United States District Court,

W.D. North Carolina,

Asheville Division.

B&W FIBER GLASS, INC., Plaintiff,

v.

KERNS TRUCKING, INC., ELE Logistics, Inc., Express Brokerage, Inc., PL Trucking, LLC., Defendants.

CIVIL CASE NO. 1:16-cv-00306-MR-DLH

|

Signed 08/30/2017

Attorneys and Law Firms

Joseph W. Moss, Jr., Erwin, Bishop, Capitano & Moss, P.A., Scott A. Hefner, Butler Weihmuller Katz Craig LLP, Charlotte, NC, for Plaintiff.

 

 

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT PL TRUCKING, LLC

Martin Reidinger, United States District Judge

*1 THIS MATTER is before the Court on Plaintiff’s Motion for Default Judgment against Defendant PL Trucking, LLC pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. [Doc. 25].

 

 

1. PROCEDURAL BACKGROUND

Plaintiff B&W Fiber Glass, Inc. (“B&W”) filed this civil action on August 18, 2016 in the North Carolina General Court of Justice, Superior Court Division, Cleveland County, North Carolina. [Doc. 1-1]. Defendant PL Trucking, LLC (“PL Trucking”) was served with the Summons and Complaint on August 24, 2016. [Doc. 15-1 at ¶ 3]. On September 15, 2016, the Defendants Kerns Trucking, Inc., ELE Logistics, Inc., and Express Brokerage, Inc., with the consent of PL Trucking, filed a Notice of Removal to this Court, citing as a basis for removal the existence of a federal question, namely the application of the Carmack Amendment, 49 U.S.C. § 14706. [Doc. 1].

 

Following removal, PL Trucking failed to appear, plead, or otherwise defend against the claims asserted. A default was entered against PL Trucking by the Clerk of Court on December 9, 2016. [Doc. 16].

 

The Plaintiff reached a settlement with the non-defaulting Defendants [see Doc. 24], and on August 14, 2017, the Plaintiff filed a Stipulation of Dismissal as to its claims against these Defendants [Doc. 26]. The Plaintiff now seeks a default judgment against PL Trucking. [Doc. 25].

 

 

1. STANDARD OF REVIEW

Rule 55 of the Federal Rules of Civil Procedure provides for the entry of a default when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Once a defendant has been defaulted, the plaintiff may then seek a default judgment. If the plaintiff’s claim is for a sum certain or can be made certain by computation, the Clerk of Court may enter the default judgment. Fed. R. Civ. P. 55(b)(1). In all other cases, the plaintiff must apply to the Court for a default judgment. Fed. R. Civ. P. 55(b)(2).

 

“The defendant, by his default, admits the plaintiff’s well-pleaded allegations of fact….” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). A defendant, however, “is not held … to admit conclusions of law.” Ryan, 253 F.3d at 780 (quoting Nishimatsu, 515 F.2d at 1206). The Court therefore must determine whether the facts as alleged state a claim. GlobalSantaFe Corp. v. Globalsantafe.com, 250 F. Supp. 2d 610, 612 n.3 (E.D. Va. 2003).

 

 

III. PLAINTIFF’S FACTUAL ALLEGATIONS

The well-pleaded factual allegations of the Plaintiff’s Complaint having been deemed admitted by virtue of the Defendant’s default, the following is a summary of the relevant facts.

 

The Plaintiff B&W Fiber Glass, Inc. manufactures and develops technical fibers, including fiber glass yarn. [Id. at ¶ 2]. The Defendants Kerns Trucking, Inc., ELE Logistics, Inc., Express Brokerage, Inc., and PL Trucking, LLC are all motor carriers providing motor vehicle transportation services for compensation. [Id. at ¶¶ 4, 6, 8, 10].

 

*2 On October 19, 2015, the Plaintiff entered into a contract with Kerns Trucking to transport nine beams of fiber glass yarn from the Plaintiff’s headquarters in Shelby, North Carolina, to Intertape Polymer Group in Carbondale, Illinois, [Id. at ¶ 14]. Under the terms of the contract, Kerns Trucking agreed to transport the beams to Intertape Polymer Group and bear responsibility for any damage. [Id. at ¶ 15]. Kerns Trucking invoiced the Plaintiff $2,350.00 for the shipment. [Id. at ¶ 19]. Kerns Trucking then tendered the shipment to ELE Logistics and/or Express Brokerage for transportation to Intertape Polymer Group. [Id. at ¶ 20]. Thereafter, ELE Logistics and/or Express Brokerage tendered the shipment to PL Trucking for transportation to Intertape Polymer Group. [Id. at ¶ 21].

 

The Plaintiff provided the nine beams of fiber glass yarn in good condition, and the Bill of Lading notes that the beams were “received in good order.” [Id. at ¶¶ 22, 23]. The nine beams, however, arrived in a damaged condition at Intertape Polymer Group. [Id. at ¶ 24]. The damage to the beams was not caused by: an act of God; a public enemy; an act or omission of the Plaintiff; an act by a public authority; or an inherent vice of nature of the goods. [Id. at ¶ 25]. As a result of the damage, Intertape Polymer Group rejected all nine beams, and the beams were returned to the Plaintiff in Shelby, North Carolina. [Id. at ¶ 26].

 

As a result of these events, the Plaintiff suffered direct losses of $43,710.74, comprising: (a) a total loss of eight beams of fiberglass yarn in ($40,005.94); (b) a partial loss one beam of fiberglass yarn ($302.00); (c) a total loss of four steel racks used to transport beams ($2,146.00); and (d) the costs to rework the damaged racks that could be salvaged ($1,256.80). [Declaration of M. Brent Beason (“Beason Decl.”), Doc. 25-1 at ¶ 3]. The Plaintiff’s damages also include $2,350.00 paid for the shipment. [Id. at ¶ 4]. Accordingly, the Plaintiff’s total damages, not including costs, interest or attorneys’ fees, are $46,060.74. [Id. at ¶ 5].

 

The Plaintiff reached a settlement with the non-defaulting Defendants and thereby will recover $25,000 of its damages. After crediting the settlement amount against the Plaintiff’s total damages, the Plaintiff’s unrecovered damages are $21,060.74. [Id. at ¶ 6].

 

 

1. DISCUSSION

The Plaintiff brings this action under the Carmack Amendment, 49 U.S.C. § 14706.1 In order to state a claim under that statute, the Plaintiff must allege: (1) receipt of the goods by the defendant carrier in good order and condition; (2) the arrival of the shipment at its destination in a damaged condition or the failure of the shipment to arrive at all; and (3) the amount of damages. See Missouri Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964).

 

Upon review of the Plaintiff’s Complaint and the Declaration of M. Brent Beason, the Court concludes that the Plaintiff has established the elements necessary to impose liability under the Carmack Amendment. In addition to damages, the Court in its discretion will also award prejudgment interest at a rate of 3.5%2 simple interest from October 19, 2015 to the date of the entry of judgment. See American Nat’l Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 937 (7th Cir. 2003) (noting that prejudgment interest is typically awarded on Carmack Amendment claim from the date of injury); George R. Hall, Inc. v. Superior Trucking Co., 532 F. Supp. 985, 997 (N.D. Ga. 1982) (concluding that damages are “sufficiently certain” to award prejudgment interest on Carmack Amendment claim). Accordingly, the Plaintiff’s Motion for Default Judgment against the Defendant PL Trucking, LLC will be granted.

 

*3 IT IS, THEREFORE, ORDERED Plaintiff’s Motion for Default Judgment against Defendant PL Trucking, LLC [Doc. 25] is GRANTED, and a default judgment is awarded in favor of the Plaintiff and against the Defendant PL Trucking, LLC in the principal amount of $21,060.74, plus prejudgment interest (calculated at a rate of 3.5% simple interest from October 19, 2015 to the date of the entry of judgment) and costs.

 

The Clerk of Court is respectfully directed to enter a judgment in accordance with this Order.

 

IT IS SO ORDERED.

 

All Citations

Slip Copy, 2017 WL 3741977

 

 

Footnotes

1

The Plaintiff also asserts an alternative claim for relief against PL Trucking for negligence. [See Doc. 1-1 at 8]. Because the Court finds that the Plaintiff is entitled to relief under the Carmack Amendment, the Court need not address the Plaintiff’s negligence claim.

2

This was the prime rate in effect at the end of 2015.

 

 

United States District Court,

1. New Jersey.

HARTFORD FIRE INSURANCE CO. a/s/o Ariana Fashion, Inc., Plaintiff,

v.

DYNAMIC WORLDWIDE LOGISTICS, INC., M/V Brussels Bridge V.051E, her engines, boilers, etc. Dynamic Delivery Services, Inc., CECO Logistics, Inc. and XYZ Corp., Defendants.

Civil Action No: 17–553–SDW–LDW

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Filed 09/05/2017

Attorneys and Law Firms

Gerard F. Smith, Pezold, Smith, Hirschmann & Selvaggio, LLC, Denville, NJ, for Plaintiff.

Stephen V. Rible, Mendes & Mount, Esqs., New York, NY, Thomas C. Martin, William D. Bierman, Price Meese Shulman & D’Arminio, P.C., Woodcliff Lake, NJ, for Defendants.

 

 

OPINION

SUSAN D. WIGENTON, U.S.D.J.

*1 Before this Court is Defendant CECO Logistics, Inc.’s (“CECO” or “Defendant”) Motion to Dismiss Hartford Fire Insurance Co. a/s/o Ariana Fashion, Inc.’s (“Hartford” or “Plaintiff”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1367. Venue is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated herein, the Motion to Dismiss is DENIED.

 

 

1. BACKGROUND AND PROCEDURAL HISTORY

Hartford is a domestic insurance company whose insured/subrogor Ariana Fashion (“Ariana”) is in the wholesale clothing business. (Compl. ¶¶ 1–2.) Defendants Dynamic Worldwide Logistics (“DWL”), Dynamic Delivery Services, Inc. (“DDS”), and CECO are all in the business of transporting goods and property. (Id. ¶¶ 3–5.) On or about March 16, 2016, Ariana contracted with defendants “to transport a shipment of 425 cartons of ladies’ jackets and dresses from Shanghai, China to Los Angeles, California, for ultimate distribution to its customer Macy’s.” (Id. ¶ 11.) Plaintiff alleges that the goods at issue were “tendered to defendants in good order and condition” but were contaminated with mold while being transported between China and various Macy’s stores. (Id. ¶¶ 12–14.) Approximately 10–15% of the garments, worth $66,497.50, were rendered unusable. (Id. ¶¶ 15–16.)

 

On January 27, 2017, Plaintiff brought suit in this Court alleging that defendants failed to deliver the garments in good order and condition in violation of their contractual duties under state and federal law. (Dkt. No. 1.) On June 15, 2017, CECO filed the instant motion to dismiss. (Dkt. No. 13.)1 Plaintiff filed timely opposition on July 24, 2017, and Defendant filed its reply on July 31, 2017. (Dkt. Nos. 20, 21.)

 

 

1. LEGAL STANDARD

An adequate complaint must be “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This Rule “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of an entitlement to relief”) (internal citation omitted).

 

In considering a Motion to Dismiss under Rule 12(b)(6), the Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips, 515 F.3d at 231 (external citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (discussing the Iqbal standard). Determining whether the allegations in a complaint are “plausible” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint should be dismissed for failing to “show[ ] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.

 

 

III. DISCUSSION

A.

*2 Plaintiff’s federal claims allege violations of the Carriage of Goods by Sea Act, 46 U.S.C.A. App. § 1300, et. seq. (“COGSA”) (Count One) and the Carmack Amendment, 49 U.S.C. § 14706 (Count Three).

 

COGSA is intended to “facilitate efficient contracting in contracts for carriage by sea” and “applies to shipments from United States ports to ports of foreign countries, and vice versa.” Royal SMIT Transformers BV v. HC Bea–Luna M/V, No. CV 16–14647, 2017 WL 2364362, at *3 (E.D. La. May 31, 2017) (internal citations omitted). The statute applies to “carrier[s] engaged in the carriage of goods to or from any port in the United States.” 46 U.S.C. § 30702 (formerly cited as 46 App. U.S.C.A. § 195). COGSA defines a “carrier” as “the owner, manager, charterer, agent, or master of a vessel.” 46 U.S.C. § 30701. The Carmack Amendment, on the other hand, “provides for the liability of interstate carriers for damage to … goods transported.” Phoenix Ins. Co., Ltd. v. Norfolk S. R.R. Corp. No. CV 11–00398, 2014 WL 2008958, at *6 (D.N.J. May 16, 2014). The Carmack Amendment was “designed to create a national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading.” Id. at *7; see also 49 U.S.C. § 14706 (identifying the title of the statute as “Liability of carriers under receipts and bills of lading”); 49 U.S.C. § 13102 (defining carrier as “a motor carrier, a water carrier, and a freight forwarder”).

 

CECO seeks to dismiss both of Plaintiff’s federal claims, alleging that CECO is licensed solely as a “freight broker, which only arranges for transportation but does not actually transport, carry, load, handle, or unload any freight.” (Mot. Dismiss at 1.) As such, CECO asserts neither COGSA nor the Carmack Amendment apply to CECO because CECO is not a “carrier.” (Id. at 1, 9.) At this stage in these proceedings, however, before any discovery has taken place, this Court is bound by the allegations in the Complaint which identify CECO as “a motor carrier authorized … to transport property in interstate commerce throughout the 48 contiguous States” that received the goods at issue “in good order and condition” but failed to deliver those goods in the same condition to their destination. (Compl. ¶ 5, 12, 15.) It is inappropriate for this Court to make any factual determinations regarding the precise nature of CECO’s business status and/or activities as to the transactions at issue. Plaintiff’s allegations are sufficient at this stage in the proceedings to state a claim under COGSA and the Carmack Amendment; therefore, Defendant CECO’s Motion to Dismiss as to Plaintiff’s federal claims will be denied.2

 

 

B.

*3 Plaintiff also raises a common law breach of contract claim against Defendant (Count Two). CECO argues that Plaintiff’s breach of contract claim is “barred and pre-empted by Federal law, namely the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”) and the Federal Aviation Administration Authorization Act … (“FAAAA” or “F4A”).” (Mot. Dismiss at 1 (citing 49 U.S.C. § 14501).) Taken together, the FAAAA and the ICCTA preempt many state law claims against motor carriers, transportation brokers, and freight forwarders.3 See 49 U.S.C. § 14501(c)(1).4 However, the FAAAA and ICCTA do not preempt routine breach of contract claims. See, e.g., Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 229–230 (1995) (discussing the scope of the ADA’s preemption and finding that the ADA did not bar adjudication of breach of contract claims); Lyn–Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 287 (5th Cir. 2002) (holding that the ADA does not preempt breach of contract claims); Huntington Operating Corp. v. Sybonney Express, Inc., No. H–08–781, 2009 WL 2423860, at *1 (S.D. Tex. Aug. 3, 2009) (holding that breach of contract claims are not preempted by § 14501); Chatelaine, Inc. v. Twin Modal, Inc., 737 F. Supp. 2d 638, 643 (N.D. Tex. Aug. 20, 2010) (determining that 49 U.S.C. § 14501 broadly preempts state law claims except for breach of contract and noting that ICCTA and FAAAA “preemption is not to interfere with contractual obligations between two private parties”). Because the ICCTA and FAAAA do not preempt breach of contract claims, Defendant’s motion to dismiss Count Two will be denied.

 

 

1. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss is DENIED. An appropriate order follows.

 

All Citations

Slip Copy, 2017 WL 3868702

 

 

Footnotes

1

Although CECO moved under Rule 12(b)(6), its moving papers contain a “Statement of Uncontested Material Facts” and a Declaration from one of CECO’s owners attaching an exhibit regarding CECO’s licensing status. This Court will confine itself to the facts as set forth in the Complaint in deciding the instant motion to dismiss.

2

Even if this Court were to consider the supplemental materials provided by the parties regarding CECO’s licensure/registration, it would still deny Defendant’s motion at this time. “Whether a company is a broker or a carrier is not determined by what the company labels itself, but by how it represents itself to the world and its relationship to the shipper.” Hewlett–Packard v. Bros. Trucking, 373 F. Supp. 2d 1349, 1352 (S.D. Fl. 2005); see also Phoenix Assurance Co. v. Kmart, 977 F. Supp. 2d 319, 326 (D.N.J. 1997) (stating that it is a company’s relationships and actions, rather than its registration that are dispositive of the company’s “true identity”); Custom Cartage v. Motorola, No. 98 C 5182, 1999 WL 965686, at *9 (N.D. Ill. Oct. 15, 1999) (noting that “what one labels oneself does not determine one’s status”). Without the benefit of discovery, it is impossible to say what role CECO played in the transport of Ariana’s goods.

3

The FAAAA was enacted on August 23, 1994. Pub. L. No. 103–305, 108 Stat. 1569 (1994). The ICCTA was enacted on December 29, 1995 and expanded federal preemption under the FAAAA. Pub. L. No. 104–88, 109 Stats. 803, 804. Because the FAAAA was modeled on the Airline Deregulation Act of 1978 (“ADA”), courts routinely look to the ADA to interpret the preemptive reach of the FAAAA. See, e.g., Deerskin Trading Post, Inc. v. United Parcel Serv. of Am., Inc., 972 F. Supp. 665, 668–69 (N.D. Ga. 1997) (finding that the FAAAA preemption provision “employs identical language to the preemption provision of the ADA …” and “that Congress intended for the preemption provisions of the FAAAA to be applied in an identical manner as the preemption provision of the ADA”); Yellow Transp., Inc. v. DM Transp. Mgmt. Servs., Inc., No. Civ. 06–1517–LDD, 2006 WL 2871745, at *2 (E.D. Pa. July 14, 2006) (treating the ADA’s preemption provision as “an analogical template by which to interpret 14501(c)(1) of the ICCTA” and finding that Plaintiff’s breach of contract claim was not preempted); 49 U.S.C. § 41713(b)(4)(A) (setting out the ADA’s preemptive authority).

4

The statute provides that “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 any motor carrier … or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).