United States Court of Appeals for the Fourth Circuit
November 30, 2021, Submitted; December 29, 2021, Decided
No. 21-1025

Reporter
2021 U.S. App. LEXIS 38522 ; 2021 WL 6138286 CATHY MARIE BRENTZEL, Individually and as Personal Representative of Robert C. Hacker, Deceased, Plaintiff – Appellant, and ESTATE OF ROBERT C. HACKER, Plaintiff, v. FAIRFAX TRANSFER AND STORAGE, INC., Defendant – Appellee. Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS. Prior History: [1] Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:20-cv-01076-TSE-MSN). T.S. Ellis, III, Senior District Judge.

Brentzel v. Fairfax Transfer & Storage, Inc., 2020 U.S. Dist. LEXIS 257746 (E.D. Va., Dec. 10, 2020)
Disposition: AFFIRMED IN PART; DISMISSED IN PART.
Core Terms

bill of lading, district court, allegations, documents, motion to dismiss, carrier, authenticity, preempted, conclusory, contends, integral, execute, conversion claim, instructions, supervise, damages, bills
Case Summary

Overview
HOLDINGS: [1]-District court correctly considered the motion to dismiss under Fed. R. Civ. P. 12(b)(6) and properly dismissed the claim under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.S. § 14706; the district court accepted the facts as alleged and disregarded conclusory statements and appellant was free to file an amended complaint providing further factual support and details. Her decision to stand on her conclusory complaint was what caused the dismissal of her suit; [2]-District court correctly found that appellant’s state law claim for damage to and theft of her property during shipping was preempted by the Carmack Amendment; she provided no support for an exception to preemption for state law claims alleging theft or criminal conduct, and case law held that even state law claims based on intentional conduct were preempted.
Outcome
Affirmed in part; dismissed in part.
LexisNexis® Headnotes

Civil Procedure > Appeals > Standards of Review > De Novo Review
Civil Procedure > … > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim
HN1[ ] Standards of Review, De Novo Review
The appellate court reviews a dismissal for failure to state a claim de novo. Dismissal under Fed. R. Civ. P. 12(b)(6) is inappropriate unless it appears beyond doubt that the plaintiff cannot prove any set of facts to support her allegations. Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment. However, a court may consider documents sufficiently referred to in the complaint or central to the plaintiff’s claim when the authenticity is not disputed. Mere quotation or reference to documents is not enough to incorporate those documents into the complaint. Instead, for the document to be considered, the plaintiff’s claims must turn on, or otherwise be based on, the contents of the document. Short of that, a document is not integral to the complaint and should not be considered.

Admiralty & Maritime Law > Shipping > Bills of Lading > Effectiveness & Validity
Transportation Law > Carrier Duties & Liabilities > Bills of Lading
Transportation Law > Rail Transportation > Carmack Amendment
Transportation Law > Carrier Duties & Liabilities > Damages
HN2[ ] Bills of Lading, Effectiveness & Validity
The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.S. § 14706, creates a national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading. The statute requires the initial carrier to issue a bill of lading or receipt for property it transports and states that a carrier is liable to the person entitled to recover under the bill of lading for the actual loss or injury to the property caused by the initial carrier or any subsequent carrier to which the property is delivered. 49 U.S.C.S. § 11706(a). While the Carmack Amendment specifies that failure to issue a receipt or bill of lading does not affect the liability of a rail carrier, § 11706(a), the forming of a contract via a bill of lading is typically anticipated. The Carmack Amendment requires a receiving carrier to issue a bill of lading.

Admiralty & Maritime Law > Shipping > Bills of Lading > Effectiveness & Validity
Transportation Law > Carrier Duties & Liabilities > Bills of Lading
Transportation Law > Rail Transportation > Carmack Amendment
Transportation Law > Carrier Duties & Liabilities > Damages
Transportation Law > Interstate Commerce > Federal Preemption
HN3[ ] Bills of Lading, Effectiveness & Validity
A claim under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.S. § 14706, governs situations where a bill of lading or a receipt is required. While a carrier cannot avoid liability by failing to issue the required bill of lading or receipt, in such a case the shipping contract is nonetheless implied. There will be either an actual contract, such as in a bill of lading, or a constructive contract based on the Carmack Amendment. Moreover, the Amendment recognizes that the parties can limit liability, including the time period for bringing suit, in a bill of lading in accordance with the statute. 49 U.S.C.S. § 11706(e).

Admiralty & Maritime Law > Shipping > Bills of Lading > Effectiveness & Validity
Transportation Law > Carrier Duties & Liabilities > Bills of Lading
Transportation Law > Rail Transportation > Carmack Amendment
Transportation Law > Carrier Duties & Liabilities > Damages
Transportation Law > Interstate Commerce > Federal Preemption
HN4[ ] Bills of Lading, Effectiveness & Validity
A claim based on the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.S. § 14706, involves a contractual relationship, and an actual, physical document (bills of lading or receipt) is required to be issued by the carrier.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review
HN5[ ] Reviewability of Lower Court Decisions, Preservation for Review
Claims raised for the first time on appeal generally will not be considered, absent exceptional circumstances of plain error or a fundamental miscarriage of justice.

Civil Procedure > … > Pleadings > Complaints > Requirements for Complaint
HN6[ ] Complaints, Requirements for Complaint
A complaint’s factual allegations must state a plausible claim and not require speculation to fill in the gaps.

Civil Procedure > … > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim
HN7[ ] Motions to Dismiss, Failure to State Claim
A motion to dismiss can be countered by plaintiff’s supplying of the missing detail.

Business & Corporate Law > … > Authority to Act > Apparent Authority > Elements
Business & Corporate Law > … > Authority to Act > Apparent Authority > Third Party Knowledge
Business & Corporate Law > Agency Relationships > Duties & Liabilities > Third Parties
Business & Corporate Law > … > Duties & Liabilities > Authorized Acts of Agents > Liability of Principals
HN8[ ] Apparent Authority, Elements
An agent’s actions bind a principal when the principal causes a third party, in good faith and in the exercise of reasonable prudence, to rely on the agent’s authority.

Constitutional Law > Supremacy Clause > Federal Preemption
Transportation Law > Carrier Duties & Liabilities > Bills of Lading
Transportation Law > Rail Transportation > Carmack Amendment
Transportation Law > Carrier Duties & Liabilities > Damages
Transportation Law > Interstate Commerce > Federal Preemption
HN9[ ] Supremacy Clause, Federal Preemption
The preemptive force of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.S. § 14706, is exceedingly broad and embraces all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation. The Carmack Amendment preempts all state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments. Specifically, state law conversion claims are preempted. The Third Circuit has specifically found that even state law claims based on intentional conduct or conduct in the nature of theft are preempted.
Counsel: James R. Tate, TATE BYWATER, Vienna, Virginia, for Appellant.
ROBERT E. WORST, KALBAUGH, PFUND & MESSERSMITH, P.C., Fairfax, Virginia, for Appellee.
Judges: Before WILKINSON, DIAZ, and HARRIS, Circuit Judges.
Opinion

PER CURIAM:
Cathy Marie Brentzel appeals from the district court’s order granting Fairfax Transfer and Storage’s (“FTS”) motion to dismiss her complaint. On appeal, she asserts that the district court erred in considering documents extraneous to the motion to dismiss, erroneously found that the complaint was time-barred, and wrongly determined that Brentzel’s state law conversion claim was preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. While we dismiss the appeal as to the Estate of Robert C. Hacker, we affirm the district court’s order dismissing the complaint.
I.
Brentzel in both her individual capacity and as personal representative of her deceased husband, Robert C. Hacker, sued FTS, alleging two counts related to the loss of household goods transported from a Virginia residence to a Washington, [2] D.C. residence, and a third count for alleged theft of money and a ring from the D.C. residence during delivery of the transported household goods. Specifically, Brentzel alleged that she contracted with FTS to move their property from Brentzel’s Virginia residence to her residence in Washington, D.C. With respect to the move, Brentzel “was assisted in the moving project by members of her household staff, including one David Lamonde.” (J.A. 8). Lamonde “was assigned by plaintiff Brentzel to oversee the arrangements with the moving company and supervise the physical execution of the actual move.” (J.A. 8). Brentzel alleged that FTS was aware that “Lamonde’s role was limited to that of an agent only.” (J.A. 8). “Lamonde’s authority was strictly limited to executing the moving arrangements in accordance with [her] instructions.” (J.A. 8). “Lamonde’s limited authority included instructions from plaintiff Brentzel to (1) commence the move on or about June 15, 2015, and (2) move all of the contents of the Virginia residence directly to the DC Main Residence in a single move without interim stops.” (J.A. 8). Brentzel asserted that Lamonde’s authority did not include the ability “to modify or [3] waive any legal rights of plaintiff Brentzel under the contract of carriage and/or bills of lading.” In addition, Brentzel alleged that FTS “was or should have been aware of Lamonde’s authority,” as well as her instructions to Lamonde. (J.A. 8). “Brentzel and her family members vacated the Virginia residence” at Lamonde’s request in order to “facilitate the move.” (J.A. 8-9). Brentzel was, thus, out of town and not available “to personally supervise Fairfax Transfer’s packing and moving activities.” (J.A. 9). FTS was allegedly aware of this.
According to Brentzel, FTS’s “documents” revealed that FTS first arrived on June 22, 2015. (J.A. 10). The “documentation” “reflect[ed] that some or all of the household goods . . . were not moved directly to the DC Main Residence, but rather to a transit storage facility under the exclusive control of Fairfax Transfer.” (J.A. 10). Brentzel alleged that FTS completed its deliveries in January 2016. However, Brentzel further asserted that FTS failed to deliver approximately one-third of the goods. Finally, Brentzel alleged that an employee of FTS stole $10,000 in cash and a diamond ring from her D.C. home. The cash and ring “were not part of contents [4] being moved from Virginia to DC, and instead were a part of the contents of the DC Main Residence, since before the move began.” (J.A. 17). Based on these allegations, Count 1 sought compensatory damages under the Carmack Amendment; Count 2 alleged vicarious liability for conversion of the items never delivered; and Count 3 sought damages under a state law claim for “conversion by a larceny” regarding the ring and cash. FTS moved to dismiss, attaching the bills of lading and alleging that such documents were integral to Brentzel’s claims. The bills of lading contain a condition precedent to recovery, requiring a written claim within nine months. The district court granted FTS’s motion to dismiss, ruling that the bills of lading were properly considered and that they rendered Brentzel’s claim untimely. The court also found that Lamonde had apparent and actual authority to sign the bills of lading. The court concluded that Brentzel’s conversion claim in Count 2 was preempted by the Carmack Amendment. Finally, the court declined to exercise pendent jurisdiction over Count 3 and dismissed it without prejudice. II. HN1[ ] We review a dismissal for failure to state a claim de novo. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Dismissal under Rule 12(b)(6) is inappropriate unless it appears [5] beyond doubt that the plaintiff cannot prove any set of facts to support her allegations. Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir. 1989). Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment. Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
However, a court may consider documents sufficiently referred to in the complaint or central to the plaintiff’s claim when the authenticity is not disputed. Id.; see also Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) (permitting consideration of extraneous material if such materials are “integral to and explicitly relied on in the complaint”). Mere quotation or reference to documents is not enough to incorporate those documents into the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). Instead, for the document to be considered, the plaintiff’s claims must turn on, or otherwise be based on, the contents of the document. Id. Short of that, a document is not integral to the complaint and should not be considered. Id.
Brentzel contends first that the district court’s review of the bills of lading was improper as the bills were not essential or integral to her claims. Brentzel asserts that her references to bills of lading in the complaint were generic and made in passing. She further argues [6] that her claims are based on the Carmack Amendment, not the bills of lading. HN2[ ] The Carmack Amendment “creates a national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading.” 5K Logistics, Inc. v. Daily Express, Inc., 659 F.3d 331, 335 (4th Cir. 2011) (citation and internal quotation marks omitted). The statute requires the initial carrier to issue a bill of lading or receipt for property it transports and states that a carrier is liable to the “person entitled to recover” under the bill of lading “for the actual loss or injury to the property” caused by the initial carrier or any subsequent carrier to which the property is delivered. 49 U.S.C. § 11706(a); CNA Ins. Co. v. Hyundai Merchant Marine Co, 747 F.3d 339, 355 (6th Cir. 2014). While the Carmack Amendment specifies that “[f]ailure to issue a receipt or bill of lading does not affect the liability of a rail carrier,” 49 U.S.C. § 11706(a), the forming of a contract via a bill of lading is “typically anticipated.” CNA Ins., 747 F.3d at 355; see also Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1121 n.5 (noting that the Carmack Amendment requires a receiving carrier to issue a bill of lading). HN3[ ] Thus, a claim under the Carmack Amendment governs situations where a bill of lading or a receipt is required. While a carrier cannot avoid liability by failing to issue the required bill of lading or receipt, in such a case the shipping contract is nonetheless implied. See CNA Ins., 747 F.3d at 355 (noting that there will be either an actual contract, [7] such as in a bill of lading, or a constructive contract based on the Carmack Amendment). Moreover, the Amendment recognizes that the parties can limit liability, including the time period for bringing suit, in a bill of lading in accordance with the statute. 49 U.S.C. § 11706(e).
HN4[ ] Accordingly, a claim based on the Carmack Amendment involves a contractual relationship, and an actual, physical document (bills of lading or receipt) is required to be issued by the carrier. In district court, Brentzel did not dispute that the bills of lading were issued to her by FTS upon receipt of her property. She challenged the authority of Lamonde to sign the bills but not their existence or relevance to the contractual relationship between the parties. Because the statute on which her claim is based required a receipt or bill of lading to be issued and explicitly recognized that the document could limit liability in certain instances, the bills of lading or other receipts (or lack thereof) would be necessary to determine the scope of liability and the details of the agreement between the parties. While it is true that Brentzel could have instituted her claim even if no bill of lading was issued, Brentzel makes no argument, either below or on appeal, that [8] FTS failed to issue a bill of lading. Accordingly, we find that the district court correctly found that the bills of lading were integral to Brentzel’s claims. Next, Brentzel contends that there is a question as to whether the bills of lading are authentic. In district court, Brentzel challenged the authenticity of the bills because they were allegedly signed by a career criminal acting as an unauthorized agent. However, this argument does not actually challenge the authenticity of the documents themselves; that is, this argument does not dispute that the bills of lading existed in the form proffered by FTS and were signed by Lamonde. Instead, Brentzel’s district court argument went to the issue of whether Lamonde was authorized to sign the bills, which will be discussed below, but does not affect the authenticity or admissibility of the bills of lading for consideration on a motion to dismiss. Moreover, on appeal, while Brentzel briefly restates her authenticity argument, she also, for the first time, avers that there was no evidence that Lamonde actually signed the bills of lading.1 In her reply brief, Brentzel raises even more claims, contending that Brentzel’s counsel (and perhaps [9] Brentzel and, even, Lamonde) were not aware of the relevant language on the back of the bills of lading until the motion to dismiss was filed in district court. Brentzel also questions whether Lamonde ever saw or understood the back of the forms. Brentzel even surmises that the back of the bills of lading attached to the motion to dismiss may not have been on the back of the documents signed by Lamonde.
However, below, Brentzel did not dispute that the bills of lading proffered by FTS with its motion to dismiss were complete and were presented to and signed by Lamonde. HN5[ ] Claims raised for the first time on appeal generally will not be considered, absent exceptional circumstances of plain error or a fundamental miscarriage of justice. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993); First Virginia Banks, Inc. v. BP Exploration & Oil, Inc., 206 F.3d 404, 407 n.1 (4th Cir. 2000) (declining to consider issues raised for first time on appeal). Moreover, Brentzel avers that, when she filed the complaint, she possessed copies of the bills of lading that did not include the back of the FTS form, where the time limitations were listed. Thus, Brentzel would have been able to raise her current authenticity claim in district court. Instead, Brentzel conceded the authenticity of the documents, and thus, her allegations to the contrary are [10] untimely raised. As such, given that the bills of lading were integral to Brentzel’s claims and that there was no timely objection to their authenticity, the district court properly considered the bills during the motion to dismiss. II. Brentzel next asserts that the district court erred in determining that the complaint admitted (or inferred) that Lamonde had actual and/or apparent authority to sign the bills of lading. Brentzel points to allegations in the complaint that “Lamonde’s authority was strictly limited to executing the moving arrangements in accordance with his instructions; and included no authority to modify or waive any legal rights of plaintiff Brentzel under the contract of carriage and/or bills of lading.” (J.A. 8). The complaint further alleged that FTS “was or should have been aware of the limitations on Lamonde’s authority.” (J.A. 8). While the district court did not explicitly address these allegations, the court noted that conclusory allegations need not be accepted as true when considering a motion to dismiss. Brentzel avers that these allegations are detailed and should not have been disregarded. However, we find that these statements are, indeed, conclusory. [11] The complaint does not allege how, when, or where Brentzel and Lamonde agreed to the agency relationship and its limitations and fails to provide the contours of this agreement, except in general terms. While Brentzel alleges that the agency was “strictly limited,” she did not aver whether there was an employment/agency contract (whether oral or written), whether she had specific discussions with Lamonde about signing moving-related documents, or what sort of discretion Lamonde was permitted in order to execute the move. Importantly, accepting Brentzel’s interpretation of her complaint, she alleged an unworkable agreement with Lamonde, whereby she gave him authority to commence, oversee, and execute the move but forbade him from signing the necessary documentation. HN6[ ] Such an interpretation is implausible and does not prevent dismissal of the motion. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020) (noting that complaint’s factual allegations must state a plausible claim and not require speculation to “fill in the gaps”), cert. denied, 141 S. Ct. 1376, 209 L. Ed. 2d 122 (2021).
In addition, even assuming that the agency relationship was structured in this implausible manner, the complaint is silent as to how, when, or where FTS was made aware of these allegedly strict [12] limitations. See Ashcroft v. Iqbal, 556 U.S. 662, 680-81, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (holding that allegations that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions of confinement” were conclusory and not entitled to be assumed true). Brentzel would have known the details of her interactions with Lamonde and FTS, and she could easily have amended her complaint to include them.2 See Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 595-96 (1st Cir. 2011) (noting that Iqbal does not create a “mechanical rule” but recognizing that HN7[ ] a motion to dismiss “can be countered by plaintiff’s supplying of the missing detail”). As such, the district court did not err in finding certain allegations in the complaint lacked the necessary specificity to require a presumption that they were true. Brentzel next asserts that an agency relationship is one of fact and not law and should not have been decided on a motion to dismiss. However, the district court properly relied on Brentzel’s allegations in the complaint that Lamonde had the authority to “oversee the arrangements with the moving company and supervise the physical execution of the actual move.” (J.A. 8). The complaint also provided that Brentzel was not present for the move, that Lamonde would be supervising the packing and moving [13] activities, and that FTS was aware of this. (J.A. 8-9). While Brentzel conclusorily alleged that FTS was aware that Lamonde was under strict instructions not to modify or waive any of Brentzel’s legal rights, as discussed above, this conclusory allegation need not be presumed true. Further, Brentzel failed to allege any facts explaining how Lamonde was to execute and supervise the move without the authority to sign the required documents. Accordingly, because the complaint’s allegations that were contrary to the district court’s ruling were not entitled to a presumption of truth, the contours of the agency relationship did not require any factual findings. Instead, the complaint’s allegations that Lamonde was tasked with overseeing and executing the move, absent any other detailed allegations, included the logical conclusion that Lamonde had actual authority to sign a bill of lading.3
Brentzel next contends that Lamonde’s deviations (or Lamonde’s acquiescence to FTS’s deviations) from the agreed-upon moving arrangements placed FTS on notice that it should inquire further prior to permitting Lamonde to sign the bills of lading. HN8[ ] An agent’s actions bind a principal when the principal causes [14] a third party, “in good faith and in the exercise of reasonable prudence, to rely on the agent’s authority.” Auvil v. Grafton Homes, Inc., 92 F.3d 226, 230 (4th Cir. 1996). Brentzel provides no facts from which to infer that FTS should not have relied on Lamonde’s apparent authority. While Brentzel avers that Lamonde exceeded his authority even before signing the bills of lading, the complaint fails to allege how or when FTS became aware of this aside from the repeated allegations that it knew or should have known. Moreover, the complaint affirmatively alleged that Lamonde was tasked with execution of the move in Brentzel’s absence and that FTS was aware of this fact, allegations that contradict the conclusion that Lamonde was without any discretionary authority to make decisions or sign documents required for the execution of the move. Thus, the district court correctly considered the motion to dismiss and properly granted the motion to dismiss the Carmack Amendment claim as untimely. While Brentzel argues that this result is not consistent with the substantive policies underlying the Carmack Amendment and required formalistic application of Rule 12(b)(6), we find that instead the district court merely accepted the facts as alleged in the complaint and disregarded the conclusory statements. [15] As discussed above, Brentzel was free to file an amended complaint providing further factual support and details, and thus, it was Brentzel’s decision to stand on her conclusory complaint, rather than a miscarriage of justice or undermining of policy, that caused the dismissal of her suit.
III.
Finally, Brentzel contends that the district court incorrectly found that her state law conversion claim seeking damages for the harm to and destruction of her property shipped by FTS was preempted by the Carmack Amendment. While recognizing that the Carmack Amendment generally preempts state law causes of action for goods lost or damaged in transit, Brentzel argues that FTS’s actions were so extreme that they constituted an abandonment of the “contract of carriage” and were criminal in nature. Brentzel contends that the extreme nature of FTS’s alleged actions removed the claim from Carmack Amendment preemption.
HN9[ ] The Amendment’s preemptive force is exceedingly broad and embraces “all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation.” Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190, 196, 36 S. Ct. 541, 60 L. Ed. 948 (1916). The Carmack Amendment “preempts all state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments.” N. Am. Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 456 (7th Cir. 1996). Specifically, state [16] law conversion claims are preempted. See Am. Ry. Express Co. v. Levee, 263 U.S. 19, 21, 44 S. Ct. 11, 68 L. Ed. 140, 21 Ohio L. Rep. 321 (1923); see also Certain Underwriters at Interest at Lloyd’s of London v. UPS of Am., Inc., 762 F.3d 332, 336 & n.3 (3d Cir. 2014) (citing cases from numerous circuits finding state contract, fraud, and conversion claims to be preempted). Brentzel provides no support for an exception to preemption for state law claims alleging theft or other criminal conduct resulting in damage or destruction to property during shipping.4 To the contrary, the Third Circuit has specifically found that even state law claims based on “intentional conduct or conduct in the nature of theft” are preempted. Certain Underwriters, 762 F.3d at 337-38. Thus, we find that the district court correctly found that Brentzel’s state law claim for damage to and theft of her property during shipping was preempted by the Carmack Amendment. Accordingly, we affirm the district court’s judgment. Brentzel has filed a motion to amend the case caption to include the Estate of Robert C. Hacker. However, because the Estate has not filed the necessary documentation to participate in the appeal, we deny the motion and grant FTS’s motion to dismiss the Estate’s appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED [17] IN PART; DISMISSED IN PART

United States District Court for the Middle District of Pennsylvania
December 31, 2021, Decided; December 31, 2021, Filed
CIVIL ACTION NO. 3:21-CV-01044

Reporter
2021 U.S. Dist. LEXIS 248454 *
SEAN WILLIAMS, et al., Plaintiffs, v. CW TRANSPORT, LLC, et al., Defendants.
Core Terms

allegations, motion to dismiss, definite statement, recklessness, reckless conduct, Defendants’, tractor-trailer, lawsuit, vague, failure to state a claim, district court, discovery, pleadings, notice
Counsel: [*1] For Sean Williams, Plaintiff: Daniel E. Kleiner, Lawrence G. Metzger, LEAD ATTORNEYS, Metzger & Kleiner, Philadelphia, PA.
For Jean Marie Dunn, Plaintiff: George G. Oschal, III, James John Albert, LEAD ATTORNEYS, Cefalo Law, LLC, West Pittston, PA; Karl J. Kwak, LEAD ATTORNEY, Cefalo Law, LLC, W. Pittston, PA; Andrew Keith Shumlas, Cefalo Law, West Pittston, PA.
For Corey Medley, Plaintiff: Marc F. Greenfield, LEAD ATTORNEY, Spear, Greenfield, Richman, Weitz & Taggart PC, Philadelphia, PA.
For CW TRANSPORT, LLC, SAED A. ABDULLE, Defendants: Megan C Zei, LEAD ATTORNEY, Pion Nerone Girman Winslow & Smith, P.C., Harrisburg, PA; Stephen E. Geduldig, LEAD ATTORNEY, Pion Nerone Girman Winslow & Smith PC, Harrisburg, PA.
Judges: KAROLINE MEHALCHICK, Chief United States Magistrate Judge.
Opinion by: KAROLINE MEHALCHICK
Opinion

MEMORANDUM
Presently before the Court are two motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and a motion for a more definite statement under Fed. R. Civ. P. 12(e) brought by Defendants Saed A. Abdulle (“Abdulle”) and CW Transport, LLC (“CW Transport”) (collectively, the “Defendants”). (Doc. 24; Doc. 26). On September 22, 2021, the Court granted the unopposed motion to consolidate three cases individually brought by [*2] Plaintiffs Sean Williams (“Williams”), Jean Marie Dunn (“Dunn”), and Corey Medley (“Medley”) (collectively, the “Plaintiffs”). (Doc. 21; Doc. 22). For the following reasons, the motion brought on June 30, 2021, shall be GRANTED and the motion brought on August 6, 2021, shall be DENIED in part and GRANTED in part. (Doc. 24; Doc. 26).

I. BACKGROUND AND PROCEDURAL HISTORY
The above-captioned consolidated case arose out of a November 6, 2019, motor vehicle accident that occurred on Route 901 near Valley Road in Foster Township, Schuylkill County, Pennsylvania. (Doc. 21-4, at 4, 16, 30). On that date, Abdulle was operating a tractor-trailer on Route 901 when it was involved in a motor vehicle accident with another tractor-trailer operated by Medley, in which Williams was a passenger, and another vehicle operated by Dunn. (Doc. 21-4, at 4, 16, 30). On or about May 20, 2021, Williams initiated an action by filing a complaint in the Pennsylvania County of Common Pleas. (Doc. 21-4, at 3). Defendants timely removed William’s lawsuit to the United States District Court for the Eastern District of Pennsylvania, and based on the agreement of counsel, transferred the lawsuit to the United States District [3] Court for the Middle District of Pennsylvania, where the accident occurred. (Doc. 21, at 2). On June 1, 2021, Dunn initiated an action by filing a complaint in the Schuylkill County of Common Pleas. (Doc. 21-4, at 14). On or about June 24, 2021, Medley initiated an action by filing a complaint in the Schuylkill County of Common Pleas.1 (Doc. 21-4, at 29). Defendants timely removed both Dunn’s and Medley’s lawsuits to the United States District Court for the Middle District of Pennsylvania. (Doc. 21, at 3). On June 30, 2021, Defendants filed a motion to dismiss for failure to state a claim (“June Motion”).2 (Doc. 24, at 1). On August 6, 2021, Defendants filed a motion to dismiss for failure to state a claim and a motion for a more definite statement (“August Motion”). (Doc. 26, at 1). In the August Motion, Defendants first seek to dismiss Medley’s claims of recklessness/reckless conduct against Defendants on the basis that Medley does not allege sufficient facts to support the claim. (Doc. 26, at 203). Secondly, Defendants move for a more definite statement as to specific paragraphs in Medley’s complaint, or, alternatively, move to strike those paragraphs [4] if Medley does not provide the requisite specificity. (Doc. 26, at 3).
On September 20, 2021, Defendants filed an unopposed motion to consolidate cases, asserting that the three lawsuits involve common questions of law and fact, as they all arise out of the same motor vehicle accident, and involve claims of negligence against Defendants. (Doc. 21, at 3-4). After Plaintiffs’ counsels certified a concurrence to the motion to consolidate, the Court granted the motion on September 22, 2021. (Doc. 21-2, at 1; Doc. 22). In a telephonic status conference on September 28, 2021, the parties agreed that the aforementioned August Motion is still pending. (Doc. 31, at 1-2). The motion has been fully briefed and is ripe for disposition. (Doc. 26; Doc. 27; Doc. 28; Doc. 29; Doc. 32).
II. LEGAL STANDARDS
A. Rule 12(b)(6) MOTION TO DISMISS STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint are true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Although [5] a court must accept the factual allegations in a complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983). In Ashcroft v. Iqbal, the United States Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating a motion to dismiss, a court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007). B. RULE 12(E) MOTION FOR A MORE DEFINITE STATEMENT Rule 12(e) of the Federal Rules of Civil Procedure authorizes a defendant to move “for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or [6] ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “The motion must … point out the defects complained of and the details desired.” Fed. R. Civ. P. 12(e). Rule 10(a) requires, among other things, that “[t]he title of the complaint must name all the parties.” Fed. R. Civ. P. 10(a). A motion for a more definite statement is one tool by which a defendant may seek to remedy alleged deficiencies under Rule 10. See, e.g., Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cty. Coll., 77 F.3d 364, 367 (11th Cir. 1996).
However, “[a] motion for a more definite statement is not a substitute for the discovery process[,]” and that such motions are not favored. Wheeler v. United States Postal Service, 120 F.R.D. 487, 488 (M.D. Pa. 1987). Such motions are typically only granted where pleadings are “unintelligible or if it is virtually impossible for the opposing party to craft a responsive pleading.” Maya v. Chertok, et al., No. 1:15-CV-00484, 2015 U.S. Dist. LEXIS 119815, 2015 WL 5254377, at *2 (M.D. Pa. Sept. 9, 2015) (quoting Morris v. Kesserling, et al., No. 1:9-CV-1739, 2010 U.S. Dist. LEXIS 114292, 2010 WL 4362630, at *1 (M.D. Pa. Oct. 27, 2010) (quotations omitted)); see Schaedler v. Reading Eagle Publ’n, 370 F.2d 795, 798 (3d Cir. 1966) (such motions are “directed to the rare case where because of the vagueness or ambiguity of the pleading the answering party will not be able to frame a responsive pleading”). The opposing party must be unable to respond, “even with a simple denial[ ] in good faith or without prejudice to himself.” Brueggman v. Fayette Cty, et al., No. 95-CV-446, 1995 U.S. Dist. LEXIS 15718, 1995 WL 606796, at *4 (W.D. Pa. Aug. 17, 1995); see Kimberton Healthcare Consulting, Inc. v. Primary PhysicianCare, Inc., No. 11-CV-4568, 2011 U.S. Dist. LEXIS 139980, 2011 WL 6046923, at *3 (E.D. Pa. Dec. 6, 2011) (“a motion for a more definitive statement is generally … used to provide a [*7] remedy for an unintelligible pleading rather than as a correction for a lack of detail”).

III. DISCUSSION
This action arises out of a November 6, 2019, motor vehicle accident that occurred on Route 901 near Valley Road in Foster Township, Schuylkill County, Pennsylvania. (Doc. 214, at 30). In the August Motion, Defendants move for dismissal of Medley’s claims of recklessness/reckless conduct against Defendants on the basis that Medley’s complaint does not assert a facially plausible claim for recklessness/reckless conduct. (Doc. 26, at 2-3). Additionally, Defendants move for a more definite statement as to several paragraphs of Medley’s complaint, or, alternatively, move to strike those paragraphs if Medley does not provide the requisite specificity. (Doc. 26, at 3). In response, Medley contends that the complaint asserts sufficient facts to support a claim of recklessness/reckless conduct and that Defendants possess information regarding the motor vehicle collision that will further support his claims once discovery is complete. (Doc. 29, at 6).
A. Rule 12(b)(6) MOTION TO DISMISS
Defendants move to dismiss Plaintiff’s claim of recklessness/reckless conduct contained in Paragraphs 8, 11, 11(s), 12, [8] 14, 34, 34(s), 35, 36, and 38. (Doc. 27, at 4).3 Defendants argue that the complaint fails to allege facts arising to the level of recklessness/reckless conduct by Defendants. (Doc. 27, at 8). Specifically, Defendants assert that Medley does not allege facts that warrant an inference that Defendants knew or should have known that their actions would cause injuries to others, or facts that show Defendants deliberately proceeded to take actions or omissions in conscious disregard of a known risk to Medley. (Doc. 27, at 9). In response, Medley argues that Pennsylvania law allows a plaintiff to generally aver reckless conduct and does not require a plaintiff to specifically plead facts to support a claim of recklessness. (Doc. 29, at 4). Further, Medley argues that the allegation of recklessness is relevant to the lawsuit and could affect the result of the case once discovery is complete. (Doc. 29, at 5). To determine whether Medley met his burden in this case, the Court reviews appliable Pennsylvania law. See Erie v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). A defendant acts recklessly when “his conduct creates an unreasonable risk of physical harm to another [and] such risk is substantially greater than that which is necessary [9] to make his conduct negligent.” Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445 (Pa. 2005).
An actor’s conduct is in reckless disregard of the safety of others if “he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”
White v. Trybala, No. 3:19-CV-14, 2019 U.S. Dist. LEXIS 81750, 2019 WL 2119982, at 3 (M.D. Pa. May 15, 2019) (quoting Restatement (Second) of Torts § 500). Here, Medley alleges that Abdulle was operating a tractor-trailer, owned by CW Transport, at an unsafe speed when the tractor-trailer tipped over, landing directly onto the cab of a tractor-trailer occupied by Medley. (Doc. 21-4, at 30; Doc. 29, at 2). According to Medley, Abdulle was driving the tractor-trailer in a negligent, careless, and/or reckless manner as to cause the motor vehicle collision. (Doc. 21-4, at 30). At this stage, viewing the allegations in the light most favorable to the Plaintiffs, the Court finds that Medley has alleged “enough facts to raise a reasonable expectation that discovery will reveal evidence of” recklessness/reckless conduct in their assertion that Abdulle was operating [10] the tractor-trailer at an unsafe speed when it tipped over. Twombly, 550 U.S. at 556; see White v. Trybala, et al., No. 3:19-CV-14, 2019 U.S. Dist. LEXIS 81750, 2019 WL 2119982, at 3 (M.D. Pa. May 15, 2019) (denying defendants’ motion to dismiss because plaintiff pled enough facts to reveal evidence of reckless conduct where plaintiffs alleged the defendant was driving a tractor-trailer in an endangering fashion when he hit plaintiff’s vehicle). As such, the Court will deny Defendants’ motion to dismiss Medley’s claims of recklessness/reckless conduct. (Doc. 26). B. Rule 12(e) MOTION FOR A MORE DEFINITE STATEMENT Secondly, Defendants move for a more definite statement as to Paragraphs 26(q), 26(r), 34(q), and 34(r) of Medley’s complaint, or, alternatively, to strike those paragraphs if Medley cannot provide the requisite specificity. (Doc. 26, at 3). In addition to the aforementioned paragraphs, Defendants take umbrage with Paragraphs 18(q) and 18(r).4 (Doc. 26, 3 n.2). Defendants argue that these “vague, open-ended catchall allegations of negligence” do not meet the specificity requirements of Federal Rule of Civil Procedure 8. (Doc. 27, at 5). Further, Defendants assert that Medley’s claims “leave Defendants to guess as to which statutes and ordinances that Plaintiff believes that Defendant violated” and provide him “with [11] free, unchecked license to amend or change his theories of liability during the pendency of this lawsuit.” (Doc. 27, at 12). In response, Medley states that “Defendants are put on notice to prepare an adequate response or defense to the statements alleged” and argues that he is not required to plead more than the material facts necessary to sustain a recovery. (Doc. 29, at 6). Medley does not refer to the contents of the disputed paragraphs or provide additional support for his allegations. (Doc. 28, at 2; Doc. 29, at 5-6).
In applying the standard for a Rule 12(e) Motion, the Court grants Defendants’ motion with respect to the following paragraphs:
¶ 18(q), 26(q), 34(q): Failing to operate a motor vehicle in compliance with the applicable laws and ordinances of the Township of Foster and Schuylkill County and the Statutes of the Commonwealth of Pennsylvania pertaining to the operation and control of motor vehicles;
¶ 18(r), 26(r), 34(r): Operating a motor vehicle and other devices at the same time and in total disregard for the safety of the plaintiff and others in direct violation of the laws of the Commonwealth of Pennsylvania.
(Doc. 21-4, at 34-35, 39, 43).
Recognizing that federal pleading requirements [*12] set a plausibility standard for civil complaints, the Court acknowledges that “[a] complaint satisfies the plausibility standard when the factual pleadings ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 566 U.S. 921, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (2012) (quoting Iqbal, 556 U.S. at 678). Under Federal Rule of Civil Procedure 12(e), a defendant may move “for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Federal Rule of Civil Procedure 8 provides that a complaint must give the defendant fair notice of the claims and the grounds on which it rests. Pozarlik v. Camelback Associates, Inc., No. 3:11-CV-1349, 2011 U.S. Dist. LEXIS 137310, 2011 WL 6003841, at *3 (M.D. Pa. Nov. 30, 2011).
In Harvell v. Brumberger, the Court adopted a report and recommendation in an automobile accident suit, granting in part and denying in part the defendants’ motion for a more definite statement. No. 3:19-CV-2124, 2020 U.S. Dist. LEXIS 221668, 2020 WL 6946575, at 11 (M.D. Pa. Nov. 25, 2020). The Court applied the Rule 12(e) standard to disputed allegations in paragraphs and subparagraphs of the plaintiff’s complaint, including: “Failure to obey the rules of the road, the statutes of the Commonwealth of Pennsylvania; and the ordinances of New Milford Township, Pennsylvania while operating his vehicle on the highways and roadways of the Commonwealth of Pennsylvania.” [13] Harvell, 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11. Adopting the findings of Carson v. Tucker, No. 5:20-CV-00399, 2020 U.S. Dist. LEXIS 71553, 2020 WL 1953655 (E.D. Pa. Apr. 23, 2020), the Court found that these allegations are “impermissibly vague” and that “the manner in which these allegations are pled ‘do[es] not allow for Defendants to answer or amount a defense.'” Harvell, 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11 (quoting Carson, 2020 U.S. Dist. LEXIS 71553, 2020 WL 1953655, at *6). Analyzing similar language to the allegations within Medley’s complaint, the Court concluded that the allegations, as currently pleaded, did not sufficiently put the defendants on notice of the exact federal, state, or local statutes or regulations it would be required to defend against. Harvell, 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11. Thus, the Court ordered the plaintiffs to replead the disputed allegations and set forth the specific statutes or regulations that they alleged the defendants had violated. Harvell, 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11.
Here, the allegations enumerated in Paragraphs 18(q), 18(r), 26(q), 26(r), 34(q), and 34(r) are nearly identical to the allegations the Harvell court held to be, “as currently pleaded, [insufficient to] put the defendants on notice of the statutes and/or rules it will be required to defend against.” 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11; (Doc. 21-4, at 34-35, 39, 43). Such vague reference to “applicable laws and ordinances of the Township of Foster and Schuylkill County and the Statutes of the Commonwealth [*14] of Pennsylvania pertaining to the operation and control of motor vehicles” and “laws of the Commonwealth of Pennsylvania” do not allow for Defendants to answer or mount a defense. (Doc. 21-4, at 34-35, 39, 43); see Harvell, 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11. Therefore, the Court will grant Defendants’ motion for a more definite statement. (Doc. 26).
C. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., et al., 293 F.3d 103, 108 (3d Cir. 2002). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to amend.'” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App’x 672, 673 (3d Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). In this case, the Court will grant Grajales-El leave to file a second amended complaint in an attempt to cure the deficiencies outlined herein. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Grayson, 293 F.3d at 108.
Medley may be able to cure the defects identified in the complaint with a more detailed pleading. Accordingly, the Court will grant Medley leave to re-plead the allegations in Paragraphs 18(q), 18(r), 26(q), 26(r), 34(q), and 34(r) of the complaint in accordance with this Memorandum. (Doc. 21-4, at 34-35, 39, 43). Specifically, Medley shall have the opportunity to set forth the [*15] specific statutes or regulations he alleges Defendants violated. (Doc. 21-4, at 34-35, 39, 43); see Harvell, 2020 U.S. Dist. LEXIS 206828, 2020 WL 6947693, at *11. Should Medley choose to re-plead, he shall have thirty (30) days from the date of this Memorandum to file an amended complaint setting forth allegations in support of this civil action against Defendants.

IV. CONCLUSION
For the foregoing reasons, Defendants’ June Motion is GRANTED. (Doc. 24). In addition, Defendants’ August Motion is GRANTED IN PART and DENIED IN PART. (Doc. 26).5
An appropriate Order follows.
Dated: December 31, 2021
BY THE COURT:
/s/ Karoline Mehalchick
KAROLINE MEHALCHICK
Chief United States Magistrate Judge

ORDER
AND NOW, this 31st day of December, 2021, for the reasons contained in the Memorandum docketed concurrently with this Order, IT IS HEREBY ORDERED that:

1. Defendants’ motion to dismiss (Doc. 24) the Dunn’s language: “includes, but is not necessarily limited to the following as discovery may show…” from her complaint is GRANTED;
2. Defendants’ motion to dismiss (Doc. 26) Medley’s allegations of recklessness/reckless conduct in Paragraphs 8, 11, 11(s), 12, 14, 34, 34(s), 35, 36, and 38 of the complaint is DENIED;
3. Defendants’ motion to dismiss (Doc. 26, at [*16] 3 n.1) Medley’s allegations in Paragraphs 18, 18(s), 19, 20, 22, 26, 26(s), 27, 28, and 30 of his complaint is GRANTED. Medley’s allegations in these paragraphs and subparagraphs are DISMISSED without prejudice;
4. Defendants’ motion for a more definite statement (Doc. 24) is GRANTED; and
5. The Court GRANTS Medley leave to replead the allegations in Paragraphs 18(q), 18(r), 26(q), 26(r), 34(q), and 34(r) of his complaint. Medley has thirty (30) days from the entry of this order, on or before Monday, January 31, 2022, to file an amended complaint.
   /s/ Karofine Mehafchick
   KAROLINE MEHALCHICK
   Chief United States Magistrate Judge