2021 WL 3510426

United States District Court, W.D. Washington,
at Tacoma.
Eric A. WATSON and Sarah M. Watson, and their marital community, Plaintiff,
v.
Warren MOGER, and Jane Doe Moger, and their marital community d/b/a Moger Yacht Transport, Warren Moger, and Jane Doe Moger, and their marital community d/b/a Moger Yacht Transport, Defendants.
CASE NO. 20-5344 RJB
|
Signed 08/10/2021
Attorneys and Law Firms
Jordan E. Jones, Marianne K. Jones, Smythe & Jones PLLC, Bellevue, WA, for Plaintiff Eric A. Watson.
Jordan E. Jones, Marianne K. Jones, Smythe & Jones PLLC, Bellevue, WA, for Plaintiff Sarah M. Watson.
Eric A. Watson, Graham, WA, Pro Se.
Sarah M. Watson, Graham, WA, Pro Se.
Keith Marc Hayasaka, Michael Anthony Jaeger, Lewis Brisbois Bisgaard & Smith LLP, Seattle, WA, for Defendants.

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ROBERT J. BRYAN, United States District Judge
*1 This matter comes before the Court on Defendants’ Motion for Summary Judgment (Dkt. 51) and Defendants’ Motion to Strike (Dkt. 55). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

Originally filed on April 9, 2020, this case arises from damage sustained to a boat which was transported over land for the Plaintiffs by the Defendants from California to Oregon. Dkt. 1. The Second Amended Complaint makes claims pursuant to the Carmack Amendment, 49 U.S.C. § 14706(a)(1). Dkt. 37. The Plaintiffs’ counsel were permitted to withdraw on March 12, 2021. Dkt. 41. The Plaintiffs are now proceeding pro se.

The Defendants now move for summary judgment arguing that the Plaintiffs’ claims under the Carmack Amendment, 49 U.S.C. § 14706, et. seq., fail because the Plaintiffs failed to file written notice of their claim. Dkt. 51. The Defendants further maintain that the claims are contractually barred by the Wood Boat / Hull Release. Id. On July 14, 2021, the undersigned issued a notice to the Plaintiff regarding the summary judgment pursuant Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).

The Plaintiffs filed their response (Dkts. 54 – 54-27) to the motion for summary judgment under oath; accordingly, factual assertions in their response will be treated as declarations. They appeared to have some difficulty – each page of the response has a different number in the CM-ECF system. The Defendants move to strike various portions of the response. Dkt. 55. In the interest of fully considering all the pro se Plaintiffs’ assertions and arguments, the Motion to Strike (Dkt. 55) should be denied. No further analysis on that motion is required and the facts below include Plaintiffs’ factual assertions from their response.

I. FACTS
In the spring of 2019, Defendants Warren Moger, Sr. and Warren Moger, Jr., the owner of Moger Yacht Transport, were contacted to pick up Plaintiff Eric Watson’s 1962 45’ Chris Craft boat for transport over land from Anacapa Boatyard in Oxnard, California to Washington state, but later agreed that it could be taken to Portland, Oregon. Dkt. 52, at 2.

Around April 3, 2019 or April 4, 2019, the boat was removed from the water. Dkts. 52 and 54. According to Defendant Moger, Jr. “it appeared the boat was waterlogged and epoxy had been used extensively on the hull as an attempt to patch pre-existing damage.” Id., at 2. Defendant Moger, Jr. states that the Plaintiff was not present when the boat was removed from the water. Id. According to Plaintiff Eric Watson, he was present and “the epoxy was paint, as [the boat] had a new paint job done in January 2019 … [t]here was no patching for a pre-damage repair done.” Dkts. 54-5 and 54-6. Plaintiff Eric Watson states that at that time, he indicated that “the 8”x10” pads on ball swivels were too small for the boat as they would punch right through the hull and asked Warren to add 2x10s or 2x12s the length of the trailer so it would not stress the hull.” Dkt. 54-6. According to Plaintiff Eric Watson, “Warren refused.” Dkt. 54-6.

*2 On, April 3, 2019, the Plaintiff executed a Bill of Lading and Acknowledgement of Shipper’s Responsibilities. Dkt. 52, at 5-6. The Bill of Lading provides that “[c]arrier is not responsible for damage caused by loading, unloading, or due to cradles, trailers, or other carrying devices provide by or on behalf of the shipper.” Dkt. 52, at 5. According to Defendant Moger, Jr., “[d]ue to the extensive damage to the boat’s hull, prior to transport, we tried to convince [the Plaintiff] that the boat was not suitable for transport and to not transport the boat.” Id., at 2. Plaintiff Eric Watson denies that the either of the Moger Defendants made these statements. Dkt. 54-6. Defendant Moger, Jr. states that the Plaintiff Eric Watson insisted that they move the boat, so they requested that he sign a wooden boat release. Dkt. 52, at 2. Accordingly, on April 3, 2019, a “Wood Boat / Hull Release,” (“release”) was sent to Defendants which provided:
I, Eric Watson, understand that my boat is used and may have latent or obvious defects. These defects may cause damage to my boat a 1962 Chris Craft originally 45 foot with add on boat anchor and swim deck that makes it 50 ft.
I therefore hold Moger Yacht Transport and its assigns harmless from damages attributable to these latent or obvious defects. I relieve Moger Yacht Transport of any liability or responsibility for damages that may result from the transport of my boat from time of loading to time of unloading on April 4, 2019.
Dkt. 52, at 18. A signature for Eric Watson is on this document and it is dated April 3, 2019. Id. Plaintiff Eric Watson states that he did not sign it; his wife, Plaintiff Sarah Watson, signed it for him. Dkt. 54-7.

On April 10, 2019 the boat arrived in Portland, Oregon. Dkt. 37. The Plaintiffs maintain that the Portland boat yard told Plaintiff Eric Watson that they could not launch the boat because it had “holes in the bottom and would sink.” Dkt. 37, at 4. The boat yard would not take the boat, so Plaintiffs had the Defendants took the boat to another location. Id., at 4-5.

According to Defendant Moger, Jr., he was made aware of the Plaintiff’s claim against Moger Yacht Transport “through verbal communication from Mr. Watson and from Moger Yacht Transport’s insurance company.” Dkt. 52, at 3. Defendant Moger, Jr. states that he does not have record of any written communication from the Plaintiffs between the time the boat was delivered in Oregon on April 10, 2019 and the following nine months “that contains any written claim asserting liability against Moger Yacht Transport for any specified amount of money for the subject boat.” Id.

The Plaintiffs assert that they “have called numerous times to Warren Moger, Jr.” and claim that he would not call them back. Dkt. 54-3. They assert that they text messaged him and maintain that he did not respond. Id. Plaintiff Eric Watson states that he “sent a letter to Moger Yacht Transport asking to resolve the damage since the insurance company closed the claim, then directed Defendants to write and communicate with Moger Yacht Transport and not to contact them again.” Id. Plaintiff Eric Watson maintains that Defendants did not respond to his letter. Id. The record does not contain this letter.

In response to the motion for summary judgment, the Plaintiffs assert that they have not received all the discovery that they are due, which they contend makes it difficult to respond to the motion. Dkt. 54. In any event, the Plaintiffs argue that they sent sufficient written notice of their Carmack claim to the Defendants and maintain that the release did not relieve the Defendants from ordinary negligence or gross negligence, but only applies to a damage from latent or obvious defects. Id.

This opinion will first provide the standard for a motion for summary judgment, then address the Plaintiffs’ contention that they did not receive all the discovery they are due to respond to the motion for summary judgment, which should be construed as a motion pursuant to Fed. R. Civ. P. 56(d), and then will address the Defendants’ motion for summary judgment.

II. DISCUSSION

A. MOTION FOR SUMMARY JUDGMENT STANDARD
*3 Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt.”). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at, which is a preponderance of the evidence in most civil cases. Anderson, at 254; T.W. Elect., at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect., at 630 (relying on Anderson, 477 U.S. 242). Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-889 (1990).

B. PLAINTIFFS’ RULE 56(d) MOTION
Under Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” A party requesting relief pursuant to Rule 56(d) “must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). “The facts sought must be essential to the party’s opposition to summary judgment and it must be likely that those facts will be discovered during further discovery.” Sec. Exch. Comm’n v. Stein, 906 F.3d 823, 833 (9th Cir. 2018)(internal quotation marks and citations omitted).

To the extent the Plaintiffs move for relief pursuant to Rule 56(d), their motion (Dkt. 54) should be denied. While the Plaintiffs point to several interrogatory questions they assert were not answered and items they maintain have not been turned over in discovery, they fail to explain why those items would yield “facts [that] would preclude summary judgment.” Tatum, at 1100. They fail to demonstrate that these facts are “essential” to their opposition to the summary judgment or that it is likely “that those facts will be discovered during further discovery.” Stein, at 833. Moreover, discovery in this case has closed. The deadline for discovery related motions and dispositive motions has passed. Trial is set to begin on October 4, 2021. Dkt. 14. The summary judgment motion should be decided.

C. CARMACK AMENDMENT CLAIM – RELEASE
“It is well settled that the Carmack Amendment is the exclusive cause of action for interstate-shipping contract claims alleging loss or damage to property.” Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 688 (9th Cir. 2007). Under the Carmack Amendment, a carrier may:
*4 establish rates for the transportation of property … under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.
49 U.S.C. § 14706(c)(1)(A). To limit its liability under the Carmack Amendment, a carrier must: (1) “at the shipper’s request, provide the shipper with a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based,” (2) “give the shipper a reasonable opportunity to choose between two or more levels of liability;” (3) “obtain the shipper’s agreement as to [their] choice of carrier liability limit;” and (4) “issue a bill of lading prior to moving the shipment that reflects any such agreement.” OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1099 (9th Cir. 2011)(internal quotation marks and citations omitted). The carrier has the burden to prove that it has complied with these requirements. Id.

The Defendants’ motion for summary judgment on the Plaintiffs’ Carmack claims should be granted and the claims dismissed.

The Defendants have shown that they have complied with the requirements to limit their liability here. There is no evidence that the Defendants failed to, at the Plaintiffs’ request, “provide them with a copy of the rate … applicable to a shipment, or agreed between the shipper and carrier, is based.” They have shown that they indicated to the Plaintiffs that they would not ship the boat absent execution of the release, and so gave the Plaintiffs “a reasonable opportunity to choose between two or more levels of liability.” The Plaintiffs do not dispute that the release was executed (even though by Plaintiff Sarah Watson, it was done for Plaintiff Eric Watson, at his direction), obtaining their “agreement as to their choice of carrier liability limit.” Lastly, the Defendants have shown that they “issued a bill of lading prior to moving the shipment that reflects any such agreement.” The Bill of Lading reflects the Release’s limitation of liability. The Bill of Lading provided that “[c]arrier is not responsible for damage caused by loading, unloading, or due to cradles, trailers, or other carrying devices …” Dkt. 52, at 5. The Defendants properly limited their liability under the Carmack Amendment.

The Plaintiffs contend that the release does not relieve the Defendants from liability here. Dkts. 54-15 – 54-16. They maintain that it is a release from “latent or obvious defects” and does not release the Defendants “from ordinary negligence or gross negligence, including failing to exercise [their] duty of care to avoid foreseeable risks, harms, and the damage which might result.” Dkt. 54-15. The Plaintiffs assert that the damage had nothing to do with a latent or obvious defect in the boat, but with Moger’s refusal to use larger pads. Id. The Plaintiffs also contend that the Defendants were in “sole control of the unloading equipment that caused the harm, so the facts also give rise to the issue of res ipsa loquitur …” Id.

Contrary to the Plaintiffs’ assertions, the release limits the Defendants’ liability from the damages here. While the release holds Moger Yacht Transport “harmless from damages attributable” to “latent or obvious defects,” and also agrees to “relieve Moger Yacht Transport of any liability or responsibility for damages that may result from the transport of the boat from time of loading to time of unloading.” Dkt. 52, at 18. The plain language of the release encompasses the asserted “negligence or gross negligence” and damages here. Further, because “[r]es ipsa loquitur is a form of circumstantial evidence that permits an inference of negligence to be drawn from a set of proven facts,” Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir. 1983), and the release covers acts of negligence, application of the doctrine is not helpful to the Plaintiffs here.

*5 Based on the above analysis on the release, the motion for summary judgment should be granted and the Plaintiffs’ claims dismissed. The Court need not reach the Defendants’ other grounds for dismissal of this case.

III. ORDER
Therefore, it is hereby ORDERED that:
• The Defendants’ Motion to Strike (Dkt. 55) IS DENIED;
• To the extent the Plaintiffs move for relief under Fed. R. Civ. P. 56(d), that motion (Dkt. 54) IS DENIED;
• Defendants’ Motion for Summary Judgment (Dkt. 51) IS GRANTED;
• The Plaintiff’s claims ARE DISMISSED.

All Citations
Slip Copy, 2021 WL 3510426

2021 WL 3372263

United States District Court, N.D. Texas, Dallas Division.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Plaintiff,
v.
BACARELLA TRANSPORTATION SERVICES, INC. D/B/A BTX GLOBAL LOGISTICS, BRIGHTSTAR INTERNATIONAL CORP. D/B/A BRIGHTSTAR CORP., BRIGHTSTAR US, LLC, T.S. EXPRESS, INC., FORWARD AIR CORPORATION, NORMARK OF TEXAS, LLC, and OSCAR MACEDO CAMPUZANO,1 Defendants.
Civil Action No. 3:19-cv-01364-X
|
08/03/2021

BRANTLEY STARR, UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION AND ORDER
*1 National Union Fire Insurance Company of Pittsburgh, PA (National Union) insures a company that purchased a lot2 of iPhones from Sprint. The phones never arrived, so National Union paid its insured and sued everyone in the shipping chain. Normark of Texas LLC (Normark) moved to dismiss, arguing the federal Carmack Amendment preempts all the state and common-law claims against it because it is a ground shipper. The Court GRANTS IN PART the motion by concluding that National Union must replead the conversion claim but DENIES the motion as to preemption on the other claims.

Forward Air Corporation (Forward Air3 ) also moved to dismiss, making the same Carmack Amendment preemption argument as Normark and also arguing the live complaint flunks federal pleading standards. Likewise, Court GRANTS IN PART Forward Air’s motion by concluding that National Union must replead the conversion claim but DENIES the motion as to preemption on the other claims. As to pleading defects, the Court GRANTS the motion, dismisses the claims without prejudice, and allows National Union to replead its claims.

Finally, Brightstar Corp. (Brightstar) and Brightstar US, LLC (Brightstar US) moved to dismiss, contending that National Union has no standing, this Court lacks personal jurisdiction over them, and the complaint flunks federal pleading standards. The Court GRANTS the Brightstar defendants’ motion to dismiss for lack of personal jurisdiction.

As a result, the Brightstar defendants are out, and National Union has 28 days to replead to cure the deficiencies as to other parties this order identifies.

I. Factual Background
National Union insured EcycleTek, Inc. (Ecycle) and ExportTek, Inc.
(ExportTek). Ecycle paid $420,135.02 for a shipment of smartphones at a Sprint auction. Among other things, the shipment included 829 iPhone 6S phones. ExportTek turned around and bought the rights to the shipment.

Allegedly, Brightstar and Brightstar US stored the iPhones at their warehouse in Illinois. BTX Global Logistics (BTX) had a contract of carriage to ship the iPhones from Illinois to Ecycle’s warehouse in Carrolton, Texas. T.S. Express Inc. (TS Express) was hired to transport the phones to the Chicago O’Hare Airport, and Oscar Macedo Campuzano was TS Express’s driver. Forward Air was hired to ship the phones from O’Hare to the Dallas Fort Worth International Airport. Once the shipment reached that airport, Normark was to transport the iPhones to Ecycle’s warehouse in Carrollton.

ExportTek discovered the loss of the iPhones and reported it to Brightstar and Sprint. National Union paid its insured, ExportTek, for the loss and filed this suit on its insured’s behalf. Based on prior complaints, Brightstar, Brightstar US, Sprint Corp., and Sprint/United Management Co. filed motions to dismiss for lack of personal jurisdiction. The Court allowed limited jurisdictional discovery regarding whether it has personal jurisdiction over these defendants. National Union’s third amended complaint dropped Sprint Corp. and Sprint/United Management Co. from this suit.

*2 The third amended complaint appears to group-plead causes of action for “negligence, gross negligence, breach of contract of carriage, breach of bailment, failure to perform services in a workmanlike manner and/or breach of implied and/or express warranties…and conversion,” as well as an alternative pleading of a federal Carmack Amendment claim (if Forward Air carried by truck instead of air).4 Forward Air, Normark, Brightstar, and Brightstar US moved to dismiss.

II. Legal Standard
Standing and Rule 12(b)(1)
A Rule 12(b)(1) motion to dismiss challenges a federal court’s subject matter jurisdiction.5 A federal court lacks subject matter jurisdiction when it lacks statutory or constitutional authority to adjudicate the claim.6 When a Rule 12(b)(1) motion is filed with other Rule 12 motions, the Court should consider the “jurisdictional attack before addressing any attack on the merits.”7 And if both Rule 12 motions have merit, the Court should dismiss on the jurisdictional ground; this allows a plaintiff to pursue his claim in the proper court without danger of the claim being prematurely dismissed with prejudice by a court that lacks jurisdiction.8

When considering a Rule 12(b)(1) motion, “all factual allegations in the complaint must be accepted as true.”9 “[A] court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts” if the Court resolves those facts after an evidentiary hearing.10

A federal court’s Article III jurisdiction is limited to “Cases” and “Controversies.”11 The doctrine of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.12 Standing includes three elements:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.13

Personal Jurisdiction and Rule 12(b)(2)
Without an evidentiary hearing, the plaintiff must make a prima facie case for personal jurisdiction.14 Accordingly, this Court accepts as true all uncontroverted allegations in the complaint and resolves all factual conflicts in favor of the plaintiff.15

Texas has a long-arm statute, and it provides a constitutional maximum.16The test for personal jurisdiction can be met either by satisfying general jurisdiction or specific jurisdiction.17 For either personal or general jurisdiction, courts look to whether the defendant has had minimum contacts with the forum, such that the suit does not offend notions of fair play and substantial justice.18

*3 To satisfy the general jurisdiction minimum contacts test for corporations, a defendant’s contacts with the forum must be sufficiently continuous and systematic as to make the defendant “essentially at home” in the forum.19

To satisfy minimum contacts for specific jurisdiction, courts require a determination of purposeful availment.20 This analysis chiefly looks to whether the defendant availed himself of the privilege of conducting activities in that state.21 Specifically, the defendant must have purposefully reached beyond its home. A defendant can achieve this by, for example, exploiting a market, entering and seeking to maintain an extensive contractual relationship there,22 enjoying the benefits of and protection of the forum’s laws, the defense of their property, and enforcement of contacts there.23

Next, the harm must arise from or relate to the contact with the forum.24 As the United States Supreme Court noted this year, the “arise out of” requirement is a causational requirement, and the “relates to” requirement is that the harm must be sufficiently related to the contact to warrant specific jurisdiction.25

Finally, courts must evaluate a set of reasonableness factors once personal jurisdiction has been found.26 Those factors are the interest of the forum state, the burden to defendants in defending in the forum, the interest of the plaintiff in obtaining relief, the interstate judicial system’s interest in the most efficient end of controversies, and the interest of the states in furthering substantive social policies.27

Plausibly Stating a Claim and Rule 12(b)(6)
Under Rule 12(b)(6), the Court evaluates the pleadings by “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.”28 To survive a motion to dismiss, the claimant must allege enough facts “to state a claim to relief that is plausible on its face.”29 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”30“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”31 “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ”32

III. Analysis
A. Forward Air and Normark Motions to Dismiss
*4 Forward Air and Normark only raise 12(b)(6) arguments. Both argue preemption, but Forward Air also argues pleading defects. Sure, this group-pled, conclusory complaint has pleading issues worth discussing. But the remedy for such defects would be repleading, and courts don’t allow repleading if it would be futile. Repleading a preempted claim would seem rather futile, so the Court first addresses the dispositive issue of whether the Carmack Amendment preempts the state and common-law claims.

1. Preemption of State and Common-Law Claims Under Rule 12(b)(6)
The Court concludes that it cannot decide on a Rule 12(b)(6) inquiry (which is limited to the complaint and documents referenced in and central to the complaint) whether the shipment from Illinois to Texas was by ground or air. As such, the Court cannot grant the motions to dismiss from Forward Air and Normark as to the Carmack Amendment preempting the state and common-law claims (other than the conversion claim).

The Fifth Circuit has made clear that “Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier. Accordingly, we hold that the complete preemption doctrine applies.”33 As a result, if this shipment was by motor carrier (and not by air), the Cammack Act applies and preempts National Unions’s other causes of action.34

The parties disagree over whether the Forward Air leg of the shipment was by air or land.35 This dispute is compounded by what the Court can consider beyond the pleadings in a Rule 12(b)(6) argument and what the parties offer as support of their positions. Forward Air and Normark contend the shipment was by land. They point to a signed BTX Alert attached to a prior complaint that listed “TRUCK” as the method of shipment. They also raise Forward Air’s website, which states that it provides ground transportation and that it ships to and from terminals near airports. Normark contends that as to its role, the live complaint alleges Normark was a motor carrier and there is no dispute that it is a motor carrier, so it is only subject to a Carmack Amendment claim.36

*5 National Union responds that the bill of lading and other shipping documents attached to its third amended complaint does not reference a method of shipping. It does concede that a BTX Alert attachment to its original and first amended complaints indicating shipment was by truck. But National Union retorts that it had claim adjuster Ryan Coffey investigate, and his affidavit states BTX told him that the shipment from Illinois to Texas was by air. Finally, National Union argues its conversion claim should survive any preemption.

The Court will first dispose of the simple issue: Normark. Normark correctly points out the complaint claims Normark is “a Texas trucking company, [that] agreed to carry and carried the shipment [from the Dallas Fort Worth International Airport] in return for good and valuable consideration within Texas to ExportTek, Inc.’s warehouse in Carrollton, Texas.”37 National Union’s response never argues the possibility it could replead otherwise and also acknowledges that the Carmack Amendment preempts claims against motor carriers. National Union does, however, raise that it could replead its conversion claim to allege theft, which would draw the conversion claim outside the Carmack Amendment’s preemptive scope (as explained below). Accordingly, the Court grants in part Normark’s motion to dismiss and dismisses all claims against Normark other than conversion and the Carmack Amendment claim with prejudice.

Now the Court must address the claims against Forward Air. But with a Rule 12(b)(6) attack, the Court must consider only documents central to or referenced in the complaint. Generally, “[i]n determining whether to grant a motion to dismiss, the district court must not go outside the pleadings and must accept all well-pleaded facts as true, viewing those facts most favorably to the plaintiff.”38 However, “[w]hen a defendant attaches documents to its motion that are referred to in the complaint and are central to the plaintiff’s claims, the court may also properly consider those documents.”39 Although the Fifth Circuit has not enunciated a test for when a document is central to a plaintiff’s claim, a document tends to be central when it is necessary to establish an element of a plaintiff’s claim.40 In assessing whether a document is central, a court should consider whether the plaintiff objects to the inclusion of the attached document.41

So, can the Court consider an attachment to a prior motion to dismiss, the claim adjuster affidavit, or Forward Air’s website? No. Regarding the BTX Alert attached to prior pleadings, those pleadings are no longer live. The prior attachment still could come in as attached to a motion to dismiss, but only if it is central to and referenced in the live complaint. It isn’t referenced in the live complaint.

*6 Regarding the adjuster’s affidavit, it’s an affidavit attached to a response to a motion to dismiss. Affidavits are wonderful things to attach to summary judgment motions and responses, but not to Rule 12(b)(6) motions and responses. The Court can’t consider the affidavit either as it wasn’t attached to and referenced in the complaint.

Now, about Forward Air’s website saying it ships by ground. National Union’s complaint never referred to Forward Air’s website. The only other basis for the Court to consider such extraneous evidence is if it could take judicial notice of the website.42But courts within the Fifth Circuit traditionally take notice of governmental websites, not a litigant’s private website.43 Doing the latter would seriously upend Rule 12(b)(6) practice. The Court declines to take judicial notice of Forward Air’s website.

So, what’s left that the Court can consider? Basically just the live complaint, which states “[o]n information and belief, Forward Air carried the shipment by air.”44Sure, this is conclusory. But we’re not talking about a conclusory statement used to invoke the Court’s jurisdiction. We’re talking about a conclusory statement before fact discovery on whether this case should proceed on a Carmack Amendment claim due to ground transportation or state and common-law claims due to air transportation. This is a fact that cannot be known until discovery runs its course. And that fact does not deprive this court of jurisdiction. National Union has appropriately pled what it can on ground versus air and included claims in either event. Accordingly, the Court deniesForward Air’s motion to dismiss the state and common-law claims as preempted by the Carmack Amendment. The final issue on preemption is the conversion claim. Forward Air argues the Carmack Amendment preempts the conversion claim because the complaint only alleges the cargo was lost, not that it was stolen. And the Fifth Circuit has held that the Carmack Amendment preempts all claims but theft claims.45 National Union contends in its response that the loss was a “deliberate effort made by the thief to cover up the act” and attaches evidence of a cover up.46 Both parties miss the point. The issue of theft is one of pleading at the motion to dismiss phase. National Union offers evidence of theft but has not pled it. It obviously could, so the Court will allow it a final opportunity to replead its conversion claim. Accordingly, the Court grants Forward Air’s motion to dismiss as to National Union’s conversion claim, dismisses the claim without prejudice, and allows National Union 28 days to replead to the conversion claim to avoid preemption.

2. Pleading Defects Under Rule 12(b)(6)
*7 Forward Air makes the additional 12(b)(6) argument that the third amended complaint is too conclusory to comply with federal pleadings standards. National Union does not defend against this argument, nor can it.

The third amended complaint basically states that a number of defendants were responsible for shipping the package and it did not arrive, so the defendants are liable for negligence, gross negligence, breach of contract of carriage, breach of bailment, failure to perform services in a workmanlike manner and/or breach of implied and/or express warranties, and conversion. The complaint never states the elements of the claims or the facts making it plausible that there is liability for the defendants as to the claims.47 As such, it simply “do[es] not permit the court to infer more than the mere possibility of misconduct,” which flunks the federal pleading standard.48 Given that this is the Court’s first ruling notifying National Union of these defects, the Court will allow a final opportunity for National Union to replead to cure the federal pleading standard deficiencies. The final pleading must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”49 The Supreme Court’s phrasing of “the defendant” highlights that the revised complaint must be particularized and not merely label the defendants collectively as lawbreakers without explaining why each one broke the law.50

Accordingly, the Court grants Forward Air’s motion to dismiss all the claims in the third amended complaint, dismisses the claims against Forward Air with prejudice, and allows National Union 28 days to replead to cure its pleading deficiencies.

B. Brightstar and Brightstar US’s Motion to Dismiss
BrightStar and BrightStar US contend that: (1) National Union has no standing against the Brightstar entities under Rule 12(b)(1) because there is no allegation or conduct fairly traceable to the Brightstar defendants, (2) Texas has no personal jurisdiction over the Brightstar entities under Rule 12(b)(2), and (3) the complaint fails to plausibly state a claim under Rule 12(b)(6). National Union responds that (1) it lacks information at this stage to identify who the culprit is, (2) there is personal jurisdiction over the Brightstar defendants because they knowingly placed the shipment in the stream of commerce heading for Texas, and (3) its claim is pled with as much detail as the current knowledge allows.

*8 The Court must address the jurisdictional arguments first. But the 12(b)(1) argument on standing is not functionally different than the 12(b)(6) argument on pleading defects (i.e., the live complaint is too conclusory to plead a claim, which means it’s too conclusory to establish standing). If that’s true, a better complaint theoretically might result in adequate pleading of standing. So the Court must attend to the Rule 12(b)(2) argument on whether it has personal jurisdiction over the Brightstar defendants as the only dispositive 12(b) argument.

As a reminder, National Union has the burden to prove jurisdiction.51 The Court assisted it by allowing jurisdictional discovery. If there are disputed jurisdictional facts, the Court views those facts in favor of jurisdiction because there was no evidentiary hearing.52

The facts are undisputed here. The parties agree that (1) Brightstar US is licensed to do business in Texas and (2) the Brightstar Defendants knew the shipment of smartphones was destined for Texas. But merely registering to do business in Texas does not subject one to personal jurisdiction.53 As to the stream of commerce theory, the Fifth Circuit has traditionally used that theory “to permit the assertion of specific jurisdiction over nonresident defendants that send a defective product into the forum.”54 The Fifth Circuit has expressly “been reluctant to extend the stream-of-commerce principle outside the context of products liability cases, including cases involving contract or copyright.”55 National Union cites to no similar case where the Fifth Circuit has extended the stream of commerce theory to a case like this. On the contrary, this case falls within the scope of Fifth Circuit precedent where there is no jurisdiction over a defendant that has isolated shipments to a forum state and title and risk of loss are transferred outside the forum state.56 Here, there is only the indication of the shipment at issue. As a result, National Union has not carried its burden of establishing personal jurisdiction over the Brightstar defendants. The Court grants the Brightstar defendants’ motion to dismiss for lack of personal jurisdiction, so the Court need not reach the 12(b)(1) or 12(b)(6) arguments.

IV. Conclusion
For the foregoing reasons, the Court GRANTS the Forward Air and Normark motions to dismiss as to the conversion claim being preempted, DENIES Forward Air’s motion to dismiss as to the remaining state and common law claims being preempted, and GRANTS Forward Air’s motion to dismiss as to pleading defects. The Court further GRANTS the Brightstar defendants’ motion to dismiss for lack of personal jurisdiction. The Court allows National Union 28 days to replead to cure its pleading deficiencies this order identifies. National Union may not add new parties or claims in this repleading but may cure its deficiencies as to all defendants that remain in the case.

*9 IT IS SO ORDERED this 3rd day of August, 2021.

BRANTLEY STARR

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2021 WL 3372263

Footnotes

1
There is some confusion among the pleadings and motions as to what the caption of the case actually is. The Court is basing its caption on the parties that the third amended complaint actually describes (which is different that the parties listed in the third amended complaint’s caption).

2
Both meanings.

3
Allegedly “Air” is a misnomer, as explained below.

4
Doc. No. 136 at 5–6.

5
See FED. R. CIV. P. 12(b)(1).

6
Home Builders Ass’n of Miss. Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

7
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

8
Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).

9
Gemini Ins. Co. v. Trident Roofing Co., LLC, No. 3-09-CV-0704-M, 2009 WL 3416495, at *1 (N.D. Tex. Oct. 23, 2009) (Lynn, J.) (citing Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001)).

10
Den Norske Stats Oljeselskap As, 241 F.3d at 424.

11
U.S. CONST. art. III, § 1.

12
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

13
Id. at 560–61 (cleaned up).

14
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999).

15
Id.

16
Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067–1068 (5th Cir. 1992) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990)) (noting that Texas’s long-arm statute “extend[s] to the limits of due process”).

17
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

18
Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945).

19
Goodyear, 564 U.S. at 919.

20
Id. at 924.

21
Id.

22
Walden v. Fiore, 571 U.S. 277, 285 (2014).

23
Int’l Shoe Co., 326 U.S. at 319.

24
Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021).

25
Id. at 1026.

26
Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano Cty., 480 U.S. 102, 113 (1987).

27
Id.

28
Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2020).

29
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

30
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

31
Id.; see also Twombly, 550 U.S. at 545 (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”).

32
Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

33
Hoskins v. Bekins Van Lines, LLC, 343 F.3d 769, 778 (5th Cir. 2003) (emphasis in original).

34
National Union admits as much by pleading its Carmack Amendment claim in the alternative. See Doc. 136 at 8 (“Pleading in the alternative, if discovery reveals that Forward Air agreed to carry and carried cargo by truck as opposed to by air, then the loss of 829 iPhones in this case was proximately caused in whole or in part by the events during interstate road carriage when the cargo was in the actual, constructive, or contractual custody of Defendants BTX, T.S. Express, Campuzano, Forward Air, and/or Normark, and/or their employees and/or agents within the meaning of the Carmack Amendment.”).

35
Such simple disputes can have great importance. See Henry Wadsworth Longfellow, Paul Revere’s Ride (1860) (recalling Revere’s friend agreeing to hang lanterns in the belfry of the Old North Church tower, “One if by land, and two if by sea,” to alert of the impending arrival of British forces).

36
It further contends that its ground-basedintra-state leg of an interstate trip does not diminish the Carmack Amendment preemption. But this is not an argument National Union refutes. See Doc. No. 146 at 7 (“Plaintiff’s concession that the Carmack Amendment could apply in this matter is premised on the assumption that the Illinois-Texas leg of the shipment was made by ground transportation and not by air.”).

37
Doc. No. 136 at 4.

38
Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).

39
Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019).

40
Hong Kong Aroma Star Int’l LLC v. Elta MD Inc., 2019 WL 2357529, at *3 (N.D. Tex. June 4, 2019) (Fish, J.) (citing Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. Apr. 26, 2011) (Lynn, J.)).

41
Scanlan, 343 F.3d at 536 (“The fact that the plaintiffs did not object to, or appeal, the district court’s consideration of those documents [attached to a motion to dismiss] was central to this Court’s approval of that practice” of allowing documents attached to a motion to dismiss to be considered by a district court); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000) (“In so attaching [the documents to its motion to dismiss], the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated.”).

42
See FED. R. EVID. 201(f) (“Judicial notice may be taken at any stage of the proceeding.”)

43
See Hawk Aircargo, Inc. v. Chao., 418 F.3d 453, 457 (5th Cir. 2005) (Fifth Circuit taking judicial notice of approval by the federal agency website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam) (Fifth Circuit taking judicial notice of Texas agency website).

44
Doc. No. 136 at 4.

45
Tran Enters., LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1009–10 (5th Cir. 2010) (“We acknowledge that in some circumstances, where a carrier has intentionally converted for its own purposes the property of the shipper, traditional true conversion claims should be allowed to proceed and limitations on liability should be considered inapplicable….However, to justify such a conversion claim exception to the preemptive scope of the Carmack Amendment, the party asserting such an exception would, we hold, bear the burden of proof at trial.”).

46
Doc. No. 146 at 8.

47
See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (“Where, as here, a case is at the pleading stage, the plaintiff must clearly allege facts demonstrating each element.”).

48
Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

49
Id. at 678.

50
See Gurganus v. Furniss, No. 3:15-CV-03964-M, 2016 WL 3745684, at *5 (N.D. Tex. July 13, 2016) (Lynn, C.J.) (“In addition to being conclusory and formulaic, this type of group pleading fails to meet the pleading requirements of Federal Rule of Civil Procedure 8.”). National Union’s argument that the information is in the possession of the defendants may well be true. The Fifth Circuit has allowed plaintiffs to “use information and belief to allege facts that are peculiarly in the possession of an opposing party.” Clark v. Thompson, 850 F. App’x 203, 209 (5th Cir. 2021) (cleaned up). But in the same breath, the Fifth Circuit stated that “a plaintiff needs to exercise reasonable due diligence and provide some factual basis for his allegations that would raise a reasonable expectation that discovery will reveal evidence that defendants engaged in unlawful conduct.” Id. (cleaned up).

51
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999).

52
Id.

53
See Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992) (“Not only does the mere act of registering an agent not create Learjet’s general business presence in Texas, it also does not act as consent to be hauled into Texas courts on any dispute with any party anywhere concerning any matter.”). As the Brightstar defendants point out, the third amended complaint never alleges Brightstar US is licensed in Texas. But National Union could replead to include this fact, so the Court will assess it and allow National Union to replead if this fact is a difference-maker.

54
Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 585 (5th Cir. 2010).

55
Luv N’ care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 472 (5th Cir. 2006) (cleaned up).

56
See Charia v. Cigarette Racing Team, Inc., 583 F.2d 184, 189 (5th Cir. 1978) (stating there might be jurisdictional “where defendant had supplied its product to the forum state in large quantities over a lengthy period of time” but that four sales to Louisiana over five-year period were insufficient to establish personal jurisdiction when contract at issue specified that title and risk of loss passed in Florida).