SAM HARGROVE, et al, PLAINTIFFS Vs. SLEEPY’S, LLC, DEFENDANT

 

CIVIL NO. 10-1138 (PGS)

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

 

2016 U.S. Dist. LEXIS 156697

 

 

October 25, 2016, Decided

 

 

COUNSEL:  [*1] For Sam Hargrove, individually and on behalf of all others similarly situated, Andre Hall, individually and on behalf of all others similarly situated, Marco Eusebio, individually and on behalf of all others similarly situated, Plaintiffs: ANTHONY L. MARCHETTI, JR., MARCHETTI LAW, P.C., Cherry Hill, NJ USA.

 

For Sleepy’s Llc, Defendant, Cross Claimant, Third Party Plaintiff: KIMBERLY J. GOST, LEAD ATTORNEY, HOLLY ELIZABETH RICH, PAUL CALVIN LANTIS, LITTLER MENDELSON P.C., Philadelphia, PA USA; THEO E.M. GOULD, LITTLER MENDELSON PC, New York, NY USA.

 

JUDGES: BEFORE: THE HONORABLE PETER G. SHERIDAN, UNITED STATES DISTRICT COURT JUDGE.

 

OPINION BY: PETER G. SHERIDAN

 

OPINION

 

COURT’S OPINION OF CROSS-MOTIONS FOR SUMMARY JUDGMENT/DEFENDANT’S MOTION TO STRIKE VITERI DECLARATION

THE COURT: This matter comes before the Court on three motions; two motions for summary judgment, and a motion to strike the declaration of Tito Viteri filed by the plaintiffs. The Court has reviewed the facts of this case several times, but specifically, plaintiffs allege that they were not paid for overtime work under the New Jersey Wage and Hour Law, and that the plaintiffs were employees rather than independent contractors. The resolution of the [*2]  cross-motions for summary judgment is a determination of whether the plaintiffs are independent contractors or employees.

In a prior motion several years ago, this Court erroneously applied the right-to-control test as set forth by the Supreme Court in Nationwide v. Darden, and determined that the plaintiffs were independent contractors and not employees. The matter went to the Third Circuit; the Third Circuit indicated that the Supreme Court of New Jersey should resolve the standard for determining whether a person is an independent contractor or an employee. As a result, the Third Circuit petitioned the Supreme Court of New Jersey for certification on that question. The Supreme Court and the Third Circuit indicated that this Court should utilize the “ABC test” to determine if the plaintiffs are independent contractors or employees.

Factually, Sleepy’s is a New York based mattress and bedding company, has six distribution centers, including one in Robbinsville, New Jersey. Sleepy’s frequently contracts with individuals and delivery companies (hereinafter referred to as deliverers or delivery drivers) to deliver mattresses, beds, and other products to customers. Consequently, such deliverers [*3]  enter into an Independent Driver Agreement (IDA) with Sleepy’s, and these driver agreements state that the deliverers are independent contractors and “not employees of Sleepy’s.” According to plaintiffs, Sleepy’s classified all of its delivery drivers as independent contractors to “save money.” Plaintiffs entered into driver agreements with Sleepy’s on behalf of businesses they owned or controlled, and/or on behalf of themselves. Hargrove formed I Stealth and entered into an IDA with Sleepy’s in 2008; Hall entered into an IDA with Sleepy’s in 2005; Eusebio created Eusebio Trucking in September 2003, and Eusebio entered into two separate IDAs with Sleepy’s, one in 2003, one in 2005. Mr. Eusebio also partially owned Curva Trucking, which entered into an IDA with Sleepy’s in 2008.

Plaintiffs allege that they work full-time making deliveries for Sleepy’s. Plaintiffs could not perform deliveries for other companies while performing deliveries for Sleepy’s. Plaintiffs never received any income from any other source. Plaintiffs were free to use their vehicles and personnel to perform deliveries for other companies who are not performing deliveries for Sleepy’s. According to the IDAs, plaintiffs [*4]  agree that “while performing deliveries for Sleepy’s, they would not carry merchandise or any other business until they furnished the delivery manifest given to them by Sleepy’s at the end of the day.” The delivery invoices indicated that plaintiffs were “independent truckers”, and one of the terms and conditions of the customer invoices stated that the “deliverers and deliverers’ personnel agree that they were not employees of Sleepy’s and are not entitled to and hereby waive any claim to any benefit provided by Sleepy’s.”

Delivery services appear to be an integral part of Sleepy’s business. One of Sleepy’s goals is to ensure that Sleepy’s customers receive the same type of delivery services. The delivery function of Sleepy’s starts with a sale, at which time the Sleepy’s customer selects a delivery time and is charged for the delivery. Sleepy’s then decides what truck will deliver the mattress. Thereafter, the Sleepy’s employee devises a route with delivery time windows and assigns those routes to delivery drivers through the use of a software program. About 90 percent of Sleepy’s sales are deliveries. After each delivery, plaintiffs are required to enter the delivery into a Sleepy’s [*5]  system called an Agentek scanner, which in turn enters a delivery into Sleepy’s database. In addition to the Agentek scanner, Sleepy’s provides plaintiffs with packing tape, mattress bags, credit card swiper and other paperwork required by Sleepy’s. Plaintiffs are also required by Sleepy’s to maintain hand tools to accommodate proper delivery. All of the plaintiffs report to Sleepy’s warehouse in Robbinsville, New Jersey. At that location they’re provided with daily delivery manifests, their trucks are loaded with Sleepy’s merchandise, and they also make returns to the Robbinsville facility after completing their deliveries. The plaintiffs spend about two to three hours at the beginning of each day at the Robbinsville warehouse, and they’re required to return to the warehouse at the end of the day to make returns of merchandise and pick up delivery and to deposit money orders.

Sleepy’s requires all deliverers, that one driver and one helper work on each truck, and both persons must spend their workday together on the road. Plaintiffs are not required to punch a time clock. Plaintiffs are required to obtain worker comp insurance and motor vehicle insurance. Plaintiffs require Sleepy’s [*6]  to be an additional insured on the motor vehicle and on their worker compensation insurance. Sleepy’s requires the employees to maintain a $5,000 employee dishonesty bond. Sleepy’s requires plaintiffs to display the Sleepy’s logo on their trucks. And Sleepy’s prohibits the deliverers to display any other advertising on their trucks without Sleepy’s consent. Sleepy’s does not schedule meal periods or break times, nor does Sleepy’s monitor the hours worked by the delivery trucks. Sleepy’s also does not schedule vacation time. Sleepy’s does not advise plaintiffs of directions or traffic patterns to use during their workday. Sleepy’s requires the deliverers to wear a Sleepy’s uniform, which says Delivery Professional on it, and they have Sleepy’s ID badges. Sleepy’s trains the delivery drivers on how they should act with customers. Sleepy’s provides a training manual. Sleepy’s performs field audits and inspects the trucks for compliance with Sleepy’s policies. If one of the deliverers fails to follow Sleepy’s rules, they’re subject to discipline, including a loss of pay. Sleepy’s advises the deliverers the time at which they should appear at work, and if a driver is late Sleepy’s could [*7]  reassign the work to another driver. In the IDA between Sleepy’s and the deliverer, they may be terminated without cause and without notice. Sleepy’s requires deliverers and their helpers to undergo background checks prior to working for Sleepy’s.

Summary judgment is appropriate under Rule 56(c) when a moving party demonstrates there is no genuine issue of material fact, and that the evidence establishes the moving party’s entitlement to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317 at 322 (1986). A factual dispute is genuine if a reasonable jury can return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. That’s Anderson v. Liberty Lobby, 477 U.S. 242 at 248. Generally, on a motion for summary judgment the district court does not make credibility determinations or engage in any weighing of the evidence, instead the non-moving party’s evidence is to be believed and all justifiable inferences are to be drawn in the non-moving party’s favor. That’s Marino v. Industrial Crating, 358 F.3rd 241, at 246-47.

Moreover, the only disputes of fact that might affect the outcome of the lawsuit under governing law will preclude entry of summary judgment. That’s Anderson, 477 U.S. 247, 248. If the court determines, after drawing all inferences in favor of the non-moving party and making all credibility [*8]  determinations in his favor, that no reasonable jury could find for him, summary judgment is appropriate. That’s Alevras v. Tacopina, 226 Fed. App’x 222, at 227 (3d. Cir. 2007).

The ABC test. This Court must apply the decision of the New Jersey Supreme Court in Hargrove v. Sleepy’s. The appropriate test is the ABC test. The ABC test is derived from the New Jersey Unemployment Compensation Act, and governs whether a plaintiff is an employee or independent contractor for purposes of resolving wage payments or wage and hour claims. The test is as follows. The ABC test presumes an individual is an employee, unless the employer can make certain showings regarding the individual employed, including: (A) such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; (B) such service is either outside the usual course of business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; (C) such individual is customarily engaged in an independently established trade, occupation, profession or business. N.J.S.A. 43:21-19(i)(6). See, Hargrove v. Sleepy’s, 612 Fed. App’x at 118. Moreover, the inability to meet any [*9]  one of these three criteria results in a finding that the individual is an employee. Hargrove v. Sleepy’s, 612 Fed. App’x at 117.

Now, looking at prong (A), in order to satisfy prong (A) the employer must show that it neither exercised control over the worker, nor had the ability to exercise control in terms of completion of work. That’s Hargrove v. Sleepy’s, 220 N.J. 289, 305 (2005). The Court finds that Sleepy’s exercised control over the deliverers’ work. Sleepy’s required the deliverers to sign IDAs. The IDA required that the deliverers could not perform any other business while on duty with Sleepy’s. The IDA required plaintiffs to purchase insurance and list Sleepy’s as an additional insured. The IDA required the deliverers to wear Sleepy’s uniforms and to display Sleepy’s logos on their truck. Moreover, Sleepy’s supervised and monitored plaintiffs’ work through the Agentek system, and Sleepy’s also directed the time each plaintiff was to start work. Sleepy’s also controlled the delivery process in that Sleepy’s trained the deliverers on how to interact with customers, how the trucks needed to be loaded, and how to fill out Sleepy’s paperwork. In addition, the deliverers were given specific routes to follow in making their deliveries, and Sleepy’s could monitor the [*10]  deliverers’ movements through the Agentek system. And lastly, Sleepy’s performed surprise audits to determine whether the deliverers were appropriately delivering bedding products. As such, the plaintiffs have shown that they have not been free from control or direction over the performance of their services. See, generally, Restatement of Agency, Supra, Section 220; and Carpet Remnant v. N.J. Department of Labor, 125 N.J. 567, 582 (1991).

Now, looking at prong (B), although the Court did not have to reach any other prong after finding that the deliverers were not free from control of Sleepy’s, it will review prong (B) anyway. Part (B) of the ABC test requires that the employer show that the services provided were either outside the usual course of business, or that the service is performed outside of all places of business of the enterprise. See, Hargrove, 220, at 459.

Here, in this case, Sleepy’s is not a trucking company, but part of its marketing scheme is quick delivery of mattresses and other mattress accessories. Although Sleepy’s advertises white glove delivery services, and employs approximately 100 individuals at its Robbinsville warehouse, the Court is unpersuaded that Sleepy’s is not engaged in the delivery business. It is clear Sleepy’s is engaged in the mattress business, and [*11]  an integral part of its business is the delivery. See, Carpetland v. Illinois Department of Employment, 211 Ill. 2d. 351, 386 (2002).

The last portion is prong (C). Prong (C) calls for an enterprise that exists and can continue to exist independently of and apart of the particular service relationship. This enterprise must be one that is stable and lasting, one that will survive the termination of the relationship. Hargrove, 220 N.J. at 306. Generally, the ABC test is satisfied when an individual has a profession that will plainly persist despite termination of the challenged relationship. As one court noted, when the relationship ends and the individual joins the ranks of the unemployed, this element of the test is not satisfied. See, Chmizlak v. Levine, 20 N.J. Misc. 339 (1942). Sleepy’s cannot meet prong (C) because plaintiffs were customarily engaged in the delivery service. The plaintiffs contend they did not work for any other company; plaintiffs will rely on Sleepy’s for their income. Some of the plaintiffs earned 100 percent of their income from Sleepy’s. The plaintiffs also note that they could not deliver other equipment or merchandise while they’re working for Sleepy’s. In light of these facts, the Court finds that at the time of the end of the relationship between plaintiffs and Sleepy’s, the plaintiffs would join [*12]  the ranks of the unemployed, and therefore, prong (C) is not met.

Lastly, Sleepy’s contends that the FAAAA preempts plaintiffs’ case. The FAAAA provides that a state may not enact or endorse a law or regulation or other provision having the force and effect of law related to a price, route or service of a motor carrier with respect to transportation of property. 49 U.S.C. Section 14501(c)(1). The Third Circuit has indicated that: It’s a well-established principle that the court should not lightly infer preemption. Gary v. The Air Group, 397 F.3d 183, 190 (3d. Cir. 2005). Moreover, this principle is “particularly apt in the employment law context, which falls squarely within the traditional police powers of the states, and, as such, should not be disturbed lightly.” See, International Paper v. Ouellette, 479 U.S. 481, 491 (1987). The Third Circuit has noted that “garden variety employment claims” in particular, are not preempted by the FAAAA. See, Id. at 189. Here, the Court finds that the plaintiffs’ claims are in the employment law context, which fall “squarely within the traditional power of the states, and, as such, should not be disturbed lightly.” While requiring that Sleepy’s classify plaintiffs as employees may have some impact on Sleepy’s hiring practices and costs, there is no evidence before the Court that classifying the [*13]  drivers as employees would fundamentally impact the business of Sleepy’s. The application of the ABC test to Sleepy’s only has a tenuous effect on the carriers’ prices and services. See, Rowe, 552 U.S. at 371. Moreover, because the Court found under prong (B) that Sleepy’s is not primarily a motor carrier, the FAAAA preemption does not seem to apply to Sleepy’s. See, Schwaunn v. FedEx, 813 F.3d 429; Porillo v. National Freight, U.S. District Court, District of New Jersey, docket number 15-07908. For these reasons, the defendant’s motions for summary judgment are denied.

For the foregoing reasons, the plaintiffs’ motion for summary judgment as to their employment status as employees is granted, and defendant’s motion for summary judgment is denied.

 

ELIZABETH DIAL JORDAN, Plaintiff, vs. BLACKWELL TOWING, Defendant.

 

CA 16-0522-CG-C

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION

 

2016 U.S. Dist. LEXIS 149821

 

 

October 27, 2016, Decided

October 27, 2016, Filed

 

 

COUNSEL:  [*1] For Elizabeth Dial Jordan, Plaintiff: William J. Casey, LEAD ATTORNEY, Mobile, AL.

 

JUDGES: WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.

 

OPINION BY: WILLIAM E. CASSADY

 

OPINION

 

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(S), on plaintiff’s amended complaint (Doc. 7) and motion to accept jurisdiction or, in the alternative, order the Circuit Court of Mobile County to accept jurisdiction (Doc. 6). Upon consideration of the foregoing pleadings, along with the October 13, 2016 Order questioning this Court’s subject-matter jurisdiction (Doc. 5), the Magistrate Judge RECOMMENDS that the Court DENY plaintiff’s motion to accept jurisdiction or, in the alternative, order the Circuit Court of Mobile County to accept jurisdiction (Doc. 6) and DISMISS this action for lack of subject matter jurisdiction.

 

FINDINGS OF FACT

On October 7, 2016, Elizabeth Dial Jordan filed a complaint in this Court in which she alleged three state-law claims (conversion, intentional infliction of emotional distress, and negligent or wanton supervision) arising out of the defendant’s towing of her automobile to its lot on September 15, 2016. [*2]  (Doc. 1, at 1-2.) Therein, plaintiff stated the following: “This Court has jurisdiction to hear this matter regarding trade regulations. The code section related is 49 U.S.C. 14501(c).” (Id. at 1.) Upon receipt of the complaint, the undersigned entered an order on October 13, 2016 to inquire into subject matter jurisdiction. (See Doc. 5, citing University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.”) and Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).)

 

District courts are “courts of limited jurisdiction” that are “empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution.” Univ. of S. Ala., 168 F.3d at 409 (citation and quotations omitted). “Whether a claim arises under federal law for purposes of 28 U.S.C. § 1331 is generally determined by the well-pleaded complaint rule, ‘which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.'” Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987)). “A well-pleaded complaint presents a federal question where it ‘establishes either that federal law creates the cause of action or that [*3]  the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.'” Smith, 236 F.3d at 1292 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr. For S. Cal., 463 U.S. 1, 27-28, 103 S. Ct. 2841, 2856, 77 L. Ed. 2d 420 (1983)).

The complaint in this action contains only state law causes of action and a short recitation of a federal statute, and does not show that a “resolution of a substantial question of federal law” is necessary in order for the Plaintiff to obtain her requested relief. In light of the foregoing, the Plaintiff is hereby ORDERED to file a supplement to her complaint that explains the Court’s jurisdiction over this matter on or before October 24, 2016. Unless the Plaintiff is able to clearly show that this Court has jurisdiction over the claims raised, it will be the undersigned’s recommendation that this action be dismissed for lack of subject matter jurisdiction.

 

 

(Id. at 2-3 (emphasis in original).)

In response to the foregoing order, plaintiff filed, on October 21, 2016, a motion to accept jurisdiction or, in the alternative, order Circuit Court of Mobile County to accept jurisdiction (Doc. 6) and, on October 24, 2016, an amended complaint (Doc. 7). The motion to accept jurisdiction reads, in relevant measure, as follows:

 

1. This is an action under 49 U.S.C. 14501. The Plaintiff Elizabeth Dial [*4] Jordan is an individual living in Baldwin County, Alabama. The Defendant Blackwell Towing is a towing company based in Mobile, Alabama whose employees are engaged in interstate commerce and whose employees are involved in the towing of vehicles in interstate commerce.

. . .

3. The Plaintiff’s auto was wrongfully towed and removed by the Defendant and the cause of action falls under section 6-5-260 Alabama Code (1975).
4. This Court has jurisdiction to hear this matter regarding trade regulations. The code section related is 49 U.S.C. 14501(c).
5. This Court has jurisdiction in accordance with 49 U.S. CODE SECTION 14501(c), venue is proper pursuant to 28 U.S.C. SECTION 1391.
6. The State of Alabama recognizes that the laws of the State of Alabama regarding towing are preemptive (sic)1 by 49 U.S.C. 14501(c) and that issues concerning the regulation of towing is a federal question, Weatherspoon v. Tillery Body Shop Inc., 44 So.3d 447 (2010)2 (see exhibit). The issue has been addressed by the Circuit Court of Mobile County in Gildersleeve v. Steve Young Towing CV-08-900518 (2008) (see exhibit) where the circuit court found that the state court lacked subject matter jurisdiction because it was a federal question under 49 U.S.C. 14501.3
7. Plaintiff’s attorney has found that the Mobile County Circuit Court has historically refused to address issues related to the subject matter related [*5] to this case.
8. Plaintiff wishes for a court date in the jurisdiction this Court finds to be the proper venue.

 

 

(Doc. 6, at 1 & 2 (footnotes added).) Plaintiff’s amended complaint contains most of the “facts” and “jurisdictional” statements set forth in the foregoing motion (compare Doc. 7, at 1-2 with Doc. 6, at 1 & 2) and only “adds” to the jurisdictional statements the following: “This Court has jurisdiction in accordance with 28 U.S.C. SECTION 1331 because this issue is governed by 49 U.S. CODE SECTION 14501(c)[.]” (Doc. 7, at 1.)

 

1   Plaintiff meant to use the word “preempted.” See infra, n.2 (the Supreme Court’s discussion of Weatherspoon in Pelkey).

2   The Alabama Supreme Court’s decision in Weatherspoon v. Tillery Body Shop Inc., 44 So.3d 447 (2010) was referenced by the United States Supreme Court in Dan’s City Used Cars, Inc. v. Pelkey, 133 S.Ct. 1769, 1777-1778, 185 L.Ed.2d 909 (2013) (noting that in Weatherspoon the Alabama Supreme Court determined that “§ 14501(c)(1) preempts state statutory and common-law claims arising out of storage and sale of a towed vehicle”); see also id. at 1777 (“We granted certiorari to resolve a division of opinion in state supreme courts on whether 49 U.S.C. § 14501(c)(1) preempts a vehicle owner’s state-law claims against a towing company regarding the company’s post-towing disposal of the vehicle.”), and then abrogated, the Supreme Court holding that “49 U.S.C. § 14501(c)(1) does not preempt state-law claims for [*6]  damages stemming from the storage and disposal of a towed vehicle.” 133 S.Ct. at 1781. Accordingly, Weatherspoon cannot in any manner inform this Court’s analysis of whether it may exercise subject-matter jurisdiction in this case.

3   As for plaintiff’s citation to Gildersleeve v. Young, 66 So.3d 263 (Ala.Civ.App. 2010) (see Doc. 6, Exhibit 1 (plaintiff attached the slip opinion in Gildersleeve before it was actually published in the reporter)), the undersigned initially notes that the Mobile County Circuit Court did not find that it lacked subject-matter jurisdiction, as plaintiff appears to suggest; indeed, the Circuit Court of Mobile County specifically determined, following an ore tenus proceeding, that (Continued) “the tower was not liable to the owner on the sole claim asserted by the owner (conversion).” 66 So.3d at 264. Instead, it was the Alabama Court of Civil Appeals that concluded “in light of § 14501(c), the trial court lacked subject-matter jurisdiction to entertain the owner’s claim against the tower.” Id. at 267. The appellate court prefaced its holding with the following observation: “The state-law conversion claim asserted by the owner in this case against the tower is not materially different from the state-law conversion claims held in Weatherspoon and Salazar to have been [*7]  preempted by federal law.” Id. (emphasis supplied). Given Gildersleeve’s prominent reliance upon the now abrogated Weatherspoon, and in consideration of the fact that the machinery owner in Gildersleeve was attacking the post-towing disposal of that machinery, the undersigned questions the remaining viability of the decision of the Alabama Court of Civil Appeals. At the very least, Gildersleeve does not inform this Court’s jurisdictional analysis.

 

CONCLUSIONS OF LAW

As previously made clear to the plaintiff (see Doc. 5), this Court must first determine whether it has subject matter jurisdiction over this lawsuit. In her amended complaint, plaintiff perfunctorily alleges that “[t]his Court has jurisdiction in accordance with 28 U.S.C. SECTION 1331 because this issue is governed by 49 U.S. CODE SECTION 14501(c)[.]” (Doc. 7, at 1.)4 28 U.S.C. § 1331 specifically provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Id. The Eleventh Circuit has made clear time and again that “a federal question must appear on the face of a plaintiff’s well-pleaded complaint for a claim to arise under federal law.” Ammedie v. Sallie Mae, Inc., 485 Fed.Appx. 399, 401 (11th Cir. Jul. 31, 2012),5 citing Community State Bank v. Strong, 651 F.3d 1241, 1251 (11th Cir. 2011). Here, plaintiff’s amended complaint contains only [*8]  state law causes of action–conversion, intentional infliction of emotional distress, negligent and wanton supervision, and unjust enrichment–and nowhere alleges a violation of federal law (see Doc. 7); therefore, it does not raise a federal question on its face.

 

4   Plaintiff invokes no other basis (e.g., diversity jurisdiction) for this Court to exercise subject matter jurisdiction. (See Doc. 7.)

5   “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.R. 36-2.

Because a federal question does not appear on the face of Jordan’s amended complaint, then her action “arises under federal law only if it ‘falls within the special category of federal question jurisdiction created by the doctrine of complete preemption.'” Ammedie, supra, 485 Fed.Appx. at 401, quoting Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005).

 

This doctrine applies where Congress has “preempt[ed] an area of law so completely that any complaint raising claims in that area is necessarily federal in character and therefore necessarily presents a basis for federal court jurisdiction.” [Cotton, supra, 402 F.3d at 1281] (quotation omitted).

Complete preemption is “a rare doctrine,” Cmty. State Bank, 651 F.3d at 1261 n.16, and “[t]he Supreme Court has applied [it] to only three federal statutes: § 301 of the [Labor-Management Relations Act], the  [*9] Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132, and §§ 85 and 86 of the National Bank Act.” Atwater v. Nat’l Football League Players Ass’n, 626 F.3d 1170, 1176 n.7 (11th Cir. 2010). Moreover, “[t]he Supreme Court has cautioned that complete preemption can be found only in statutes with ‘extraordinary’ preemptive force.” Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1353 (11th Cir. 2003).

Complete preemption, a jurisdictional doctrine, is distinct from “defensive,” or “ordinary,” preemption, which “allows a defendant to defeat a plaintiff’s state-law claim on the merits by asserting the supremacy of federal law as an affirmative defense.” Cmty. State Bank, 651 F.3d at 1261 n.16.6 Defensive preemption does not create subject matter jurisdiction. See id. That is, “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.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

Complete preemption is narrower than defensive preemption, such that a state-law claim may be defensively preempted but not completely preempted for jurisdictional purposes. Cotton, 402 F.3d at 1281. However, “claims that are completely preempted are also defensively preempted,” and “[t]hus, if it appears that a claim is not even defensively preempted, then it will not be completely preempted either.” [*10]  Id. Therefore, “defensive preemption cases may inform the complete preemption analysis.” Id. at 1281-82.

 

 

Ammedie, 485 Fed.Appx. at 401-402 (footnote added).

 

6   See BLAB T.V. of Mobile, Inc. v. Comcast Cable Communications, Inc., 182 F.3d 851, 854-855 (11th Cir. 1999) (“[C]omplete preemption functions as a narrowly drawn means of assessing federal removal jurisdiction, while ordinary preemption operates to dismiss state claims on the merits and may be invoked in either federal or state court.”).

Regardless of plaintiff’s reasons for filing her complaint in this Court,7 it is clear to the undersigned “that section 14501(c) does not create federal question jurisdiction[,]” as previously held by this Court in Carolina Cas. Ins. Co. v. Tony’s Towing, Inc., 2011 U.S. Dist. LEXIS 107849, 2011 WL 4402147, *4 (S.D. Ala. Sept. 22, 2011) following a discussion of the complete preemption doctrine, see 2011 U.S. Dist. LEXIS 107849, [WL] at *2-3. And nothing that has happened in the years since Carolina Cas. Ins. Co. was decided would point to a different result. Cf. Norfolk Southern Ry. Co. v. Goldthwaite, 176 So.3d 1209, 1210 (Ala. 2015) (“In January 2014, Norfolk Southern had the case removed to the United States District Court for the Northern District of Alabama, Southern Division, on the ground that Goldthwaite’s claims were completely preempted by the Interstate Commerce Commission Termination Act of 1995 . . . and that the federal district court, pursuant to 28 U.S.C. § 1331, had federal-question jurisdiction for the limited purpose of dismissing the action. In April 2014, the federal district court held that it lacked [*11]  subject-matter jurisdiction over the action because Goldthwaite’s state-law claims were not completely preempted by the ICCTA. Specifically, the federal district court held that Norfolk Southern had failed to satisfy its burden of proving complete preemption because the evidence did not establish that Goldthwaite had pleaded a clear-cut federal cause of action; rather, the court held, Goldthwaite had pleaded a state-law cause of action that may be preempted by federal law. Holding that removal of the action from state court was not proper, the federal district court remanded the case to the Jefferson [County] Circuit Court.” (emphasis in original)), cert. denied, 136 S. Ct. 67, 193 L. Ed. 2d 31 (2015). As previously noted, the Supreme Court in Pelkey, supra,8 held that “49 U.S.C. § 14501(c)(1) does not preempt state-law claims for damages stemming from the storage and disposal of a towed vehicle[,]” 133 S.Ct. at 1781, thereby abrogating the primary case–Weatherspoon9–upon which plaintiff’s counsel relies in support of filing plaintiff’s complaint in this Court (see Doc. 7, at 2). Moreover, the face of the statute itself, which has been modified in one significant aspect since even the Supreme Court’s 2013 decision in Pelkey, cannot be reconciled with a finding that plaintiff’s [*12]  complaint falls within the special category of federal question jurisdiction created by the doctrine of complete preemption. This is because immediately following the general federal preemption language set forth in § 14501(c)(1) (“Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not 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 carrier . . . with respect to the transportation of property.”), the statute delineates several exceptions, see 49 U.S.C. § 14501(c)(2)(A)-(C), that is, matters not covered by paragraph (1). While the public safety exception to preemption, 49 U.S.C. § 14501(c)(2)(A), see Galactic Towing, Inc. v. City of Miami Beach, 341 F.3d 1249 (11th Cir. 2003), and the intrastate transportation of household goods exception to preemption, 49 U.S.C. § 14501(c)(2)(B), do not appear to be implicated in this case, the same cannot be said for the non-consent tow exception to preemption, 49 U.S.C. § 14501(c)(2)(C) (“Paragraph (1) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the regulation of tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle.”), inasmuch as Jordan [*13]  specifically complains about the defendant towing her automobile “without cause and charg[ing] her $380.00 to redeem her auto from the [d]efendant’s lot.” (Doc. 7, at 2; see also id. (“The [d]efendant towed the [p]laintiff’s auto less than 1 mile and stored it less than 1 hour.”).) When Pelkey was decided in 2013, this exception was arguably narrower, being directed solely to the price of non-consent tows, see Pelkey, supra, 133 S.Ct. at 1781 n.6 (“The Act spares from preemption laws ‘relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed [as it was here] without the prior consent or authorization of the owner or operator of the motor vehicle.’ 49 U.S.C. § 14501(c)(2)(C).”), and now appears to have expanded to except not just price related to non-consent tows but, instead, the regulation of all “tow truck operations” related to non-consent tows, see 49 U.S.C. § 14501(c)(2)(C). While this Court has no occasion to decide whether Jordan’s action falls within the non-consent tow exception to preemption,10 the undersigned would note that the prominence of the exceptions to the general federal preemption language set forth in § 14501(c)(1) is inconsistent with any suggestion that complete preemption exists.

 

7   See Carolina Cas. Ins. Co., infra, 2011 U.S. Dist. LEXIS 107849, [WL] at *4 (commenting on the inconsistency in a plaintiff arguing, on the [*14]  one hand, in favor of the ICCTA–in that case and this one, § 14501(c)(1)–as a jurisdictional “hook,” to only turn around and argue, on the other hand, that the Act should not be applied to preempt the state law claims asserted in the complaint).

8   Compare 133 S.Ct. at 1778 (“The [Act’s] preemption clause prohibits enforcement of state laws related to a price, route, or service of any motor carrier . . . with respect to the transportation of property. 49 U.S.C. § 14501(c)(1). . . . The phrase related to, we said [in Rowe v. New Hampshire Motor Transp. Assn., 552 U.S. 364, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008)], embraces state laws having a connection with or reference to carrier rates, routes, or services, whether directly or indirectly. . . . At the same time, the breadth of the words related to does not mean the sky is the limit. . . . [W]e have cautioned that § 14501(c)(1) does not preempt state laws affecting carrier prices, routes, and services in only a tenuous, remote, or peripheral . . . manner.” (internal quotation marks omitted)) with Taylor v. Alabama, 275 Fed.Appx. 836, 841 (11th Cir. Apr. 29, 2008) (“[A] state law is only preempted if it has a ‘significant impact on carrier rates, routes, or services.'” (emphasis in original)).

9   As well, since the other opinion plaintiff’s counsel relies upon–Gildersleeve–itself relied in large measure upon Weatherspoon, it is of questionable import.

10   The undersigned would [*15]  note that no court sitting in Alabama (state or federal) has addressed the “new” language contained in § 14501(c)(2)(C).

Because complete preemption does not exist, Carolina Cas. Ins. Co., supra, 2011 U.S. Dist. LEXIS 107849, [WL] at *4, this Court lacks subject matter jurisdiction based on federal question jurisdiction. In truth, the best that plaintiff has established is that she has pleaded a state-law cause of action that may be preempted by 49 U.S.C. § 14501(c)(1). Therefore, should Jordan choose to file a complaint against Blackwell Towing in state court, it will be up to that court to determine whether her state-law claims are preempted by § 14501(c)(1) should the defendant raise such defense.

 

CONCLUSION

Based upon the foregoing, the Magistrate Judge recommends that the Court DENY the plaintiff’s motion to accept jurisdiction or, in the alternative, order the Circuit Court of Mobile County to accept jurisdiction (Doc. 6) and DISMISS this action for lack of subject matter jurisdiction.

 

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk [*16]  of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); S.D.Ala. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.