United States District Court,

N.D. Indiana,

Hammond Division.

Josephine SAJDA, Administrator of the Estate of Andrew J. Sajda, Sr.; Andrew J. Sajda, Jr., Plaintiffs

v.

Floyd BREWTON; R & L Transfer, Inc.; R & L Carriers Shared Services, LLC, Defendants.

No. 2:08 CV 255.

 

Nov. 20, 2009.

 

OPINION AND ORDER

 

ANDREW P. RODOVICH, United States Magistrate Judge.

 

This matter is before the court on the Motion to Compel [DE 30] filed by the plaintiffs, Andrew J. Sajda, Jr., and the Estate of Andrew J. Sajda, Sr., on July 14, 2009, and the Motion for Leave to File Supplemental Memorandum of Law in Support of Motion to Compel [DE 36] filed by the plaintiffs on September 25, 2009. For the following reasons, the Motion to Compel [DE 30] is GRANTED IN PART and DENIED IN PART, and the Motion for Leave to File Supplemental Memorandum of Law in Support of Motion to Compel [DE 36] is GRANTED.

 

Background

 

This matter arises from an accident which occurred on the Indiana Toll Road in the early morning hours of February 2, 2008. The plaintiff, Andrew J. Sajda, Jr., and his father, Andrew J. Sajda, Sr ., were adjacent to the highway on the right hand shoulder of the road attempting to change a flat tire on the son’s Nissan Truck. A truck traveling on the Toll Road struck the father and son, injuring Sajda, Jr., and killing his father. The vehicle then fled the scene of the accident.

 

That same day, defendant Floyd Brewton, a driver for R & L Transfer, Inc., called his safety supervisor and verbally completed a “routine form” in which he described a sideswipe accident on the Indiana Toll Road at approximately 4:45 a.m. (DE 33-2, p. 2/ Brewton Deposition, p. 140; DE 33-3, p. 7/Indiana State Police Report) Brewton stated that he was involved in an incident with another vehicle and that he wanted to inform R & L so that in the event that the other vehicle involved resurfaced, he “would not be blamed for this.” (DE 33-2, p. 2/Brewton Deposition, p. 140)

 

The Indiana State Police worked diligently to track down the vehicle involved in the fatal hit and run. Using a piece of black plastic that had broken off the truck, the police officers honed in on R & L Transfer. They contacted the corporation to inquire about drivers on the Toll Road that morning who may have been involved in the accident. R & L’s representative informed the state troopers of the sideswipe incident reported at the same date and time. Two troopers went there to inspect Brewton’s vehicle and met with R & L’s attorney, who informed the officers that any information provided by the company to the DOT would be provided to the police. The officers stated that they would prepare a written request for that information.

 

The sideswipe report, the Accident Register prepared for the DOT, and the documents used to generate the DOT Accident Register are the subject of the discovery dispute at hand. The plaintiffs filed their Motion to Compel requesting complete answers to the plaintiffs’ discovery requests. The plaintiffs claim that the defendants waived any privilege through a lack of diligence or because of the inapplicability of attorney-client and work product privileges to the items requested. The defendants respond that they have attempted with good faith to communicate with the plaintiffs and cooperate with discovery and that, therefore, they have not waived any privilege protections. The defendants stand by the privilege log that they provided, asserting attorney-client privilege, work product privilege, and protection under 49 U.S.C. § 504(f) as prohibitions to production of the three reports in dispute.

 

After conducting depositions of two of R & L’s employees, the plaintiffs filed the Supplemental Memorandum of Law in Support of Motion to Compel contending that the employees confirmed the plaintiffs’ belief that the reports were compiled in the normal course of business.

 

Discussion

 

A party may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense-including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Federal Rule of Civil Procedure 26(b)(1). For discovery purposes, relevancy is construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D.Ind.2002) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)). Even when information is not directly related to the claims or defenses identified in the pleadings, the information still may be relevant to the broader subject matter at hand and meet the rule’s good cause standard. Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.Ind.2003). See Adams v. Target, 2001 WL 987853,(S.D.Ind.2001) (quoting Rule 26(b)(1)) (“For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”). See also Shapo v. Engle, 2001 WL 629303,(N.D.Ill. May 25, 2001) (“Discovery is a search for the truth.”).

 

A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil Procedure 37(a) (2)-(3). The burden “rests upon the objecting party to show why a particular discovery request is improper.” Kodish v. Oakbrook Terrace Fire Protection Dist., 235 F.R.D. 447, 449-50 (N.D.Ill.2006). The objecting party must show with specificity that the request is improper. Graham v. Casey’s General Stores, 206 F.R.D. 253, 254 (S.D.Ind.2002). That burden cannot be met by “a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.” Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506,(N.D.Ill. Aug.2, 2006) (internal quotations and citations omitted). Rather, the court’s broad discretion in deciding such discovery matters should include “the totality of the circumstances, weighing the value of material sought against the burden of providing it, and taking into account society’s interest in furthering the truth-seeking function in the particular case before the court.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7 th Cir.2002) (quoting Rowlin v. Alabama, 200 F.R.D. 459, 461 (M.D.Ala.2001)).

 

The plaintiffs filed their Motion for Leave to File Supplemental Memorandum of Law in Support of Motion to Compel, offering deposition testimony of two R & L employees as newly discovered support. A court considers such a motion for additional briefing on the basis of how helpful the new information will be in making a decision on the underlying motion. Medical Assurance Co., Inc. v. Weinberger, 2008 WL 697165,(N.D.Ind.2008). See also Archdiocese of Milwaukee v. Underwriters at Lloyd’s, London, 955 F.Supp. 1066, 1070 (E.D.Wis.1997) (“However, at some point, briefing must end.”). The defendants’ response to the motion for leave did not object to the supplemental briefing, but joined in extending the legal arguments. Therefore, the Motion for Leave to File Supplemental Memorandum of Law in Support of Motion to Compel is GRANTED.

 

In ruling on a motion to compel, the issue of waiver of any privilege protections must be addressed first. The plaintiffs argue that the months-long delay and the incomplete privilege log provided by the defendants waived any privileges. Courts reserve waiver as a sanction for cases where the offending party was guilty of unjustified delay in responding to discovery. Cunningham v. SmithKline Beecham, 255 F.R.D. 474, 480-81 (N.D.Ind.2009) (citing Ritacca v. Abbott Laboratories, 203 F.R.D. 332, 335 (N.D.Ill.2001)). Improper claims of privilege in response to discovery requests accompanied by “evidence of foot-dragging or a cavalier attitude towards following court orders and the discovery rules” support a finding of waiver. Ritacca, 203 F.R.D. at 335. Even where a privilege log is inadequate, the sanction of waiver for all purportedly privileged documents is severe. Muro v. Target Corp., 250 F.R.D. 350, 365 (N.D.Ill.2007). Such sanctions are disfavored absent bad faith, wilfulness, or fault. See American National Bank and Trust Co. of Chicago v. Equitable Life Assur. Soc. of U.S., 406 F.3d 867, 879 (7th Cir.2005) (reversing waiver sanction imposed by the magistrate judge where defendant corporation submitted inadequate privilege log that it acknowledged required revision).

 

Here, R & L initially failed to submit a privilege log with its discovery responses, and subsequently R & L’s privilege log has undergone various revisions. However, R & L communicated the intent to provide a log, then discussed the delay with the plaintiffs. Although the initial version of the privilege log was deficient, the more current version appears to meet the requirements document by document. Therefore, the evidence of bad faith, wilfulness, or fault necessary to impose the sanction of waiver of all privilege is lacking, and as to that request, the motion is DENIED IN PART.

 

As to the possible privilege protections of the three reports, the defendants Brewton and R & L Transfer initially contend that the work product doctrine and the attorney-client privilege bar production of all of the documents. “The work product privilege is distinct from and broader than, the attorney-client privilege.” Broadnax v. ABF Freight Systems, Inc., 1998 WL 474099,(N.D.Ill.1998). The work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3) as follows:

 

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means…. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

 

See also Boyer v. Gildea, 257 F.R.D. 488, 490 (N.D.Ind.2009) (applying the Rule). To meet the qualified immunity from discovery based on Rule 26(b)(3), the materials sought must be: “(1) documents and tangible things; (2) prepared in anticipation of litigation or for trial; and (3) by or for a party or by or for a party’s representative.” Boyer, 257 F.R.D. at 490 (citing Wright, Miller & Marcus, 8 Federal Practice & Procedure § 2024 (3d ed.)).

 

The threshold determination is whether the documents sought to be protected were prepared in anticipation of litigation or for trial. Caremark, Inc. v. Affiliated Computer Services, Inc., 195 F.R.D. 610, 614 (N.D.Ill.2000). The test for each document is “whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation .” Id. (citing and quoting Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir.1983)). Precedent is clear that eventual litigation does not ensure protection of all materials prepared by attorneys-the “remote prospect of future litigation” does not suffice to bring the work product doctrine into play. Id. at 1120. Materials or investigative reports developed in the ordinary course of business do not qualify as work product. If the material or report came into existence because of the litigation or because of an existing claim likely to lead to litigation, then the doctrine applies. Caremark, 195 F.R.D. at 614.

 

The attorney-client privilege protects communications between a client and his lawyer. “[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 683, 66 L.Ed.2d 584 (1981). The Seventh Circuit applies the privilege under the following principles:

 

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

 

United States v. White, 950 F.2d 426, 430 (7th Cir.1991)

 

The party claiming the privilege bears the burden of establishing all of the elements of the attorney-client privilege. Id. “The claim of privilege cannot be a blanket claim; it must be made and sustained on a question-by-question or document-by-document basis.” Id. (citing United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983)) (internal quotation omitted).

 

Beginning with the sideswipe report, the defendants assert the report falls under both the work product doctrine and the attorney-client privilege. Neither claim applies. Brewton phoned in this self-described routine report to the safety supervisor at R & L. Such phoned-in reports of the drivers are regular occurrences in the transportation industry, and regardless of any handwritten notes that may appear on the report, nothing expressed by the defendants suggests that the sideswipe report was not made in the ordinary course of business. See Broadnax, 1998 WL 474099 at(finding the same). Defendants’ argument that the sideswipe report contains notes “identifying counsel of record” do nothing to alter the fact that the report was generated in the ordinary course of business. Likewise, the addition of the name of counsel to a document cannot raise the report to meet the requirements for attorney-client privilege. Brewton’s phone call creating the sideswipe report was not seeking legal advice and was not made to a legal advisor. Neither of these privileges apply to this document.

 

In similar fashion, the computer template used to generate the DOT Accident Register appears to be a regularly generated report by the trucking company’s Safety Compliance Administrator. As a regular report generated in the ordinary course of business, the work product doctrine cannot apply, and forwarding the document to an attorney does not cloak it in attorney-client privilege. Therefore, these privileges do not apply to the computer template.

 

The defendants argue that the DOT Accident Register is barred by 49 U.S.C. § 504(f) from disclosure in discovery. The court looks to the text of the statute, which must be strictly construed. St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S.Ct. 289, 295, 7 L.Ed.2d 401 (1961). The defendants bear the burden of proving that a privilege exists. United States v. Hamilton, 19 F.3d 350, 354 (7th Cir.1994). Section 504(f) states:

 

The defendants’ response to the motion to compel contains only one sentence simply stating, “Last, 49 U.S.C. 504(f) prohibits the disclosure of such a record.” However, they devote the majority of their legal argument on this point in the later Response in Opposition to Plaintiffs’ Motion for Leave to File Supplemental Memorandum of Law in Support of Motion to Compel, while failing to argue work product and attorney-client privileges any longer.

 

No part of a report of an accident occurring in operations of a motor carrier, motor carrier of migrant workers, or motor private carrier and required by the Secretary, and no part of a report of an investigation of the accident made by the Secretary, may be admitted into evidence or used in a civil action for damages related to a matter mentioned in the report or investigation.

Defendants interpret the prohibition for “use” in a civil action for damages to encompass the discovery process.

 

Although there is a dearth of case law on this provision, the reported cases all reach the same conclusion. The Supreme Court in St. Regis Paper Co. discussed the necessary strict construction of statutes purporting to create a privilege and held that disclosure of information through discovery will not be barred absent an express prohibition. 368 U.S. at 218, 82 S.Ct. at 295. In fact, the St. Regis Paper Co. opinion specifically listed the earlier version of § 504(f) as an example of just such an example of “when Congress has intended like reports not to be subject to compulsory process” and “has said so.” Id. See Federal Procedure, Lawyers Ed. § 76:683 (Updated August 2009) (“Nor are such reports [required or made by the Secretary of Transportation of an accident occurring in the operations of a motor carrier] subject to discovery in any such civil action.”). See also Irvine v. Safeway Trails, 10 F.R.D. 586, 587-88 (E.D.Pa.1950) (“[P]laintiffs have requested the production of reports to the Interstate Commerce Commission which under the provisions of the Act [now codified as 49 U.S.C. § 504(f) ], are privileged. The objection to this interrogatory, therefore, will be sustained.”).

 

The plaintiffs counter that the seemingly nonspecific wording of § 504(f) prohibiting admission into evidence or “use” in a civil action for damages lacks the Congressional intent to create a privilege. However, they fail to cite a case in which a court compelled discovery when the statutory privilege of § 504(f) was asserted. Indeed, the plaintiffs discuss a review of the United States Code revealing six statutes in which Congress has created a privilege exempting documents from the discovery process with specific language aimed at the subject of discovery. Similarly, in Adcox v. Medtronic, Inc., 131 F.Supp.2d 1070, 1075 (E.D.Ark.1999), the court reviewed six statutes, including § 504(f), with similarly ambiguous “used in a civil action for damages” language, and found that such language was not specific enough to demonstrate Congress’ intent to bar such reports from discovery. This conclusion was vacated upon a writ of mandamus by the Eighth Circuit, holding that the statute precluded discovery of the mandatory reports. In re Medtronic, Inc., 184 F.3d 807, 811 (8th Cir.1999).

 

The burden to demonstrate privilege is on the defendants, and the case law presented to the court supports the interpretation of 49 U.S.C. § 504(f) argued by the defendants. Therefore, the DOT Accident Register assigned Event No. 2008055687 is protected by statutory privilege, and the motion to compel is DENIED IN PART as to this report.

 

The defendants, in their response to the motion to file a supplemental memorandum belatedly, argue that the sideswipe report and the computer template used to compile the information for the DOT Accident Register also fall under the statutory protections of § 504(f). The court disagrees. The statute provides protection for all parts of “a report of an accident” required by the Secretary, but it does not extend to regularly-gathered information that the carrier acquires and uses to fill in the blanks on that DOT report. Nowhere does this narrow statutory provision extend itself to documents “used to generate the DOT Official Accident Register Reports” as the defendants purport. Only “investigation of the accident made by the Secretary” are similarly excluded-not internal investigations by the carrier. Therefore, as to the sideswipe report and the computer template used to generate the DOT Accident Register, the Motion to Compel is GRANTED IN PART.

 

_________________________

 

For the foregoing reasons, the Motion to Compel [DE 30] filed by the plaintiffs, Andrew J. Sajka, Jr., and the Estate of Andrew J. Sajda, Sr., on July 14, 2009, is GRANTED IN PART and DENIED IN PART, and the Motion for Leave to File Supplemental Memorandum of Law in Support of Motion to Compel [DE 36] filed by the plaintiffs on September 25, 2009, is GRANTED.

 

United States District Court,

S.D. Ohio,

Eastern Division.

TECHDISPOSAL.COM, INC., Plaintiff,

v.

CEVA FREIGHT MANAGEMENT, Defendant.

No. 2:09-cv-356.

Nov. 30, 2009.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of a motion to dismiss (Doc. # 6) filed by Defendant, Eagle Glogal Logistics, named in the Complaint (Doc. # 5) as CEVA Freight Management. In addition to the motion, Plaintiff Techdisposal.com’s memorandum in opposition (Doc. # 8), Defendant’s reply memorandum (Doc. # 9) and supplemental reply memorandum (Doc. # 13), as well as Plaintiff’s supplemental response memorandum (Doc. # 16), are before the Court. For the reasons that follow, the Court GRANTS the motion to dismiss.

I. Background

Since 2005, Plaintiff, a technology waste company, has contracted with Defendant, a freight and shipping company, to transport technology waste from Plaintiff’s clients, including computer hard drives, laptops, and data. (Doc. # 5 ¶¶ 4, 5.) Plaintiff alleges multiple incidents wherein Defendant mishandled, lost, incorrectly shipped, and purposefully delayed waste shipments from Plaintiff’s clients. (Id. ¶ 6.) Plaintiff claims to have lost several clients and suffered significant financial loss. (Id. ¶ 12.) In one example, Plaintiff alleges that it lost a client that provided Plaintiff over $150,000 a year in business, on average. (Id. ¶ 6.)

Plaintiff initiated the instant action by filing its Complaint in the Common Pleas Court of Franklin County, Ohio. (Id.) The Complaint asserts state common law claims for breach of contract, promissory estoppel, and unjust enrichment, all of which arise out of Defendant’s shipment of technology waste for Plaintiff’s clients. (Id. ¶¶ 7-23.)

Pursuant to 28 U.S.C. §§ 1441(a), 1441(b), and 1446, Defendant removed the case to this Court on May 4, 2009. (Doc. # 1.) Defendant then filed a motion to dismiss (Doc. # 6) Plaintiff’s Complaint (Doc. # 5) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which this Court can grant relief on the grounds that 49 U.S.C. § 14706 (the “ Carmack Amendment”) preempts the state common law claims.

Opposing Defendant’s motion, Plaintiff submitted a response, arguing that this Court lacks jurisdiction because not a single bill of lading in dispute involves an amount in controversy over $10,000.00. Further, Plaintiff argues that if this Court does have jurisdiction, the Court should not dismiss the Complaint because it alleges sufficient facts to make out a Carmack Amendment claim. Finally, in the alternative, Plaintiff argues that the Court should grant leave to amend the Complaint.

Defendant in turn filed a reply memorandum in which it argued that (1) the Complaint satisfies the amount-in-controversy requirement under 28 U.S.C. § 1337(a), (2) this Court cannot construe Plaintiff’s state common law claims as a Carmack Amendment claim, and (3) the Court should not consider Plaintiff’s alternative request to amend because Plaintiff has failed to provide an amended complaint to the Court. In a supplemental reply, Defendant argues that a demand letter sent by Plaintiff to Defendant is “other paper” under 28 U.S.C. § 1446 and that it evidences that the $10,000.00 jurisdictional threshold has been satisfied. In a supplemental response memorandum filed with leave of this Court, Plaintiff argues that the settlement letter is not “other paper” under 28 U.S.C. § 1446 and that the letter does not establish that the jurisdictional requirements have been satisfied.

The parties have completed briefing the issues involved, and the motion is now ripe for disposition.

II. Discussion

A. Standard Involved

Federal Rule of Civil Procedure 12(b)(6) requires an assessment of whether Plaintiff has set forth a claim upon which this Court can grant relief. In determining whether a dismissal upon a Rule 12(b) (6) motion is appropriate, this Court must construe the Complaint in “the light most favorable” to Plaintiff, accepting as true all well-pleaded factual allegations. Bower v. Federal Exp. Corp., 200, 203 (6th Cir.1996), citing Sinay v. Lamson & Sessions, 948 F.2d 1037, 1039 (6th Cir.1991); see also Misch v. The Cmty. Mutual Ins. Co., 896 F.Supp. 734, 738 (S.D.Ohio 1994). Although this is a liberal standard, more is required of the Complaint than the bare assertion of legal conclusions or unwarranted factual inferences. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). The Complaint is required to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007). The Court will dismiss the Complaint if it does not “contain either direct or inferential allegations” with respect to all material elements necessary to sustain recovery under a viable legal theory. Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir.1997); see also In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993).

B. Analysis

Defendant moves to dismiss the Complaint on the basis that 49 U.S .C. § 14706 (formerly 49 U.S.C. § 11707), the Carmack Amendment, preempts Plaintiff’s state common law claims. In a uniform line of cases, the Court of Appeals for the Sixth Circuit has held that the Carmack Amendment to the Interstate Commerce Act (“ICA”) is broad in its preemptive effect on state tort claims arising out of the transportation and delivery of goods. Toledo Ticket Co. v. Roadway Exp., Inc., 133 F.3d 439, 441 (6th Cir.1998); W.D. Lawson & Co. v. Penn Central Co., 456 F.2d 419, 421 (6th Cir.1972); American Synthetic Rubber Corp. v. Louisville & N.R. Co., 422 F.2d 462, 465 (6th Cir.1970). The Carmack Amendment provides the exclusive means for a shipper to recover for any damages to delivered goods or for negligent performance by a carrier. American Synthetic Rubber Corp., 422 F.2d at 465-66. The United States Supreme Court has explained in detail the history and rationale behind the Carmack Amendment, holding that it is the express intent of Congress to provide nationwide uniformity to carrier liability. Adams Express Co. v. Croninger, 226 U.S. 491, 503-08, 33 S.Ct. 148, 57 L.Ed. 314 (1913).

To make a cognizable claim pursuant to 49 U.S.C. § 14706, a shipper must establish the following: (1) the delivery of goods to the carrier in good condition, (2) the arrival of goods in damaged condition, and (3) the amount of damages measured by actual loss. Great West Cas. Co. v. Flandrich, 605 F.Supp.2d 955, 966 (S.D.Ohio 2009) (citing Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964)). If the shipper establishes a prima facie case, the burden of proof shifts to the carrier “to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.”   Missouri Pacific R.R., 377 U.S. at 138.

Plaintiff argues that, pursuant to 28 U.S.C. § 1337(a), this Court lacks jurisdiction over any Carmack Amendment claim and must remand because each bill of lading  referred to in the Complaint was less than the $10,000 threshold. Plaintiff relies primarily upon Pillsbury Co. v. Atchison, Topeka and Santa Fe Ry. Co., 548 F.Supp. 28, 30 (D.C.Kan.1982), for the proposition that the loss amounts for each bill of lading cannot be aggregated to fulfill the $10,000.00 jurisdictional threshold, but rather, each bill of lading must exceed the threshold level.

A bill of lading is described as “the basic transportation contract between the shipper-consignor and the carrier.” Flandrich, 605 F.Supp.2d at 964 (citing S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982)). When a carrier issues a receipt or bill of lading for property it receives for transport, it is “then liable to the party entitled to recover under the receipt or bill of lading for any ‘actual loss or injury to the property.’ ” Toledo Ticket Co., 133 F.3d at 441.

28 U.S.C. § 1337(a) provides in pertinent part that “the district courts shall have original jurisdiction of an action brought under section 11706 or 14706 of title 49, only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs.”

The Complaint sub judice does not explicitly state loss amounts for each bill of lading in question. Rather, the Complaint states that Plaintiff is entitled to more than $25,000 in compensatory damages and more than $25,000 in punitive damages. The pleading also sets forth several six-figure losses allegedly incurred as a consequence of the asserted failures by Defendant.

Plaintiff also asserts that as a result of Defendant’s mishandling of shipments, it lost business worth more than $150,000 a year on average from just one client. (Doc. # 5 ¶ 6.)

Apart from the Complaint, Defendant argues that a post-complaint settlement demand letter it received from Plaintiff in the amount of $275,000.00 is considered “other paper” under 28 U.S.C. § 1446(b) and further evidences that the actual amount in controversy is well in excess of $10,000.00. The Sixth Circuit in Peters v. Lincoln Elec. Co. adopted the position of other federal circuits that held a plaintiff’s response in a deposition may constitute “other paper.” 285 F.3d 456, 466 (6th Cir.2002). Although the Sixth Circuit has not ruled on the precise question of whether a settlement demand letter also constitutes “other paper,” federal courts have held that such post-complaint letters are “other paper” evidencing the amount-in-controversy. See, e.g., Addo v. Globe Life and Acc. Ins. Co., 230 F.3d 759, 761-62 (5th Cir.2000) (interrogatory responses, post-complaint settlement offer); see also Bankhead v. American Suzuki Motor Corp., 529 F.Supp.2d 1329, 1333 (M.D.Ala.2008) (post-complaint settlement offer); Stramel v. GE Capital Small Bus. Fin. Corp., 955 F.Supp. 65, 67 (E.D.Tex.1997) (post-complaint settlement offer); Rodgers v. Northwestern Mut. Life Ins. Co., 952 F.Supp. 325, 327 (W.D.Va.1997) (post-complaint settlement offer); 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3732 (1998) ( “correspondence between the parties and their attorneys or between the attorneys usually [is] accepted as [an] “other paper”). Another judicial officer in this District found that a $15,000.00 settlement demand letter constituted 28 U.S.C. § 1446(b) “other paper” and therefore established jurisdiction predicated on the Carmack Amendment even where the complaint requested $9,355.11 in damages plus interests and costs. DWC Co. v. CSX Transp. Inc., No. 2:08-cv-718, 2009 WL 150671, at(S.D.Ohio Jan.21, 2009). Assuming arguendo that this Court could depart from the Complaint and even consider such a letter, the settlement demand would arguably offer a second, independent ground supporting preemption and jurisdiction here.

These figures are compelling in light of the fact that courts have held that the actual amount in controversy is the key figure for purposes of ascertaining jurisdiction related to the Carmack Amendment. See Simmons v. United Parcel Serv., 924 F.Supp. 65, 67 (W.D.Tex.1996) (“Federal jurisdiction under the Carmack Amendment does not … depend on the amount on the face of the receipt or bill of lading. If the shipment generates a controversy exceeding $10,000, the claim satisfies the $10,000 jurisdictional requirement.”); see also DWC Co., 2009 WL 150671, at *1-2. Because this litigation therefore satisfies the amount-in-controversy requirement under 28 U.S.C. § 1337(a), this Court has subject matter jurisdiction over the dispute. Accordingly, the Court finds Plaintiff’s request for a remand not well taken.

Plaintiff also argues that if jurisdiction exists, the Court should not dismiss the Complaint because it alleges sufficient facts by which this Court could construe a claim for relief under the Carmack Amendment. Plaintiff principally relies upon an unreported case from a district court in Florida to argue that this Court should thus construe the Complaint as a Carmack Amendment claim. See Bishop v. Allied Van Airlines, No. 8:08-cv-2170, 2008 WL 5111302 (M.D.Fla. Dec.4, 2008). This argument is not well taken. Not only is Allied Van Airlines an unreported opinion not binding on this Court, but the spartan analysis of that case does not persuade this Court. The complaint in Allied Van Airlines did not assert state law claims for breach of contract or its equitable equivalents, but rather asserted unclear claims; in the words of that district court, the complaint did “not specify the exact claims Plaintiff brings.” Id. at * 1. In concluding that the ambiguous pleading evaded Carmack Amendment preemption, the district court in fact stated that had the complaint been founded in contract, conversion, or negligence, then the claims “would be preempted by the Carmack Amendment.” Id. at *2.

In the instant case, Plaintiff’s unambiguous Complaint pleads only state tort claims of breach of contract, promissory estoppel, and unjust enrichment. (Doc. # 5 ¶¶ 7-23.) The Complaint neither sets forth a Carmack Amendment claim nor explicitly sets forth the elements necessary to establish a prima facie case under the Amendment. Because the Complaint fails to contain the material elements under the only applicable basis for a claim-49 U.S .C. § 14706-the pleading presents an insurmountable bar on its face to this litigation. A judicial officer in the Northern District of Ohio has explained in a case presenting an analogous scenario:

Plaintiff’s claims are based on state common law causes of action, not the Carmack Amendment. Plaintiff now argues the Complaint contains “sufficient facts to put Defendants on ‘fair notice” ‘ creating the specter of a claim under the Carmack Amendment sufficient to withstand Defendants’ Motion to Dismiss. This eleventh hour sleight of hand fails. As the court stated in Jackson v. Brook Ledge, Inc., 991 F.Supp. 640, 644 (E.D.Ky.1997), precedent “dictates that the statutory federal remedy provided in the Carmack Amendment … precludes a plaintiff from pursuing [his state] common law claims.” Brook Ledge, Inc., 991 F.Supp. at 644 (relying on New York, New Haven & Hartford R.R. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S.Ct. 986, 97 L.Ed. 1500 (1953); Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1413 (7th Cir.1987).

The Carmack Amendment is the sole remedy available to a shipper seeking damages from a carrier resulting from the interstate shipment of goods. The Amendment is written clearly and has nearly a century of precedent defining its scope. The state common law causes of action asserted by the Plaintiff do not translate magically to a federal claim under the Carmack Amendment; instead, the underlying complaint must explicitly plead claims pursuant to the Carmack Amendment.

Carr v. Olympian Moving & Storage, No. 1:06 CV 00679, 2006 WL 2294873, at(N.D.Ohio June 6, 2006). Similarly, preemption and the pleading involved here mandate dismissal of the Complaint. See Great West Cas. Co. v. Flandrich, 605 F.Supp.2d at 966 (collecting authority recognizing that the Carmack Amendment preempts all state law claims).

This leaves the issue of amendment of the Complaint. Plaintiff alternatively argues that the Court should grant it an opportunity to amend the Complaint if this Court dismisses the state common law claims. Pursuant to Federal Rule of Civil Procedure 15, a court may grant leave to amend “when justice so requires.” This Court must read Rule 15 in conjunction with Fed.R.Civ.P. 7(b), which requires that a party make such a request in a motion that states with “particularity the grounds for seeking the order.” Fed.R.Civ.P. 7(b); see also Evans v. Pearson Enter., Inc., 434 F.3d 839, 853 (6th Cir.2006). The Sixth Circuit does not look favorably upon bare requests for leave to amend in a response to a motion to dismiss when the requesting party could have filed a proper motion to amend and attached a proposed amended complaint for consideration by the court. See Pearson Enterprises, Inc., 434 F.3d at 853; see also PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th Cir.2004); Begala v. PNC Bank, 214 F.3d 776, 783-84 (6th Cir.2000). The court of appeals explains:

Had plaintiffs filed a motion to amend the complaint prior to th[e] Court’s consideration of the motions to dismiss and accompanied that motion with a memorandum identifying the proposed amendments, the Court would have considered the motions to dismiss in light of the proposed amendments to the complaint…. Absent such a motion, however, Defendant was entitled to a review of the complaint as filed pursuant to Rule 12(b)(6). Plaintifs were not entitled to an advisory opinion from the Court informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies.

PR Diamonds, Inc., 364 F.3d at 699 (quoting Begala, 214 F.3d at 784 (emphasis in original)).

In the instant case, Plaintiff failed to follow proper procedure for submitting a motion to amend its complaint. Moreover, Plaintiff has not submitted a proposed amended complaint for review and consideration by this Court. Despite being put on notice of roughly 100 years of federal case law uniformly holding that the Carmack Amendment preempts state common law claims, Plaintiff has not submitted an amended complaint even while having ample time to do so. This Court will not accept Plaintiff’s alternative argument contained in a response to a motion to dismiss as a proper motion to amend.

III. Conclusion

For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss. (Doc. # 6). The Clerk shall enter judgment accordingly and terminate this case upon the docket records of the United States District Court for the Southern District of Ohio, Eastern Division, at Columbus.

IT IS SO ORDERED.