United States District Court,

E.D. Michigan, Southern Division.

Golden Hawk Metallurgical, Inc., Plaintiff,

v.

Federal Express Corporation, Defendant.

Case No. 15-14005

|

Signed 10/04/2016

Attorneys and Law Firms

Norman L. Sandles, Farmington Hills, MI, for Plaintiff.

Thomas W. Southerland, III, Fedex Express, Memphis, TN, Ellen E. Hoeppner, Clark Hill PLC, Detroit, MI, for Defendant.

 

 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT [10]

Nancy G. Edmunds, United States District Judge

*1 Plaintiff Golden Hawk Metallurgical, Inc. seeks recovery from Defendant Federal Express Corporation for the loss of two of Plaintiff’s shipments. Plaintiff asserts three theories of liability: Count I, breach of contract; Count II, breach of duty as a bailee; and Count III, conversion. (Dkt. 1-1.) Defendant has moved for partial summary judgment, asking the Court to hold that: (1) federal law preempts Counts II and III; and (2) Count I is limited to $100 per shipment. (Dkt. 10.) For the reasons stated below, the Court GRANTS Defendant’s motion for partial summary judgment.

 

 

1. Background

In August 2015, the parties entered into two contracts to ship Plaintiff’s precious metals and gems via overnight air mail. The first shipment, bearing tracking number 774191828584, was destined for Fairfield, Ohio. (Dkt. 10-1.) The second shipment, bearing tracking number 774190982603, was destined for Attleboro, Massachusetts. (Id.) Plaintiff alleges that Defendant failed to deliver the precious metals and gems in either shipment. (Dkt. 12, at 5.) Plaintiff further alleges that one of Defendant’s employees likely stole the goods, replacing them with rocks from one of Defendant’s shipping locations. (Id.)

 

The terms and conditions of the parties’ contracts appear on the airbills (Dkt. 12, at 21) and the FedEx Service Guide referenced on both. (Dkt. 12, at 22-31.) These terms expressly limit Defendant’s liability to $100, “unless a higher value is declared and paid for.” (Dkt. 10-1.) Plaintiff did not declare a value on either shipment, nor did Plaintiff pay a value higher than $100 in relation to either shipping contract. (Dkt. 10-2, at 3.)

 

Plaintiff originally filed suit in state court, and Defendant removed the case to this Court in November 2015. (Dkt. 1.) Defendant now moves for partial summary judgment.

 

 

1. Standard

Summary judgment under Federal Rule of Civil Procedure 56 is proper when the movant “shows 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. 56(a). When reviewing the record, “the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (internal citation omitted). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

 

 

III. Analysis

1. Preemption of Counts II and III

Through Count II, breach of duty as bailee, and Count III, conversion, Plaintiff seeks to have the Court enforce Michigan statutory and common law. Defendant argues that the Airline Deregulation Act of 1978 (ADA) preempts both of these claims, entitling Defendant to judgment as a matter of law.1 For the reasons stated below, the Court agrees with Defendant.

 

*2 The ADA contains the following preemption provision: “[A] State, a political subdivision of a state…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 an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). In Morales v. Trans World Airlines, Inc., the Supreme Court construed this provision broadly to preclude all claims “having a connection with, or reference to, airline rates, routes, or services.” 504 U.S. 374, 384 (1992). The Court determined that Congress included a broad preemption provision to promote competition and “ensure that the States would not undo federal deregulation with regulation of their own.” Id. at 378.

 

Since Morales, the Court has further defined the scope of the preemption provision. In American Airlines v. Wolens, it determined that the ADA preempted suits alleging a “violation of state-imposed obligations” but not suits alleging a breach of “self-imposed undertakings.” 513 U.S. 219, 228 (1995). The plaintiffs in Wolens had asserted one claim for breach of contract and another for a violation of the Illinois Consumer Fraud Act. Id. The Court ultimately held that the ADA preempted the statutory fraud claim but not the breach of contract claim. Id. The Act pre-empted only the fraud claim, the Court explained, because that cause of action did more than “simply give effect to bargains offered by the airlines and accepted by airline customers.” Id. at 228.

 

Next, in Northwest Inc. v. Ginsberg, the Court reaffirmed that preemption under the ADA depends on whether a claim “is based on a state-imposed obligation or simply one that the parties voluntarily undertook.” 134 S.Ct. 1422, 1431 (2014). The Court went on to hold that the ADA pre-empted a claim alleging a breach of the covenant of good faith because the claim imposed a “state-imposed obligation.” Id.

 

Most recently, the Sixth Circuit construed Northwest to stand for the proposition that preemption under the ADA does not depend on whether a claim is statutory or based in common law. Solo v. United Parcel Service Co., 819 F.3d 788, 797-98 (6th Cir. 2016) (citing Northwest, 134 S.Ct. at 1431). The Sixth Circuit there was considering whether the ADA preempted a plaintiff’s claim of unjust enrichment. The court did not rule on the issue, but it suggested that the claim would not be preempted: “[U]njust enrichment serves to ‘effectuate the intentions of parties or to protect their reasonable expectations, and thus looks to the particular parties to a transaction rather than a universal, state imposed obligation.’ ” Solo, 819 F.3d at 798 (quoting Northwest, 134 S.Ct. at 1431-32). But see Overka v. America Airlines, Inc., 790 F.3d 36 (1st Cir. 2015) (holding that the ADA preempts state law claims for unjust enrichment).

 

Here, Counts II and III assert state law claims for breach of duty as bailee and conversion, respectively. Unlike claims for breach of contract or unjust enrichment, these claims do not “serve to effectuate the intentions of parties or to protect their reasonable expectations.” Solo, 819 F.3d at 798. Nor do they allege violations of terms or conditions that “the parties voluntarily undertook.” Northwest, 134 S.Ct. at 1431. Instead, Counts II and III allege violations of “state-imposed obligations” that apply universally, similarly to claims for tortious interference or breach of the covenant of good faith. Id.; Overka, 790 F.3d at 40 (holding that the ADA preempts state law claims for tortious interference). Accordingly, this Court holds that the ADA preempts Counts II and III, regardless of whether they arise from Michigan statutory or common law. See Northwest, 134 S.Ct. at 1431; Solo, 819 F.3d at 797-98; Overka, 790 F.3d at 40 (noting that tort law “’is not a privately ordered obligation,’ but rather is imposed by the state”) (internal citations omitted).

 

*3 Defendant’s motion to dismiss Counts II and III as a matter of law is GRANTED.

 

 

1. Limitation of Liability for Count I

Plaintiff alleges that Defendant is liable in breach of contract [Count I] for the full value of the missing metals and gems. (Dkt. 1-1, at 7) Defendant argues that the terms and conditions of the shipping contracts placed in issue expressly and unambiguously limit Defendant’s liability to $100, entitling Defendant to summary judgment as to limited liability. Plaintiff responds that the terms supporting Defendant’s limited liability are either (1) unenforceable as a matter of law; or (2) so ambiguous that they raise a question of fact making summary judgment inappropriate.23 This Court agrees with Defendant that the terms limiting liability are unambiguous and enforceable, entitling Defendant to summary judgment.

 

When a shipper challenges an air carrier’s contractual limitation of liability, federal common law governs. Kemper Ins. Companies v. Federal Exp. Corp., 252 F.3d 509, 512 (1st Cir. 2001) (citing Deiro v. Am. Airlines, Inc., 816 F.2d 1360, 1365 (9th Cir. 1987)). In the Sixth Circuit, courts must decide as a matter of law whether an air carrier’s terms are enforceable via the “reasonable notice” test. Barbachym v. Costa Line, Inc., 713 F.2d 216, 219 (6th Cir. 1983); Vincent v. Northwest Airlines, Inc., 2010 WL 3272836 (E.D. Mich. Aug. 19, 2010); Sweitzer v. Pinnacle Airlines, Inc., 2010 WL 1949613 (W.D. Mich. May 13, 2010); Huang v. International Total Services, 1997 WL 3377508 (E.D. Mich. Apr. 17, 1997); see also Deiro, 816 F.2d at 1363 (noting that, although the test was originally adopted in cases dealing with steamships, it was “equally applicable to…air carriers.”). The Barbachym court observed that contract terms generally satisfy this test when the carrier offers “conspicuous warnings.” Barbachym, 713 F.2d at 220. It concluded that “each case must be reviewed carefully to determine whether the particular type of notice was reasonable in that particular situation.” Id.

 

*4 The terms at issue here appear on FedEx airbills (Dkt. 12, at 21) and the FedEx Service Guide referenced thereon. (Id. at 22-31.) The tops of the airbills contain the shipping forms that the Plaintiff completed. On the bottoms of the airbills, a capitalized, bolded “[w]arning” appears, followed by a paragraph detailing the terms and conditions. This paragraph also directs the shipper to the Service Guide, which is available online and contains identical terms.

 

Within the terms and conditions, the airbills state that Defendant’s liability is limited to $100.00 unless “you declare a higher value, pay an additional charge, document your actual loss[,] and file a timely claim.” (Id. at 21.) The airbills further state that the shipper’s right to recover damage, whether “direct, incidental, consequential, or special is limited to the greater of $100 or the authorized declared value.” (Id.) The airbills’ bottom sections are not cluttered, nor are their essential conditions buried among a litany of immaterial terms. The airbills thus provide “conspicuous warnings” of Defendant’s limited liability, and Plaintiff has not offered evidence showing that Defendant behaved in any way to render the contracts’ terms less clear.

 

Given the above, this Court finds that the limited liability provisions at issue here satisfy the “reasonable notice” test. Barbachym, 713 F.2d at 219; see also North Cypress Medical Center Operating Co. Ltd. v. Fedex Corp., 892 F. Supp. 2d 861 (S.D. Tex. Sept. 14, 2012) (holding that a similar, previous version of FedEx’s airbill provided reasonable notice of limited liability); Dugan v. Fedex Corp., 2002 WL 31305208 (C.D. Cal. Sept. 27, 2002) (same). Plaintiff, who did not declare a value for its shipments, may recover no more than $100 on its claim for breach of contract.

 

 

1. Conclusion

For the above-stated reasons, the Court GRANTS Defendant’s motion for partial summary judgment. Plaintiff’s claims for conversion and breach of duty as bailee are dismissed, and Plaintiff’s claim for breach of contract is limited to $100.

 

SO ORDERED.

Dated: October 4, 2016

All Citations

Slip Copy, 2016 WL 5791198

 

 

Footnotes

1

Plaintiff contends that the issue presented is “whether the Plaintiff’s stated claims are preempted by the Carmack Amendment[, 49 U.S.C. § 14706].” (Dkt. 12, at 3). The Court disagrees. Defendant has not invoked the Carmack Amendment, and “there is significant precedent indicating that the Carmack Amendment simply does not apply to an air carrier such as FedEx.” Kemper Ins. Co. v. Federal Express Corp., 252 F.3d 509, 514 n.5 (1st Cir. 2001) (surveying relevant authority); see also 49 U.S.C. § 40102(a)(2). (defining “air carrier”).

2

Plaintiff again cites the Carmack Amendment and associated case law to oppose summary judgment on this issue. (Dkt. 12, at 8-13). But the Amendment does not govern Plaintiff’s claims, as stated above. Kemper Ins., 252 F.3d at 514 n.5; 49 U.S.C. § 40102(a)(2).

3

Plaintiff also seems to invoke the “conversion exception,” which exposes a carrier to full liability when it has appropriated the shipper’s property for its own use or gain. Kemper Ins., 252 F.3d 509, 515 (1st Cir. 2001). Plaintiff argues: “The liability limitations expressed in the two documents clearly did not cover the theft of goods by employees of [Defendant].” (Dkt. 12, at 10.) But the Court finds that the exception does not apply. Even assuming that Plaintiff carried its burden of showing that one of Defendant’s employees converted the metals and gems, Plaintiff must allege that the carrier “appropriated the property itself, or profited from its conversion.” Id. at 516. (emphasis in original). Plaintiff has not done so, and “[w]illful blindness to the activity of third parties (even employees) does not qualify [for the exception].” Id.

United States District Court,

M.D. Florida,

Fort Myers Division.

Scotlynn USA Division, Inc., Plaintiff,

v.

Cold Ground Transport, LLC and Amathim Thiam, Defendants.

Case No: 2:15-cv-152-FtM-38CM

|

Signed 10/14/2016

Attorneys and Law Firms

Katy Koestner Esquivel, Esquivel Law, Chartered, Naples, FL, for Plaintiff.

 

 

ORDER1

 

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

*1 This matter comes before the Court on review of Plaintiff Scotlynn USA Division, Inc.’s (“Scotlynn”) Motion for Default Judgment (Doc. #20) filed on July 22, 2016. In support, Scotlynn filed the Affidavit of Katy Koestner Esquivel (Doc. #20-1), its counsel of record. Defendants Cold Ground Transport, LLC, (“Cold Ground Transport”) and Amathim Thiam (“Thiam”) (collectively, the “Defendants”) have not responded in opposition, and the time to do so has expired. Thus, this matter is ripe for review.2

 

 

BACKGROUND

Scotlynn is a freight brokerage company that contracts with motor carriers to transport goods throughout the United States. (Doc. #1 at ¶ 5). Cold Ground Transport is one such entity with whom Scotlynn contracts. Id. at ¶ 7. Plaintiff alleges that Thiam is Cold Ground Transport’s sole officer and shareholder. Id. at ¶ 4(b). On November 13, 2013, Scotlynn and Cold Ground Transport entered into an agreement (the “Agreement”), the terms of which were intended to govern the transport of various loads of cargo for Scotlynn by Cold Ground Transport. Id. at ¶ 7.

 

Scotlynn then arranged for Cold Ground Transport to pick up 1,000 cases of frozen chicken (the “Cargo”) from Live Oak, Florida on April 18, 2014, and to transport it to Baltimore, Maryland. Id. at ¶ 9. That day, Cold Ground Transport picked up the Cargo, and acknowledged its good condition. Id. Although the Bill of Lading required Cold Ground Transport to maintain the Cargo at a temperature of 26 degrees Fahrenheit, it was delivered three days late and, upon arrival, its temperature was 45 degrees Fahrenheit. Id. at ¶¶ 11-13. Because of the Cargo’s temperature, it was rejected and subsequently destroyed. Id. at ¶14. As a result, Scotlynn’s customer pursued a claim against it for the entirety of the loss. Id. at ¶15. On June 25, 2014, Scotlynn formally notified Cold Ground Transport of the claim, which Cold Ground Transport refused to pay, arguing that it was not responsible for the claim. Id. at ¶16.

 

Scotlynn then filed this suit. (Doc. #1). On multiple occasions, Scotlynn unsuccessfully attempted service upon Defendants. (Doc. #11 at ¶¶ 3-10). After filing two Motions to Enlarge Time for Service of Process (Docs. #9. #11), Scotlynn finally served Defendants on January 5, 2016. (Docs. #13, #14). Despite service, neither Defendant has made an appearance in this case. Pursuant to Scotlynn’s January 29, 2016, motion, (Doc. #15) a Clerk’s Default (Doc. #17) was entered against Defendants on February 4, 2016. Scotlynn now seeks a default judgment against Defendants and an award of costs and attorney’s fees. (Doc. #20).

 

 

LEGAL STANDARD

Rule 55 of the Federal Rules of Civil Procedure establishes a two-step procedure for obtaining default judgment. See Fed. R. Civ. P. 55. First, when a defendant fails to plead or otherwise defend a lawsuit, the clerk of the court must enter a clerk’s default against the defendant. Cohan v. Rist Properties, LLC, No. 2:14-cv-439-FTM, 2015 WL 224640, at *1-2 (M.D. Fla. Jan. 15, 2015) (citing Fed. R. Civ. P. 55(a)). Second, after receiving the clerk’s default, the court can enter a default judgment provided the defendant is not an infant or incompetent. Id. (citing Fed. R. Civ. P. 55(b)(2)); see also Solaroll Shade & Shutter Corp. v. Bio-Energy Sys. Inc., 803 F.2d 1130, 1134 (11th Cir. 1986) (stating a default judgment may be entered “against a defendant who never appears or answers a complaint, for in such circumstances the case never has been placed at issue.”).

 

*2 An entry of a clerk’s default, however, does not per se warrant an entry of default judgment. Rather, a court may enter a default judgment only if “the well-pleaded allegations in the complaint, which are taken as true due to the default, actually state a substantive cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 Fed.Appx. 860, 863 (11th Cir. 2007); Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from contesting on appeal the facts thus established … A default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.” (citations omitted)). “The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law … [A] default is not treated as an absolute confession of the defendant of his liability and of the plaintiff’s right to recover.” Nishimatsu, 515 F.2d at 1206. In considering a motion for default judgment, courts must “examine the sufficiency of plaintiff’s allegations to determine whether the plaintiff is entitled to” relief. PNC Bank, N.A. v. Starlight Props. & Holdings, LLC, No. 6:13-cv-408, 2014 WL 2574040, at *1 (M.D. Fla. June 9, 2014) (citation omitted). With these principles in mind, the Court will address Scotlynn’s Motion for Default Judgment.

 

 

DISCUSSION

In its Complaint, Scotlynn alleges that Cold Ground Transport’s delivery of the Cargo in a damaged condition renders it liable both under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq., and for breach of contract. Scotlynn also brings a claim against Thiam for piercing Cold Ground Transport’s corporate veil.

 

For the reasons stated below, the Court finds that Cold Ground Transport is liable under the Carmack Amendment and thus awards Scotlynn damages commensurate with the loss as pled. That said, because attorney’s fees cannot be recovered under the Carmack Amendment, the Court denies Scotlynn’s request for same. See Fine Foliage of Fla., Inc. v. Bowman Transp., Inc., 698 F. Supp. 1566, 1576 (M.D. Fla. 1988).

 

Concerning Scotlynn’s breach of contract claim against Cold Ground Transport and its action to pierce the corporate veil against Thiam, the Court finds that both are state law claims and thus preempted by the Carmack Amendment. As such, the Court does not find that Scotlynn is entitled to an alternative award of damages or attorney’s fees under either claim. Finally, the Court taxes the cost of filing and service of process fees against Cold Ground Transport.

 

 

1. Count I – Carmack Amendment

Through its Complaint, Scotlynn alleges that Cold Ground Transport violated the Carmack Amendment by delivering the Cargo at an unsafe temperature. (Doc. 1 at ¶¶ 18-21). “The Carmack Amendment creates a uniform rule for carrier liability when goods are shipped in interstate commerce.” Smith v. UPS, 296 F.3d 1244, 1246 (11th Cir. 2002). “To establish a prima facie case of liability, plaintiff must show that the goods were delivered to defendant in good condition, that the goods arrived in damaged condition, and that this resulted in a specific amount of damage.” Scotlynn USA Division, Inc. v. Singh, No. 2:15-cv-381-FtM-29MRM, 2016 WL 4734396, at *2 (M.D. Fla. Sept. 9, 2016) (citing Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1014 (11th Cir. 1987)).

 

“When a shipper shows delivery of goods to a carrier in good condition and nondelivery or delivery in a damaged condition, there arises a prima facie presumption of liability.” Id. (citing UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1285-86 (11th Cir. 2014)). Liability is imposed “for the actual loss or injury to the property[.]” 49 U.S.C. § 14706(a)(1).

 

Scotlynn’s Complaint states that the Cargo was in good condition prior to shipment. (Doc. #1 at ¶¶ 11-12). The Complaint then states that the Cargo was delivered to the receiver at an unsafe temperature, and because it was damaged, it was ultimately destroyed. (Id. at ¶¶ 13-14). Importantly, the Agreement does not limit liability and, instead, defines “full actual loss” as “the value of the cargo determined by” Scotlynn. (Doc. #1-1 at ¶ 11). Thus, in the absence of any controverting evidence, that Scotlynn is entitled to a default judgment against Cold Ground Transport for the actual loss of the destroyed Cargo in the amount of $57,280.00.3

 

*3 Turning to Scotlynn’s request for attorney’s fees pursuant to the Carmack Amendment, Federal Rule of Civil Procedure 54(d)(2)(A) states that “[a] claim for attorney’s fees … must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” The Court, however, finds Scotlynn’s request to be unwarranted, as “[t]here is no provision for attorneys’ fees under the Carmack Amendment.” Fine Foliage of Fla., 698 F. Supp. at 1576. Instead, “[t]he well-established rule is that ‘each party in a lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary.’ ” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Reeves v. Harrell, 791 F.2d 1481, 1483 (11th Cir. 1986)). Accordingly, Scotlynn’s request for attorney’s fees stemming from its Carmack Amendment claim is denied. See Fine Foliage of Fla., Inc., 698 F. Supp. at 1576.

 

 

1. Count II – Breach of Contract

As to its breach of contract claim, Scotlynn alleges that Cold Ground Transport breached the Agreement and Bill of Lading by delivering the Cargo in damaged condition, and that it, therefore, suffered damages. (Doc. #1 at ¶ 23).

 

Under Florida law, there are three elements to a breach of contract claim: “(1) a valid contract; (2) a material breach; and (3) damages.” Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (citation omitted). That said, “the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods.” Smith, 296 F.3d at 1246 (citations omitted). “In other words, separate and distinct conduct rather than injury must exist for a claim to fall outside the preemptive scope of the Carmack Amendment.” Id. at 1249.

 

Here, Scotlynn contracted defendants to ship the Cargo from Florida to Maryland and, thus, the shipment would qualify as interstate commerce. Therefore, unless Scotlynn has pled separate and distinct conduct that would cause its breach of contract claim to fall outside the scope of the Carmack Amendment, its breach of contract claim will be preempted. Upon review of the Complaint, Scotlynn has not met this threshold. Consequently, the Court finds Carmack Amendment preempts Scotlynn’s breach of contract claim and that the claim must be dismissed without prejudice.

 

Scotlynn also requests attorney’s fees based on their breach of contract allegations, but articulates no legal basis for its claim. (Doc. #1 at ¶¶ 23-24). Due to preemption by the Carmack Amendment, this request must be denied. See Strickland Transp. Co. v. Am. Distrib. Co., 198 F.2d 546, 547 (5th Cir. 1952) (citation omitted) (holding that attorney’s fees are beyond the scope of the Carmack Amendment and “cannot be considered for jurisdictional purposes where there is no legal basis for the recovery of such fees”); Mo. Pac. R. Co. v. Ctr. Plains Indus., Inc., 720 F.2d 818, 819 (5th Cir. 1983) (finding Strickland persuasive and holding that “recovery of attorney’s fees in freight damage suits” is not permitted); Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir. 1996) (same).4

 

The Court notes that, although the Eleventh Circuit Court of Appeals in UPS Supply found Strickland unpersuasive, it is distinguishable from the facts of this case. In UPS Supply, the court found that attorneys’ fees were permitted in relation to the enforcement of an indemnity clause in an ongoing contract that was separate from the theft of goods that gave rise to that plaintiff’s Carmack Amendment claim. 750 F.3d at 1282. This is not the case here, as Scotlynn attempts to base their request for attorney’s fees on the very instance that invokes liability under the Carmack Amendment. As a result, Scotlynn’s breach of contract claim is preempted and their request for attorney’s fees is denied.

 

 

1. Count III – Piercing the Corporate Veil

*4 Finally, Scotlynn attempts to pierce the corporate veil of Cold Ground Transport by arguing that, Thiam, acting as an alter ego, used Cold Ground Transport’s corporate form for an improper purpose. (Doc. #1 at ¶¶ 25-30). Under Florida law, to pierce the corporate veil a party must show:

(1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant.

Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011) (citations omitted).

 

Because Scotlynn’s action to pierce Cold Ground Transport’s corporate veil is a state law claim, the Carmack Amendment preempts it. See Smith, 296 F.3d at 1246. As such, Scotlynn’s claim must be dismissed without prejudice. Scotlynn also requests attorney’s fees under this claim; but, as is explained more fully above, Scotlynn is not entitled to such fees because of Carmack Amendment preemption. See Strickland Transp. Co., 198 F.2d at 547; Mo. Pac. R. Co., Inc., 720 F.2d at 819; Accura Sys., 98 F.3d at 876; Scotlynn USA Division, 2016 WL 4734396, at *2.

 

 

1. Costs

In its Motion for Default Judgment, Scotlynn also seeks costs for $400.00 for the filing fee and $229.00 in service of process expenses. (Doc. #20 at 12). Generally, a prevailing party may be awarded costs. See Fed. R. Civ. P. 54(d)(1). Costs available to be taxed are specifically enumerated in 28 U.S.C. § 1920, and include fees of the United States Marshal. Pursuant to 28 U.S.C. § 1921, a United States Marshal is authorized to serve process in any case or proceeding. And, despite that private service of process is not explicitly provided for in either statute, the Court may authorize taxation of such costs so long as they do not exceed the statutory fees authorized in 28 U.S.C. § 1921. U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000). In this district, service of process by a United States Marshal pursuant to 28 U.S.C. § 1921 amounts to $65.00 per hour, as well as an allowance for mileage.

 

Turning to the matter at hand, the Court finds that Scotlynn did not prevail against both parties, and thus that awarding costs for service of process on Thiam would be improper. A review of the record does not yield an individual accounting of Scotlynn’s costs of service of process on each Defendant, and thus the Court finds it reasonable to halve any requested award from $229.00, to $114.50, thereby reflecting the cost of service for only Cold Ground Transport, This figure amounts to approximately 1.75 hours of taxable time by a United States Marshall engaged in the act of serving process.

 

Because Scotlynn unsuccessfully attempted to serve the Defendants with process on multiple occasions, and because it is reasonable to expect that any successful attempt at service of process would amount to at least 1.75 hours, the Court finds $114.50 to be a proper award for the costs of service of process. As such, the Court directs that $514.50 be taxed against Defendant Cold Ground Transport, LLC.

 

Accordingly, it is

 

ORDERED:

*5 (1) Plaintiff’s Motion for Entry of Default Judgment (Doc. #20) is GRANTED in part as to Count I against Defendant Cold Ground Transport, LLC for $57,280.00, and is otherwise DENIED.

(2) Plaintiff’s request for costs is GRANTED in part and DENIED in part. Plaintiff shall be awarded $400.00 in filing fees and $114.50 in costs of service of process, totaling $514.50.

(3) The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff and against Defendant Cold Ground Transport, LLC as to Count I only for the actual loss amount. Counts II and III of the Complaint are dismissed.

(4) The Clerk of the Court is further DIRECTED to terminate all pending deadlines, issue the attached Bill of Costs, and close the file.

 

DONE and ORDERED in Fort Myers, Florida, this 14th day of October, 2016.

 

All Citations

Slip Copy, 2016 WL 6066682

 

 

Footnotes

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

2

The Court finds that an evidentiary hearing is not required and will render a decision based on the documents submitted.

3

Thiam is neither an infant or an incompetent person nor an active duty member of the military. (Doc. #20-1 at ¶¶ 9-10); see also Scotlynn USA Division, 2016 WL 4734396, at *2. Additionally, the loss of the Cargo is sum certain. Id. (Id. at ¶ 11).

4

Decisions by the Fifth Circuit Court of Appeals made prior to October 1, 1981, are binding on this Court. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).