United States District Court,

E.D. North Carolina,

Western Division.

PCX HOLDING, LLC, Plaintiff,

v.

GUY M. TURNER, INC., and Relay Associates, Inc., Defendants.

Relay Associates, Inc., Third-Party Plaintiff,

v.

Altran Solutions Corp., Third-Party Defendant.

No. 5:17-CV-95-BO

|

Signed 10/19/2017

 

 

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

*1 This cause is before the Court on Defendant Guy M. Turner Inc.’s Motion to Dismiss Defendant Relay Associates’ claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE 24], Defendant Turner’s motion to strike Defendant Relay Associates’ surreply brief [DE 37], and Third-Party Defendant Altran Solutions’ motion for partial judgment on the pleadings [DE 34]. The matters have been fully briefed and are ripe for ruling. For the reasons discussed below, the motion to dismiss is DENIED, the motion to strike the surreply is DENIED, and the motion for partial judgment on the pleadings is GRANTED.

 

 

BACKGROUND

The seeds of this case were sown when an oversized truck bearing electronic equipment was hit by a train in Halifax, North Carolina in 2015. The truck was bound for New Jersey, where third-party defendant Altran had contracted with defendant Relay Associates to build a control house as part of an electrical switching station. Defendant Relay Associates in turn hired plaintiff PCX, a North Carolina corporation, to build the control house sections. Once the sections were completed, plaintiff PCX, through a shipping broker, hired defendant Turner to transport the pieces from North Carolina to New Jersey. En route, the truck bearing one of the sections was hit and the cargo was destroyed. Most of the underlying merits claims, which include claims for damages between PCX and Relay Associates, PCX and Turner, Relay Associates and Turner, and Relay Associates and Altran, are not yet before this Court.

 

Defendant Relay Associates filed a crossclaim against defendant Turner, asserting a negligence claim stemming from the destruction of the control house section. Defendant Turner has moved to dismiss that claim. Additionally, defendant Turner has filed a motion to strike a surreply filed by defendant Relay Associates. Finally, Relay Associates’ series of claims against Altran include a claim under the New Jersey Prompt Pay Act, which is the subject of Altran’s motion for partial judgment on the pleadings.

 

This Court has jurisdiction over the claim plaintiff PCX brought against defendant Turner on the basis of the federal question asserted, 49 U.S.C. § 14706. This Court has jurisdiction over the remaining claims between the various parties under diversity jurisdiction, 28 U.S.C. § 1332, as well as supplemental jurisdiction, 28 U.S.C. § 1367.

 

 

ANALYSIS

Defendant Turner’s Motion to Dismiss

Defendant Turner’s motion to dismiss defendant Relay Associates’ crossclaim is made under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), “the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual allegations do not nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

 

*2 Defendant Relay Associates, in its crossclaim against defendant Turner, asserts a cause of action sounding in negligence. To do so, a claimant must allege the following: a duty, breach of that duty, causation, and damages. E.g., William L. Thorp Revocable Trust v. Ameritas Inv. Group, 57 F. Supp. 3d 508, 531 (E.D.N.C. 2014). Defendant Relay Associates has pled enough facts to state a claim. It has alleged that defendant Turner owed defendant Relay Associates a duty of due care. It has alleged specific facts as to defendant Turner’s neglect of that duty when crossing the train tracks. It has alleged that this negligence led to a train hitting the equipment on the truck. And it has alleged that the destruction of the equipment on the truck led to its injury. These facts suffice to state a tort claim.

 

Defendant Turner, in its motion to dismiss defendant Relay Associates’ negligence claim, argues that the claim is preempted by the Carmack Amendment to the Interstate Commerce Commission Act, 49 U.S.C. § 14706. The Carmack Amendment provides a mechanism to resolve contractual and tort disputes between carriers and shippers. Turner is undisputedly the motor carrier. But Relay Associates has alleged facts sufficient to argue that it is neither the shipper nor on the bill of lading, and thus is not controlled by the Carmack Amendment. At this juncture, such factual claims are substantial enough that a motion to dismiss should not be granted. Relay Associates has stated a plausible claim.

 

 

Defendant Turner’s Motion to Strike Defendant Relay Associates’ Surreply

Defendant Turner also filed a motion to strike defendant Relay Associates’ surreply regarding the above claim. While surreply briefs are generally disfavored, this Court has the discretion to permit them. See Osei v. University of Maryland University College, 202 F. Supp. 3d 471 (D. Md. 2016). The Court declines to strike the surreply brief at issue here. The motion is therefore denied.

 

 

Third-Party Defendant Altran’s Motion for Partial Judgment on the Pleadings

Under Rule 12(c) of the Federal Rules of Civil Procedure, a judgment on the pleadings is appropriate when no set of facts would entitle a plaintiff to relief under his claim. Fed. R. Civ. P. 12(c); Gibby v. Int’l Bus. Machines Corp., 155 F.3d 559 (4th Cir. 1998). The claim at issue here is one of several defendant Relay Associates brought against third-party defendant Altran when involving it in the proceeding before this Court. It alleges a violation of the New Jersey Prompt Payment Act, or NJPPA. N.J.S.A § 2A:30A. The text of the NJPPA itself restricts it as a cause of action outside the state of New Jersey. N.J.S.A § 2A:30A-2f (“In any civil action brought to collect payments pursuant to this section, the action shall be collected inside of this state.”). “The terms of the NJPPA are unequivocal.” First Gen. Const. Corp. v. Kasco Const. Co., 2011 WL 2038542, at *2 (E.D. Pa. 2011). This claim is restricted to New Jersey. As this lawsuit is proceeding outside of New Jersey, it is appropriate to grant judgment for third-party defendant Altran.

 

 

CONCLUSION

For the foregoing reasons, Defendant Guy M. Turner Inc.’s Motion to Dismiss Defendant Relay Associates’ claim [DE 24] is DENIED, Defendant Turner’s motion to strike Defendant Relay Associates’ surreply brief [DE 37] is DENIED, and Third-Party Defendant Altran Solutions’ motion for partial judgment on the pleadings [DE 34] is GRANTED.

SO ORDERED, this 19 day of October, 2017.

United States District Court,

E.D. Missouri, Eastern Division.

MID–AMERICA FREIGHT LOGISTICS, LLC, Plaintiff,

v.

WALTERS TRUCKING, INC., Defendant.

No. 4:17cv1762 SNLJ

|

Signed 10/23/2017

Attorneys and Law Firms

Ralph G. Godsy, Jr., Boyle Brasher, LLC, St. Louis, MO, for Plaintiff.

Robbye Hill Toft, Law Offices of Robert J. Hayes, St. Louis, MO, for Defendant.

 

 

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

*1 This matter is before the Court on plaintiff’s motion to remand this matter to the Circuit Court of St. Louis County, Missouri (#9). In December 2015, Mid–America Freight Logistics, LLC (“Mid–America”) arranged for a shipment of frying oil from Stratas Foods to be transported by Walters Trucking to a company in a Texas. Under Mid–America’s Motor Carrier Agreement (“Agreement”) with Walters, Mid–America was obligated to diligently solicit, obtain, and maintain shipping customers to provide Walters Trucking with shipping opportunities. In return, Walters agreed to hold harmless Mid–America from all losses and damages arising out of any shipment transported.

 

During transport of the frying oil, some of the shipment was stolen, and the seal on some other containers was broken. The recipient of the shipment refused delivery of the entire shipment. However, Mid–America was contractually bound to pay Stratas Foods $35,928. Mid–America then demanded payment of this amount, minus certain credits, from Walters Trucking under the “hold harmless” clause in the parties’ Agreement. Walters refused. Mid–America filed suit in state court for breach of the Agreement. Walters Trucking removed the action to this Court contending that the Court has federal question jurisdiction pursuant to the preemptive effect of the Carmack Amendment to the Interstate Commerce Act. Plaintiff has moved to remand the case back to state court because, it contends, the Carmack Amendment does not preempt claims between a broker and a carrier, which are based on an independent contract.

 

Federal district courts may exercise removal jurisdiction only where they would have had original jurisdiction if the suit had been initially filed in federal court. Humprhey v. Sequentia, Inc., 58 F.2d 1238, 1242 (8th Cir. 1995); 28 U.S.C. § 1441(a). Federal question jurisdiction exists if “the federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In “the ordinary case, federal preemption is merely a defense to a plaintiff’s state-law claim, and it does not alter the jurisdiction of the federal court.” Chapman v. Lab One, 390 F.3d 620, 625 (8th Cir. 2004) (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)). Only where an area of state law has been “completely preempted” by federal law does the federal law provide a basis for removal of an action to federal court. Chapman, 390 F.3d at 625.

 

The Carmack Amendment, 49 U.S.C. § 14706, creates a uniform rule for carrier liability when goods are shipped in interstate commerce and preempts all state or common law remedies available to a shipper against a carrier for loss or damage. The notice of removal filed by Walters Trucking asserts that the Carmack Amendment governs Mid–America’s claims because they are “based on allegations of loss and/or damage in excess of $10,000.00 of cargo arising out of interstate motor vehicle transportation services.” (#1 at ¶ 3.) Walters Trucking certainly qualifies as a “carrier” under the Carmack Amendment. However, plaintiff contends that it seeks to enforce only the terms of the Agreement—not Walters Trucking’s obligations as a carrier under the separate bill of lading. That is, plaintiff is bringing claims for indemnity as a broker, not as a shipper. “Other courts have recognized such claims as separate and distinct claims outside the scope of the Carmack Amendment.” Traffic Tech, Inc. v. Arts Transp., Inc., 15 C 8014, 2016 WL 1270496, at *3 (N.D. Ill. Apr. 1, 2016) (collecting cases) (citing Keystone Logistics, Inc. v. Struble Trucking LLC, 2014 WL 6750052, at *3 (N.D. Ind. 2014); Nat’l Bankers Trust Corp. v. Peak Logistics, LLC, 2014 WL 5343639, at *3 (W.D. Tenn. 2014); TransCorr Nat. Logistics, LLC v. Chaler Corp., 2008 WL 5272895, at *3 (S.D. Ind. 2008); Viasystems Techs. Corp., LLC v. Landstar Ranger, Inc., 2011 WL 2912763, at *9 (E.D. Wis. 2011)).

 

*2 Defendant Walters Trucking suggests that because the Agreement itself “limits Mid–America’s right of recovery to the Carmack Amendment,” then the matter is entirely preempted by the Carmack Amendment. (#18 at 2.) However, the Agreement refers to the Carmack Amendment in the context of the requirement of the separate bill of lading. That portion of the Agreement, at Paragraph 3(a), states that the carrier “shall issue a uniform standard bill of lading …for property it receives for transportation under this contract and shall be liable to the person entitled to recover under the bill of lading.” Then it goes on to state that “failure to issue a bill of lading does not affect the liability of the [sic] carrier’s liability shall be the same as a common carrier’s liability under [the Carmack Amendment].” The mention of the Carmack Amendment with respect to the bill of lading has no bearing on this matter, which involves the resolution of the Agreement’s “hold harmless” provision. Further, the Agreement states that the carrier “shall be liable to the person entitled to recover under the bill of lading,” which is taken directly from the language of the Carmack Amendment. Under these circumstances, the “person entitled to recover” does not include a broker such as plaintiff here. See Exel, Inc. v. S. Refrigerated Transp., Inc., 807 F.3d 140, 148–49 (6th Cir. 2015).

 

Here, plaintiff is not seeking to recover pursuant to the bill of lading, nor is plaintiff asserting its rights in this case as an assignee of the shipper. See, e.g., Traffic Tech, 2016 WL 1270496, at *3. Thus, the state law breach of contract claims brought by plaintiff are not preempted by the federal Carmack Amendment. This Court does not have subject matter jurisdiction as a result, and the case must be remanded.

 

Plaintiff seeks an award of attorneys’ fees and costs pursuant to 28 U.S.C. § 1447(c) (#12). “Absent unusual circumstances, courts may award such fees only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). A party lacks an “objectively reasonable” basis for removal where the relevant case law forecloses the removing party’s basis for removal. See Napus Fed. Credit Union v. Campbell, 4:10CV1403MLM, 2010 WL 3581963, at *5 (E.D. Mo. Sept. 7, 2010), aff’d, 419 Fed. Appx. 696 (8th Cir. 2011). Although there were no Eighth Circuit cases directly on point, the great weight of authority foreclosed defendant’s argument for removal here, and defendant cites nothing to refute that. Plaintiff will be awarded reasonable attorneys’ fees and shall submit supplemental a memorandum and affidavit(s) in support within 14 days.

 

Accordingly,

 

IT IS HEREBY ORDERED that the plaintiff’s motion to remand (#9) is GRANTED.

 

IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for St. Louis County, Missouri.

 

IT IS FINALLY ORDERED that the plaintiff’s motion for attorneys’ fees (#12) is GRANTED; plaintiff shall submit appropriate documentation supporting an award of attorneys’ fees within 14 days.