Darus ZEHRBACH, d/b/a Zehrbach and/or Zehrbach-LPE, Plaintiff,

v.

CON-WAY CENTRAL EXPRESS, CCX and Con-Way Transportation Services, Inc., Defendants.

No. 1:07CV35.

 

Sept. 25, 2007.

 

 

 

IRENE M. KEELEY, United States District Judge.

This case arises from a shipment of an airplane engine under a valid bill of lading from West Virginia to California. Plaintiff is suing for alleged damages to that engine. Plaintiff filed his complaint in the Circuit Court of Monongalia County on February 12, 2007. On March 13, 2007, defendants removed the case to this Court under federal question jurisdiction. On March 23, 2007, defendants filed their motion to dismiss this case. The Court notes that the plaintiff is proceeding pro se.The Court issued a Roseboro notice to the Plaintiff the same day. The plaintiff filed his response on April 17, 2007. Defendants filed their reply on April 25, 2007.

 

Defendants allege that this Court should dismiss with prejudice all of plaintiff’s stated causes of action because (1) all such state law causes of action are completely preempted by the Carmack Amendment to the Interstate Commerce Act of 1887, 49 U.S.C. 14706 et seq. (the “Carmack Amendment”), and (2) plaintiff has failed to file his lawsuit within the applicable statute of limitations.

 

In response, the plaintiff alleges that the defendants had notice of the damages within the statute of limitations and that notice should toll the statute of limitations. The plaintiff also alleges that this claim should be subject to West Virginia insurance law.

 

In ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “the Court must take all well-pleaded material allegations as admitted, but conclusions of law and unwarranted deductions of fact are not admitted. A complaint may be dismissed if the law does not support the conclusions argued, or where the facts alleged are not sufficient to support the claim presented.”Mylan Laboratories, Inc. v. AKZO, N.V., 770 F.Supp. 1053, 1059 (D.Md.1991). A complaint should not be dismissed unless it appears to a certainty that there is no set of facts which could be proved to support a claim or which would entitle the plaintiff to relief. 2A Moore’s Federal Practice §  12.08 at 2271-74 (2d Ed.1983).

 

In this case, the plaintiff has pled only state law causes of action. Plaintiff also does not dispute that the goods in question were shipped in interstate commerce pursuant to a valid bill of lading. The Supreme Court of the United States and the Fourth Circuit Court of Appeals have both held that the Carmack Amendment completely preempts all state law and common law for damages to freight shipped in interstate commerce under a bill of lading.Adams Express Co. v. Croninger, 226 U.S. 491, 505-06 (1913); Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 705 (4th Cir.1993). Therefore, all of plaintiff’s asserted claims are preempted by the Carmack Amendment and must be dismissed with prejudice as it appears to a certainty that there is no set of facts which could be proved to support a claim or which would entitle the plaintiff to relief.

 

Furthermore, even if this Court were to construe plaintiff’s complaint as asserting claims under the Carmack Amendment, this Court would still dismiss such claims with prejudice because the plaintiff failed to file those claims within the applicable statute of limitations. The United States Department of Transportation, acting under authority delegated from Congress, promulgated 49 C.F.R. Pt. 1035, App. B, §  2(b). This regulation establishes a two-step statute of limitations for Carmack Amendment claims. First, a claim must be filed in writing within nine months after delivery with the carrier. Second, any lawsuit must be filed within two years and one day of written notice by the carrier that the carrier is disallowing the claim. The regulation provides that “[w]here claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier shall be liable, and such claims will not be paid.”Id.

 

In this case, it is undisputed that the plaintiff never filed a formal claim with the defendants. It is also undisputed that the plaintiff filed his lawsuit more than two years and one day after the defendants disallowed the plaintiff’s informal claim. There is no provision of applicable law which would toll this statute of limitations under these circumstances. Therefore, had the plaintiff asserted Carmack Amendment claims, those claims would be dismissed with prejudice as untimely.

 

Therefore, defendants’ motion to dismiss (doc. no. 5) is GRANTED and all of plaintiff’s claims are DISMISSED WITH PREJUDICE.The Clerk is ordered that this case be STRICKEN from this Court’s docket.

 

It is so ORDERED.

 

The Clerk is directed to transmit certified copies of this Order to the pro se plaintiff and counsel of record.

UNITED VAN LINES, LLC and Mayflower Transit, LLC, Plaintiffs,

v.

Gaile EDWARDS, as an individual and Does 1-10, Defendants.

No. Civ. S-07-715 RRB DAD.

 

Oct. 4, 2007.

 

 

 

Memorandum of Opinion and Order

RALPH R. BEISTLINE, United States District Judge.

United Van Lines, LLC and Mayflower Transit, LLC (“collectively Plaintiffs”) filed a breach of contract action against Gaile Edwards (“Edwards”) seeking to recover for services rendered in transporting Edwards’ household goods from California to Montana. Edwards filed a cross-complaint alleging breach of contract and failure to exercise due care. Plaintiffs now seek dismissal of the cross-complaint pursuant to Rule 12(b)(6) on the ground that the claims alleged therein are pre-empted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. §  14706 (“Carmack Amendment”). Alternatively, Plaintiffs seek dismissal on the ground that the cross-complaint is untimely. For the following reasons, the court GRANTS the motion in part and DENIES it in part.

 

 

Inasmuch as the Court concludes the parties have submitted memoranda thoroughly discussing the law and evidence in support of their positions, it further concludes oral argument is neither necessary nor warranted with regard to the instant matter. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir.1999) (explaining that if the parties provided the district court with complete memoranda of the law and evidence in support of their positions, ordinarily oral argument would not be required).

 

 

 

Mayflower Transit, LLC (“Mayflower”) and United Van Lines, LLC (“United”) are motorcarriers of household goods and personal property. First Amended Complaint (“FAC”) ¶  3; Compl. ¶  3. Edwards is a former resident of California who currently resides in Montana. FAC ¶  4. In October 2005, Edwards entered into a contract with Mayflower to transport her household goods from California to Montana. FAC ¶  8. On or about October 12, 2005, Edwards tendered her household goods to Mayflower, which were subsequently delivered to Montana in accordance with the Bill of Lading at a cost of $8,068.25. FAC ¶ ¶  10-16. Edwards accepted delivery of her household goods but refused to pay Mayflower for its services after discovering that some of her household goods had been damaged and stolen. FAC ¶ ¶  15, 20; Answer/Cross-Compl. at 4.

 

On or about August 26, 2006, after repeated attempts to secure payment for its services, Mayflower sent a letter to Edwards requesting payment. Id. ¶  21.Edwards refused to pay or respond to the letter. Id. ¶  22.On April 13, 2007, United filed a breach of contract action against Edwards seeking to recover for its services in transporting Edwards’ household goods from California to Montana. Compl. at 1-7. On May 1, 2007, the complaint was amended to add Mayflower as a named party. FAC 1-6. On July 19, 2007, Edwards responded to the FAC by filing an answer and a cross-complaint. Answer/Cross-Compl. at 1-6. The cross-complaint alleges that United breached the parties’ contract and their duty of care by failing to safely deliver Edwards’ household goods from California to Montana. Id. at 4. The cross-complaint seeks $10,000 in damages. Id.

 

 

 

 

A. Rule 12(b)(6)

 

 

In ruling on a Rule 12(b)(6) motion the complaint is read in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir.2007)“Allegations in the complaint, together with reasonable inferences therefrom, are assumed to be true for purposes of the motion,”id., but conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004).“A dismissal for failure to state a claim pursuant to 12(b)(6) should not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”Odom, 486 F.3d at 545;Adams, 355 F.3d at 1183.

 

 

B. Carmack Amendment

 

Plaintiffs argue that dismissal of the cross-complaint is appropriate because the claims alleged therein are pre-empted by the Carmack Amendment.

 

The Carmack Amendment, 49 U.S.C. §  14706, provides “ ‘a uniform national liability policy for interstate carriers’ ” and “is the exclusive cause of action for interstate-shipping contract claims alleging loss or damage to property.”Hall v. North American Van Lines, Inc., 476 F.3d 683, 687-88 (9th Cir.2007). Accordingly, because Edwards’ cross-complaint alleges a claim for breach of an interstate-shipping contract based on loss and damage to household goods, and does not allege that this claim is brought pursuant to the Carmack Amendment, it is dismissed with leave to amend. A claim under the Carmack Amendment is the exclusive remedy for breach of an interstate-shipping contract.

 

Additionally, to the extent that the cross-complaint seeks to allege a negligence claim, this claim is pre-empted by the Carmack Amendment and therefore is dismissed with prejudice. See Hall, 476 F.3d at 688 (the Carmack Amendment is a complete defense to common law claims and requires dismissal of a common law negligence claim against a carrier); Hughes Aircraft Co. v. North American Van Lines, Inc., 970 F.2d 609, 613 (9th Cir.1992).

 

For these reasons, the motion to dismiss is GRANTED. Edwards has thirty-days to amend her cross-complaint to allege a claim under the Carmack Amendment.

 

 

C. Timeliness of Cross-Complaint

 

Plaintiffs argue that dismissal of the cross-complaint is appropriate because it is untimely. The court disagrees.

 

Rule 13(a) provides, in relevant part, that: “[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”“The test for determining whether a counterclaim is compulsory is whether a logical relationship exists between the claim and the counterclaim and whether the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.”Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991) (quotation marks omitted).

 

In the instant case, Edwards responded to the FAC by filing an answer and a cross-complaint alleging a breach of contract claim. Therefore, because this claim arises out of the same transaction as Plaintiffs’ claim, it is a proper and timely counter-claim. See Valley Disposal Inc. v. Central Vermont Solid Waste Management Dist., 113 F.3d 357, 364-65 (2d Cir.1997) (observing that compulsory counterclaims are claims arising out of the same occurrence or transaction as the claim asserted by the plaintiff and are generally asserted in the answer if such claims are acquired by the time of the original answer).

 

For this reason, the motion to dismiss is DENIED.

 

 

 

 

For the reasons stated above, the court GRANTS the motion to dismiss in part and DENIES it in part. Edwards has thirty-days to amend her cross-complaint to allege a claim under the Carmack Amendment.

 

IT IS SO ORDERED.

 

ENTERED this 3rd day of October, 2007.