2018 WL 4784554

United States District Court, S.D. Ohio, Western Division.
SCOTT NESTOR, individually and as Administrator for the Deceased on behalf of Katlynn Nestor and Hudson Nestor, Plaintiff,
v.
EVERLAST ROOFING, INC., and JAMES DUNKEL, Defendants.
Case No. 3:17-cv-93
|
10/04/2018

THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART MOTION IN LIMINE (DOC. 28) AS TO OPINIONS OF STEPHEN M. ASHTON
*1 Pending before the Court is Defendants’ Motion in Limine (Doc. 28) to exclude certain opinions of Plaintiffs’ expert, Stephen Ashton. On September 18, 2018, the Court held a hearing during which the parties presented argument regarding the Motion in Limine, among other pre-trial issues. Subsequent to the hearing, Plaintiffs filed a written Response in Opposition (Doc. 37) to the Motion in Limine. This matter is therefore ripe for review.

I. BACKGROUND
This is a wrongful death case brought by the estates of two teenage siblings, Hudson Nestor (“Hudson”) and Katlynn (“Katlynn”) Nestor, who died in a car accident. On December 21, 2015, Hudson was driving a vehicle with his sister Katlynn as a passenger on Gettysburg-Pitsburg Road in Darke County, Ohio. Defendant James Dunkel was driving a tractor-trailer and making a delivery for Defendant Everlast Roofing. Dunkel was on Neff Road, turning onto Gettysburg-Pitsburg Road. As Dunkel made his turn, the decedents’ vehicle collided with his vehicle. Plaintiffs allege that Dunkel was negligent. Defendants allege that Hudson was contributorily negligent.

This matter is set for trial on October 9, 2018. Defendants raised several evidentiary issues in anticipation of Plaintiffs’ presentation of evidence at trial, including the instant Motion in Limine directed toward Plaintiffs’ expert, Stephen Ashton.

II. MOTION IN LIMINE STANDARD
District courts adjudicate motions in limine under their “inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). Courts should exclude evidence in limine “only when evidence is clearly inadmissible on all potential grounds.” Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D.Ky.2010) (citation omitted). The Sixth Circuit advises that the “better practice” is to address questions regarding the admissibility of broad categories of evidence “as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.1975). “[A] court is almost always better situated during the actual trial to assess the value and utility of evidence.” Owner–Operator Independent Drivers Ass’n v. Comerica Bank, No. 05–CV–0056, 2011 WL 4625359, at *1 (S.D. Ohio Oct.3, 2011). Denial of a motion in limine does not necessarily mean that the evidence, which is the subject of the motion, will be admissible at trial. Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). This rationale applies to motions in limine to exclude expert witness testimony. Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th Cir.2000) (“A district court should not make a Daubert ruling prematurely, but should only do so when the record is complete enough to measure the proffered testimony against the proper standards of reliability and relevance.”)

III. ANALYSIS
Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. It states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
*2 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. “A district court’s task in assessing evidence proffered under Rule 702 is to determine whether the evidence ‘both rests on a reliable foundation and is relevant to the task at hand.’ ” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)).

The Supreme Court has identified several factors that might bear on reliability, including testing, peer review, publication, known or potential rate of error, and general acceptance. Daubert, 509 U.S. at 593–94. These factors are neither definitive nor exhaustive, however, and may not apply in every case. Mike’s Train House v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006). In certain cases, an expert’s experience alone may provide a reliable basis for his testimony. Fed. R. Evid. 702 (2000 Amendments advisory committee notes); see also Campbell v. City of Springboro, Ohio, 788 F. Supp. 2d 637, 662 (S.D. Ohio 2011) (stating that reliability concerns may focus on personal knowledge and experience). “If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Fed. R. Evid. 702 (2000 Amendments advisory committee notes); see also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 296 (6th Cir. 2007).

Although Rule 702 “does not require anything approaching absolute certainty,” an expert’s opinion cannot be based on mere speculation. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010). The Sixth Circuit has instructed as follows:
[A]n expert’s opinion…should be supported by good grounds, based on what is known. The expert’s conclusions regarding causation must have a basis in established fact and cannot be premised on mere suppositions. An expert’s opinion, where based on assumed facts, must find some support for those assumptions in the record. However, mere weaknesses in the factual basis of an expert witness’ opinion…bear on the weight of the evidence rather than on its admissibility.
McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800–01 (6th Cir. 2000) (internal quotations and citations omitted); see also In re Gen. Motors OnStar Lit., No. 2:–CV–DT, 2011 WL 679510, at *8 (E.D. Mich. Jan.12, 2011) (expert’s failure to consider all available material goes to weight of testimony), report and recommendations adopted by, No. 2:07–MDL–01867, 2011 WL 674727 (E.D. Mich. Feb.16, 2011). “An expert need not consider every possible factor to render a ‘reliable opinion;’ rather the expert need only consider enough factors to make his or her opinion sufficiently reliable in the eyes of the court.” In re Gen. Motors OnStar Lit., 2011 WL 679510, at *8 (internal citation and quotation omitted). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595.

*3 Defendants ask the Court to enter an order in limine excluding Ashton’s opinions “based on speculation or which exceed the scope of his expertise.” (Doc. 28 at 1.) Defendants identify the following specific opinions as inadmissible:
1) That Hudson failed to perceive the tractor-trailer because “the headlights of the tractor were positioned in the southbound lane on Gettysburg-Pitsburg Road,”
2) That Hudson had “no expectation that a tractor-trailer would be on rural Gettysburg-Pitsburg Road,”
3) That, on the night of the accident, the tractor-trailer was not visible due to its lack of reflectivity and conspicuity; and
4) That “a normal, prudent person would not have taken the responsibility of pulling an entirely blank, unreflective, unmarked, cloth-like cargo box/semi-trailer on a dark, rural road…”
(Id. at 2-3, quoting Doc. 32-1, Ex. 3 at 17-18.)

As to the first of these opinions, Defendants argue that Ashton can only speculate regarding what Hudson did or did not perceive at the time of the accident. Defendants refer to Plaintiffs’ stipulation, at Ashton’s deposition, that “we will never know what went through Mr. Nestor’s mind when he died.” (Doc. 32 at 145.) Plaintiffs agree that Ashton cannot testify as to what Hudson perceived. (Doc. 37 at 2.) Defendants’ Motion in Limine as to this opinion is GRANTED.

Defendants argue that the second opinion—that Hudson would not have expected to see a tractor-trailer—should be excluded for lack of foundation. This opinion, like the first, also presumes to know what was going on in Hudson’s mind on the night of the accident. Ashton testified at his deposition that this opinion is based on his “own life experience that [on] county roads, you don’t see many tractor trailers at night, period, and especially not making left turns.” (Doc. 31 at 131:15-19.) Defendants argue that the opinion amounts to no more than Ashton’s “personal belief,” which is not an accepted basis for expert testimony. In response, Plaintiffs neither describe Ashton’s personal experience on country roads nor argue its relevance to Plaintiffs’ car accident. The Court therefore GRANTS the Motion in Limine as to this opinion.

As to the third opinion, Defendants argue that Ashton is not qualified to render an opinion regarding the reflectivity and conspicuity of the tractor-trailer. They claim that Ashton’s education in this area is based on a single 80-hour presentation, which included one portion regarding conspicuity. Defendants further argue that Ashton’s opinions on light reflectivity are untested and unverifiable. In response, Plaintiffs argue that Ashton’s opinions regarding these issues are “largely admissible” and Defendants’ objections go to their weight, not admissibility. At this time, the Court is not persuaded that Ashton lacks the expertise under Rule 702 to render an opinion on these issues. Defendants’ Motion in Limine is therefore DENIED as to his opinions on the reflectivity and conspicuity of the tractor-trailer.

Lastly, Defendants argue that Ashton’s opinion on what a “reasonable, prudent person” would have done is a matter of law on which only the judge may instruct the jury. Plaintiffs do not contest this issue but agree that an expert witness should not be permitted to testify regarding the law or an “ultimate conclusion of fact for the jury.” (Doc. 37 at 1.) Defendants’ Motion in Limine as to this opinion is therefore GRANTED.

IV. CONCLUSION
*4 For the reasons above, Defendants’ Motion in Limine (Doc. 28) is GRANTED IN PART and DENIED IN PART.

DONE and ORDERED in Dayton, Ohio, this Thursday, October 4, 2018.
s/Thomas M. Rose

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2018 WL 4784554

2018 WL 4609935

United States District Court, D. Oregon.
Cathie RAAF, Plaintiff,
v.
UPS GROUND FREIGHT, INC., Defendant.
Civ. No. 6:18-cv-00976-MC
|
Signed 09/25/2018
Attorneys and Law Firms
Emmanuel Benjamin Miller, E.B. Miller Law, LLC, Bend, OR, for Plaintiff.
Kevin M. Anderson, Anderson and Yamada, PC, Portland, OR, for Defendant.

ORDER
Michael J. McShane, United States District Judge
*1 Plaintiff brings this negligence action alleging that Defendant’s employee damaged an antique sleigh during transport. Defendant removed this action, alleging that Plaintiff’s claims are preempted by federal law. Plaintiff moves to remand, arguing this Court lacks subject matter jurisdiction over this action because her claim does not meet the jurisdictional minimum required for removal under the Carmack Amendment. For the reasons discussed below, Plaintiff’s motion to remand, ECF No. 6, is GRANTED.

BACKGROUND
In 2017, Plaintiff contracted with Defendant to ship a newly purchased antique Studebaker horse drawn sleigh to Redmond, Oregon. After the sleigh’s arrival in Redmond, the sleigh was significantly damaged when it fell off a loading dock due to the alleged negligence of Defendant’s employee. Compl.¶ 5.

On May 2, 2018, Plaintiff filed her complaint in the Circuit Court of the State of Oregon for Deschutes County. Defendant was served on May 4, 2018 and filed a timely Notice of Removal on June 4, 2018.

STANDARD OF REVIEW
A defendant may remove a civil action from state court to federal district court if the federal court would have had original jurisdiction over the matter. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions arising under the Constitution and laws of the United States. 28 U.S.C. § 1331. When, as here, the court lacks diversity jurisdiction, removal is proper only when the court has federal-question jurisdiction over the subject matter of the complaint. Caterpillar Inc. v. Willaims, 482 U.S. 386, 392 (1987). “The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Id. (internal quotations and citation omitted).

One exception to the well-pleaded complaint rule is the “artful pleading” doctrine. Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 687 (9th Cir. 2007). When a federal statute completely preempts a particular area of law, the artful pleading doctrine provides that even a well-pleaded state law claim may be brought in federal court. Id. “When the federal statute completely preempts the state law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).

If, following removal, the court determines it lacks original jurisdiction, and that the case was therefore improperly removed, it must remand the matter to state court. 28 U.S.C. § 1447(c); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8 (1983). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The ‘strong presumption’ against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Id. (quoting Nishimoto v. Federman-Bachrach & Assoc., 903 F.2d 709, 712 n.3 (9th Cir. 1990) ). While a defendant’s standard of proof is unclear when, as here, the plaintiff has claimed less than the required amount in controversy some district courts have held that the defendant must prove the amount in controversy by a preponderance of the evidence. Graybill v. Khudaverdian, No. SACV 15-01627-CJC(JCGx), 2015 WL 7295378, at *2–3 (C.D. Cal. Nov. 17, 2015) (“[T]he preponderance of the evidence should apply … when a defendant attempts to remove a case where a single plaintiff has affirmatively pled an amount below the jurisdictional minimum.”).

DISCUSSION

I. Carmack Amendment
*2 The Carmack Amendment, 49 U.S.C. § 14706, “is the exclusive cause of action for interstate-shipping contract claims alleging loss or damage to property.” Hall, 476 F.3d at 688. As such, the Carmack Amendment completely preempts a contract claim alleging loss or damage to property.1 Id. However, a defendant may not remove an action against a carrier for damage to shipments unless the matter in controversy exceeds $10,000. 28 U.S.C. § 1445(b). Removal under § 1445(b) is only proper if the matter in controversy for each bill of lading exceeds $10,000. See Hunter v. United Van Lines, 746 F.2d 635, 652 (9th Cir. 1985); 28 U.S.C. § 1337(a).

Defendant contends that removal is proper in this case because Plaintiff’s negligence claims are completely preempted by the Carmack Amendment and the matter in controversy exceeds $10,000. As proof of the actual amount in controversy, Defendant points to Plaintiff’s demand letter,2 in which Plaintiff wrote that the “total cost of remediation and repair in this matter could well exceed $10,000.” ECF No. 1-3. Defendant also claims that Plaintiff’s settlement demand for $10,000 in the same letter demonstrates that Plaintiff is seeking more than $10,000 in this action. Defendant argues that Plaintiff’s statements are sufficient evidence that the amount in controversy “exceeds” $10,000.

In response, Plaintiff argues that her demand letter and complaint capped the damages at $10,000. Plaintiff notes that her demand letter and complaint clarifies her intent to bring her claim under ORS 20.080. ORS 20.080 is titled “Attorney fees for certain small tort claims,” and provides for fees “where the amount pleaded is $10,000 or less[.]” Plaintiff also notes her complaint expressly limits the damages to $10,000. See Compl. ¶ 10 (“As a result of the negligence of defendant, Plaintiff suffered economic loss in the amount of $10,000.”).

Defendant is correct that Plaintiff, by writing that damages “could well exceed $10,000” implied that she considered her claim greater than $10,000. This implication is not enough to overcome the fact that Plaintiff ultimately pled damages of $10,000 in her complaint under a statute that expressly limits her recovery to $10,000. In light of all the evidence, Plaintiff’s assertion that damages “could well exceed $10,000” does not overcome the fact that she deliberately chose to limit her recovery to $10,000 in her prayer for relief. Considering “[t]he ‘strong presumption’ against removal jurisdiction,” Gaus, 980 F.2d at 566 (quoting Nishimoto, 903 F.2d at 712 n.3), Defendant fails to establish by a preponderance of the evidence that the amount in controversy “exceeds” $10,000.

*3 Because the matter in controversy does not exceed $10,000, Defendant may not remove this action under the Carmack Amendment. 28 U.S.C. § 1445(b).

II. Federal Aviation Administration Authorization Act
Defendant raises an alternative argument that the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c) (“FAAAA”) serves as an independent basis for federal-question jurisdiction.3 The FAAAA prevents states from enacting or enforcing laws “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” § 14501(c). District courts have widely held that negligence claims are preempted by the FAAAA. Luccio v. UPS, No. 9:16-CV-81703-RLR, 2017 WL 412126, at *1 (S.D. Fla. Jan. 31, 2017); ASARCO v. England Logistics Inc., 71 F. Supp. 3d 990, 1007 (D. Ariz. 2014); Ameriswiss Tech., v. Midway Line of Illinois, Inc., 888 F. Supp. 2d 197, 208 (D.N.H. 2012).

While federal preemption serves as a defense to an action, it typically does not confer federal-question jurisdiction on the Plaintiff’s claims for purposes of removal. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). One exception occurs when Congress “so completely pre-empt[s] a particular area” that any state claim involving that area is “recharacterize[d] … into an action arising under federal law.” Id. at 63-64. This narrow exception to the well-pleaded complaint rule requires a “clearly manifested intent of Congress” to completely preempt an area of law and ensure that entire area “is necessarily federal in character[.]” Id. at 67.

Neither party provided any discussion, or pointed to any cases discussing whether the FAAAA involves ordinary or complete preemption. In conducting my own research on the matter, I found four cases discussing the issue, and each opinion held that the FAAAA contains “no detailed, comprehensive civil enforcement scheme providing exclusive federal remedies” and, therefore, that Congress did not manifest an intent to make state law claims preempted by the FAAAA removable to federal court. City of Rockford v. Raymond, No. 98 C 50353, 1999 WL 218549, at *2 (N.D. Ill. Apr. 14, 1999); see also Gororm v. Old Dominion Freight Line Inc. 2012 WL 12887687, at *2 (C.D. Ca. March 12, 2012); Espinosa v. Continental Airlines, 80 F.Supp.2d 297, 300-302 (D. N.J. 2000); Ready Transp. Inc. v. Best Foam Fabricators, Inc., 919 F.Supp 310, 314-15 (N.D. Ill. 1996) ). Those cases are persuasive.

Further support for the conclusion that the FAAAA does not completely preempt state law claims can be found in the case law of the Airline Deregulation Act (“ADA”), § 41713(b)(1). The FAAAA’s preemption clause borrows its language directly from the ADA, and courts analyze the two acts similarly. Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370 (2008); see also California Trucking Ass’n v. Su, No. 17-55133, 2018 WL 4288953, at *3 (9th Cir. Sept. 10, 2018). The Ninth Circuit has held that the ADA’s preemption clause does not provide federal-question jurisdiction under the complete preemption doctrine. Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1184 (9th Cir. 2002); see also Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995) (ADA, unlike ERISA, does not channel civil actions into federal courts). Therefore, the FAAAA, which uses the same language as the ADA, does not completely preempt state law claims. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006) (“[W]hen judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well.”) (internal quotation marks and alteration omitted) ). As a result, Plaintiff’s state law negligence claim does not “arise under the … laws … of the United States, 28 U.S. C. § 1331, and is not “removable to federal court by the defendant[ ],” Taylor, 481 U.S. at 67 (citing 28 U.S.C. § 1441(b) ).

CONCLUSION
*4 “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566. As the amount in controversy does not exceed $10,000, and as the FAAAA does not completely preempt Plaintiff’s negligence claim, Defendant has not met its burden of establishing that removal was proper. Therefore, I must remand this matter to state court. 28 U.S.C. § 1447(c); Franchise Tax Bd., 463 U.S. at 8. Plaintiff’s motion to remand, ECF No. 6, is GRANTED. As I lack jurisdiction over this action, Defendant’s motion to dismiss, ECF No. 7, is DENIED. Plaintiff is granted 14 days to move for costs and any actual expenses incurred as a result of the improper removal. See 28 U.S.C. § 1447(c).

IT IS SO ORDERED.
All Citations
Slip Copy, 2018 WL 4609935

Footnotes

1
This Court assumes without deciding that Plaintiff’s negligence action falls under the Carmack Amendment for purposes of federal-question jurisdiction.

2
Defendant argues that Plaintiff’s demand letter is an “other paper” supporting removal under 28 U.S.C. § 1446(b). In deciding a removal action, district courts may consider facts in the removal petition and may “require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335–36 (5th Cir. 1995) ); see also Rea v. Michaels Stores Inc., 742 F.3d 1234 (9th Cir. 2014) (allowing defendant’s evidence regarding amount in controversy without discussing § 1446(b) ). 28 U.S.C. § 1446(b) gives the defendant a 30-day window to file for removal after receipt of certain documents that reasonably put defendant on notice that the amount in controversy is sufficient for removal jurisdiction. It does not speak to what documents are allowed as evidence to support a finding regarding the amount in controversy. I note, however, that Plaintiff’s demand letter is not an “other paper” because Defendant received it before Plaintiff filed the complaint. Carvalho v. Equifax Info. Servs., 629 F.3d 876, 886 (9th Cir. 2010) (“ ‘other paper’ does not include any document received prior to receipt of the initial pleading”).

3
Defendant argues Plaintiff waived any challenge to subject-matter jurisdiction under the FAAA. Def.’s Resp. 5-6. However, a party cannot waive a challenge to subject-matter jurisdiction as federal courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 US. 500, 514 (2006).