United States District Court,

E.D. Washington.

Ronald Kimsey, Plaintiff,

v.

SML Relocation Services; and Simple Movers, LLC., Defendants.

NO: 2:15-CV-0209-TOR

|

Signed 09/09/2016

 

 

ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

THOMAS O. RICE, Chief United States District Judge

*1 BEFORE THE COURT is Defendants’ Motion for Partial Summary Judgment Re Limitation of Damages Under the Carmack Amendment (ECF No. 20). This matter was heard with oral argument on September 9, 2016, in Spokane, Washington. Derek T. Taylor appeared on behalf of Plaintiff Ronald Kimsey. Justin R. Boland appeared on behalf of Defendants SML Relocation Services and Simple Movers, LLC. The Court—having reviewed the briefing, the record, and files therein and heard from counsel—is fully informed.

 

 

BACKGROUND

This action stems from an agreement between Plaintiff Ronald Kimsey (“Plaintiff”) and Defendants SML Relocation Services and Simple Movers, LLC (collectively, “Defendants”) to transport Plaintiff’s personal effects from Las Vegas, Nevada to Spokane, Washington. On May 15, 2015, Plaintiff filed a Complaint against Defendants in the Washington State Superior Court for Spokane County styled, Ronald Kimsey v. SML Relocation Services, et al., case no. 15-2-01863-3. ECF No. 1-1. Defendant Simple Movers, LLC subsequently removed the action to this Court pursuant to this Court’s jurisdiction under 28 U.S.C. § 1441, 28 U.S.C. § 1446, and 49 U.S.C. § 14706, ECF No. 1. On January 22, 2016, Plaintiff filed his Second Amended Complaint for Damages asserting negligence and breach of contract, and adding a third cause of action pursuant to the Carmack Amendment, 49 U.S.C. § 14706. ECF No. 18.

 

In the instant motion, Defendants move for partial summary judgment on all of Plaintiff’s claims. ECF No. 20 at 7. Defendants argue that Plaintiff’s (1) claims are preempted by the Carmack Amendment; and (2) damages are limited pursuant to the Full Service Move Valuation Options form signed by Plaintiff. ECF No. 20. Plaintiff concedes that breach of contract and negligence claims are preempted by the Carmack Amendment. ECF No. 23 at 4. However, Plaintiff avers that his damages should not be limited to a maximum of $0.60 per pound per article because Defendants failed to issue a bill of lading prior to the move and the damages limitation is not reasonable under the circumstances. Id. at 4-8.1

 

 

FACTS

The following are the undisputed material facts unless otherwise noted. Plaintiff hired Defendants to move his personal effects from Las Vegas, Nevada to Spokane, Washington in 2013. ECF No. 20 at 2; see ECF No. 23 at 2 (undisputed). On June 24, 2013, Plaintiff signed and returned a Quote to Defendants requesting relocation services to transport Plaintiff’s personal belongings from July 13, 2013 through July 16, 2013. ECF No. 20 at 2; ECF No. 21 at 6-7; see also ECF No. 22 at 5 (undisputed). That same day, Plaintiff initialed, signed, and returned a Full Service Move Valuation Options form to Defendants. ECF No. 20 at 6-7; ECF No. 21 at 9-10; see also ECF No. 22 at 5-6.

 

*2 The Full Service Move Valuation Options form provides “two types of valuation options” for the full service move: an Increased Carrier Valuation and a Released Value Valuation. ECF No. 21 at 9-10. Plaintiff selected the Released Value Valuation method of valuation computation, rather than the Increased Carrier Valuation. ECF No. 20 at 2-3; ECF No. 21 at 9-10; see also ECF No. 23 at 2 and ECF No. 22 at 6 (undisputed). The “Released Value Valuation provides repair or replacement for up to a maximum of $.60 per pound per article.” ECF No. 21 at 9-10.

 

On July 13, 2013, Plaintiff’s personal belongings were loaded in a moving truck in Las Vegas on July 13, 2013, and unloaded in Spokane on July 16, 2013. ECF No. 20 at 3; see ECF No. 23 at 2-3 (undisputed). On July 13, 2013 and July 16, 2013, Plaintiff received and signed a Household Goods Proposal/Contract for Moving Services. ECF No. 20 at 3-4; ECF No. 21 at 12; see ECF No. 22 at 5 (undisputed).2 The Household Goods Proposal/Contract for Moving Services references the $0.60 per pound per article carrier liability limitation. ECF No. 21 at 12.

 

After Defendants transported Plaintiff’s personal belongings to Spokane, Plaintiff noticed that certain items were damaged and others missing. ECF No. 20 at 4; see ECF No. 23 at 3.

 

 

DISCUSSION

1. Standard of Review

Summary judgment may be granted to a moving party who demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 36(a). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. For purposes of summary judgment, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed.” Fed. R. Civ. P. 56(e)(2); see also L.R. 56.1(d) (“[T]he Court may assume that the facts as claimed by the moving party are admitted to exist without controversy except as and to the extent that such facts are controverted by the record set forth [in the non-moving party’s opposing statement of facts]”).

 

For purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute concerning any such fact is “genuine” only where the evidence is such that the trier-of-fact could find in favor of the non-moving party. Id. “[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. (internal quotation marks and alterations omitted); see also First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968) (holding that a party is only entitled to proceed to trial if it presents sufficient, probative evidence supporting the claimed factual dispute, rather than resting on mere allegations). Moreover, “[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”).

 

*3 In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party, Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which would be admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). See also Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (“[I]n ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” (internal quotation marks and brackets omitted)).

 

 

1. Preemption Under the Carmack Amendment

Defendants move for partial summary judgment on all of Plaintiff’s claims, and assert that all are preempted by the Carmack Amendment, 49 U.S.C. § 14706. ECF No. 20 at 7. Plaintiff concedes that the Carmack Amendment preempts breach of contract and negligence claims. ECF No. 23 at 3-4. The Court agrees.

 

Briefly, the Carmack Amendment to the Interstate Commerce Act governs the liability of carriers for damage to goods transported in interstate commerce and defines the right to limit or disclaim liability imposed under the Amendment. 49 U.S.C. § 14706. It is well settled that the Carmack Amendment is the exclusive cause of action for interstate shipping contract claims alleging loss or damage to property, providing “a uniform national liability policy for interstate carriers.” Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 613 (9th Cir. 1992) (holding that preemption under the Carmack Amendment requires dismissal of a negligence claim); see also Hall v. North Am. Van Lines, 476 F.3d 683, 688-89 (9th Cir. 2007) (affirming dismissal of a breach of contract claim due to preemption under the Carmack Amendment).

 

Accordingly, the Court finds that the Carmack Amendment preempts Plaintiff’s breach of contract and negligence causes of action; Defendants are entitled to summary judgment on both claims.

 

 

1. Limitation of Damages Under the Carmack Amendment.

The Court turns its attention to whether Plaintiff’s damages are limited to a maximum of $0.60 per pound per article under the Carmack Amendment. Plaintiff avers that his damages should not be limited because Defendants did not issue a bill of lading prior to the move on July 13, 2013, and because the damage limitation is not reasonable under the circumstances. ECF No. 23 at 4-8.

 

At the outset, a carrier is subject to the requirements of the Carmack Amendment and required “to issue a receipt or bill of lading for property it receives for transportation.” 49 U.S.C. § 14706(a)(1); see also OneBeacon Ins. Co. v. Haas Industries, Inc., 634 F.3d 1092, 1097 (9th Cir. 2011). In turn, a “bill of lading” is characterized as a contract between the carrier and the shipper. 634 F.3d at 1098. A carrier is “liable to the person entitled to recover under the receipt or bill of lading” for any damage or loss to the property caused by the carrier during shipment calculated by the actual loss or injury to the property. § 14706(a)(1).

 

However, a carrier and shipper may agree to a “reasonable” value of the goods, for which the carrier will be liable in the event of damage or loss, in lieu of the actual value of the goods. § 14706(c)(1)(A). A carrier may “establish rates for the transportation of property … under which the liability of the carrier for such property is limited to a value established by … written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” § 14706(c)(1)(A). A carrier is liable for the full value of household goods, unless the shipper waives, in writing, the carrier’s maximum liability. See § 14706(f)(3).

 

*4 In Hughes, the Ninth Circuit set out a four-step inquiry for determining whether a carrier has effectively limited its liability under the Carmack Amendment. 970 F.2d at 611-12. A carrier may limit its liability, but it must: (1) at the shipper’s request, provide the shipper with a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based; (2) give the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtain the shipper’s agreement as to his choice of carrier liability limit; and (4) issue a bill of lading prior to moving the shipment that reflects any such agreement. OneBeacon Ins., 634 F.3d at 1099-1100 (citing Hughes, 970 F.2d at 611-12) (amending the first prong of the Hughes four-part test to reflect a statutory change).

 

Plaintiff challenges the reasonableness of Defendants’ rate and the fourth prong of the Hughes test regarding issuance of the bill of lading prior to shipment.

 

 

1. Rate Reasonableness

Plaintiff argues that due to the extraordinary nature and uniqueness of the damaged or missing items and Defendants’ actions, it is unreasonable to apply the $0.60 per pound valuation limitation. ECF No. 23 at 7-8. Plaintiff also contends that customers should not have to pay money to receive the actual value of their items. Id.

 

The Full Service Move Valuation Options form provided Plaintiff with two options for the valuation of his property in the event the property became damaged or lost. ECF No. 21 at 9-10. The first option, the Increased Carrier Valuation, would have required Defendants to “offer one of the following for each item, up to the declared value: (1) repair the item to the extent necessary to restore to the condition when received; (2) replace with an item of like kind and quality; (3) make a cash settlement for the cost of repair or full (replacement) cost.” Id. This option allowed for the valuation of high value items, such as antiques and rare collectible items, “based on the maximum liability restriction of $100 per pound per article unless the Item(s) is declared by the customer on the High-Value Article Inventory List and accepted by Defendants prior to the agreed upon moving date.” Id. In other words, under the Increased Carrier Valuation, high value items would have been covered for damage based on their accepted value. See id.

 

Instead, Plaintiff selected the Released Value Valuation option (at no cost) agreeing to accept “repair or replacement for up to a maximum of $.60 per pound per article.” Id. Plaintiff offered no legal authority in support of his contention that $0.60 per pound per article is unreasonable, only conclusive, speculative testimony, which is insufficient to raise genuine issues of fact and defeat summary judgment. Soremekun, 509 F.3d at 984. That Plaintiff could not afford the Increased Carrier Valuation option is irrelevant. ECF No. 24 at 1-2.

 

Courts have limited carrier liability premised on rates ranging from $0.10 to $0.60 per pound. See e.g., Hath v. Alleghany Color Corp., 369 F. Supp. 2d 1116, 1119 (D. Ariz. 2005) (limiting carrier liability to $0.10 per pound); OneBeacon Ins., 634 F.3d at 1100 (noting liability is limited to $50 or $0.50 per pound in the absence of a higher declared value); Hughes, 970 F.2d at 613 (affirming $0.60 per pound limited carrier liability).

 

The Court finds that Plaintiff had reasonable notice and an opportunity to make an informed choice in selecting the liability limitation when he selected the Released Value Valuation on June 24, 2013. ECF No. 21 at 9-10. While the Court is certainly sympathetic to the loss of Plaintiff’s collectibles and his father’s remains, the Court finds that Plaintiff has made no offer of proof tending to show the unreasonableness of the agreed upon rate, nor a lack of choice between the $.60 per pound liability limit and other options. Plaintiff’s testimony that he “did not understand it at the time” is belied by Plaintiff’s testimony that he selected the Released Rate Valuation because “[w]hen he signed the agreements [he] could not afford the Increased Carrier Valuation.” ECF No. 24 at 2-3.

 

*5 It is undisputed that Plaintiff was aware of the availability of the higher release value. Id. The Full Service Move Valuation Options form delineates the monetary discount provided to Plaintiff in return for selecting the no cost lower release value. ECF No. 21 at 9-10. Plaintiff received the liability limitation options, and then elected, in writing, to waive the additional liability coverage. Id. Accordingly, the Court finds that the agreed upon $0.60 per pound rate is reasonable.

 

 

2. Issuance of the Bill of Lading

Plaintiff contends that Defendants did not provide a copy of the bill of lading to Plaintiff before or after the shipment of goods, which precludes the Court from finding that the Released Value Valuation damage limitation applies. ECF No. 23 at 6-7.

 

At the outset, the Court finds that Defendants have satisfied their burden to meet all four prongs of the Hughes test. Hughes, 970 F.2d at 611-12. First, it is not contested that Defendants made its tariff available upon request. See 49 U.S.C. § 14706(c)(1)(B). Second, and as articulated above, Plaintiff had a “reasonable opportunity to choose between two or more levels of liability.” Hughes, at 611-12. Third, it is undisputed that Plaintiff simply chose not to purchase additional liability coverage, which effectively limited Defendants’ liability to $0.60 per pound per article. Finally, a bill of lading was issued prior to moving Plaintiff’s personal effects as evidenced by Plaintiff’s signature on the Household Goods Proposal/Contract for Moving Services on July 13, 2013, and his discovery admission in this action. See ECF No. 21 at 12; ECF No. 22 at 5. The Court finds Plaintiff’s assertion that he did not receive a copy of the bill of lading unpersuasive given that he admitted signing the bill of lading on the day of the move and again on completion of the move. See Gendler v. All Pro Van Lines, Inc., 464 F. Supp.2d 925, 926 (D. Ariz. 2005) (noting that a claim that a party did not receive a copy of a bill of lading is contradicted by the bill of lading bearing the party’s signature). Plaintiff’s signature on the bill of lading is dispositive and forecloses further debate about whether Defendants issued a bill of lading prior to the move.

 

Nevertheless, construing the evidence in the light most favorable to Plaintiff, failure to provide a copy of the bill of lading does not negate Defendants’ issuance of the bill of lading prior to the move. In other words, the fourth prong of the Hughes test does not require the shipper to receive a copy of a bill of lading; rather, issuance by the carrier prior to the move is all that is required, and the uncontroverted evidence—Plaintiff’s signature on July 13, 2013, and Plaintiff’s sworn discovery admission—is sufficient to establish that Defendants issued the bill of lading prior to moving the shipment. As a result, all Hughes factors are met and Defendants’ liability is validly limited.

 

Because the Carmack Amendment preempts state law claims, summary judgment is granted to Defendant on Plaintiff’s first claim for negligence and his second claim for breach of contract. ECF No. 18. As to Plaintiff’s third claim under the Carmack Amendment, Plaintiff waived any increased valuation and effectively limited Defendants’ liability under the Carmack Amendment to “repair or replacement for up to a maximum of $.60 per pound per article.”

 

ACCORDINGLY, IT IS ORDERED:

1. Defendants’ Motion for Partial Summary Judgment (ECF No. 20) is GRANTED.

*6 2. The District Court Executive is hereby directed to file this Order and provide copies to counsel.

 

DATED September 9, 2016.

 

All Citations

Slip Copy, 2016 WL 4728108

 

 

Footnotes

1

Plaintiff argues that even if his damages are contractually limited, in the alternative, he is entitled to reasonable attorney fees under 49 U.S.C. § 14708(d) as the prevailing party. ECF No. 23 at 8-10. This request is neither ripe nor properly before this Court; accordingly, the Court will not consider it at this time.

2

Plaintiff admits in his opposition to Defendants’ summary judgment motion that he signed the Household Goods Proposal/Contract for Moving Services, but denies—for the first time—that he received a copy prior to the truck leaving on July 13, 2013. ECF No. 23 at 2-3. Yet, on March 30, 2016, Plaintiff verified a Request for Admission admitting that he signed and received the same on July 13, 2013 and July 16, 2013. ECF No. 22 at 5. Plaintiff has not moved the Court to withdraw or amend his admission. See Fed. R. Civ. P. 36(b). Accordingly, for purposes of the instant motion, the Court deems the issue admitted. See O’Campo v. Hardisty, 262 F.2d 621, 624 (9th Cir. 1958) (finding that a district court may grant summary judgment based on deemed admissions); 999 v. C.I.T. Corp., 776 F.2d 866, 869–70 (9th Cir. 1985) (“Evidence inconsistent with a Rule 36 admission is properly excluded.”).

United States District Court,

1. Nevada.

TENKASI VISWANATHAN, Plaintiff,

v.

MOVING USA INC. et al, Defendants.

2:15-cv-02015-RCJ-NJK

|

Filed 08/29/2016

 

 

ORDER

ROBERT C. JONES United States District Judge

*1 This case arises out of a botched residential move from North Carolina to Nevada. Pending before the Court is a Motion to Dismiss (ECF No. 29). The Court grants the motion.

 

 

1. FACTS AND PROCEDURAL HISTORY

Plaintiff Tenkasi Viswanathan contracted with Defendant Moving USA Inc. (“Moving USA”) to ship his household goods from North Carolina to Nevada. (See Compl. ¶ 9, ECF No. 1). The parties agreed to a price of $1,496 prior to the pick-up date of August 12, 2013 (after several price increases), but at the time of pickup the driver of the truck further increased the price to $2,200. (Id. ¶ 21). Due to the requirement to vacate the North Carolina residence by August 15, 2013, Plaintiff and his wife had no choice but to pay the overcharge of at least $400 to Moving USA. (Id.). Moving USA also failed to pick up all of Plaintiff’s goods, causing Plaintiff’s wife to abandon certain goods valued at $400 or more. (Id. ¶ 28).

 

Prior to the date of pick up, Moving USA had informed Plaintiff that insuring the goods was unnecessary as they were guaranteed against loss by Moving USA. (Id. ¶ 39). On September 15, 2013 (after the pickup in North Carolina but before the delivery in Nevada), Plaintiff filed his overcharge claim with Moving USA, seeking a discount of $200. (Id. ¶ 26). The bill of lading mentioned but did not expressly identify “the Carrier,” nor did it provide the address of Defendant Moving On Up Inc. (“Moving On Up”), which Plaintiff believes may have performed the move as Moving USA’s subcontractor. (Id. ¶¶ 6, 38). This lack of identification of “the Carrier” has prevented Plaintiff from timely filing claims, as Plaintiff was required to file his claims with “the Carrier” in order to receive reimbursement for lost and/or damaged items. (Id. ¶ 42).

 

Although the parties agreed for the shipment to be delivered in Las Vegas, Nevada by the end of August 2013, the shipment was not delivered until October 19, 2013. (Id. ¶¶ 11–12). Upon delivery, it was noticed that a suitcase and twelve cardboard boxes of goods valued at more than $1,140 had been lost. (Id. ¶ 12). The shipment also arrived with a damaged refrigerator and a damaged and unrepairable buffet table, with a total estimated replacement value of $1,020. (Id. ¶ 13). The shipment also arrived with some boxes bearing two identification labels (although they had only one label upon pick up), resulting in double-counting of charges for those boxes. (Id. ¶ 22).

 

On November 1, 2013, Plaintiff submitted another claim to Moving USA for $1,900, including photographs of the damaged buffet table. (Id. ¶ 14). On November 2, 2013, Plaintiff submitted a lower estimate for $1,590. (Id.). Moving USA did not respond. (Id. ¶ 16). Plaintiff renewed his claims in a July 9, 2014 letter to both Moving USA and Moving On Up, seeking $1,640. (Id. ¶ 17). Neither Defendant responded. (Id. ¶ 18). Plaintiff acquired the services of a Florida attorney, who sent a demand letter to both Moving USA and Moving On Up, asserting a claim of $2,160, reflecting market prices of the lost and damaged goods. (Id. ¶ 19). Neither Defendant responded. (Id. ¶ 20).

 

*2 Plaintiff sued Moving USA, Moving On Up, Haim Shalem, and Tal Lavie in state court for: (1) violations of the Carmack Amendment, 49 U.S.C. § 14706; (2) negligence; (3) “overcharging”; (4) fraud; (5) nuisance; and (6) intentional infliction of emotional distress.1 Defendants filed a motion to transfer or dismiss for improper venue, which the Court denied. Defendants Moving On Up and Tale Lavie now move the Court to dismiss the case for failure to state a claim. Defendants Moving USA and Haim Shalem join in the motion.

 

 

1. MOTION TO EXTEND TIME

Plaintiff moves the Court for an extension of time to file his response to the motion to dismiss because of confusion regarding the nature of the motion. Defendants filed their motion to dismiss after filing answers to the Complaint and after filing a prior motion to change venue or, alternatively, to dismiss, which the Court denied. A motion asserting a defense under Rule 12(b)(6) must be made before a responsive pleading. See Fed. R. Civ. P. 12(b). Also, Rule 12(g)(2) prohibits a defendant from raising a defense in a subsequent Rule 12(b) motion if the defendant could have raised the defense in an earlier motion. However, Rule 12(g)(2) provides an exception allowing a defendant to use Rule 12(h)(2)(B) to raise the defense of failure to state a claim by motion under Rule 12(c), even if the defendant failed to raise the defense in an earlier motion. Thus, the Court will construe Defendants’ motion as a motion for judgment on the pleadings under Rule 12(c),2 see Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980), and also grant Plaintiff’s motion for an extension of time due to the confusing nature of the motion.

 

 

III. MOTION FOR JUDGMENT ON THE PLEADINGS

1. Legal Standards

“After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standards governing a Rule 12(c) motion are the same as those governing a Rule 12(b)(6) motion. See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (“The principal difference … is the time of filing…. [T]he motions are functionally identical ….”).

 

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief in order to “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

 

*3 A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own case making a violation “plausible,” not just “possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) (citing Twombly, 550 U.S. at 556) (“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.”). That is, a plaintiff must not only specify or imply a cognizable legal theory, but also must allege the facts of the Plaintiff’s case so that the court can determine whether the plaintiff has any basis for relief under the legal theory the plaintiff has specified or implied, assuming the facts are as the plaintiff alleges (Twombly-Iqbal review).

 

“A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotations omitted). Yet pro se litigants are still “bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). And where the litigant fails to follow rules of procedure, the case may be properly dismissed. Id.

 

 

1. Analysis

Defendants argue that the Court should dismiss Plaintiff’s state law claims because the Carmack Amendment (“Carmack”) preempts those claims. The Ninth Circuit has held that “the Carmack Amendment is the exclusive cause of action for interstate-shipping contract claims alleging loss or damage to property,” as well as delay and failure to deliver. Hall v. N. Am. Van Lines, Inc, 476 F.3d 683, 688 (9th Cir. 2007). Carmack is also a complete defense to common law claims alleging “all manner of harms,” even if the claims arise from events other than loss or damage to property. Id. at 689-90. Plaintiff appears to argue that Carmack does not preempt claim 4 because it does not arise out of the loss and damage to his goods.3 However, Plaintiff does not dispute that Carmack preempts claims 2, 3, and 5; instead, he requests leave to amend the Complaint to modify them. Even though Plaintiff does not dispute that Carmack preempts several of his state law claims, the Court will address each claim in turn for the sake of clarity.

 

In claim 2, Plaintiff alleges negligence and failure to transport. “The Carmack Amendment constitutes a complete defense to common law claims against interstate carriers for negligence,” White v. Mayflower Transit, LLC, 543 F.3d 581, 584 (9th Cir. 2008), and it preempts contract claims alleging “failure to deliver,” Hall, 476 F.3d at 688, which is synonymous with failure to transport. Carmack is a defense to claim 2 and preempts it.

 

In claim 3, Plaintiff alleges that Defendants overcharged him. Carmack is a defense to claims of “improper billing/overcharging.” White, 543 F.3d at 584–85; see also Hall, 476 F.3d at 688 (the “Carmack Amendment completely preempts ‘state law claims seeking to recover damages for charging an improper rate for transporting the goods”’ (quoting Duerrmeyer v. Alamo Moving & Storage One, Corp., 49 F. Supp. 2d 934, 936 (W.D. Tex. 1999))). Carmack preempts claim 3.

 

In claim 4, Plaintiff alleges that Defendants double labeled the boxes and made omissions related to the delivery of his property. (See Compl. ¶¶ 66-68). According to the Ninth Circuit, “[Carmack] applies equally to fraud and conversion claims arising from a carrier’s misrepresentations as to the conditions of delivery or failure to carry out delivery.” Hall, 476 F.3d at 689; see also White, 543 F.3d at 584-85 (holding that Carmack is a complete defense to possible claims of fraud/forgery and improper billing/overcharging). Carmack is a defense to claim 4.

 

*4 In claim 5, Plaintiff alleges nuisance and intentional infliction of emotional distress. As Plaintiff notes in his Complaint, Nevada law defines nuisance as “an obstruction to the free use of property,” NRS 40.140, which is essentially the loss of the use of property. Carmack preempts claims alleging loss or damage to property, see Hall, 476 F.3d at 688; thus, Plaintiff’s nuisance claim is preempted. In addition, “the Carmack Amendment preempts a claim for intentional infliction of emotional distress to the extent that it arises from the same conduct as the claims for delay, loss or damage to shipped property.” White, 543 F.3d at 586. Plaintiff alleges that the nuisance and emotional distress were caused by an eight week delay in the delivery of his property, the deprivation of his books, notes, Sanskrit translations, and cooking pans, and Defendants’ “non-communication and miscommunication, suppression of crucial information, [and] unaccountability.” (Compl. ¶¶ 71–74). These allegations all arise from the same conduct as his claims of delay, loss, and damage to the shipped property; thus, Plaintiff’s claim of intentional infliction of emotional distress is also preempted. Carmack preempts claim 5.

 

Finally, Plaintiff argues that the Court should not dismiss the state law claims because Moving USA and Moving On Up have not proven that they are motor carriers to which Carmack is applicable. However, Plaintiff alleges in the Complaint that Moving USA “is licensed to do business as an Interstate Motor Transport Carrier of household goods.” (Compl. ¶ 5). Plaintiff also alleges that “[t]he Bill of Lading issued by Defendant Moving USA mentions Moving On Up as ‘The Carrier,’ ” (id. ¶ 6), and Moving On Up admits that it is a motor carrier of household goods, (see Reply, 2, ECF No. 39). In other words, Plaintiff alleges that both Moving USA and Moving On Up were involved in transporting his property across state lines. Moreover, Carmack “is the exclusive cause of action for interstate-shipping contract claims,” Hall, 476 F.3d at 688, which is a precise description of Plaintiff s claims. As a result, Carmack applies to all claims and all Defendants, and nothing prevents the Court from dismissing Plaintiff’s state law claims at this stage of the case. See Arnell v. Mayflower Transit, Inc., 968 F. Supp. 521, 523-24 (D. Nev. 1997) (dismissing state law claims for failure to state a claim based on preemption by Carmack).

 

The Carmack Amendment preempts all of Plaintiff s state law claims. The Court grants the motion and, therefore, dismisses claims 2, 3, 4, and 5, with leave to amend.

 

 

CONCLUSION

IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 29) (construed as a Motion for Judgment on the Pleadings) is GRANTED, with leave to amend the Complaint within 30 days of the date of this order.

 

IT IS FURTHER ORDERED that the Motion to Extend Time (ECF No. 33) is GRANTED.

 

IT IS SO ORDERED.

 

DATED: This 29th day of August, 2016.

 

All Citations

Slip Copy, 2016 WL 4521676

 

 

Footnotes

1

In the Complaint, this claim is included as part of claim 5.

2

Rule 12(d) requires the Court to treat a Rule 12(b)(6) or 12(c) motion as one for summary judgment when a party presents matters outside the pleadings. This rule does not apply here because Defendants do not present any matters outside the pleadings.

3

Plaintiff also requests leave to amend to add a cause of action under federal law.