United States District Court,E.D. Pennsylvania.

Junius BAUGH, Plaintiff,

v.

RELIANCE INSURANCE COMPANY & Joel S. Ario, Defendants.

June 16, 2008.

MEMORANDUM ORDER

POLLAK, J.

Presently before the court is defendants’ renewed motion to dismiss plaintiff’s amended complaint for lack of subject matter jurisdiction. Because defendant has presented (and plaintiff has responded to) arguments that go both to the jurisdictional question and to the merits of defendant’s claims, the court interprets the motion as one to dismiss both for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and as one for failure to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).

In addition, the court will consider, sua sponte, whether it has jurisdiction to consider plaintiff’s objections to the state-court order of the statutory liquidator.

I. Facts alleged

Accepting the facts alleged in the amended complaint, plaintiff Junius Baugh, then a lieutenant commander in the United States Navy, was transferred from a duty station in Philadelphia, Pennsylvania, to one in Norfolk, Virginia, in 1995. The United States engaged Kroke Transfer to store and then transport plaintiff’s household goods from Philadelphia to Norfolk. Reliance Insurance Company, then a Pennsylvania insurance enterprise, served as Kroke’s liability insurer. Reliance is currently being liquidated under Pennsylvania law, and defendant Joel Ario is the state liquidator (and, for purposes of this litigation, Reliance’s successor-in-interest).

According to plaintiff, his household goods were delivered damaged. The purpose of this action is to recover damages for his losses, which he claims are owed because of Reliance’s status as Kroke’s insurer.

II. Legal standards

At the pleadings stage, the court must determine whether a federal question appears on the face of plaintiff’s well-pleaded complaint. Bracken v. Matgouranis, 296 F.3d 160, 163 (3d Cir.2002). If it does, then the court has subject-matter jurisdiction under 28 U.S.C. § 1331. Id.

Even if a federal question appears on the face of the complaint, defendant is nonetheless entitled to dismissal if the complaint fails to allege facts sufficient to “raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if donbtful in fact).”Bell Atlantic Corp. v. Twombly, — U.S. —-, —-, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).

III. Analysis

Plaintiff translates his allegations into three causes of action. The court will examine each count in turn to determine, first, whether it states a claim arising under the laws of the United States, and, second, whether it states a claim on which relief can be granted.

A. Count one-Personnel Claims Act; Contract Disputes Act

Count one asserts a claim against defendant for enforcement of an administrative order issued by Norfolk Naval Station Transportation Office. The documents that are alleged to evidence this order are attached as exhibits C & D, and the court takes notice of them as documents integral to the complaint. See DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 444 n. 2 (3d Cir.2003). Exhibit C is a copy of Department of Defense Form 1842, filled out by Baugh. According to regulations in place at the time of the alleged loss, Form 1842 is used when Navy personnel assert, against the United States, a claim of loss arising from damage to personal property, pursuant to the Military and Civilian Employees’ Personnel Claims Act, 31 U.S.C. §§ 3701, et seq.32 C.F.R. § 751.9 (1994). If the government determines that the claim is valid, then the amount of the allowed claim is paid by the United States Navy.32 C.F.R. § 751.13 (1994).

It is clear from reading both the Personnel Claims Act and the applicable Department of the Navy regulations that these provisions govern claims of and against the United States. This is not surprising; according to the complaint, plaintiff’s household goods were shipped pursuant to a government bill of lading. Am. Compl. ¶ 6. In other words, the government hired a carrier to ship the goods for plaintiff. The Personnel Claims Act allows government personnel to make claims against the government when their goods are damaged in transit, 37 U.S.C. § 3721, and the government can then recover against the offending carrier.

Plaintiff has not pointed the court to any provision of law that creates a federal cause of action for enforcement of a Navy personnel claim against a private insurer (or any party other than the United States). Therefore, though the complaint invokes federal law (the Personnel Claim Act), the court concludes that, on the basis of the facts alleged and all possible inferences, plaintiff cannot seek relief from Reliance/Ario under that statute.

Plaintiff also invokes the Contract Disputes Act, 41 U.S.C. §§ 601, et seq., as a basis for federal jurisdiction. That statute, however, governs disputes between the government and parties to government contracts. See, e.g.,41 U.S.C. § 605 (conferring on certain government officials the right to adjudicate, in the first instance, disputes between the government and parties with whom it contracts). It does not appear to apply to disputes between private parties at all, much less create a private right of action between them. Thus, plaintiff has failed to plead a Contract Disputes Act claim on which relief can be granted.

B. Count two-Carmack Amendment

Count two asserts a claim against defendant under the Carmack Amendment, 49 U.S.C. § 14706. That statute provides for the liability of a motorcarrier or freight forwarder who transports goods in interstate commerce. It does not provide that a motorcarrier or freight forwarder’s insurer is directly liable to an injured party, and plaintiff has cited no authority for extending Carmack Amendment liability beyond its text. Therefore, though this count invokes federal law, it does not plead a Carmack Amendment claim on which relief can be granted.

C. Count three-Breach of fiduciary duty

Plaintiff has admitted that count three asserts a claim arising under state law. Mem. in Opp. to Motion to Dismiss, Docket No. 11, at 4. Because the court has dismissed both federal-law claims, it declines to exercise supplemental jurisdiction over the state-law claims, and will dismiss them accordingly. 28 U.S.C. § 1367(c)(3).

D. Plaintiff’s objections to the decision of the statutory liquidator

Plaintiff has cited no federal law that would allow for a direct appeal of a state liquidator’s decision in this court; therefore plaintiff’s objections will be dismissed for lack of subject-matter jurisdiction.

AND NOW, this day of June, 2008, for the foregoing reasons, plaintiff’s complaint (Docket No. 7) and objections (Docket No. 41) are DISMISSED. All other motions are DISMISSED as moot, and the Clerk is directed to mark this case statistically closed.

United States District Court,W.D. Oklahoma.

Martha POTTS, Plaintiff,

v.

OK TRANSFER AND STORAGE, INC., Defendant.

June 11, 2008.

ORDER

TIMOTHY D. DeGIUSTI, District Judge.

Before the Court is Defendant’s Motion to Dismiss [Doc. No. 9], which seeks the dismissal pursuant to Fed.R.Civ.P. 12(b)(6) of Count II and Count III of the Complaint for failure to state a claim upon which relief can be granted. Defendant asserts that Plaintiff’s pendent state law claims for breach of contract and negligence are preempted by federal law and Plaintiff’s remedy lies under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, as alleged in Count I of the Complaint. Defendant relies on binding case law regarding the preemptive force of the Carmack Amendment. See, e.g., Underwriters at Lloyds of London v. North American Van Lines, 890 F.2d 1112 (10th Cir.1989) (en banc). Plaintiff responds by arguing, among other things, that Underwriters was wrongly decided and should not be followed.

Standard of Decision

Defendant’s challenge to the legal sufficiency of the Complaint, which was raised after the filing of its Answer, is properly asserted by a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) rather than a motion to dismiss under Rule 12(b)(6). Nevertheless, the standard of decision is the same under both rules. See Ramirez v. Department of Corr., 222 F.3d 1238, 1240 (10th Cir.2000); McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991). A dismissal for failure to state a claim for relief is proper “if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the non-moving party, the complaint does not contain ‘enough facts to state a claim to relief that is plausible on its face.’ “ Macarthur v. San Juan County, 497 F.3d 1057, 1064 (10th Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, — U.S. —-, —-, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)).

Rule 12(b) permits certain defenses to be raised by motion, but the motion “must be made before pleading if a responsive pleading is allowed.”Fed.R.Civ.P. 12(b). After that point, the defense of failure to state a claim may be raised by motion under Rule 12(c). See Fed.R.Civ.P. 12(h)(2)(B).

Here, Defendant asserts a legal challenge based on the doctrine of federal preemption. Defendant does not dispute that the factual allegations of the Complaint state claims under both the Carmack Amendment and common law principles. Defendant contends, however, that Plaintiff’s state law claims are preempted by the Carmack Amendment. The question presented is purely a legal one: Do Plaintiff’s state common law claims survive federal preemption?

Plaintiff’s Claims

The Complaint states, and the Answer admits, that Defendant is an interstate carrier who contracted to move Plaintiff’s household goods from San Antonio, Texas, to Enid, Oklahoma, under a bill of lading. Plaintiff alleges that Defendant negligently loaded and transported her goods, breached the moving contract, and caused a loss of some items, damage to other items, and consequential damages, including losses of income, loss of her bargain, inconvenience and hardship. Plaintiff asserts under Count I, a claim for damages pursuant to 49 U.S.C. § 14706; under Count II, a claim for breach of contract; and under Count III, a claim of negligence.

Analysis

As stated above, Defendant relies on binding Tenth Circuit authority for the proposition that Plaintiff’s pendent state law claims are preempted by the Carmack Amendment. Plaintiff concedes that “Defendant’s factual interpretation of Underwriters and cases following it in the Tenth Circuit is correct.”See Pl.’s Resp. Def.’s Mot. Dismiss [Doc. No. 14] at 23. Plaintiff argues, however, that “[t]he Tenth Circuit erred on two significant parts of the holding in Underwriters ” and urges this Court not to follow the doctrine of stare decisis but to adopt Plaintiff’s view of the “savings clause” of the Carmack Amendment. See Pl.’s Resp. Def.’s Mot. Dismiss [Doc. No. 14] at 26-28.

In Underwriters, the Tenth Circuit sitting en banc unequivocally held “that the Carmack Amendment preempts state common law remedies against common carriers for negligent loss or damage to goods shipped under a lawful bill of lading.”Underwriters, 890 F.2d at 1121. In so holding, the court of appeals overruled prior panel decisions and joined the overwhelming majority of federal appellate courts. See id. at 1120.This Court, as well as panels of the Tenth Circuit, must follow this binding precedent, “absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”In re Smith, 10 F.3d 723, 724 (10th Cir.1993); see Starzynski v. Sequoia Forest Indus., 72 F.3d 816, 819-20 (10th Cir.1995). Thus, this Court cannot entertain Plaintiff’s attack on the soundness of Underwriters; she identifies no intervening change in the law that might permit this Court to disregard its holding. Therefore, the Court finds that Defendant is entitled to dismissal of Plaintiff’s common law claims, which are preempted by the Carmack Amendment.

IT IS THEREFORE ORDERED that Defendant’s Motion is granted. The pendent state law claims asserted in Counts II and III of the Complaint are dismissed for failure to state a claim upon which relief can be granted.

IT SO ORDERED.