CASES (2022)

Stewart v. Fed. Express Corp.

United States District Court for the District of Columbia

August 3, 2022, Decided; August 3, 2022, Filed

Civil Action No. 21-2478 (CKK)

Reporter

2022 U.S. Dist. LEXIS 138114 *; 2022 WL 3081420

PASSION STEWART, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.

Core Terms

packages, carrier, allegations, state-law, amended complaint, bill of lading, motion to dismiss, pro se, construes, pleadings, seller

Counsel: [*1] PASSION STEWART, Plaintiff, Pro se, Washington, DC.

For FEDERAL EXPRESS CORPORATION, Defendant: Colleen Hitch Wilson, FEDERAL EXPRESS CORPORATION, Memphis, TN.

Judges: COLLEEN KOLLAR-KOTELLY, United States District Judge.

Opinion by: COLLEEN KOLLAR-KOTELLY

Opinion

MEMORANDUM OPINION AND ORDER

Plaintiff Passion Stewart (“Stewart”), proceeding pro se, alleges that Defendant Federal Express Corporation (“FedEx”) has mishandled packages delivered to her address in Washington, DC. After removing the action from the Superior Court of the District of Columbia, FedEx has moved to dismiss Stewart’s complaint for failure to state a claim. To the extent that Stewart meant to advance a state-law claim, any such claim is preempted by federal statute, the “Carmack Amendment” to the Interstate Commerce Act, 49 U.S.C. § 14706(a)(1). Furthermore, even construing Stewart’s complaint liberally, she has not shown she has standing to maintain an Interstate Commerce Act claim. Accordingly, and upon consideration of the pleadings,¹ the relevant legal authority, and the entire record, the Court shall GRANT FedEx’s [8] Motion to Dismiss and DISMISS WITHOUT PREJUDICE Plaintiff’s [6] amended Complaint. However, because it appears possible that a more definite complaint would establish standing to proceed, the Court will afford [*2] Plaintiff an opportunity to file a second amended complaint.

I. BACKGROUND

Plaintiff filed her first complaint in the Superior Court of the District of Columbia. ECF No. 1-2 at 2. The complaint alleges that Stewart has submitted “multiple claims with Fedex due to their carriers leaving [her] packages in open spaces which results in the packages being stolen.” Id. Plaintiff states that she and her neighbors have given FedEx specific instructions as to delivery but that FedEx has improperly delivered her packages, resulting in pecuniary loss of $ 100,000. Id. FedEx removed pursuant to 28 U.S.C. § 1441(b). Shortly after removal, Plaintiff filed a second “Complaint,” which the Court construes as an amended complaint. Am. Compl., ECF No. 6. Plaintiff realleges that FedEx has mishandled her packages. Id. Plaintiff “request[s] the max of $ 75,000 for the negligence of [FedEx’s] drivers, ignoring all signs posted in my building [regarding package delivery], and lying on my leasing officer [*3] when they know for a fact they can deliver packages to our door.” Id.

FedEx maintains that this complaint fails to state a claim for two reasons. First, FedEx argues, rather perfunctorily, that “Plaintiff does not allege any facts that entitle her to recovery” because “she does not specify for which packages she seeks redress.” Mot. at 4. FedEx does not cite any authority for such a proposition and does not explain why, in FedEx’s view, Plaintiff’s allegations are “[un]tethered to any legal basis for recovery.” Id. Second, FedEx reads Plaintiff’s complaint to advance, exclusively, a state-law negligence claim. Id. at 5. FedEx notes that federal law preempts state-law claims against common carriers such as FedEx. Id. (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S. Ct. 148, 57 L. Ed. 314 (1913)). Plaintiff has filed a short opposition essentially restating her factual allegations. Opp. at 1-2. Defendant has not filed a reply. The Motion is now ripe for resolution.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader [*4] is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. See In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994).

III. DISCUSSION

Most shopping happens online nowadays. When a consumer wants to purchase a particular good, they visit, for example, Amazon.com. After purchase, Amazon contracts with a package carrier, FedEx, for example, to deliver the purchased goods from Amazon to the buyer. FedEx then issues the seller (e.g., Amazon) a receipt, sometimes called a [*5] “bill of lading,” reflecting the goods to be shipped to Amazon’s buyer. Under federal law, whoever holds rights under that receipt, and only that person, can sue the carrier (FedEx) for misdelivered or undelivered parcels. 49 U.S.C. § 14706(a)(1); see also, e.g., Coughlin v. United Van Lines, LLC, 362 F. Supp. 2d 1166, 1167-68 (C.D. Cal. 2005). That law, often called the Carmack Amendment to the Interstate Commerce Act, goes even further to preempt all state-law claims against a package carrier. See Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S. Ct. 148, 57 L. Ed. 314 (1913); see generally 14 Am. Jur. 2d Carriers § 503 (West 2022) (collecting cases). As such, the only remedy against a package carrier for misdelivered or undelivered goods arises under the Interstate Commerce Act. See Worldwide Moving & Storage, Inc. v. District of Columbia, 445 F.3d 422, 426, 370 U.S. App. D.C. 343 (D.C. Cir. 2006). Accordingly, to the extent the complaint alleges state-law claims, they are dismissed as preempted.

FedEx goes further, however, arguing that the entire complaint must be dismissed because Plaintiff has not pleaded a Carmack Amendment claim. That misapprehends both Plaintiff’s complaint and the law of pro se pleading.

As a threshold matter, Plaintiff’s pro se complaint must be “‘liberally construed'” and held to “‘less stringent standards than formal pleadings drafted by lawyers.'” Williams v. Bank of N.Y. Mellon, 169 F. Supp. 3d 119, 123-24 (D.D.C. 2016) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)). “Construing a document liberally means, at a minimum, that a plaintiff need not use ‘magic words’ or legal jargon.” Walker v. Spirit Aerosystems, Inc., 276 F. Supp. 3d 1224, 1230 (N.D. Okla. 2017). Where, after drawing all factual inferences [*6] in the pro se plaintiff’s favor, some legitimate claim for relief lies, the court may not grant a motion to dismiss for failure to state a claim. See Anyanwutaku v. Moore, 151 F.3d 1053, 1059, 331 U.S. App. D.C. 379 (D.C. Cir. 1998) (“Even if [a plaintiff] might lose on the merits, . . . the district court should [] permit[] [a] claim, drafted pro se and based on legitimate factual allegations[] to proceed.”); Williams, 169 F. Supp. 3d at 124.

In support of Defendant’s argument that the complaint states only state-law claims, Defendant notes that Stewart uses the term “negligence” in the operative complaint and does not say the very specific words “Carmack Amendment.” See Mot. at 5. As a pro se litigant, the Court cannot find that Plaintiff has failed to allege a particular claim by omitting certain “magic words.” Walker, 276 F. Supp. 3d at 1230. Nor is the use of the word “negligence” obviously and exclusively indicative of a state-law claim. As the Supreme Court has explained, the Carmack Amendment serves the purpose of “reliev[ing] [sellers] of the burden of searching out a particular negligent carrier from among numerous carriers handling an interstate shipment.” See Reider v. Thompson, 339 U.S. 113, 119, 70 S. Ct. 499, 94 L. Ed. 698 (1950) (emphasis added). Put differently, a plaintiff states an Interstate Commerce Act claim by “establish[ing] a prima facie case of negligence.” Distribuidora Mari Jose, S.A. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (emphasis added). A prima facie case under the Interstate Commerce Act requires a showing of [*7] injury to goods, collected by the carrier in good condition, that caused identifiable, economic loss. See id. Because the operative complaint states as much, the Court construes it to advance an Interstate Commerce Act claim.

Next, FedEx argues that Stewart cannot maintain an action under the Interstate Commerce Act because she is not a “shipper,” i.e., the seller who gave Stewart’s purchase to FedEx for shipment. Mot. at 6. Because most plaintiffs in actions such as these are literally, per 49 U.S.C. § 11706(a)(1), the “person[s] entitled to recover under the receipt or bill of lading,” FedEx is correct that Plaintiff may (or may not) fall within the ambit of those cases. It remains unclear, for instance, from Plaintiff’s pleadings whether she shipped goods to herself via FedEx or whether she purchased goods from a seller who entrusted those goods to FedEx for shipment. Yet it is not only shippers (i.e., sellers) who have standing to enforce the terms of a receipt or a bill of lading. “Cases interpreting the [Interstate Commerce] Act have confined the right to sue [not just] to shippers or consignors[] or holdings of the bill of lading issued by the carrier, [but also] persons beneficially interested in the shipment although not in possession of the [*8] actual bill of lading[] or assignees thereof.” Harrah v. Minn. Min. and Mfg. Co., 809 F. Supp. 313, 318 (D.N.J. 1992) (citations omitted) (collecting cases). This final category includes consignees, i.e., those “‘to whom the carrier may lawfully make delivery in accordance with the contract of carriage.'” Id. (quoting Consignee, Black’s Law Dictionary (4th ed. 1968)). As such, it remains entirely possible that Stewart can maintain an action under the Interstate Commerce Act.

The complaint fails, however, not for failure to state a claim, but for lack of definiteness pursuant to Federal Rule of Civil Procedure 8(a). The operative complaint does not identify which packages were purportedly mishandled, who sent the packages to Plaintiff, whether there is a receipt or bill of lading associated with the allegedly offending packages, and Plaintiff’s relationship to the sender of the packages. As such, the operative complaint does not give FedEx sufficiently “fair notice of the basis for [Plaintiff’s] claims.” See Charles v. United States, Civ. A. No. 21-064, 2022 WL 1045293, at *3 (D.D.C. Apr. 7, 2022) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)). Because the complaint does not plead facts that, taken as true, would definitely endow Plaintiff with standing to advance an Interstate Commerce Act claim, the Court must dismiss Plaintiff’s operative complaint. See Stokes v. Cross, 327 F.3d 1210, 1215, 356 U.S. App. D.C. 73 (D.C. Cir. 2003). Nevertheless, as it appears possible that Plaintiff does have standing to proceed, the Court shall [*9] exercise its discretion to afford Plaintiff an opportunity to file a second amended complaint. See Ciralsky v. CIA, 355 F.3d 661, 674, 359 U.S. App. D.C. 366 (D.C. Cir. 2004).

IV. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED, that Defendant’s [8] Motion to Dismiss is GRANTED. It is further

ORDERED, that Plaintiff’s [6] amended Complaint is DISMISSED WITHOUT

PREJUDICE. It is further

ORDERED, that Plaintiff shall file a second amended complaint on or before September 7, 2022. If no complaint is filed by that date, this case shall be dismissed.

Dated: August 3, 2022

/s/ COLLEEN KOLLAR-KOTELLY

United States District Judge

End of Document

¹This Memorandum Opinion and Order focuses on the following documents:

• Plaintiff’s Complaint, ECF No. 1-2 (“Compl.”);

• Plaintiff’s amended Complaint, ECF No. 6 (“Am. Compl.”);

• Defendant’s Memorandum of Law in Support of Motion to Dismiss (“Mot.”);

• Plaintiff’s Opposition, ECF No. 11 (“Opp.”);

In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

Echo Glob. Logistics, Inc. v. Dep’t of Revenue

Court of Appeals of Washington, Division One

June 2, 2022, Oral Argument; August 1, 2022, Filed

No. 83548-3-I

Reporter

2022 Wash. App. LEXIS 1551 *; 2022 WL 3024727

Echo Global Logistics, Inc., Appellant, v. The Department of Revenue, Respondent.

Prior History: [*1] Appeal from Clark Superior Court. Docket No: 20-2-01631-8. Judge signing: Honorable David E Gregerson. Judgment or order under review. Date filed: 06/30/2021.

Core Terms

transportation, freight, brokers, public service, dictionary, regulation, propelled, subject to control, motor carrier, transportation business, contract carrier, common carrier, highways, includes, motor vehicle, carrier

Case Summary

Overview

HOLDINGS: [1]-The Board of Tax Appeals did not err by holding that the freight broker did not operate motor vehicles and therefore it was not a motor transportation business under Wash. Rev. Code § 82.16.010(6) because its work or labor was the coordination and management of the movement of goods, not the impact on a motor propelled vehicle; [2]-Based on the definition in Wash. Admin. Code § 458-20-179 freight brokers were not subject to control by the state and therefore the freight broker did not fall within the scope of the public utility tax under Wash. Rev. Code § 82.16.020(1)(f); [3]-Under Wash. Rev. Code § 82.16.010 because under the plain language of the statute there was not a clear statement from the legislature that freight brokers were “of a public service nature” and therefore the freight broker did not qualify for the public utility tax.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Administrative Law > Judicial Review > Standards of Review > De Novo Standard of Review

Tax Law > State & Local Taxes > Administration & Procedure > Judicial Review

Administrative Law > Judicial Review > Standards of Review > Deference to Agency Statutory Interpretation

HN1 Standards of Review, De Novo Standard of Review

The Court of Appeals of Washington reviews decisions by the Board of Tax Appeals under the Administrative Procedure Act (APA). (Wash. Rev. Code § 82.03.180). Under the APA, the court may grant relief from an agency order when the agency has erroneously interpreted or applied the law. (Wash. Rev. Code § 34.05.570(3)(d)). The court applies the APA directly to the record before the agency, sitting in the same position as the superior court. If the Board dismissed an administrative appeal on summary judgment, the court overlays the APA error of law standard of review with the summary judgment standard, and review an agency’s interpretation or application of the law de novo while viewing the facts in the light most favorable to the nonmoving party.

Criminal Law & Procedure > … > Standards of Review > De Novo Review > Conclusions of Law

Governments > Legislation > Interpretation

HN2 De Novo Review, Conclusions of Law

Statutory interpretation is a question of law reviewed de novo. The court’s objective is to ascertain and carry out the legislature’s intent.

Business & Corporate Compliance > … > Transportation Law > Rail Transportation > State & Local Regulation

Tax Law > State & Local Taxes > Public Utility Taxes > Exemptions

Transportation Law > Rail Transportation > Lands & Rights of Way

Tax Law > State & Local Taxes > Public Utility Taxes > Imposition of Tax

Tax Law > State & Local Taxes > Natural Resource Taxes > Imposition of Tax

HN3 Railroads & Rail Transportation, State & Local Regulation

Generally, Washington’s business and occupation (B&O) tax applies to the act or privilege of engaging in business activities, unless those activities are explicitly taxed elsewhere in the statutory scheme. Wash. Rev. Code §§ 84.04.220,.290(2)). Businesses that are subject to the public utility tax (PUT) are not subject to the B&O tax under Wash. Rev. Code § 82.04.310(1). Wash. Rev. Code § 82.16.020(1)(f) lists businesses subject to the PUT, including motor transportation, railroad, railroad car, and tugboat businesses.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Torts > … > Standards of Care > Special Care > Common Carriers

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN4 Common Carrier Duties & Liabilities, State & Local Regulation

A common carrier is any person who undertakes to transport property for the general public by motor vehicle for compensation, and a contract carrier includes all motor vehicle operators not included under the terms common carrier and private carrier, in addition to any person who under special and individual contracts or agreements transports property by motor vehicle for compensation. Wash. Rev. Code § 81.80.010(1), (2). Brokers and forwarders are explicitly included as common carriers and contract carriers. § 81.80.010(3).

Governments > Legislation > Interpretation

HN5 Legislation, Interpretation

While interpreting a statute, a court endeavors to effectuate the legislature’s intent by applying the statute’s plain meaning, considering the relevant statutory text, its context, and the statutory scheme. In a plain meaning inquiry, the court may resort to an applicable dictionary definition to determine the plain and ordinary meaning of a word that is not otherwise defined by the statute. After investigating the plain meaning, if the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history.

Governments > Legislation > Interpretation

HN6 Legislation, Interpretation

An appellate court employs traditional rules of grammar in discerning the plain language of the statute.

Transportation Law > Commercial Vehicles > Traffic Regulation

HN7 Commercial Vehicles, Traffic Regulation

To perform a work or labor or to exert power or influence both suggest a direct connection between the performance or exertion and the consequential result on the direct object: a motor propelled vehicle.

Tax Law > State & Local Taxes > Public Utility Taxes > Imposition of Tax

Transportation Law > Bridges & Roads > Toll Roads & Turnpikes

HN8 Public Utility Taxes, Imposition of Tax

Under Wash. Rev. Code § 82.16.020(1)(f), the public utility tax applies to all public service businesses other than the ones mentioned above. A public service business is defined as any business subject to control by the state, or having the powers of eminent domain and the duties incident thereto, or any business hereafter declared by the legislature to be of a public service nature. Wash. Rev. Code § 82.16.010(7)(a). It includes, among others, without limiting the scope hereof: Airplane transportation, boom, dock, ferry, pipe line, toll bridge, toll logging road, water transportation and wharf businesses.

Business & Corporate Compliance > … > Transportation Law > Rail Transportation > State & Local Regulation

Constitutional Law > State Constitutional Operation

Transportation Law > Rail Transportation > Lands & Rights of Way

Torts > … > Standards of Care > Special Care > Common Carriers

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN9 Railroads & Rail Transportation, State & Local Regulation

Wash. Const. art. XII, § 13 governs the regulation of common carriers, holding all railroad, canal and other transportation companies are declared to be common carriers and subject to legislative control.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN10 Common Carrier Duties & Liabilities, State & Local Regulation

Wash. Admin. Code § 458-20-179(b)(i) defines subject to control by the state as control by the utilities and transportation commission or any other state agency required by law to exercise control of a business of a public service nature regarding rates charged or services rendered. A common or contract carrier is required to obtain a permit from the Washington State Utilities and Transportation Commission. Wash. Rev. Code § 81.80.070(1). In order to successfully obtain a permit, a carrier must establish safety fitness and proof of minimum financial responsibility as provided in this chapter. § 81.80.070(3).

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Motor Carriers

HN11 Particular Actors, Circumstances, & Liabilities, Motor Carriers

Common carrier and contract carrier includes freight brokers. Wash. Rev. Code § 81.80.010(3).

Tax Law > State & Local Taxes > Franchise Taxes > Limitations

HN12 Franchise Taxes, Limitations

Based on the definition in Wash. Admin. Code § 458-20-179 and under federal law, freight brokers are not subject to control by the state.

Governments > Local Governments > Employees & Officials

HN13 Local Governments, Employees & Officials

Under Wash. Rev. Code § 82.16.010, a public service business includes any business hereinafter declared by the legislature to be of a public service nature.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN14 Common Carrier Duties & Liabilities, State & Local Regulation

Wash. Rev. Code § 81.80.020 states that the rapid increase of motor carrier freight traffic and the fact that under the existing law many motor trucks are not effectively regulated have increased the dangers and hazards on public highways and make it imperative that regulation to the fullest extent allowed should be employed. The statute focuses on the proper development and preservation of public highways and the stability of public transportation services for the public.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

Governments > Legislation > Interpretation

HN15 Common Carrier Duties & Liabilities, State & Local Regulation

A business affected with a public interest and a business of a public nature are different. Courts presume the legislature intends a different meaning when it uses different terms. Wash. Rev. Code § 82.16.010(7)(a) defines a public service business as any business hereafter declared by the legislature to be of a public service nature, while Wash. Rev. Code § 81.80.020 declares that the business of operating as a motor carrier of freight for compensation along the highways of this state is declared to be a business affected with a public interest.

Governments > Legislation > Interpretation

HN16 Legislation, Interpretation

Courts presume that the legislature used these different terms to mean different things; nature implies a fundamental characteristic distinguishing one category from another, while affected is a more ancillary characteristic or inclination.

Business & Corporate Compliance > … > Transportation Law > Carrier Duties & Liabilities > State & Local Regulation

HN17 Common Carrier Duties & Liabilities, State & Local Regulation

Wash. Rev. Code § 81.80.020 discusses the importance of preserving public highways and the need for stabilized service and rate structure of motor carriers for the public. Under the plain language of the statute, there is not a clear statement from the legislature that freight brokers are of a public service nature.

Counsel: For Appellant: Renee Elizabeth Rothauge, Robert Lee MahonIII, Perkins Coie LLP, Seattle, WA.

For Respondent: Jessica E Fogel, Washington Attorney Generals Office, Olympia, WA; Charles E Zalesky, Attorney General of Washington, Olympia, WA.

Judges: Authored by Cecily Hazelrigg. Concurring: Bill Bowman, Stephen Dwyer.

Opinion by: Cecily Hazelrigg

Opinion

¶1 Hazelrigg, J. — Echo Global Logistics Inc. appeals a determination by the Board of Tax Appeals, arguing it is subject to a public utility tax rather than a business and occupation tax. Because Echo fails to demonstrate the Board erroneously interpreted or applied the law, we affirm.

FACTS

¶2 Echo Global Logistics Inc. is a freight broker; it contracts with motor carriers and customers to facilitate and coordinate the transportation of goods nationally. In November 2014, the Department of Revenue (Department) performed a desk examination of Echo’s business and occupation (B&O) tax returns and reclassified the freight broker under the “service and other” business classification for tax purposes. Echo appealed this [*2] determination to the Board of Tax Appeals (Board), arguing it was subject to the public utility tax (PUT), not a B&O tax, despite the fact that it had been paying B&O tax for approximately four years at that point. The Department moved for summary judgment, which was granted. Echo then appealed to the Clark County Superior Court, which affirmed the Board’s decision. Echo timely appealed.

ANALYSIS

I. Standard of Review

¶3 HN1 This court reviews decisions by the Board under the Administrative Procedure Act (APA).¹ Steven Klein, Inc. v. Dep’t of Revenue, 183 Wn.2d 889, 895, 357 P.3d 59 (2015) (citing RCW 82.03.180). “Under the APA, we may grant relief from an agency order when ‘[t]he agency has erroneously interpreted or applied the law.’” Id. (alteration in original) (quoting RCW 34.05.570(3)(d)). We apply the APA “‘directly to the record before the agency, sitting in the same position as the superior court.’” Dep’t of Revenue v. Bi-Mor, Inc., 171 Wn. App. 197, 201-02, 286 P.3d 417 (2012) (quoting Honesty in Env’t Analysis & Legis. (HEAL) v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 96 Wn. App. 522, 526, 979 P.2d 864 (1999)). If the Board dismissed an administrative appeal on summary judgment, “we overlay the APA ‘error of law’ standard of review with the summary judgment standard and review an agency’s interpretation or application of the law de novo while viewing the facts in the light most favorable to the nonmoving party.” Id. at 202.

II. Definition of “Operates”

¶4 Echo first asserts it is a motor transportation business under RCW 82.16.010(6) because it [*3] “operate[s]” motor vehicles by “‘exert[ing] power or influence’ over a motor vehicle by contracting with a third party.” The Department responds Echo does not “operate” a motor vehicle because it merely “arrang[es] for transportation by a third party” rather than physically moving goods.

¶5 HN2 Statutory interpretation is a question of law reviewed de novo. Puget Sound Energy v. Dep’t of Revenue, 158 Wn. App. 616, 620, 248 P.3d 1043 (2010). The court’s “objective is to ascertain and carry out the legislature’s intent.” Id. HN3[] “Generally, Washington’s B&O tax applies to the act or privilege of engaging in business activities,” unless those activities are “explicitly taxed elsewhere in the statutory scheme.” First Student, Inc. v. Dep’t of Revenue, 194 Wn.2d 707, 711, 451 P.3d 1094 (2019) (citing RCW 82.04.220, .290(2)). Businesses that are subject to the PUT are not subject to the B&O tax under RCW 82.04.310(1). Id. RCW 82.16.020(1)(f) lists businesses subject to the PUT, including “[m]otor transportation, railroad, railroad car, and tugboat businesses.” “Motor transportation business” is defined in RCW 82.16.010(6) as

the business (except urban transportation business) of operating any motor propelled vehicle by which persons or property of others are conveyed for hire, and includes, but is not limited to, the operation of any motor propelled vehicle as an auto transportation company (except urban transportation business), [*4] common carrier, or contract carrier as defined by RCW 81.68.010 and 81.80.010.

RCW 81.80.010 in turn defines the terms “common carrier” and “contract carrier.” HN4 A “common carrier” is “any person who undertakes to transport property for the general public by motor vehicle for compensation,” and a “contract carrier” “includes all motor vehicle operators not included under the terms ‘common carrier’ and ‘private carrier,’” in addition to “any person who under special and individual contracts or agreements transports property by motor vehicle for compensation.” RCW 81.80.010(1), (2). “[B]rokers and forwarders” are explicitly included as “common carriers” and “contract carriers.” RCW 81.80.010(3).

¶6 HN5 While interpreting a statute, this court “‘endeavor[s] to effectuate the legislature’s intent by applying the statute’s plain meaning, considering the relevant statutory text, its context, and the statutory scheme.’” Olympic Tug & Barge, Inc. v. Dep’t of Revenue, 188 Wn. App. 949, 952, 355 P.3d 1199 (2015) (quoting Cashmere Valley Bank v. Dep’t of Revenue, 181 Wn.2d 622, 631, 334 P.3d 1100 (2014)). In a plain meaning inquiry, the court “may resort to an applicable dictionary definition to determine the plain and ordinary meaning of a word that is not otherwise defined by the statute.” First Student, Inc., 194 Wn.2d at 711. After investigating the plain meaning, if “the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate [*5] to resort to aids to construction, including legislative history.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 12, 43 P.3d 4 (2002).

¶7 The word “operate” is not defined by the statute. Echo and the Department submitted differing dictionary definitions: Echo cites the 1976 version of Webster’s Third New International Dictionary, while the Department cites the 2002 version. Echo’s cited definition for “operate” is “to perform a work or labor : exert power or influence : produce an effect.” Webster’s Third New International Dictionary 1580 (1976). The Department’s cited definition is “to cause to function [usually] by direct personal effort : work [as in operate] a car.” Webster Third New International Dictionary 1581 (2002).

¶8 HN6 “We employ traditional rules of grammar in discerning the plain language of the statute.” Diaz v. N. Star Tr., LLC, 16 Wn. App. 2d 341, 353, 481 P.3d 557 (2021). As the Department notes, “operating” is a transitive verb within the statute, with “motor transportation business” as the subject and “motor propelled vehicle” as the direct object. Echo’s cited dictionary definition of “produce as effect” would alter the grammatical structure of the sentence by changing the direct object from “motor propelled vehicle” to “transportation” as the effect is the [*6] transportation of goods, rather than a motor propelled vehicle. Its other two definitions do not suffer from the same grammatical shortcoming but also do not encompass the broad reading of “operate” that Echo asks this court to find. HN7 “[T]o perform a work or labor” or to “exert power or influence” both suggest a direct connection between the performance or exertion and the consequential result on the direct object: a motor propelled vehicle. Echo’s “work or labor” or “power or influence” is the coordination and management of the movement of goods, not the impact on a motor propelled vehicle. Echo’s actions are too attenuated from the physical movement of a motor propelled vehicle to reasonably fall within even its own proposed grammatically appropriate dictionary definition of “operate.” Under the plain language of the statute, Echo is not a motor transportation business and the Board did not err in so holding.

III. Public Service Business

¶9 Echo alternatively argues it falls within the scope of the PUT as a “‘business subject to control by the state,’” or as one “‘declared by the legislature to be of a public service nature.’” (Quoting RCW 82.16.010(7)(a).)

¶10 HN8 Under RCW 82.16.020(1)(f), the PUT applies to “all public service [*7] businesses other than the ones mentioned above.” A “public service business” is defined as “any business subject to control by the state, or having the powers of eminent domain and the duties incident thereto, or any business hereafter declared by the legislature to be of a public service nature.” RCW 82.16.010(7)(a). “It includes, among others, without limiting the scope hereof: Airplane transportation, boom, dock, ferry, pipe line, toll bridge, toll logging road, water transportation and wharf businesses.” Id.

A. Subject to State Control

¶11 Echo largely relies on article XII, section 13 of the Washington Constitution to argue it is subject to control by the State. HN9 This section governs the regulation of common carriers, holding “[a]ll railroad, canal and other transportation companies are declared to be common carriers and subject to legislative control.” Wash. Const. art. XII, § 13. The Board found freight brokers “are not subject to any meaningful control by the State, which is defined … as the control over rates charged for services rendered.” Echo alleges this was error because the legislature could constitutionally exercise control over freight brokers. The Department contends that until the legislature exercises “actual ‘control’” over freight broker rates or services, brokers [*8] are not subject to control by the state. It avers that if this court held Echo is subject to state control based solely on some possible future exercise of the delegation authority of in the state constitution, there would be a “sea-change in the tax treatment of numerous businesses” because all businesses required to comply with state registration requirements would be deemed subject to state control.

¶12 In Continental Grain Co. v. State, our Supreme Court found a warehouse was subject to state control because it (1) “annually applied for and received a public-grain-warehouse license,” (2) filed “evidence of proper insurance, a financial statement and schedule[ ] of charges,” (3) “furnish[ed] a warehouse bond,” and (4) provided “warehouse receipts to its customers upon forms prescribed by the Department of Agriculture.” 66 Wn.2d 194, 197, 401 P.2d 870 (1965). In Shurgard Mini-Storage of Tumwater v. Department of Revenue, Division Two of this court analyzed whether a warehouse was subject to control, relying on “the rule of noscitur a sociis,² which teaches that the meaning of doubtful words may be determined by reference to their relationship with other associated words and phrases.” 40 Wn. App. 721, 727, 700 P.2d 1176 (1985). The court rooted its analysis in [*9] the last sentence of former RCW 82.16.010(11) (1982), which gave examples of businesses regulated by the state, including those which “required licensing by the State and the filing of rates.” Id. at 727-28.

¶13 HN10 Mirroring the language in the two cases set out above, WAC 458-20-179(b)(i) defines “subject to control by the state” as “control by the utilities and transportation commission or any other state agency required by law to exercise control of a business of a public service nature regarding rates charged or services rendered.” (Emphasis added.) As a common or contract carrier,³ Echo is required to obtain a permit from the Washington State Utilities and Transportation Commission. RCW 81.80.070(1). In order to successfully obtain a permit, a carrier must “establish safety fitness and proof of minimum financial responsibility as provided in this chapter.” RCW 81.80.070(3). Echo does not expand on what these requirements entail, and it concedes it is not subject to rate regulation by law or by the Commission. This is not sufficient under the definition set out in WAC 458-20-179.

¶14 The State’s potential power to regulate freight brokers is also limited by federal preemption. Under 49 U.S.C. § 14501(b)(1), “no State or political subdivision … shall enact or enforce any law, rule, regulation, standard, or other provision [*10] having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.” The next subsection of this statute provides that no state may “enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of … any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).

¶15 HN12 Based on the definition in WAC 458-20-179 and under federal law, freight brokers are not subject to control by the State.

B. Declared to Be of a Public Service Nature

¶16 Finally, Echo argues the legislature has declared that freight brokers are public service businesses. HN13 Under RCW 82.16.010(7)(a), a public service business includes “any business hereafter declared by the legislature to be of a public service nature.”

¶17 Echo relies on RCW 81.20.010 and 81.80.020 in support of this proposition. RCW 81.80.020 states, “The business of operating as a motor carrier of freight for compensation along the highways of this state is declared to be a business affected with a public interest.” RCW 81.20.010 defines “public service company” as “any person, firm, association, or corporation, whether public or private, operating a utility [*11] or public service enterprise subject in any respect to regulation by the utilities and transportation commission under the provisions of this title or Title 22 RCW.” The Department counters that RCW 81.80.020 applies only to businesses “operating as a motor carrier of freight,” which excludes freight brokers because they do not transport freight. The Department also correctly notes that neither statutory provision explicitly mentions freight brokers, but Echo contends that “motor carrier” includes common and contract carriers, which do explicitly include brokers. RCW 81.80.010(3).

¶18 HN14 RCW 81.80.020 states that “[t]he rapid increase of motor carrier freight traffic and the fact that under the existing law many motor trucks are not effectively regulated have increased the dangers and hazards on public highways and make it imperative that regulation to the fullest extent allowed … should be employed.” The statute focuses on the proper development and preservation of public highways and the stability of public transportation services for the public. This plain language contradicts Echo’s argument that the statute captures freight brokers because brokers do not directly transport goods on public highways, nor do they provide [*12] a transportation service to the public; brokers like Echo provide coordination and facilitation services between customers and carriers who do operate motor transportation vehicles.

¶19 HN15 Additionally, the Department correctly notes that “a business affected with a public interest” and a “business … of a public nature” are different. “We presume the legislature intends a different meaning when it uses different terms.” Foster v. Dep’t of Ecology, 184 Wn.2d 465, 473, 362 P.3d 959 (2015). RCW 82.16.010(7)(a) defines a “public service business” as “any business hereafter declared by the legislature to be of a public service nature,” while RCW 81.80.020 declares that “[t]he business of operating as a motor carrier of freight for compensation along the highways of this state is declared to be a business affected with a public interest.” (Emphasis added.) In Merriam-Webster Online Dictionary, the definition of “nature” includes “disposition, temperament,” “the inherent character or basic constitution … of a person or thing : essence” or “a kind or class usually distinguished by fundamental or essential characteristics.” https://www.merriam-webster.com/dictionary/nature (last visited June 10, 2022). Merriam-Webster defines “affected” as “inclined, disposed.” https://www.merriam-webster.com/dictionary/affected [*13] (last visited June 10, 2022). HN16 We presume that the legislature used these different terms to mean different things; “nature” implies a fundamental characteristic distinguishing one category from another, while “affected” is a more ancillary characteristic or inclination.

¶20 HN17 The full declaration of policy in RCW 81.80.020 highlights this distinction: the statute discusses the importance of preserving public highways and the need for “stabilized service and rate structure” of motor carriers for the public. This supports a reading of “affected with a public interest” as implicating a community-wide concern, rather than distinguishing a business category from others. Under the plain language of the statute, there is not a clear statement from the legislature that freight brokers are “of a public service nature,” and therefore Echo does not qualify for the PUT.

¶21 Affirmed.

Dwyer and Bowman, JJ., concur.

End of Document

¹Ch. 34.05 RCW.

²“‘[A] word is known by the company it keeps.’” McDonnell v. United States, 579 U.S. 550, 569, 136 S. Ct. 2355, 195 L. Ed. 2d 639 (2016) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 6 L. Ed. 2d 859, 1961-2 C.B. 254 (1961)).

³HN11 “Common carrier” and “contract carrier” include freight brokers. RCW 81.80.010(3).