which Defendant cites, Defendant omits the very language that limits this holding to cargo damage claims:

[W]hen a state common-law claim against a motor carrier arising out of damage to cargo in interstate transportation is preempted, a plaintiff still has a claim against the carrier under the Carmack Amendment. But because the Carmack Amendment creates a federal statutory remedy against motor carriers only, when a state common-law claim against a motor private carrier or a broker is preempted by 49 U.S.C. 14501(c)(1), a plaintiff is left with no claim at all against a defendant who has successfully invoked preemption.

Id. (emphasis added). The opinion discusses at length the interplay between the ICCTA and the Carmack Amendment, and the entire opinion notes that the Carmack Amendment exists specifically to fulfill Congress’s desire to preempt state claims for cargo damage. Defendant’s arguments that its status as a broker exempt it from liability notwithstanding, Ameriswiss does not change the Court’s mind because it assumes an entirely different area of law, and depends on the juxtaposition of the ICCTA and the Carmack Amendment, which only applies to cargo loss, for its reasoning.

 

Second, the Ameriswiss court explicitly refused to resolve the relevance of broker vs. carrier question (“[t]he court bypasses the question of [defendant’s] status”). Thus, this Court will not take Ameriswiss to stand for the proposition that a broker has been Congressionally-mandated as exempt from liability. Third, Ameriswiss is a single case in district court in New Hampshire, and has been declined to be followed on this issue by subsequent courts. See, e.g., AIG Europe Ltd. v. Gen. Sys., Inc., No. CIV.A. RDB–13–0216, 2014 WL 3671566, at *5 (D.Md. July 22, 2014). The Court can also cite authority from other circuits that has come to the opposite conclusion of Ameriswiss, holding that unlike carriers, brokers are not exempt from state law claims under the Carmack Amendment. See, e.g. AIG Europe Ltd. v. Gen. Sys., Inc., No. CIV.A. RDB–13–0216, 2014 WL 3671566, at *5 (D.Md. July 22, 2014).

 

In short, the Ninth Circuit has been clear about how it treats personal injury liability under the ICCTA. Accordingly, Plaintiff’s Motion to Remand is granted. Defendant’s Request for Judicial Notice is made irrelevant by the Court’s decision. While the Court acknowledges Plaintiff’s request for Rule 11 sanctions, it opts not to assign them at this time.

 

 

IV. CONCLUSION

This Court therefore GRANTS Plaintiff’s Motion to Remand Case to Superior Court [36]. Defendants’ pending Motion to Dismiss [12] is thus VACATED AS MOOT.

 

*4 IT IS SO ORDERED.