2021 WL 4423067

United States District Court, D. Maryland.
ROBERT C. WEDDINGTON, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE, Defendant.
Civil Case No. SAG-21-00099
|
09/27/2021

Stephanie A. Gallagher, United States District Judge

MEMORANDUM OPINION
*1 Robert C. Weddington (“Plaintiff”), who is self-represented, filed an Amended Complaint against three defendants, Progressive Casualty Insurance (“Progressive”), Victoria Fire and Casualty Insurance Company (“Victoria Fire”), and Juanita Roslyn Weddington (“Juanita Weddington”), relating to his insurance claims following a motor vehicle accident in 2012.1 ECF 22. Two motions are presently pending: Progressive’s Motion for Summary Judgment, ECF 33, and Plaintiff’s Motion to Appoint Counsel and Motion for Hearing, ECF 37, which was filed as part of Plaintiff’s opposition to Progressive’s Motion. After review of the parties’ briefing, this Court has determined that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons stated below, Progressive’s Motion will be granted and Plaintiff’s motion to appoint counsel is denied.

I. FACTUAL BACKGROUND
The facts described herein are viewed in the light most favorable to the Plaintiff as the non-moving party.

According to the affidavit Plaintiff attached to his opposition, on August 3, 2012, his truck and trailer were involved in an accident in Massachusetts. ECF 37-1 ¶ 2. Four days later, Plaintiff met with a Progressive agent at a TA-Travel Center of America in Connecticut, where the agent assessed the damage to the vehicles. Id. ¶ 5. On August 17, 2012, Plaintiff again met with a Progressive agent “at Peter’s Spring” to look over the truck. Id. ¶ 6. The agent took a copy of Plaintiff’s license and informed him that once Progressive received the title, it would issue payment. Id. The agent also “totaled” Plaintiff’s truck and explained that he might get around $15,500, telling him, “a lot of things on the truck could not be repaired and it’s not worth it to fix it.” Id. ¶ 8. In sum, Plaintiff states that he “spoke with Progressive Agents at most 4 or 5 time[s] between Connecticut and Maryland.” Id. ¶ 20.

Essentially, Plaintiff alleges that his then-spouse, Juanita Weddington, told Progressive she owned his trucking company, id ¶ 5, corresponded with Progressive, id. ¶7, and presumably received and cashed the checks Progressive issued to pay the insurance claims. Id. ¶ 9. For example, Plaintiff suggests that a female (assumed to be Juanita Weddington) committed the crimes of fraud and felony theft of stolen checks. Id. ¶ 20.

Finally, Plaintiff contends (without citation to the source of the rule) that Progressive could not lawfully issue payment on the totaled truck without taking clear title to the vehicle in its name. Id. ¶ 14, 15. Plaintiff asserts, “There [sic] procedure is to transfer the title once they total it and take possession. I don’t know if someone forgot to transfer who knows.” Id. ¶ 17. In his original Complaint, Plaintiff alleged that the truck accrued significant highway tolls following the accident, for which he received bills even though he believed the truck was no longer titled in his name.

*2 In response, Progressive submitted Plaintiff’s Claim File with its motion, which reflects regular communication between Plaintiff and Progressive agents. ECF 33-2 through 33-4. In relevant part, the Claim File indicates that (1) the checks paid to Plaintiff were almost all handed to him directly, not sent in the mail, and (2) that Plaintiff retained the truck after receiving payment from Progressive for its loss value. See ECF 33-2 at 40, 64-65, 89-92, 93-94, 95-96, 104.

II. LEGAL STANDARDS
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden of showing that there is no genuine dispute of material facts. See Casey v. Geek Squad, 823 F. Supp. 2d 334, 348 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987)). If the moving party establishes that there is no evidence to support the non-moving party’s case, the burden then shifts to the non-moving party to proffer specific facts to show a genuine issue exists for trial. Id. The non-moving party must provide enough admissible evidence to “carry the burden of proof in [its] claim at trial.” Id. at 349 (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere existence of a “scintilla of evidence” in support of the non-moving party’s position will be insufficient; there must be evidence on which the jury could reasonably find in its favor. Id. at 348 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). Moreover, a genuine issue of material fact cannot rest on “mere speculation, or building one inference upon another.” Id. at 349 (quoting Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d 669, 671 (D. Md. 1999)).

Additionally, summary judgment shall be warranted if the non-moving party fails to provide evidence that establishes an essential element of the case. Id. at 352. The non-moving party “must produce competent evidence on each element of [its] claim.” Id. at 348-49 (quoting Miskin, 107 F. Supp. 2d at 671). If the non-moving party fails to do so, “there can be no genuine issue as to any material fact,” because the failure to prove an essential element of the case “necessarily renders all other facts immaterial.” Id. at 352 (quoting Coleman v. United States, 369 F. App’x 459, 461 (4th Cir. 2010) (unpublished)). In ruling on a motion for summary judgment, a court must view all of the facts, including reasonable inferences to be drawn from them, “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

In reviewing Progressive’s summary judgment motion, the Court also considers Plaintiff’s self-represented status:
In Bullock v. Sweeney, 644 F. Supp. 507, 508 (N.D. Cal. 1986), the court found that a pro se plaintiff’s pleadings and motions must be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (writings by pro se complainants held to “less stringent standards than formal pleadings drafted by lawyers”); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Wall v. AT & T Technologies, Inc., 754 F. Supp. 1084, 1089 (M.D.N.C. 1990). Although the Court applies that more liberal standard in reviewing a pro se response to a defendant’s summary judgment motion, the pro se plaintiff “may not rest on [his] pleadings, but must demonstrate that specific, material facts exist that give rise to a genuine issue” to be tried before a jury. Harleysville Mut. Ins. Co. v. Packer, 60 F.3d 1116, 1120 (4th Cir. 1995) (citations omitted); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), cert. denied, 513 U.S. 813 (1994).

III. ANALYSIS

A. Progressive’s Motion for Summary Judgment
*3 Plaintiff’s claims against Progressive in the Amended Complaint fall into two general categories: claims that Progressive failed to pay him the checks owed under his insurance policy; and claims that Progressive should be responsible for the tolls assessed to his truck following the 2012 accident. For the reasons described below, Plaintiff has not demonstrated the existence of a genuine issue of material fact as to either set of claims.

1. Plaintiff’s Claims Relating to Payment of the Checks are Time-Barred
At the motion to dismiss stage of this case, this Court rejected Progressive’s argument that dismissal was warranted, reasoning that the allegations of the Amended Complaint did not clearly establish that Plaintiff had or reasonably should have had notice of his claims more than three years before filing his suit. ECF 15 at 3. Now that a motion for summary judgment has been filed, however, this Court has to review the entire evidentiary record presented by the parties to consider the same question. On this record, the evidence is clear. By Plaintiff’s own allegations, in 2012, he had multiple conversations with Progressive representatives about the insurance claims pertaining to his vehicles. See ECF 37-1 ¶¶ 5, 6, 8, 20. The fact that he denies having had some of the conversations described in the Claim File does not alter the analysis, which turns on whether Plaintiff reasonably should have been expecting to receive insurance checks from Progressive in or about 2012. Any reasonable person involved in a routine insurance claim would expect to receive payment in or around that same year.

The applicable statute of limitations for claims of this nature, under Maryland law, is three years. Md. Code Cts & Jud. Proc. § 5-101 (2013 Repl. Vol., 2016 Supp.). In this case, more than eight years elapsed between 2012 and the filing of Plaintiff’s original complaint on January 12, 2021. Plaintiff’s statute of limitations, however, expired in or about 2015, because he should have learned of the alleged breach when he did not receive the anticipated insurance payments in 2012. See Goodman v. Praxair, Inc., 494 F.3d 458, 465 (4th Cir. 2007) (noting that under Maryland’s discovery rule, the statute of limitations begins to run when a plaintiff knows or should have known of the breach of contract); see also Windesheim v. Larocca, 116 A.3d 954, 962 (Md. 2015) (“[the] discovery rule [ ] tolls the accrual of the limitations period until the time the plaintiff discovers, or through the exercise of due diligence, should have discovered, the injury.”). Thus, Plaintiff’s claims against Progressive relating to his failure to receive insurance payments were time-barred years before he filed his 2021 complaint.

This Court further notes that, even had Plaintiff’s claims been timely, the evidence in his own affidavit suggests that Progressive fulfilled its contractual obligation to pay the insurance claims, but that the proceeds were stolen or converted by Juanita Weddington. SeeECF 37-1 ¶ 23 (noting that the case “isn’t about a breach of contract, this is about stolen checks.”). Plaintiff has not met his burden to establish, by way of evidence, that Progressive bears some responsibility for criminal acts he alleges Ms. Weddington committed, or had any knowledge that Plaintiff had not received the payments it issued. Plaintiff’s inability to locate Ms. Weddington does not make Progressive liable for her actions.
*4 2. Plaintiff Has Not Adduced Evidence Establishing Progressive’s Responsibility for Transfer of the Title to his Truck

The evidentiary record relating to Plaintiff’s truck is somewhat murkier. While not a model of clarity, Plaintiff’s affidavit suggests that Progressive must have taken title to the truck because it issued insurance payments to Plaintiff (although Plaintiff denies receiving them). Plaintiff does not cite any legal authority or contractual provision requiring Progressive to take title to the truck. Plaintiff also does not adduce any facts evidencing that Progressive actually took title to or possession of the truck. For example, he does not assert that he (or anyone else) physically transmitted the truck’s title to Progressive or signed over title.

For its part, Progressive submits uncontroverted evidence that Plaintiff retained title to (or at least possession of) the truck after the accident, including indications in the Claim File that, on August 20, 2012, Plaintiff did a test ride in the truck with a Progressive Agent, ECF 33-2 at 86; that on August 21, 2012, Plaintiff told a Progressive agent that he wanted to retain salvage, id. at 87; and that on September 13, 2012, Plaintiff told a Progressive agent that he had been to two dealerships who had told him that his truck was repairable and should not have been “totaled” by the insurer, id. at 104. In light of that evidence, and because Plaintiff has failed to meet his burden to demonstrate a genuine issue of material fact by producing evidence to support his theory that Progressive took title, Progressive is entitled to summary judgment on that claim as well.

B. Plaintiff’s Motion to Appoint Counsel
Plaintiff has also filed a motion seeking appointment of counsel. A judge’s power to appoint counsel under 28 U.S.C. § 1915(e)(1) is discretionary, to be exercised only when a pro se litigant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional circumstances exist where a “pro se litigant has a colorable claim but lacks the capacity to present it.” See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not require compulsory appointment of counsel upon request). For the reasons described above, Plaintiff does not have a colorable claim against Progressive. His motion to appoint counsel is therefore denied at present. If one of the other defendants is properly served process and Plaintiff is able to establish a colorable claim against that defendant, this Court will entertain a motion to reconsider whether appointment of counsel is appropriate.

IV. CONCLUSION
For the reasons set forth above, Progressive’s Motion for Summary Judgment, ECF 33, is GRANTED and judgment will be entered for Progressive as to all claims against it. Plaintiff’s Motion to Appoint Counsel and Motion for Hearing, ECF 37, is DENIED without prejudice. A separate Order of Judgment follows.

Dated: September 27, 2021 /s/

Stephanie A. Gallagher

United States District Judge
All Citations
Slip Copy, 2021 WL 4423067

Footnotes

1
The docket reflects that Victoria Fire and Juanita Weddington have not yet been served with the summons and Amended Complaint. Plaintiff has represented that he does not know Juanita Weddington’s whereabouts and is unable to provide the information required to effect service. ECF 37-1 ¶ 22 (“as I stated to the Courts. I have NO contact with Juanita R. Weddington, so I can’t provide an address.”). The United States Marshals Service is presently attempting to serve Victoria Fire. Progressive’s summary judgment motion, however, is unrelated to and can be adjudicated without participation from the unserved co- defendants.

2021 WL 4398086

United States District Court, E.D. New York.
CORY HAMMOCK, Plaintiff,
v.
MOVING STATE TO STATE, LLC, STATE TO STATE MOVING NY INC, STATE TO STATE MOVING GROUP LLC, MICKEY MILLER, JOE MILLER, DIRECT VAN LINES SERVICES INC., AROUND THE CLOCK MOVING SERVICES INC., YARIN NADEL, as assignee of JOE MILLER as assignee of JOE NADEL, MICHAEL NADEL, as assignee of MICKEY MILLER, Defendants.
18-CV-5628 (RPK) (ST)
|
Filed 09/26/2021

MEMORANDUM AND ORDER
RACHEL P. KOVNER United States District Judge
*1 Plaintiff Cory Hammock brings this action under the Carmack Amendment, 49 U.S.C. § 14706, and state law against defendants Moving State to State, LLC (“STS”), its parent and sibling corporations, and its co-owners, Yarin Nadel and Michael Nadel (“Individual Defendants”). See Third Am. Compl. (Dkt. #39). Plaintiff alleges that he contracted with defendants, who operate an interstate moving business, to transport his possessions from Virginia to Utah. Instead of completing the move, defendants allegedly held plaintiff’s belongings hostage for a year. After the Individual Defendants failed to appear, plaintiff obtained a certificate of default and moved for default judgment against those defendants. See Clerk’s Entry of Default (Dkt. #53); Mot. for Default Judgment (Dkt. #56). In a report and recommendation (“R. & R.”), Judge Tiscione recommends that I deny the motion for default judgment and dismiss plaintiff’s state-law claims. See R. & R. (Dkt. #57). For the reasons set out below, I adopt the R. & R. in part and deny the motion for default judgment. I decline to dismiss plaintiff’s state-law claims at this time.

BACKGROUND
I assume familiarity with the underlying facts and procedural history, see R. & R. at 2-4, which I describe here only as needed to address plaintiff’s R. & R. objections.

On August 24, 2018, plaintiff solicited bids from moving companies to pack, load, and transport his property from Alexandria, Virginia to Salt Lake City, Utah. Third Am. Compl. ¶¶ 16-17. That day, he spoke with a customer service representative for STS who represented the company as a broker and a carrier. See id. ¶ 19. A week later, plaintiff contracted with STS to conduct the move. See id. ¶ 21.

After the STS team packed plaintiff’s belongings into a truck, a member of the team told plaintiff that he owed an additional fee for the move. See id. ¶ 23. When plaintiff refused to pay, the team left with their truck full of plaintiff’s property. Id. ¶ 26. Plaintiff then contacted the Federal Motor Carrier Safety Administration, which informed him that STS had misrepresented itself as a carrier and was registered as a broker. Id. ¶¶ 35-36.

On October 9, 2018, plaintiff sued STS in federal court. See Compl. (Dkt. #1). Despite plaintiff’s efforts to recover his property, defendants allegedly held plaintiff’s belongings “hostage” for a year. Id. ¶¶ 33-34. Only after the United States Department of Justice brought a civil suit against the defendants did they negotiate a Consent Order to return plaintiff’s property. Id. ¶¶ 51-56. Plaintiff alleges that some of his belongings were damaged or missing. Id. ¶ 56.

During the pendency of this action, plaintiff identified additional defendants and amended his complaint three times. See First Am. Compl. (Dkt. #14); Second Am. Compl. (Dkt. #17); Third Am. Compl. The operative complaint brings claims against STS, State to State Moving NY Inc., State to State Moving Group LLC, Direct Van Lines Services Inc., Around the Clock Moving Services Inc., Yarin Nadel, and Michael Nadel. See Third Am. Compl. ¶ 1. It alleges that Yarin Nadel and Michael Nadel are co-owners of STS and the other corporate defendants, and that the corporate defendants are agents or alter egos of STS or the Nadels. Id. ¶¶ 5-11.

*2 The operative complaint brings six causes of action against all defendants. Plaintiff identifies defendants as “movers engaged in interstate commerce” and alleges that they are liable under the Carmack Amendment, which permits a person to recover for loss or injury to property caused by a motor carrier or freight forwarder. See id. ¶¶ 58-63; 49 U.S.C. § 14706(a). Plaintiff also brings state-law causes of action for conversion, breach of contract, negligent misrepresentation, false advertising, and fraudulent conveyance. See Third Am. Compl. ¶¶ 64-91; see N.Y. Gen. Bus. L. § 350. Plaintiff seeks to hold the Individual Defendants jointly and severally liable as alter egos of the corporate defendants. Third Am. Compl. ¶¶ 92-103.

On July 31, 2020, plaintiff obtained a certificate of default as to the Individual Defendants. See Clerk’s Entry of Default (Dkt. #53). Plaintiff then moved for default judgment against the Individual Defendants. See Mot. for Default Judgment (Dkt. #56).

On September 2, 2021, Judge Tiscione issued an R. & R. concluding that plaintiff’s motion should be denied and plaintiff’s state-law claims should be dismissed. Judge Tiscione concluded that the Individual Defendants should be held jointly and severally liable with STS and the other corporate defendants. See R. & R. at 7. But Judge Tiscione concluded that the Carmack Amendment preempted plaintiff’s state-law claims. Id. at 8-11. In addition, Judge Tiscione concluded that plaintiff failed to allege all the elements of a prima facie case under the Carmack Amendment. Id. at 12. Judge Tiscione therefore recommended that I deny the motion for default judgment with leave to renew and dismiss plaintiff’s state-law claims without prejudice. Id. at 13.

Plaintiff objects to the portion of Judge Tiscione’s report that recommends that plaintiff’s state-law claims be dismissed as preempted. In his objections, plaintiff argues that—notwithstanding his claims against all defendants under the Carmack Amendment—not all defendants actually qualify as carriers that are covered by that provision. Pl.’s Objections at 1 (Dkt. #59). Plaintiff argues that “[at] a minimum,” STS and the Individual Defendants were non-carriers to which the Carmack Amendment does not apply. Id. at 2. Plaintiff reasons that the Carmack Amendment cannot preempt plaintiff’s state-law claims as to those defendants. Id. at 1-2.

LEGAL STANDARD

I. Report and Recommendation
The standard of review a district court should use when considering an order or recommendation from a magistrate judge depends on whether the issue “is dispositive of a party’s claim or defense.” Fed. R. Civ. P. 72(a); see 28 U.S.C. § 636(b)(1). If a party timely objects to a magistrate judge’s recommendation on a dispositive issue, then the district court must “determine de novo” those parts of the ruling that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1).

Those parts of an R. & R. that are uncontested or are not properly objected to may be reviewed, at most, for “clear error.” Alvarez Sosa v. Barr, 369 F. Supp. 3d 492, 497 (E.D.N.Y. 2019) (citation omitted); see Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citing Fed. R. Civ. P. 72 advisory committee’s note to 1983 addition). Clear error will only be found if after reviewing the entire record, the court is “left with the definite and firm conviction that a mistake has been committed.” United States v. Bershchansky, 788 F.3d 102, 110 (2d Cir. 2015) (citation omitted).

II. Default Judgment
Federal Rule of Civil Procedure 55 “provides a ‘two-step process’ for the entry of judgment against a party who fails to defend.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (citation omitted). First, the party moving for a default judgment must obtain entry of default against the party who has failed to defend under Rule 55(a). See Mickalis Pawn Shop, 645 F.3d at 128; Fed. R. Civ. P. 55(a). Then, the moving party must obtain entry of a default judgment under Rule 55(b). See Mickalis Pawn Shop, 645 F.3d at 128; Fed. R. Civ. P. 55(b).

*3 Before entering a default judgment under Rule 55(b), a court must determine whether the moving party’s allegations “establish [the defaulting party’s] liability as a matter of law.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). The court must take the moving party’s “factual allegations as true and draw all reasonable inferences in its favor,” ibid., because “default is deemed to constitute a concession of all well pleaded allegations of liability,” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1991).

“[B]ecause defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Three factors inform whether a default judgment is warranted: “(1) whether the defendant’s default was willful; (2) whether the defendant has a meritorious defense to the plaintiff’s claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.” Double Green Produce, Inc. v. Forum Supermarket Inc., 387 F. Supp. 3d 260, 266 (E.D.N.Y. 2019).

DISCUSSION
For the reasons explained below, I adopt the R. & R. in part and deny the motion for default judgment.

I. The Individual Defendants are alter egos of the defendant corporations.
I find no clear error in Judge Tiscione’s conclusion that the Individual Defendants are alter egos of the defendant corporations. See R. & R. at 7. Therefore, I adopt Judge Tiscione’s recommendation that the Individual Defendants be held jointly and severally liable with the defendant corporations.

II. Dismissal of plaintiff’s state-law claims is not warranted.
Based on plaintiff’s allegation that some defendants are not in fact “carriers” under the Carmack Amendment, I decline to dismiss plaintiff’s state-law causes of action at this time. The Carmack Amendment “governs the liability of motor carriers for loss or damage to goods transported in interstate commerce.” AIG Eur. (Netherlands), N.V. v. UPS Supply Chain Sols., Inc., 765 F. Supp. 2d 472, 481 (S.D.N.Y. 2011); see 49 U.S.C. § 14706(d). “As a threshold matter,” the enactment “imposes liability on ‘carriers’ but not on ‘brokers,’ as those terms are defined by the statute.” AIG Eur., 765 F. Supp. 2d at 482-83 (citation omitted).

“The difference between a carrier and a broker is often blurry.” Id. at 483 (citation omitted). The statute defines the term carrier as “a motor carrier, a water carrier, and a freight forwarder.” 49 U.S.C. § 13102(3). “The term ‘motor carrier’ means a person providing motor vehicle transportation for compensation.” Id. § 13102(14). 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.” Id. § 13102(2). The implementing regulation further specifies that “[m]otor carriers … are not brokers … when they arrange or offer to arrange the transportation of shipments which they are authorized to transport and which they have accepted and legally bound themselves to transport.” 49 C.F.R. § 371.2(a).

*4 Because the Carmack Amendment “establish[ed] a single uniform regime for recovery by shippers directly from the interstate common carrier,” Project Hope v. M/V IBN SINA, 250 F. 3d 67, 73 n.6 (2d Cir. 2001) (alterations, internal quotation marks, and citation omitted), the statute “preempts all state law on the issue of interstate carrier liability,” Aviva Trucking Special Lines v. Ashe, 400 F. Supp. 3d 76, 79 (S.D.N.Y. 2019). However, “[b]ecause the Carmack Amendment does not apply to brokers, courts have held that Carmack’s preemption of state law claims does not extend to brokers.” JAS Forwarding (USA), Inc. v. Owens Truckmen, Inc., No. 17-cv-03589 (ADS)(AYS), 2017 WL 5054715, at *6 (E.D.N.Y. Nov. 1, 2017). Accordingly, plaintiff’s state-law claims against any carrier relating to the loss or damage of his property are preempted. See R. & R. at 8-11. But plaintiff’s claims against brokers and other non-carriers are not necessarily preempted.

Applying these principles, I decline to dismiss plaintiff’s state-law claims at this time. Well-pleaded allegations of liability are assumed true on a motion for default judgment. See Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). But “[a] fact is not considered well-pleaded for purposes of a motion for default judgment if it is inconsistent with other allegations of the complaint.” J & J Sports Prods., Inc. v. Brentwood Veteran War Memorial, Inc., No. 17-CV-06833 (ADS) (GRB), 2019 WL 4126469, at *9 n.18 (E.D.N.Y. Aug. 30, 2019) (internal quotation marks and citation omitted); see Wilmington PT Corp. v. Gray, No. 19-CV-1675 (AMD), 2020 WL 7684876, at *4 (E.D.N.Y. Oct. 22, 2020), report and recommendation adopted by 2020 WL 7296858 (E.D.N.Y. Dec. 11, 2020). And “[a]n allegation made indefinite … by other allegations in the same complaint is not … well-pleaded” on a motion for default judgment. Trans World Airlines, Inc. v. Hughes, 308 F. Supp. 679, 683 (S.D.N.Y. 1969), modified on other grounds, 449 F.2d 51 (2d Cir. 1971), rev’d on other grounds, 409 U.S. 363 (1973).

Given these rules, plaintiff’s complaint is not well-pleaded as to defendants’ status as either brokers or carriers. Plaintiff’s complaint alleges that all defendants are both. Plaintiff begins by alleging defendants’ employee represented defendants as “a broker and a carrier service.” Third Am. Compl. ¶ 19 (emphasis added). Plaintiff elsewhere suggests defendants are carriers—that is, are “providing motor vehicle transportation for compensation,” 49 U.S.C. § 13102(14)—when he alleges that defendants are “movers engaged in interstate commerce,” Third Am. Compl. ¶ 60, and that an “employee represented defendants as “capable of conducting a full door-to-door move,” id. ¶ 19 (emphasis added). But he then separately alleges that defendants are “registered only as a broker,” that defendants’ “representations … regarding its carrier status” were untrue, that “[d]efendants made those representations without reasonable grounds for believing the representations to be true,” and that defendants “have privately asserted to [p]laintiff that they are not, in fact, a mover or carrier but a broker.” Id. ¶¶ 36, 78, 87. This array of inconsistent allegations concerning defendants’ status makes it impossible for the Court to reach conclusions, on a motion for default judgment, as to whether defendants are carriers or brokers. See Brentwood Veteran War Memorial, 2019 WL 4126469, at *9 n.18; Hughes, 308 F. Supp. at 683. Accordingly, I cannot conclude at this stage that the Carmack Amendment applies to any defendants such that plaintiff’s state law causes of action are preempted. See also Schenker, Inc. v. Arnoff Moving & Storage, Inc., No. CV 17-2967 (SJF) (AKT), 2018 WL 2075290, at *8 (E.D.N.Y. Feb. 21, 2018). Plaintiff’s state-law causes of action will not be dismissed at this time.

III. Plaintiff’s motion for default judgment is denied.
*5 Plaintiff does not object to Judge Tiscione’s recommendation that I deny the motion for default judgment. Accordingly, I review Judge Tiscione’s recommendation that I deny the motion for default judgment for clear error. Having found none, I adopt Judge Tiscione’s recommendation. In particular, I adopt the section of the R. & R. in which Judge Tiscione reasoned that default judgment was unwarranted with respect to plaintiff’s Carmack Amendment claim because plaintiff’s failure to allege an amount of damages meant that plaintiff failed to establish a prima facie case under that provision. R. & R. at 11-13. Default judgment on the Carmack Amendment claim would also be unwarranted for the additional reason that, as explained above, plaintiff has not adequately pleaded that defendants are carriers.

In concluding that default judgment should be denied as to plaintiff’s state-law claims, Judge Tiscione appears to have relied on the premise that all defendants are carriers. R. & R. at 8-12. As I already explained, plaintiff has not adequately pleaded that all defendants are carriers because the complaint contains inconsistent allegations regarding defendants’ status. Still, as a result of that inconsistency, plaintiff has not adequately pleaded that any defendants are non-carriers, either. As a result, default judgment would not be appropriate on plaintiff’s state-law claims. Accordingly, I agree with Judge Tiscione’s denial of a default motion on those claims, as well.

CONCLUSION
Judge Tiscione’s report and recommendation is adopted in part. Plaintiff’s motion for default judgment is denied. I decline to dismiss plaintiff’s state-law claims at this time.

SO ORDERED.

All Citations
Slip Copy, 2021 WL 4398086