United States District Court,

E.D. Pennsylvania.

Kenneth MARTIN, Plaintiff,

v.

YELLOW TRANSPORTATION, INC. and Kinedyne Corporation, Defendants.

No. Civ.A. 05-2958.

 

Feb. 28, 2006.

 

MEMORANDUM AND ORDER

 

SCHILLER, J.

 

Plaintiff Kenneth Martin commenced this action against Defendants Kinedyne Corporation (“Kinedyne”) and Yellow Transportation, Inc. (“Yellow Transportation”). Plaintiff alleges that he suffered injuries while helping to tailgate a shipment of heavy metal brackets manufactured by Kinedyne from the back of a truck owned by Yellow Transportation. Presently before the Court are Defendants’ motions to preclude the testimony of Plaintiff’s expert, Roland B. Brown. For the reasons below, the Court grants Defendants’ motions and precludes Brown from testifying at trial in this case.

 

I. BACKGROUND

 

Plaintiff Martin, a citizen of Pennsylvania, alleges that he was seriously injured on August 19, 2003, while working at the Great Dane Trailers (“Great Dane”) warehouse in Lancaster, Pennsylvania. (Amend.Comp.¶ ¶  2, 5-6.) According to Plaintiff, he was helping the Yellow Transportation driver tailgate a shipment to the back of a truck when a bundle of heavy metal bracing brackets (“E beams”) tipped over and fell on Plaintiff’s foot. [] (Id. ¶ ¶  8- 10.) The Complaint alleges that the impact caused him to partially fall from the rear of the truck and left him dangling with his left leg pinned under the bundle and his body thrown against the truck. (Id.) Plaintiff avers that he suffered multiple serious injuries as a result and required numerous surgeries. (Id. ¶ ¶  10-12.) Kinedyne, a New Jersey corporation, manufactured and prepared the E beams for shipment. (Id. ¶ ¶  4-6.) Yellow Transportation, an Indiana corporation, owned and operated the truck that delivered the E beams. (Id. ¶ ¶  3, 5-6.)

 

“Tailgating” refers to the movement of freight to the rear of the trailer inside a truck. (See R. at 7 (February 14, 2006).)

 

Plaintiff asserts that Yellow Transportation was negligent in: (1) failing to provide adequate personnel and a safe means for tailgating its cargo; (2) failing to exercise reasonable and ordinary care for Plaintiff’s safety; (3) failing to make the shipment safe for delivery to a warehouse which it knew had no loading dock; (4) failing to train its personnel in industry standards for unloading cargo; and (5) failing to protect Plaintiff from or warn Plaintiff of the hazard created by the unstable bundles of E beams. (Id. ¶  16.) Plaintiff alleges that Kinedyne was negligent in: (1) failing to prepare the shipment of load locks in a safe and reasonable manner for delivery at the Great Dane warehouse; and (2) failing to adhere to proper packaging methods and shipping procedures. (Id. ¶  15.)

 

Defendants deny Plaintiff’s allegations, asserting contributory negligence and assumption of the risk as affirmative defenses. (See Def. Kinedyne’s Answer to Amend. Compl.; Def. Yellow Transp.’s Answer with Separate Affirmative Defenses and Cross-cl. to Pl.’s Amend. Compl.) In addition, both Defendants have filed cross-claims for contribution and/or indemnification. After the close of expert discovery, Defendants filed separate Daubert motions challenging the admissibility of Plaintiff’s proffered trucking safety expert, Roland B. Brown. (See Def. Yellow Transp.’s Mot. to Preclude Expert Report & Any Expert Test. of Roland B. Brown; Def. Kinedyne’s Mot. to Preclude Test. of Pl.’s Expert, Roland B. Brown, and for Summ. J.) On February 14, 2006, this Court conducted a Daubert hearing to assess the admissibility of Brown’s proffered expert testimony.

 

II. STANDARD OF REVIEW

 

Pursuant to Federal Rule of Evidence 702, the admissibility of expert testimony depends on three distinct requirements: (1) whether the witness is qualified, (2) whether the methodology underlying the testimony is reliable, and (3) whether the opinion will be helpful to the factfinder. [] See Fed.R.Evid. 702; Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589-92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under the Supreme Court’s landmark holding in Daubert, the judge acts as a gatekeeper, reviewing at the outset a witness’ qualifications, the reliability of the proposed testimony and its “fit” or relevance. See Daubert, 509 U.S. at 592-93, 597 (relying on Fed. R. Evid 104(a)); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert review to all expert testimony); Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir.2000). The judge’s inquiry is a flexible one, with the burden falling on the expert’s proponent to establish the reliability and admissibility of the expert’s testimony by a preponderance of the evidence. See Oddi, 234 F.3d at 144-45 (citing Daubert, 509 U.S. at 593 n. 10, 594-95).

 

Federal Rule of Evidence 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702.

 

III. DISCUSSION

 

A witness may be qualified as an expert based on knowledge, skill, experience, training or education. Fed.R.Evid. 702; see also Oddi, 234 F.3d at 145 (expert’s qualifications are interpreted liberally) (citing In re: Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.1994) [hereinafter “Paoli II” ] ). To be reliable, an expert’s opinions must be based on sufficient factual information, must utilize reliable methodology, and must reliably apply the expert’s methods to the facts. See Fed.R.Evid. 702. To properly assess the reliability of a witness’ methodology and proposed testimony, the court must consider the following factors:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Paoli II, 35 F.3d at 742 n. 8. Expert testimony that meets the qualification and reliability requirements is admissible “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue….” Fed.R.Evid. 702. In other words, a witness’ testimony meets the “fit” prerequisite if his opinions present relevant evidence that helps the factfinder. See Oddi, 234 F.3d at 145 (citing Daubert, 509 U.S. at 591-92; Paoli II, 35 F.3d at 743).

 

In their written submissions and at the Daubert hearing, both Defendants focused primarily on the reliability of Roland B. Brown’s methodology and opinions. The Court finds, however, that Brown’s proffered testimony fails to satisfy the “fit” requirement. Furthermore, the Court finds that Brown fails to satisfy the qualification requirement with respect to his proffered testimony about Kinedyne’s packaging of the shipment of E beams.

 

A. Brown’s Proffered Testimony Will Not Assist Jury

 

Brown’s testimony, while related to disputed matters of liability, will not assist the jury in understanding the evidence or determining facts in issue. Plaintiff concedes there are no local, state or federal statutes or regulations on the responsibilities of tailgating that might necessitate an expert’s explanation or interpretation. (See Pl.’s Mem. of Law in Resp. to Yellow Transp.’s & Kinedyne’s Mots. to Preclude Expert Test. at 4, 12-13; Pl.’s Second Mem. of Law at 4-5.) Indeed, Brown admitted that no industry-wide trucking standards exist; rather, the competitive practices of trucking carriers dictate responsibilities for tailgating shipments. (R. at 7-8, 13-14 (Feb. 14, 2006).) The numerous Great Dane and Yellow Transportation employees available to testify about their standard tailgating practices and procedures will provide the jury with the factual information needed to assess the tailgating responsibilities of the parties. (See Supplemental Mem. on Behalf of Def. Yellow Transp. to Preclude Expert Report & Any Expert Test. of Roland B. Brown on Behalf of the Pl. Exs. B [Depos. of Great Dane employee Andrew Fries], C [Depos. of Great Dane employee William Wissler], D [Depos. of Great Dane employee Kenneth Risser], & E [Depos. of Yellow Transp. supervisor Mike Krushinsky].)

 

The Court concludes the jury will be able to understand the evidence, determine the factual issues, and assess the liability of the parties without Brown’s testimony. As Brown does not possess specialized knowledge that will assist the jury in deciding the issues regarding the tailgating process in this case, the Court precludes his testimony. See Fed.R.Evid. 702.

 

B. Brown Lacks Qualifications to Testify Regarding Packaging and Load Stability

 

With regard to Brown’s opinions on packaging and load stability, Brown fails to meet the qualification requirement and the Court therefore precludes such testimony. Brown has worked in the trucking industry for over thirty-five years at all levels of management. (Def. Yellow Transp.’s Mot. to Preclude Expert Report & Any Expert Test. of Roland B. Brown Ex. B [hereinafter “Expert Report & CV of Roland B. Brown”] Expert Report at 1.) He has a B.S. in Business Administration and has received training and certification from various trucking associations. (Id. Curriculum Vitae at 1.) Brown is certified as a Director of Safety, Accident Investigator, and Driver Trainer by the North American Transportation Management Institute of the American Trucking Association (formerly known as the National Committee for Motor Fleet Safety). (Id. Expert Report at 2.) He has taught seminars in safety and has worked as a safety supervisor at numerous trucking companies. (Id. Curriculm Vitae at 2-4.) Brown states that much of his experience has involved the supervision of local deliveries of freight to customers and unloading facilities, including locations without loading docks. (Id. Expert Report at 1.)

 

Currently, Brown is the President and owner of National Trucking Safety Consultants, a position he has held since 1985. (Id.) His primary duties include: (1) consulting with trucking fleet operations regarding hiring, training, and supervising truck drivers and compliance with DOT, OSHA and other regulations; and (2) consulting with attorneys regarding accident investigation, driver qualifications, safety programs, and industry standards of the trucking industry. (Id. Curriculum Vitae at 1.) Brown has served as an expert witness in over eighty cases, both in state and federal courts. (Id. Expert Report at 2.)

 

Brown’s qualifications and Curriculum Vitae do not indicate any education, training, experience, or skill in engineering or design safety of packaging for heavy loads. See Fed. R. Civ. P. 702. Brown does not proffer any consulting experience that involves advising manufacturers on safe packaging methods. Nor does Brown assert that his trucking industry work experience involved designing packaging or testing the safety of heavy loads for shipment. Brown’s education, training, experience and knowledge relate primarily to trucking and loading safety practices, not to assessing manufacturer’s packaging and shipping safety.

 

Liberally interpreting his qualifications as required by Oddi and Paoli II, the Court finds Brown is not qualified to offer expert opinions regarding the safety of the packaging method or the stability of the E beam bundles. See Oddi, 234 F.3d at 145; Paoli II, 35 F.3d at 741. Such expert opinions require either an engineering background or experience with designing or assessing safe methods for packaging and stabilizing heavy loads. Brown possesses neither. (See R. at 88; Expert Report & Curriculum Vitae of Roland B. Brown.) Furthermore, Brown acknowledged that no governmental regulations or written standards exist that define how products must be packaged. (R. at 101- 102.) The lack of universal practices upon which to rely underscore the need for an expert in this area to have an independent basis of knowledge, skill or training. Accordingly, Court precludes Brown’s testimony regarding packaging and load stability as well.

 

IV. CONCLUSION

 

For the reasons discussed above, Defendants’ motions to preclude the testimony of Plaintiff’s expert, Roland B. Brown, are granted. [] An appropriate Order follows.

 

Defendant Kinedyne also moved for summary judgment in its motion. Kinedyne’s motion for summary judgment is denied, because genuine issues of material fact preclude judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.., 477 U.S. 242, 247- 48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the record on a motion for summary judgment, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir.2002).

Here, genuine disputes exist regarding certain material facts in this case. (See Pl.’s Mem. of Law in Resp. to Defs.’ Mots. at 19.) For example, whether Defendant Kinedyne breached its duty to safely package and prepare the load for shipment is an issue that must be resolved by a jury weighing the evidence presented at trial. Thus, summary judgment is denied.

 

ORDER

AND NOW, this 28th day of February, 2006, upon consideration of Defendant Yellow Transportation, Inc.’s Motion to Preclude the Expert Report and Any Expert Testimony of Roland B. Brown on Behalf of the Plaintiff, Defendant Kinedyne Corporation’s Motion to Preclude the Testimony of Plaintiff’s Expert, Roland B. Brown, and for Summary Judgement, Plaintiff’s response thereto, and for the reasons outlined above, it is hereby ORDERED that:

1. Defendant Yellow Transportation’s motion (Document No. 15) is GRANTED.

2. Defendant Kinedyne Corporation’s motion (Document No. 13) is GRANTED in part and DENIED in part, as follows:

a. The motion to preclude the expert testimony of Plaintiff’s expert is GRANTED;

b. The motion for summary judgement is DENIED.

 

 

United States District Court,

D. Oregon.

INTRANSIT, INC., an Oregon corporation, Plaintiff,

v.

EXCEL NORTH AMERICAN ROAD TRANSPORT, INC., a Texas corporation, d/b/a Exel

North American Road Transport, Defendant/Third-Party Plaintiff

v.

WAL-MART STORES INC., a Delaware corporation, Allure Home Creation Co., Inc., a

New Jersey corporation, and Cambridge Silversmiths Ltd., Inc., a New Jersey

domestic for-profit corporation, Third-Party Defendants.

No. Civ. 05-3052-CO.

 

March 7, 2006.

 

ORDER

 

HOGAN, J.

 

Magistrate Judge John Cooney filed Findings and Recommendation on November 17, 2005, in the above entitled case. The matter is now before me pursuant to 28 U.S.C. §  636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge’s findings. See 28 U.S.C. §  636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

 

Third-party defendants Exel North American Road Transport and Wal-Mart have filed objections. I have, therefore, given de novo review of Magistrate Judge Cooney’s rulings.

 

Plaintiff InTransit, Inc. filed this action in state court against Exel North American Road Transport asserting contractual indemnity and breach of brokerage agreement.

 

InTransit entered into a brokerage agreement with Exel to provide transportation services and Exel agreed to indemnify InTransit for all losses or damage arising from Exel’s transportation services.

 

In May of 2004, InTransit retained Exel to transport a load of merchandise to a Wal-Mart distribution center in Texas. Wal-Mart claims Exel failed to make a timely delivery. Wal-Mart rejected the shipment and took a setoff of $28,869.19 against InTransit for unrelated shipments. InTransit seeks to recover the setoff amount under the terms of the indemnity clause of the brokerage agreement with Exel, lost profits resulting from lost Wal-Mart business, and the commission that InTransit lost on the Wal-Mart shipment.

 

Exel filed a third party complaint for common law indemnity and contribution against Wal-Mart, Allure Home Creation Co. and Cambridge Silversmiths, LTD  [] alleging wrongful rejection of the shipment. Wal-Mart removed the case to federal court and filed a cross-claim for indemnity against InTransit to recover its defense costs in this case based on the indemnity provisions in the Wal-Mart/Intransit shipper-broker contract.

 

Allure and Cambridge are manufacturers of the goods allegedly delayed or lost.

 

Wal-Mart moved to dismiss or transfer the case to Texas or alternatively to reassign to the Portland division. Judge Cooney recommended denying the motion and further recommended remanding to state court, finding that this court lacks jurisdiction. Exel and Wal-Mart object to the F & R.

 

The issues raised by Wal-Mart’s motion before Judge Cooney are whether the claims in this case are subject to the Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. §  14706 (Carmack Amendment) and, if so, whether non-Carmack claims are preempted and venue is appropriate in this court or in a Texas federal court. If Carmack is not applicable, then this court lacks jurisdiction.

 

OBJECTIONS

Exel objections

1. The F & R is contrary to law because the plaintiff was the “person entitled to recover under the bill of lading,” and its claims, therefore, arise under Carmack.

2. The F & R is contrary to law because the subject matter of this dispute is subject to the complete preemption doctrine, which defeats application of the well-pleaded complaint rule.

 

Wal-Mart Objections

1. The Carmack Amendment provides the exclusive remedy for recovering against a motor carrier for loss, damage or delay to a shipment moving in Interstate Commerce.

2. The F & R ignores the complete preemption exception to the well-pleaded complaint rule

3. The Carmack Amendment does not turn on simple labels.

 

DISCUSSION

The Carmack Amendment to the Interstate Commerce Act

supersedes all the regulations and policies of a particular state upon the same subject…. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it…. [W]hen Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the state ceased to exist.

Adams Express Co. v. E.H. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314, (1913).

 

The objecting parties contend that complete preemption serves as an exception to the well-pleaded complaint rule in this case. The issue boils down to whether Carmack applies in this case and Judge Cooney found that it did not. The case law appears to go either way on the issue of the applicability of Carmack to brokers.

A carrier providing transportation … shall issue a receipt or bill of lading for property it receives for transportation…. That carrier and any other carrier that delivers the property and is providing transportation or service … are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported….

49 U.S.C. §  14706(a)(1).

 

“The term ‘carrier’ means a motor carrier, a water carrier, and a freight forwarder.” 49 U.S.C. §  13102(3).

 

The term “individual shipper” means any person who-

(A) is the shipper, consignor, or consignee of a household goods shipment;

(B) is identified as the shipper, consignor, or consignee on the face of the bill of lading;

(C) owns the goods being transported; and

(D) pays his or her own tariff transportation charges.

49 U.S.C. §  13102(13).

 

“The term ‘broker’ means a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. §  13102(2).

 

Exel is the carrier in this case. Wal-Mart qualifies as a shipper. InTransit is a broker, but the issue raised by this motion is whether it qualifies as a shipper or some other party to whom Carmack gives standing.

 

49 U.S.C. §  14706(d) provides for civil actions against either (1) the delivering carrier; or (2) the carrier responsible for the loss or damage. 49 U.S.C. §  14706(d)(1) and (2). The Carmack Amendment established a uniform national liability policy for interstate carriers, and preempts all state and common law claims against a carrier for damage to or loss of goods. See Air Products and Chems., Inc. v. Illinois Cent. Gulf R.R., 721 F.2d 483, 486 (5th Cir.1983) (purpose of the Carmack Amendment “was to substitute a paramount and uniform national law as to the rights and liabilities of interstate carriers subject to the amendment”); Underwriters at Lloyds of London v. North Am. Van Lines, 890 F.2d 1112, 1115 (10th Cir.1989) (with the enactment of the 1906 Carmack Amendment, Congress superseded diverse state laws with a nationally uniform policy governing interstate carriers liability for property loss).

 

The rationale of the Carmack Amendment provides no indication that it was intended to apply to carrier’s claims. Rather, the amendment’s intent was to facilitate shippers’ recoveries against carriers for damage to transported cargo. Southern Pacific Trans. Co. v. United States, 456 F.Supp. 931, 937 (E.D.Cal.1978). Thus, Exel may not sue Wal-Mart under Carmack and, therefore, Carmack is inapplicable to Exel’s claims against Wal-Mart. In addition, Wal-Mart only seeks to recover its defense costs and not for lost or damaged goods and, therefore, its cross-claim is not governed by Carmack.

 

Wal-Mart and Exel contend that InTransit seeks to recover from Exel for damages resulting from the failure to deliver the goods and, thus, its claims come under Carmack. InTransit argues that, as a broker, Carmack does not apply to its claims.

 

An instructive case is Edwards Bros., Inc. v. Overdrive Logistics, Inc., 260 Ga.App. 222, 581 S.E.2d 570 (Ga.App.2003). In Edwards, Overdrive was a federally licensed transportation broker, and Edwards Bros. was a trucking company. The parties entered into a brokerage contract in which Overdrive agreed to tender a series of shipments to Edwards who, in turn, agreed to transport the shipments of Overdrive and its shippers. Robinson & Harrison Poultry Company, Inc., contracted with Overdrive to arrange for a load of Robinson’s processed chicken to be shipped from Georgia to California. Overdrive retained Edwards to pick up, transport, and deliver the chicken. The shipment of chicken was rejected by the consignee in California because the product was delivered above the required temperature. Robinson submitted a claim to Edwards for the loss and Edwards paid Robinson $16,876.74 for the damage to the shipment. Because Robinson had not been fully compensated for its loss, it decided to withhold the balance of the loss on the chicken from its July, 2000 payment to Overdrive. Overdrive brought an action against Edwards and Robinson, jointly and severally, seeking damages against Edwards for breach of contract, or in the alternative, pursuant to the Carmack Amendment, and against Robinson for fraud, breach of contract, open account, and bad faith. The Carrier, Edwards, argued that the breach of contract claim, etc., was preempted by Carmack. The court found, however, that

the Carmack Amendment’s purpose is to provide a means by which the shipper can hold liable the initial carrier, engaged in interstate commerce and receiving property for transportation from a point in one State to a point in another State, for through carriage to the point of destination, using the lines of connecting carriers as its agents, and to deny to the initial carrier its former right to make a contract limiting its liability to its own line. Its main purpose is to secure the rights of the shipper by securing unity of transportation with unity of responsibility….

In this action, the broker, Overdrive, rather than the shipper, Robinson, is seeking to recover damages from the carrier, Edwards Bros., pursuant to the brokerage contract between Overdrive and Edwards Bros. Overdrive is not seeking damages under the bill of lading, the provisions of which are fixed as the contract under the Carmack Amendment. [footnote omitted] Because the Carmack Amendment was enacted to protect the rights of shippers suing under a receipt or bill of lading, not brokers, it does not preempt Overdrive’s breach of contract claim in this case. [footnote omitted] Accordingly, the dispute between Overdrive and Edwards Bros. is governed by their brokerage contract.

Edwards Bros., 581 S.E.2d at 572.

 

In this case, Wal-Mart takes the position that even strangers to the Bill of Lading cannot escape the reach of Carmack, which may be correct in a true subrogation case where the suing party stands in the shoes of the shipper. Wal-Mart contends that standing to sue extends beyond shippers. Taft Equipment Sales Co. v. Ace Trans., Inc., 851 F.Supp. 1208 (N.D.Il.1994) appears to support Wal-Mart’s contention that brokers have standing under Carmack.

 

In Taft Equipment Sales, the truck broker pursued a Carmack claim against a carrier. However, the issue of whether Carmack applied does not appear to have been an issue in the case as it appears all parties agreed it did apply. Other cases that support Wal-Mart’s and Exel’s position appear to be limited to cases involving assignees of rights under bills of lading. See, e.g. Bowden v. Philadelphia, B. & W.R. Co., 28 Del. 146, 91 A. 209 (1914).

 

Exel argues that InTransit does in fact succeed to Wal-Mart’s right under the bill of lading in this case because Wal-Mart had the right to seek primary liability from InTransit for losses to goods and Intransit had the right to seek reimbursement from the carrier under the InTransit/Wal-Mart contract. However, InTransit’s claims in this case are for direct contractual indemnity and not from an assignment of rights by the shipper. While the case law is not clearly developed in this area, the court finds that Congressional intent was not to preempt InTransit’s claims as a broker against Exel as a carrier via the Carmack amendment.

 

This action is sufficiently removed from a shipper or some other party who has rights under the bill of lading to sue a carrier for damage to goods shipped. 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.

 

Third party defendants Allure and Cambridge, for the first time in this appeal from Judge Cooney’s findings, argue that removal was inappropriate because third party defendants may not initiate removal and the removal was untimely and/or waived. Regardless of whether this argument is timely and appropriate, [] the result Allure and Cambridge seek is achieved because this court lacks subject matter jurisdiction due to the inapplicability of Carmack.

 

Allure and Cambridge signed consents to removal (prior to retaining counsel) and did not oppose Wal-Mart’s motion before Judge Cooney.

 

I find no error in Judge Cooney’s Findings, and adopt them in their entirety. Because plaintiff’s complaint does not establish that the case arises under federal law, this case is remanded to state court.

 

IT IS SO ORDERED.