Court of Appeals of Indiana

October 3, 2022, Decided; October 3, 2022, Filed

Court of Appeals Case No. 22A-CT-310

Reporter

2022 Ind. App. Unpub. LEXIS 1156 *; 2022 WL 4857412

Elizabeth Muncy, Appellant-Plaintiff, v. BJT Express, Inc., Arka Express, Inc. d/b/a Spider Logistics, Inc., and Ninos Gorgees, Appellees-Defendants.

Notice: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

Prior History:  [*1] Appeal from the Marion Superior Court. The Honorable Patrick Dietrick, Judge. Trial Court Cause No. 49D12-1906-CT-24540.

Core Terms

shoulder, trailer, driver, spoliation, trial court, logs, semi-tractor, summary judgment, interstate, asleep, no evidence, injuries, carrier, struck, adverse inference, negligence claim, pulled, crash

Counsel: ATTORNEYS FOR APPELLANT: Jason A. Shartzer, Shannon B. Mize, Shartzer Law Firm, LLC, Indianapolis, Indiana.

ATTORNEY FOR APPELLEES: Robert R. Foos, Jr., Lewis Wagner, LLP, Indianapolis, Indiana.

Judges: Robb, Judge. Pyle, J., and Weissmann, J., concur.

Opinion by: Robb

Opinion

MEMORANDUM DECISION

Robb, Judge.

Case Summary and Issues

P1 Elizabeth Muncy filed a complaint against BJT Express, Inc.; Arka Express, Inc., d/b/a Spider Logistics, Inc.; and Ninos Gorgees (collectively “Arka Express”) for injuries she sustained in a motor vehicle accident. Arka Express filed a motion for summary judgment that was granted by the trial court. Muncy now appeals, raising multiple issues for our review which we restate as: (1) whether the trial court abused its discretion in determining that Muncy is not entitled to an adverse inference based on the spoliation of evidence, and (2) whether a genuine issue of material fact existed as to Muncy’s negligence claim. Concluding that Muncy is not entitled to an adverse inference and that Arka Express negated an element of Muncy’s negligence claim, we affirm.

Facts and Procedural [*2]  History

P2 On August 21, 2018, at approximately 3:23 a.m., Muncy was the passenger in a vehicle driven by Clayton Bedel. The pair were driving on Interstate 65 South when Bedel fell asleep at the wheel, drifted off the road, and struck a semi-tractor trailer parked on the shoulder of the interstate. Bedel’s vehicle flipped over and slid past the semi-tractor trailer before coming to a stop. Muncy sustained severe and permanent injuries, including fractures to her femur, sternum, and spine.

P3 The semi-tractor trailer was driven by Ninos Gorgees. Prior to the crash, Gorgees had been driving on the interstate when he heard rumbling sounds from his truck and believed he had a flat tire. He then activated his “four white flash hazards” and pulled onto the shoulder. Appellant’s Appendix, Volume III at 62. Within “a minute” of coming to a complete stop and before Gorgees could exit the semi-tractor trailer, it was struck by Bedel. Id. After the accident, the axle on the left side of the trailer was broken and two of the tires were flat.¹ Arka Express documented the damage and submitted a claim to Bedel’s insurance carrier for reimbursement for the damage. Gorgees’ semi-tractor trailer was equipped [*3]  with an “e-tablet” that was capable of tracking when and for how long drivers were stopped. Appellant’s App., Vol. IV at 11. However, these “driver logs” are “overwritten after six months” when Arka Express does not anticipate litigation. Id. at 12. Gorgees’ driver logs for the incident were not saved. An Arka Express employee testified in a discovery deposition that because Bedel’s insurance carrier “accepted liability and issued Arka Express payment . . . there was no anticipation of saving the driver logs[.]” Id.

P4 On June 18, 2019, Muncy filed a complaint for damages against Arka Express claiming Gorgees “carelessly and negligently parked his vehicle at an unreasonable and unsafe location under the circumstances.” Appellant’s App., Vol. II at 26. Muncy employed Walter Guntharp as an expert witness. Guntharp was deposed and opined that Gorgees “should have never stopped on the shoulder of the road” and instead should have “continue[d] down to either the next exit or to the truck stop to get off of the road without pulling over onto the shoulder of the highway and jeopardizing other traffic.” Appellee’s Appendix, Volume II at 64-65. Guntharp also prepared a written report for Muncy. [*4] 

P5 On May 25, 2021, Arka Express filed a motion for summary judgment arguing it did not breach a duty to Muncy and that its actions were not the proximate cause of Muncy’s injuries. Further, on October 19, 2021, Arka Express filed a motion to exclude the “report and testimony of [] Guntharp.” Appellant’s App., Vol. IV at 144.

P6 Following a hearing on both motions, the trial court entered its findings of fact and conclusions of law and judgment granting Arka Express’s motion for summary judgment.² The trial court concluded, in relevant part:

37. There is no evidence that Gorgees failed to use ordinary care to avoid injuries to the other drivers on I-65.

* * *

39. There is no statute in Indiana that states a vehicle may not pull over onto the shoulder to investigate a potential mechanical issue. Therefore, the presence of Gorgees’ tractor-trailer on the shoulder of the road is not negligent.

* * *

47. The uncontroverted evidence establishes that Gorgees had been stopped for less than 1 minute when Bedel’s vehicle left the roadway and struck his trailer.

48. The Court finds that Gorgees’ actions did not breach the applicable standard of care owed by the driver of a disabled motor vehicle under [*5]  either I.C. 9-21-15-2 or 49 C.F.R. §392.22.

* * *

53. Under the but for analysis, Bedel’s inattentive conduct would be the cause in fact of the accident. But for Mr. Bedel falling asleep and leaving the traveled portion of the roadway, the accident would not have occurred.

* * *

62. The evidence supports that Gorgees was immobile on the shoulder of I-65 out of traffic with his emergency flashers activated. Additionally, the evidence supports that Bedel and Muncy were both asleep when the vehicle left the roadway and struck the stopped trailer[.]

63. Under these circumstances, Gorgees could not have foreseen that Bedel and Muncy would both be asleep in the car and leave the traveled portion of the roadway.

64. Gorgees had no role in Bedel falling asleep while traveling on I-65. Therefore, it was not foreseeable that Gorgees’ presence on the shoulder could have resulted in an accident.

* * *

74. There is no evidence in the record sufficient to invoke a finding that Arka [Express] knew, or should have known, that it needed to retain Ninos Gorgees’ driver logs past the 6 months mandated by the Federal Motor Carrier Safety Regulations.

75. There is no evidence in the record to even suggest that [Arka Express] allowed the logbook [*6]  entries to be purged for an improper purpose.

* * *

85. Where there is no evidence that Arka [Express] allowed the logs to be overwritten for an improper purpose an adverse jury instruction would be fundamentally unfair. Arka [Express] will not be punished for compliance with the Federal Motor Carrier Safety Regulations where there is no evidence that it acted willfully to destroy evidence that it knew would be important in later litigation, and where there is no evidence that such evidence was destroyed for an improper purpose.

Appealed Order at 6-14. The trial court granted Arka Express’s motion to strike expert testimony in a separate order.³ Muncy now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

P7 We review a trial court’s summary judgment order de novo. Kovach v. Caligor Midwest, 913 N.E.2d 193, 196 (Ind. 2009). We apply the same standard as the trial court: whether the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind. 2002). In making this determination, we construe all facts and reasonable inferences therefrom in a light most favorable to the nonmovant. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000). Our review of a summary judgment [*7]  motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 973 (Ind. 2001). We will affirm the trial court’s grant of summary judgment if it is sustainable upon any theory supported by the designated materials. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind. Ct. App. 1994), trans. denied.

II. Spoliation

P8 Muncy argues that “material disputed facts exist due to [Arka Express’s] spoliation of evidence[.]” Appellant’s Brief at 23. Spoliation of evidence is “the intentional destruction, mutilation, alteration, or concealment of evidence.” Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind. 2006) (citation omitted). In Gribben v. Wal-Mart Stores, Inc., our supreme court noted that “[c]ourts uniformly condemn spoliation.” 824 N.E.2d 349, 354 (Ind. 2005). The “[i]ntentional destruction of potential evidence in order to disrupt or defeat another person’s right of recovery is highly improper and cannot be justified.” Id. (emphasis added). Further, “[i]t is well-established in Indiana law that intentional first-party spoliation of evidence may be used to establish an inference that the spoliated evidence was unfavorable to the party responsible.” Id. at 351.

P9 Muncy contends that Gorgees’ driver log entries would have shown exactly how long he was stopped on the shoulder of I-65 prior to the crash and that Arka Express intentionally destroyed [*8]  that evidence by allowing the driver logs to be overwritten. Because of this, Muncy argues that she is entitled to an inference that “Gorgees was stopped along the shoulder of I-65 for long enough . . . to comply with Indiana Code section 9-21-15-2 and display warning devices, such as flares and triangles, prior to the collision, making his conduct negligent per se.” Appellant’s Br. at 22.

P10 A party raising a claim of spoliation must prove that: (1) there was a duty to preserve the evidence, and (2) the alleged spoliator either negligently or intentionally destroyed, mutilated, altered, or concealed the evidence. N. Ind. Pub. Serv. Co. v. Aqua Env’t Container Corp., 102 N.E.3d 290, 301 (Ind. Ct. App. 2018). A duty to preserve may be assumed voluntarily or imposed by statute, regulation, contract, or certain other circumstances. See Glotzbach, 854 N.E.2d at 338-39. Here, Gorgees’ driver log entries were overwritten six months after the collision in compliance with 49 C.F.R. § 395.8(k)(1).⁴ However, the duty to preserve evidence may also occur “when a first-party claimant ‘knew, or at the very least, should have known, that litigation was possible, if not probable.'” Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1217 (Ind. Ct. App. 2019) (quoting N. Ind. Pub. Serv. Co., 102 N.E.3d at 301), trans. denied. And this duty may exist prior to the commencement of a lawsuit. Id. at 1218.

P11 Muncy argues that Arka Express should have anticipated the possibility of litigation following [*9]  the accident due to the seriousness of her injuries.⁵ Muncy points to Arka Express’s submission of a claim to Bedel’s insurance carrier as an indication that Arka Express believed the accident to be “an event of importance[.]” Appellant’s Br. at 21. However, Bedel’s insurance provider accepted liability and reimbursed Arka Express for damages. Although Muncy contends that the crash itself should have caused Arka Express to anticipate litigation, everything in the record suggests that Arka Express had no reason to believe that Gorgees was at fault, including that Bedel’s insurance carrier accepted liability. Further, the police crash report listed three contributing factors to the accident: (1) Bedel ran off the road; (2) Bedel fell asleep or was fatigued; and (3) Bedel engaged in unsafe lane movement. See Appellant’s App., Vol. III at 128. Muncy points to no other evidence that would have put Arka Express on notice that litigation was impending prior to the overwriting of the driver log entries six months after the crash in compliance with 49 C.F.R. § 395.8(k)(1).

P12 Accordingly, we cannot say the trial court erred in concluding Muncy failed to prove spoliation. Therefore, Muncy is not entitled to an adverse [*10]  inference.

III. Negligence

P13 Muncy argues that there were genuine issues of material fact regarding her negligence claim that preclude the entry of summary judgment in favor of Arka Express. Summary judgment is rarely appropriate in negligence cases “because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). Nonetheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff’s claim. Id. at 385.

P14 To prevail on her claim of negligence, Muncy must demonstrate that: (1) Arka Express owed her a duty; (2) Arka Express breached that duty by allowing its conduct to fall below the applicable standard of care⁶ ; and (3) she suffered a compensable injury proximately caused by the breach of that duty. Denson v. Est. of Dillard, 116 N.E.3d 535, 539 (Ind. Ct. App. 2018). It is well established that “[a]ll operators of motor vehicles have a general duty to use ordinary care to avoid injuries to other motorists.” Wilkerson v. Harvey, 814 N.E.2d 686, 693 (Ind. Ct. App. 2004), trans. denied. Therefore, Gorgees owed Muncy a duty of care while operating his semi-tractor trailer.

P15 As addressed above, Muncy is not entitled to an [*11]  adverse inference that Gorgees was stopped on the shoulder for a period of time that would have required him to comply with Indiana Code section 9-21-15-2 or 49 C.F.R. § 392.22 and display warning devices. However, Muncy contends Gorgees’ actions still amounted to a breach of duty because “Gorgees had safer alternatives than pulling his semi-tractor trailer just barely over the fog line with a metal guardrail to his right.” Appellant’s Br. at 23.

P16 Muncy’s argument that Gorgees’ conduct breached a duty owed to her relies solely on Guntharp’s opinion which was struck by the trial court. There is no other evidence that Gorgees failed to use ordinary care to avoid harming other drivers on the interstate. The undisputed evidence in the record is clear that while driving down the interstate, Gorgees heard rumbling sounds from his truck and believed he had a flat tire. Gorgees testified that he could see the shoulder and its length was long enough to stop his trailer. See Appellant’s App., Vol. III at 65. Gorgees activated his “four white flash hazards” and pulled onto the shoulder, coming to a complete stop. Id. at 62. His vehicle was not protruding into the interstate. And within “a minute” of coming to a stop and before Gorgees could [*12]  exit the semi-tractor trailer it was struck by Bedel who had fallen asleep at the wheel. Id.

P17 We conclude that Gorgees’ actions did not constitute a breach of duty.⁷ Accordingly, the trial court did not err by granting summary judgment to Arka Express.

Conclusion

P18 We conclude that Arka Express did not commit spoliation; therefore, Muncy is not entitled to an adverse inference regarding the amount of time Gorgees was stopped on the interstate shoulder. Further, the undisputed designated evidence shows Gorgees did not commit a breach of duty so Muncy’s negligence claim must fail. Accordingly, we affirm.

P19 Affirmed.

Pyle, J., and Weissmann, J., concur.

End of Document

---

¹ Gorgees was unable to determine whether his tire was flat prior to the accident.

² The trial court’s summary judgment order did not rule on Arka Express’s motion to strike, stating that “Guntharp’s report and opinions are the subject of a Motion to Strike which is being decided separately.” Appealed Order at 5, n.1.

³ Both parties claim that the trial court never issued an order on Arka Express’s motion to strike. However, as indicated in the Chronological Case Summary, the “Order Granting Motion to Exclude Expert Witness Testimony” was signed January 14, 2022, the same day as the summary judgment order. Appellant’s App., Vol. II at 8. Accordingly, we take judicial notice of this order and disregard citation to Guntharp’s testimony and report in Muncy’s appellate brief.

⁴ Muncy cites to 49 C.F.R. § 390.15 and seemingly argues that the regulation requires Arka Express to maintain its driver logs for three years after an accident. First, we note that Muncy argues this for the first time on appeal. Second, although 49 C.F.R. § 390.15 requires that a carrier maintain an accident register for three years, it does not require that driver logs be maintained. See 49 C.F.R. § 390.15(b); see also 49 C.F.R. § 395.8(k)(1) (referring to logbooks as “records of duty status”).

⁵ We note that although Muncy raises a spoliation claim in her complaint, she does not argue in either her complaint or response to summary judgment brief that a duty to preserve evidence existed because Arka Express should have anticipated litigation. Generally, an appellant who presents an issue for the first time on appeal waives the issue for purposes of appellate review. Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425, 438 n.2 (Ind. Ct. App. 2004). However, for the sake of completeness we will address this argument.

⁶ It is undisputed that the accident occurred within the scope of Gorgees’ employment with Arka Express.

⁷ Because we have determined that the undisputed material facts negate the breach of duty prong of Muncy’s negligence claim, we need not address proximate cause. See Rhodes, 805 N.E.2d at 387.

United States District Court for the Western District of Kentucky, Bowling Green Division

September 29, 2022, Decided; September 29, 2022, Filed

CIVIL ACTION NO. 1:21-CV-00161-GNS

Reporter

2022 U.S. Dist. LEXIS 177300 *; 2022 WL 4588417

BENNY G. WHITE, Individually and as Administrator of the Estate of Alexis Paige Coker, PLAINTIFF v. SCOTTY’S CONTRACTING & STONE, LLC, et al., DEFENDANTS

Core Terms

federal question, preemption, federal court, removal, federal law, state law, motor carrier, preempted, Trucking, brokers, federal issue, cases, transportation, asserts, state-law, negligence claim, state court, substantial-federal-question, carrier, subject matter jurisdiction, regulations, administrative determination, federal jurisdiction, wrongful death claim, interstate commerce, federal interest, personal injury, alteration, disputed, motions

Counsel:  [*1] For Benny G. White, Individually and as Administrator of the Estate of Alexis Paige Coker, deceased, estate of, Alexis Paige Coker, Plaintiff: Matthew L. White, LEAD ATTORNEY, Gray & White, Louisville, KY.

For Scotty’s Contracting & Stone, LLC, Defendant: John C. Phillips, John W. Phillips, LEAD ATTORNEYS, Phillips, Parker, Orberson & Arnett, PLC, Louisville, KY.

For ACF Global Logistics, LLC, Defendant: Richard A. Thomason, Thomas N. Kerrick, LEAD ATTORNEYS, Kerrick Bachert PSC, Bowling Green, KY.

For JoshBell Trucking and Logistics, LLC, Defendant: Tad Travis Pardue, LEAD ATTORNEY, Bell, Orr, Ayers & Moore, PSC, Bowling Green, KY.

Judges: Greg N. Stivers, Chief United States District Judge.

Opinion by: Greg N. Stivers

Opinion

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Motion to Dismiss by ACF Global Logistics, LLC (“ACF Global”) (DN 5), Plaintiff’s Motion to Remand (DN 10), and Motion for Leave to Amend by ACF Global (DN 14). The motions are ripe for adjudication. For the reasons stated below, the motion to remand is GRANTED, and the other motions are DENIED AS MOOT.

I. STATEMENT OF CLAIMS

On April 5, 2021, Alexis Paige Coker (“Coker”) was killed an automobile accident on Interstate 65 in Bowling [*2]  Green, Kentucky. (Compl. ¶¶ 6, 24-30, DN 1-1). At the time of the accident, it is alleged that Defendant Scotty’s Contracting & Stone, LLC (“Scotty’s Contracting”) was performing overnight asphalt pavement and roadway rehab work on Interstate 65, which included lane closures. (Compl. ¶¶ 7-10). Scotty’s Contracting allegedly failed to place barrels to mark the lane closure, provide warning signage in advance of the construction zone, and have a law enforcement presence to warn motorists. (Compl. ¶ 11). A semi-tractor trailer operated by a driver employed by Defendant JoshBell Trucking and Logistics, LLC (“JoshBell Trucking”), which was transporting a load dispatched through ACF Global, collided with the vehicle in which Coker was a passenger. (Compl. ¶¶ 15, 23-27).

Following his appointment as the administrator of Coker’s estate, Plaintiff Benny G. White (“White”) filed a lawsuit in Warren Circuit Court (Kentucky), asserting state law claims against Defendants for negligence, negligence per se, vicarious liability, and conspiracy. (Compl. ¶¶ 36-97). ACF Global unilaterally removed the matter to this Court on the bases that this case presented a substantial federal question and that White’s [*3]  claims against it were preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 49 U.S.C. § 14501. (Notice Removal 3-7, DN 1).

ACF Global then moved to dismiss White’s claims as being completely preempted by the FAAAA. (Def.’s Mot. Dismiss, DN 5). White moved to remand this matter to state court. (Pl.’s Mot. Remand, DN 10). ACF Global later moved for leave to amend the Notice of Removal to address its unilateral removal to this Court. (Def.’s Mot. Leave Amend, DN 14). The motions are ripe for decision.

II. DISCUSSION

A. Plaintiff’s Motion to Remand

White contends this matter was improperly removed from state court and moves to remand. (Pl.’s Mem. Supp. Mot. Remand 4-10, DN 10-1). As the removing party, ACF Global bears the burden of establishing this Court’s subject matter jurisdiction over this dispute. See Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (citing Her Majesty the Queen in Right of the Province of Ont. v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989)); Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Federal courts strictly construe removal jurisdiction and any resolve any doubt of jurisdiction in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104, 108-09, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); City of Detroit, 874 F.2d at 339.

Under 28 U.S.C. § 1441, a defendant may remove a civil action from state court to federal court “for the district and division embracing the place where such action is pending” if the action could have originally been filed in federal court. 28 U.S.C. § 1441(a). Thus, for an action to be eligible for removal, it must meet the requirements [*4]  for either federal question jurisdiction or diversity of citizenship jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) (discussing jurisdiction under 28 U.S.C. §§ 1331-1332).

The well-pleaded complaint rule generally applies in determining jurisdictional issues. See Lee v. Kirkpatrick, No. 1:16-CV-00123-GNS, 2016 U.S. Dist. LEXIS 170418, 2016 WL 7197478, at *2 (W.D. Ky. Dec. 9, 2016) (“Familiar to this analysis is the well-pleaded complaint rule, which directs courts to examine the ‘[w]ell pleaded allegations of the complaint and ignore potential defenses’ in determining whether a claim arises under federal law.” (alteration in original) (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003)). This rule is based on the premise that “the plaintiff [is] the master of the complaint.” Milby v. Liberty Life Assurance Co. of Bos., 102 F. Supp. 3d 922, 927 (W.D. Ky. 2015) (citing Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 943 (6th Cir. 1994)). “‘[T]he existence of a federal defense normally does not create’ federal-question jurisdiction, and ‘a defendant may not [generally] remove a case to federal court unless the plaintiff’s complaint establishes that the case “arises under” federal law.'” Minton v. Paducah & Louisville Ry., Inc., 423 F. Supp. 3d 375, 379 (W.D. Ky. 2019) (second alteration in original) (internal citation omitted) (quoting Aetna Health, Inc. v. Davila, 542 U.S. 200, 207, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004)).

The Complaint in the instant case asserts state law causes of action against Defendants relating to Coker’s death, so there is no federal question upon which this Court has jurisdiction. (Compl. ¶¶ 36-97). Likewise, there is no diversity of citizenship [*5]  because both Plaintiff and Scotty’s Contracting are citizens of Kentucky. (Compl. ¶¶ 1-2).

1. Substantial-Federal-Question Doctrine

White and ACF Global dispute whether the substantial-federal-question doctrine provides a basis for this Court’s subject matter jurisdiction and the removal to federal court. (Pl.’s Mem. Supp. Mot. Remand 8-9; Def.’s Resp. Pl.’s Mot. Remand 11-21). Under this doctrine, federal jurisdiction exists when “a state-law claim necessarily state[s] a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mf’g, 545 U.S. 308, 309, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005). “[T]he federal interest in providing a forum for an issue [must be] weighed against the risk that the federal courts will be unduly burdened by a rush of state law cases.” Mikulski, 501 F.3d at 565. As the Supreme Court has explained, this doctrine applies “where the vindication of a right under state law necessarily turn[s] on some construction of federal law . . . .” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 9, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983).

The Supreme Court has cautioned that this doctrine applies to only a “special and small category” of cases. Gunn v. Minton, 568 U.S. 251, 258, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013) (citation omitted). For the substantial-federal-question doctrine to confer jurisdiction, [*6]  the following elements must be met: “(1) [t]he state-law claim must necessarily raise a disputed federal issue; (2) the federal interest in the issue must be substantial; and (3) the exercise of jurisdiction must not disturb any congressionally approved balance of federal and state judicial responsibilities.” Mikulski, 501 F.3d at 568 (citing Grable & Sons Metal Prods., 545 U.S. at 313).

i. Disputed Federal Issue

The first element is whether there is a disputed federal issue. See id. As the Sixth Circuit has noted, “there is no federal question jurisdiction when the complaint on its face states alternate theories supporting a state-law claim, at least one of which does not involve a federal question.” Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 760 (6th Cir. 2000) (discussing Christian v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988)).

ACF Global relies upon the references to federal law in the Complaint in maintaining that a disputed federal issue is present in this case. (Def.’s Resp. Pl.’s Mot. Remand 12-15). It is more noteworthy that the Complaint asserts causes of action based upon state law theories against ACF Global. In particular, White claims that ACF Global is liable under Sections 411, 428, and 876 of the Restatement (Second) of Torts. (Compl. ¶¶ 89-91). He further alleges:

ACF GLOBAL [] violated state regulations, including but not limited to KRS § 189.224, which was promulgated to protect [*7]  the safety of a class of people that includes ALEXIS COKER, deceased, and constitutes negligence per se pursuant to KRS § 446.070 and Kentucky case law, for which it is directly liable.

(Compl. ¶ 95).

Construed as a whole, the Complaint states alternate theories to support White’s negligence claims, none of which are based on federal law. White’s reliance upon federal law as one basis for an element of his negligence claims is insufficient to satisfy this first element. See Bennett v. Sw. Airlines Co., 484 F.3d 907, 912 (7th Cir. 2007) (“That some standards of care used in tort litigation come from federal law does not make the tort claim one ‘arising under’ federal law.” (citations omitted)); Valdez ex rel. Miller Energy Res., Inc. v. Miller, No. 3:11-CV-462, 2012 U.S. Dist. LEXIS 39522, 2012 WL 397814, at *10 (E.D. Tenn. Jan. 20, 2012) (“Even considering the allegations of failure to comply with SEC reporting requirements, the Court finds that, at most, federal laws are merely implicated in this case and their interpretation is not at issue or likely to be problematic. Accordingly, the Court finds that the Defendants have failed to demonstrate the first part of the substantial-federal-question doctrine, and therefore, the substantial-federal-question doctrine does not prevent remand in this case.”).

Accordingly, this element does not support the exercise of federal jurisdiction, and it is apparent that [*8]  White’s “right to relief [does not] necessarily depend[] on resolution of a substantial question of federal law.” Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1061 (6th Cir. 2008) (quoting Thornton v. Sw. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990)); see also Long, 201 F.3d at 761; Scaccia v. Lemmie, 236 F. Supp. 2d 830, 837 (S.D. Ohio 2002).

ii. Substantial Federal Interest at Issue

The second element is whether there is a substantial federal interest at issue in White’s claims. See Mikulski, 501 F.3d at 568. In determining whether the second element has been satisfied, the Supreme Court has outlined four factors to consider:

(1) whether the case includes a federal agency, and particularly, whether the agency’s compliance with the federal statute is in dispute; (2) whether the federal question is important (i.e., not trivial); (3) whether a decision on the federal question will resolve the case (i.e., the federal question is not merely incidental to the outcome); and (4) whether a decision as to the federal question will control numerous other cases (i.e., the issue is not anomalous or isolated).

Id. at 570 (citation omitted). While these factors must be examined collectively and in light of the facts presented by each case, “no single factor is dispositive.” Id.

a. Federal Agency Involvement

The first factor, which “is both objective and apparent,” requires the Court to consider whether this case implicates a federal agency [*9]  and its compliance with a federal law at issue. See Mikulski, 501 F.3d at 570 (citation omitted). In particular, ACF Global asserts that White’s claims implicate an administrative determination by the Federal Motor Carrier Safety Administration (“FMCSA”). (Def.’s Resp. Pl.’s Mot. Remand 12). ACF Global contends the FMCSA’s determination that JoshBell Trucking was “fit for the job” of transporting property in interstate commerce is necessarily challenged by White’s assertion that ACF Global was negligent in selecting JoshBell Trucking for the shipment at issue in this case. (Def.’s Resp. Pl.’s Mot. Remand 16).

The Court rejects the assertion that the FMCSA’s administrative determination that JoshBell Trucking was “fit for the job” is necessarily intertwined with White’s negligence claims. In making that determination, the FMCSA determined JoshBell Trucking satisfied the legal requirements supporting its decision at the time of review. The fact that the FMCSA had not rescinded that determination prior to the accident does not render White’s negligence claims as an attack on the FMCSA’s prior administrative determination. Cf. Billings v. VIA Info. Tools, Inc., No. 07-CV-13392, 2007 U.S. Dist. LEXIS 108114, 2007 WL 9757579, at *7 (E.D. Mich. Sept. 26, 2007) (noting “the state proceeding in Grable ‘amounted to a collateral attack on a federal agency’s [*10]  action.'” (quoting Bennett, 484 F.3d at 909)). Otherwise, all negligence cases involving interstate trucking would be filed in federal court.¹ Accordingly, this factor does not support a finding of a substantial federal interest in this case.

b. Important Federal Question

Under the second factor, the Court must consider whether the [*11]  federal question as issue is important and not merely trivial. See Mikulski, 501 F.3d at 570 (citation omitted). As the Sixth Circuit has noted, “[this] second factor is far more subjective . . . .” Id. (citation omitted).

In support of this factor weighing towards existence of a federal question, ACF Global makes similar arguments as to the first factor. (Def.’s Resp. Pl.’s Mot. Remand 15-16). It notes that the federal questions posted by White’s claims “touch on the most important function [the] [FMCSA] performs—licensing carriers and regulating safety.” (Def.’s Resp. Pl.’s Mot. Remand 16).

ACF Global’s assertion that it could not have acted negligently when it selected JoshBell Trucking, because it was a federal-licensed motor carrier with operational authority, is a potential defense to the merits of White’s claims. As the quoted passage from Grable & Sons Metal Products explains, ACF Global’s assertion would lead to a shift in litigation involving negligence per se claims premised upon violations of federal law being filed in federal court. See Grable & Sons Metal Prods., 545 U.S. at 318-19. As noted above, the Complaint also asserts state law theories in support the negligence claims. Thus, ACF Global’s assertion that a substantial federal question [*12]  is presented in this case is untenable, and this factor does not support exercising federal jurisdiction here.

c. Whether Federal Issue Will Resolve Case

The Court must also consider whether resolution of any federal issue is integral to the outcome of White’s claims. See Mikulski, 501 F.3d at 570 (citation omitted). ACF Global contends:

Given the number of federally-licensed freight brokers and motor carriers operating in America and the importance of their role in interstate commerce, the primary federal question presented by Plaintiff’s “negligent brokering” claim—i.e., whether brokers have a duty to do more than simply verify a carrier’s operational authority prior to selecting it to transport property—”ought to be” resolved in a federal forum so as to ensure the uniformity of its answer.

(Def.’s Resp. Pl.’s Mot. Remand 17 (citations omitted)). It asserts that a uniform standard of care is necessary to avoid “‘[s]tate by state’ decisions about the validity and sufficiency of the FMCSA’s regulations and the standard of care applicable to a broker’s selection of an authorized carrier . . . .” (Def.’s Resp. Pl.’s Mot. Remand 17 (citations omitted)).

Notwithstanding ACF Global’s policy arguments, this is not a [*13]  federal case and does not involve a challenge of the FMCSA’s administrative determination to license JoshBell Trucking. Instead, White asserts only state law claims. See Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708, 712-13 (6th Cir. 2012) (“Hampton’s claim is a garden-variety state tort claim: she alleges that RJC violated federal statutes and regulations and thus was presumptively negligent under Kentucky law. Finding a state-law negligence claim removable on the sole basis that the violation of a federal statute creates a presumption of negligence under state law would ‘flout, or at least undermine, congressional intent,’ and would ‘herald[] a potentially enormous shift of traditionally state cases into federal courts.’ That we will not do.” (alteration in original) (internal citations omitted)). White has asserted negligence claims premised upon state law theories, and the resolution of any federal theory for the negligence claims would not dispose of this case. Thus, this factor is not met.

d. Impact on Numerous Other Cases

The final factor is whether a decision on the federal question “will control numerous other cases . . . .” Mikulski, 501 F.3d at 570 (citation omitted). ACF Global points to the potentially widespread impact of this case on federally-licensed freight [*14]  brokers and motor carriers operating in interstate commerce. (Def.’s Resp. Pl.’s Mot. Remand 17). This again miscasts the issues framed in the Complaint—whether ACF Global is liable under some theory of negligence, vicarious liability, or conspiracy in dispatching JoshBell Trucking to transport property in this instance where the driver of that load caused a fatal accident.

The mere fact that motor carriers are operating in interstate commerce everyday in the United States does not warrants the exercise of federal jurisdiction in this case. Again, “[i]f federal courts were to exercise jurisdiction every time federal regulations were mentioned in a state-law tort case, there would be “[a] potentially enormous shift of traditionally state cases into federal courts.” Lee, 2016 U.S. Dist. LEXIS 170418, 2016 WL 7197478, at *5 (quoting Grable & Sons Metal Prods., 545 U.S. at 318); see also Tackett v. Equitrans, Ltd., No. 22-18-DLB, 2022 U.S. Dist. LEXIS 71529, 2022 WL 1157998, at *4 (E.D. Ky. Apr. 19, 2022) (“[T]he alleged federal issue in this matter is more of a question of whether Defendants did or did not adhere to a certain standard in their alleged negligence. Therefore, ‘it is hard to imagine how the resolution of any federal issue in this case would control numerous other cases.'” (citation omitted)).

Taken as a whole, these factors do not support a finding that there is a substantial federal issue [*15]  in this case. Thus, the second element does not support the application of the substantial-federal-question doctrine.

iii. Balance of Federal and State Judicial Responsibilities

The final element for the substantial-federal-question doctrine is whether exercising subject matter jurisdiction in this instance would disrupt the balance Congress has approved between federal and state courts. See Mikulski, 501 F.3d at 568. ACF Global argues that this Court should exercise jurisdiction over the negligent brokering claim because Congress created a private right of action under 49 U.S.C. § 14707 for injured parties to sue unregistered carriers who caused accidents transporting property in interstate commerce. (Def.’s Resp. Pl.’s Mot. Remand 18 (citing 49 U.S.C. § 14707)). In relevant part, the statute provides that “[i]f a person provides transportation by motor vehicle or service in clear violation of section 13901-13904 or 13906, a person injured by the transportation or service may bring a civil action to enforce any such section.” 49 U.S.C. § 14707(a).

While Section 14707 may provide a federal cause of action relating an unregistered carrier,² the face of the Complaint contains no such claim. Rather, all of White’s claims are based on state law.

ACF Global also asserts:

The upshot is that Congress wants federal [*16]  courts to decide issues related to motor carrier registration requirements, such as whether a particular carrier is properly “registered” with the FMCSA and the related issue of whether the registration and licensing requirements enacted and approved by Congress and the FMCSA are valid and sufficient to ensure carrier safety.

(Def.’s Resp. Pl.’s Mot. Remand 18). This argument again presupposes White’s claims challenge the FCMSA’s administrative determination to register JoshBell Trucking, which they do not. See Milby, 102 F. Supp. 3d at 927 (“[T]he plaintiff [is] the master of the complaint.” (citation omitted)).

For these reasons, the substantial-federal-question doctrine does not apply. Because any doubts as to jurisdiction are to be resolved in favor of remand, the motion to remand will be granted on this basis. See Eastman v. Marine Mech. Corp., 438 F.3d 544, 550 (6th Cir. 2006) (citation omitted); see also MacManus v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. 1:08-CV-96, 2008 U.S. Dist. LEXIS 40490, 2008 WL 2115733, at *9 (E.D. Tenn. May 19, 2008) (“Combining the general presumption that a cause of action lies outside of the federal courts jurisdiction, with the fact that federal jurisdiction should be invoked via the ‘substantial federal question’ doctrine only under ‘exceptional’ circumstances, the Court concludes that remand is warranted.” (internal citation omitted)); Nappier v. Snyder, No. 1:16-CV-636, 2017 U.S. Dist. LEXIS 48768, 2017 WL 1190549, at *7 (W.D. Mich. Mar. 31, 2017) (“In [*17]  short, the state-law claim at issue in this case is a ‘garden-variety’ state-law tort claim that does not raise a federal question at the level of importance of that raised in Grable.” (citation omitted)).

2. Complete Preemption

In its Notice of Removal and in opposing White’s motion, ACF Global nevertheless contends that this matter was properly removed because his state law claims against ACF Global were “expressly and completely preempted by the FAAAA. (Notice Removal ¶ 12; Def.’s Resp. Pl.’s Mot. Remand 21-25). Assuming that assertion were true, removal would be appropriate, as the Supreme Court has explained regarding complete preemption:

[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.

There does exist, however, an “independent corollary” to the well-pleaded complaint rule known as the “complete pre-emption” doctrine. On occasion, the Court has concluded that the pre-emptive force of a statute is so “extraordinary” that it “converts an [*18]  ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987) (internal footnote omitted) (internal citations omitted). The Sixth Circuit has cautioned, however:

Complete preemption arises in the rare circumstance where Congress legislates an entire field of law. When Congress does so, federal law completely overrides all state law on the topic. Given that dramatic altering of the traditional federal-state balance, we are reluctant to find such broad-based preemption. The statute in question must reflect clear congressional intent to do so. And its language must contain “extraordinary preemptive power.” In other words, the statute must engulf an entire area of state law, transforming a state-law complaint into one that essentially states a federal claim.

Miller v. Bruenger, 949 F.3d 986, 994-95 (6th Cir. 2020) (internal citations omitted) (citation omitted); see also Mikulski, 501 F.3d at 564 (“This circuit has recognized that complete preemption is a limited rule. . . . [W]e have declined to extend complete [*19]  preemption to various statutes that lack [] explicit language.”);³ Est. of Cowan v. LP Columbia KY, LLC, 530 F. Supp. 3d 695, 702 (W.D. Ky. 2021) (“The Sixth Circuit has declined to extend complete preemption to various statutes that fail to confer original exclusive jurisdiction on the federal courts.” (citing Mikulski, 501 F.3d at 564)).

In relevant part, the FAAAA provides:

[N]o State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.

49 U.S.C. § 14501(b)(1). The statute, however, also provides that the FAAAA’s provisions “shall not restrict the safety regulatory authority of a State with respect to motor vehicles . . . .” Id. § 14501(c)(2)(A). As the Supreme Court has explained with regard to the exception in the FAAAA, “Congress’ clear purpose in § 14501(c)(2)(A) is to ensure that its preemption of States’ economic authority over [freight forwarded and brokers, and] motor carriers of property, ‘not restrict’ the preexisting and traditional state police power over safety.” City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 439, 122 S. Ct. 2226, 153 L. Ed. 2d 430 (2002) (emphasis added) (internal citation omitted).

The parties agree that the Sixth Circuit [*20]  has not addressed whether the FAAAA would completely preempt White’s claims in this case. In the absence of binding Sixth Circuit authority, the Court is most persuaded by a sister court’s decision in Moyer v. SimBad, LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818 (S.D. Ohio. Jan. 12, 2021), adopted by 2021 U.S. Dist. LEXIS 62056, 2021 WL 1209469 (S.D. Ohio Mar. 31, 2021). In Moyer, the plaintiffs sued a motor carrier and its driver for the wrongful death of a motorist killed during an accident. See 2021 U.S. Dist. LEXIS 64158, [WL] at *1. The plaintiffs later amended the complaint to assert claims against another motor carrier. See id. The added motor carrier then removed the action to federal court based upon the supposed complete preemption of the plaintiffs’ claims by the FAAAA. See id. The plaintiffs then moved to remand the case to state court. See id.

In granting the motion to remand, the court rejected the assertion that complete preemption provided a basis for removal. See 2021 U.S. Dist. LEXIS 64158, [WL] at *3-6. While recognizing that the FAAAA does preempt certain state laws relating to motor carriers and brokers, the court noted “the FAAAA specifies certain matters that are not preempted (i.e., an exception to the exception), including the ‘safety regulatory authority of a State with respect to motor vehicles.'” 2021 U.S. Dist. LEXIS 64158, [WL] at *4 (quoting 49 U.S.C. § 14501(c)(2)).

The court reasoned:

[T]he FAAAA does not contain express language indicating that it was [*21]  designed to completely preempt personal injury or wrongful death claims, and that in fact it appears to specifically remove at least some such claims from preemption in 49 U.S.C. 14501(c)(2)(A). To that end, the fact that the FAAAA essentially requires courts to closely analyze personal injury or wrongful death claims on a case-bycase basis, to determine whether they are subject to preemption, also supports the conclusion that Congress did not intend to, and did not, “completely override[] all state law on the topic.” While some negligence-based claims may be saved from preemption by 49 U.S.C. § 14501(c)(2), some may not. This only means that the FAAAA is not a complete preemption statute.

2021 U.S. Dist. LEXIS 64158, [WL]at *6 (alteration in original) (internal citations omitted). In determining that the plaintiffs’ claims had not been preempted, the court reasoned:

[The defendant] has failed to identify “clear congressional intent” for the FAAAA to engulf the entire area of personal injury and wrongful death claims involving transportation brokers and motor carriers, especially in light of the Supreme Court’s declaration that 49 U.S.C. 14501(c)(1) “massively limits the scope of preemption ordered by the FAAAA.”

Id. (quoting Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013)).⁴ Accordingly, the court remanded the case to state court. See Moyer v. SimBad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 62056, 2021 WL 1209469, at *1 (S.D. Ohio Mar. 31, 2021) [*22] .

ACF Global’s arguments fare no better than the removing defendant in Moyer. There are certainly cases that ACF Global can rely upon in asserting that removal was proper,⁵ but like Moyer, this Court is more persuaded by the courts concluding that state law personal injury and wrongful death claims are not properly removed to federal court and then completely preempted by the FAAAA. ACF Global’s arguments are more properly asserted in state court in support of an affirmative defense to White’s claims.

For these reasons, complete preemption is not a basis for removal of this matter, and ACF Global has not shown that Congress has expressed a clear intent to preclude all personal injury and wrongful death claims asserted against transportation brokers and motor carriers. Because ACF Global has failed to meet its burden of establishing subject matter jurisdiction over this dispute and that removal was proper, White’s motion to remand will be granted.

3. Lack of Consent from All Defendants

Plaintiff and ACF Global also disagree as to whether the consent of all Defendants was required for removal to federal court. (Pl.’s Mem. Supp. [*23]  Mot. Remand 10; Def.’s Resp. Pl.’s Mot. Remand 10 n.5). In the absence of subject matter jurisdiction, however, it is unnecessary to address this issue.

B. Defendant’s Motion to Dismiss/Defendant’s Motion for Leave to Amend

Because the Court lacks subject matter jurisdiction over this matter, it is also unnecessary to address the merits of ACF Global’s motions. Accordingly, its motions will be denied as moot.

III. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED as follows:

1. Plaintiff’s Motion to Remand (DN 10) is GRANTED, and this matter is remanded to Warren Circuit Court.

2. Defendant’s Motion to Dismiss (DN 5) is DENIED AS MOOT.

3. Defendant’s Motion for Leave to Amend (DN 14) is DENIED AS MOOT.

4. The Clerk shall strike this matter from the active docket.

/s/ Greg N. Stivers

Greg N. Stivers, Chief Judge

United States District Court

September 29, 2022

End of Document

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¹ As the Supreme Court noted in Grable & Sons Metal Products:

“The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings.” A general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would thus have heralded a potentially enormous shift of traditionally state cases into federal courts. Expressing concern over the “increased volume of federal litigation,” and noting the importance of adhering to “legislative intent,” [the Court in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986),] thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law “solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] . . . under state law.” In this situation, no welcome mat meant keep out.

Grable & Sons Metal Prods., 545 U.S. at 318-19 (second and third alterations in original) (internal footnote omitted) (internal citations omitted).

² While ACF Global contends that Section 14707 would completely preempt White’s negligent brokering claim, it cites no case law interpreting the statute to completely preempt state law claims. (Def.’s Resp. Pl.’s Mot. Remand 22-24).

³ In Mikulski, the Sixth Circuit recognized that “[t]hus far, complete preemption has been limited to three classes of cases by the Supreme Court: Section 301 of the Labor Management Relations Act of 1947; the Employee Retirement Income Security Act of 1975; and the National Bank Act.” Wolford v. Bayer Corp., No. 7:16-227-KKC-HAI, 2017 U.S. Dist. LEXIS 194308, 2017 WL 5665332, at *2 (E.D. Ky. Nov. 27, 2017) (citing Mikulski, 501 F.3d at 563-564). The Sixth Circuit has applied complete preemption to the Copyright Act and the National Flood Insurance Act. See Dillon v. Medtronic, Inc., 992 F. Supp. 2d 751, 758 (E.D. Ky. 2014) (citing Ritchie v. Williams, 395 F.3d 283, 286-87 (6th Cir. 2005); Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 949-50 (6th Cir. 2002)).

⁴ The court concluded that the motor carrier’s assertion of preemption was an affirmative defense rather than a basis for removal. See id. White makes a similar argument in his motion. (Pl.’s Mem. Supp. Mot. Remand 4-8).

⁵ In its Notice of Removal, ACF Global specifically discussed a sister court’s decision in Creagan v. Wal-Mart Transportation, LLC, 354 F. Supp. 3d 808 (N.D. Ohio 2018). (Notice Removal 5). As the court noted in Moyer, Creagan did not involve a case removed based upon complete preemption, like the case sub judice, and was not decided based upon complete preemption. See Moyer, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *4-5. In addition, “while Creagan may have been an early trailblazer into this discrete legal issue, it appears to be firmly in the minority of the relevant case law.” 2021 U.S. Dist. LEXIS 64158, [WL] at *5.