Positive As of: July 21, 2018 10:24 PM Z
Interface Printers, LLC v. BGF Global, LLC
United States District Court for the Northern District of Texas, Dallas Division
June 25, 2018, Decided; June 25, 2018, Filed
No. 3:16-CV-607-L (BT)

Reporter
2018 U.S. Dist. LEXIS 115344 *
INTERFACE PRINTERS, LLC, Plaintiff, v. BGF GLOBAL, LLC, Defendant.
Subsequent History: Adopted by, Motion granted by Interface Printers, LLC v. BGF Global, LLC, 2018 U.S. Dist. LEXIS 115102 (N.D. Tex., July 11, 2018)
Prior History: Interface Printers, LLC v. BGF Global, LLC, 2017 U.S. Dist. LEXIS 149237 (N.D. Tex., Aug. 28, 2017)

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff Interface Printers, LLC’s Amended Motion for Default Judgment [ECF No. 12], which has been referred to the United States magistrate judge for proposed findings and recommendations for disposition of the motion. See Order of Reference [ECF No. 15]. For the following reasons, the District Court should GRANT the Amended Motion, in part, and enter a default judgment for Plaintiff against Defendant BGF Global, LLC, consistent with the provisions of these Findings, Conclusions, and Recommendation.

BACKGROUND
Plaintiff filed its Original Complaint on March 3, 2016, in connection with an incident arising out of Defendant BGF Global, LLC’s transport of 30 printers to Eau Claire, Wisconsin on February 3, 2015, pursuant to a contract. See Compl. 2 [ECF No. 1]. Plaintiff alleges that it secured the printers in a trailer with “air ride” technology to reduce the effects of bumps on the road during transport. See [*2] Compl. 2. Plaintiff alleges that Defendant apparently unloaded Plaintiff’s cargo from the original trailer and reloaded it onto a new one, but failed to secure the cargo in a manner that would prevent damage. See Compl. 2. Plaintiff further alleges that when the printers arrived in Eau Claire, they were no longer strapped down in an “air ride” equipped trailer. See Compl. 3. Plaintiff contends that Defendant is liable as a motor carrier under 49 U.S.C. § 14706 for damages suffered by Plaintiff. See Compl. 3.
On November 18, 2016, Plaintiff filed a combined Motion for Entry of Default and Default Judgment [ECF No. 7]. In this motion, Plaintiff stated that Defendant’s registered agent was served with a summons and a copy of Plaintiff’s Original Complaint by a certified process server, but that Defendant failed to file a responsive pleading or otherwise defend the lawsuit. See Mot. 1 [ECF No. 7]. The Clerk’s Entry of Default [ECF No. 8] was entered on November 18, 2016.
On August 28, 2017, the Court recommended that Plaintiff’s Motion for Default Judgment be denied without prejudice, because Plaintiff did not demonstrate its entitlement to a default judgment under the applicable law. See Recommendation [*3] 4-5 [ECF No. 10]. Therefore, the Court recommended that the District Court deny Plaintiff’s Motion for Default Judgment without prejudice to re-filing the motion with a brief that demonstrates Plaintiff’s entitlement to the requested relief, and a separate appendix that includes all of the documents relied on by Plaintiff in its request for default judgment. See Recommendation 5. On September 12, 2017, the District Court accepted the recommendation of the magistrate judge. See Order [ECF No. 11]. Plaintiff filed its Amended Motion for Default Judgment on October 12, 2017, as ordered by the District Court. See Mot. [ECF No. 12].

LEGAL STANDARDS
Fed. R. Civ. P. 55 (b)(2) governs the entry of a default judgment. A default judgment is available to a plaintiff who demonstrates the following: (1) the defendant was served with a summons and the complaint, and a default was entered because the defendant failed to appear; (2) the defendant is not a minor or an incompetent person; (3) the defendant is not in the military or subject to the Soldiers and Sailors Relief Act of 1940, 50 U.S.C. §3931; and (4) if the defendant appeared in the case, the defendant was provided with notice of the default judgment application at least three days [*4] before the hearing. See Arch Ins. Co. v. WM Masters & Assocs., Inc., 2013 U.S. Dist. LEXIS 5086, 2013 WL 145502, at *2 (N.D. Tex. Jan. 14, 2013) (citing Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1070 (D. Ariz. 2006)). In addition, the plaintiff “must make a prima facie showing of jurisdiction.” TFHSP, LLC Series 10147 v. U.S. Bank Nat’l Ass’n, 2016 U.S. Dist. LEXIS 63714, 2016 WL 2856006, at *2 (N.D. Tex. Apr. 18, 2016) (citing Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 325 (5th Cir. 2001)).
The Fifth Circuit generally disfavors default judgments and prefers to resolve cases on their merits. Arch Ins. Co., 2013 U.S. Dist. LEXIS 5086, 2013 WL 145502, at *2 (citing Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999); Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989)). However, this position is “counterbalanced by considerations of social goals, justice, and expediency, a weighing process [that] lies largely within the domain of the trial judge’s discretion.” Rogers, 167 F.3d at 936.
In determining whether to enter a default judgment, courts consider the following: (1) any material issues of fact; (2) substantial prejudice; (3) clearly established grounds for default; (4) excusable neglect or good faith mistake; (5) harshness of a default judgment; and (6) whether the court would set aside the default judgment upon motion. Arch Ins. Co., 2013 U.S. Dist. LEXIS 5086, 2013 WL 145502, at *3 (citing Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998)). “Any doubt as to whether to enter or set aside a default judgment must be resolved in favor of the defaulting party.” Id. The entry “of a default judgment is within the Court’s discretion.” TFHSP, LLC Series 10147, 2016 U.S. Dist. LEXIS 63714, 2016 WL 2856006, at *2 (citing Lindsey, 161 F.3d at 893).
“‘A default judgment is unassailable on the merits but only so far as it is supported by well-pleaded allegations, assumed to be true.'” Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 496 (5th Cir. 2015) (quoting Nishimatsu Constr. Co., Ltd. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). A defendant is not required to admit [*5] conclusions of law or facts that are not well-pleaded. See id. (quoting Nishimatsu Constr. Co., Ltd., 515 F.2d at 1206). Rule 8(a)(2) “requires a pleading to contain a short and plain statement of the claim showing that the pleader is entitled to relief. The purpose of this requirement is to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Wooten, 788 F.3d at 498 (internal quotation marks and citations omitted). However, “[t]he factual allegations in the complaint need only be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal quotation marks and citation omitted).
“‘A default judgment is a judgment on the merits that conclusively establishes the defendant’s liability. But it does not establish the amount of damages.'” Crawford v. Lee, 2011 U.S. Dist. LEXIS 55953, 2011 WL 2115824, at *4 (N.D. Tex. May 24, 2011) (quoting United States v. Shipco Gen., 814 F.2d 1011, 1014 (5th Cir. 1987)). It is Plaintiff’s “burden to provide an evidentiary basis for the damages it seeks.” Halff Assocs., Inc. v. Warner Pac. Props. LLC, 2008 U.S. Dist. LEXIS 62129, 2008 WL 3874673, at *2 (N.D. Tex. Aug. 13, 2008). “Generally, in the context of a default judgment, an evidentiary hearing is required to determine the amount of unliquidated damages.” TFHSP, LLC Series 10147, 2016 U.S. Dist. LEXIS 63714, 2016 WL 2856006, at *2 (citing James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993)). However, an evidentiary hearing is not required where the claimed damages are liquidated and are ascertainable from [*6] the filings or otherwise can be calculated mathematically. See TFHSP, LLC Series 10147, 2016 U.S. Dist. LEXIS 63714, 2016 WL 2856006, at *2 (citing James, 6 F.3d at 310; Crawford, 2011 U.S. Dist. LEXIS 55953, 2011 WL 2115824, at *4).

ANALYSIS
In view of the relevant legal standards and the record in this case, the Court finds that Plaintiff is entitled to a default judgment. With respect to the prerequisites for entering a default judgment, the Court finds that Defendant was properly served with summons and a copy of Plaintiff’s Complaint on June 6, 2016. See Proof of Service [ECF No. 5]. The summons instructed Defendant to serve Plaintiff’s attorney with an Answer to the Complaint within twenty-one days after the date of service. See Summons 1 [ECF No. 3]. The summons warned that failure to comply would result in judgment by default being entered against Defendant for the relief demanded in the Complaint. See Summons 1. Defendant failed to enter an appearance and further failed to comply with the directives of the summons or otherwise indicate an intent to defend the action within the time required by law. Defendant is a limited liability company, and therefore is not a minor or an incompetent person; nor is defendant in the military or subject to the Soldiers and Sailors Relief Act of 1940.
With respect to the factors [*7] that inform the Court’s decision as to whether to grant a default judgment, the Court finds that Defendant has not filed any responsive pleadings or otherwise appeared in this case, and thus has not contested any facts presented in Plaintiff’s Complaint. The grounds for default are clearly established, and there is no evidence before the Court that “a good faith mistake or excusable neglect” caused the default. Substantial prejudice exists because Defendant’s failure to respond to Plaintiff’s Complaint threatens to bring the adversary process to a halt, and prevents Plaintiff from pursuing its legal rights. Although a default judgment is a harsh remedy, Plaintiff seeks only the relief to which it seemingly is entitled. Based on the facts known to the Court, Defendant is not entitled to any affirmative defense. Finally, the Court discerns no “good cause” for which it would be obligated to set aside the default if later challenged by Defendant. See Arch Ins. Co., 2013 U.S. Dist. LEXIS 5086, 2013 WL 145502, at *3 (citing cases).
While Defendant’s default does not in itself warrant the Court entering a default judgment, the pleadings and other evidence of record in this case provide a sufficient basis in fact for a judgment to be entered. Nishimatsu Constr. Co., 515 F.2d at 1206 (noting that [*8] “[t]he defendant, by his default, admits the plaintiff’s well pleaded allegations of fact”). Plaintiff brings this action under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, which “allows a shipper to recover damages from a carrier for ‘actual loss or injury to the property’ resulting from the transportation of cargo in interstate commerce.” National Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546, 549 (5th Cir. 2005) (quoting 49 U.S.C. § 14706(a)(1)). Under Section 14706, a carrier is liable “for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported.” 49 U.S.C. § 14706. To establish a prima facie case of negligence under Section 14706, a shipper must demonstrate:
(1) delivery [to the carrier] of the goods in good condition;
(2) receipt by the consignee of less goods or damaged goods; and
(3) the amount of damages.
Man Roland, Inc. v. Kreitz Motor Exp., Inc., 438 F.3d 476, 479 (5th Cir. 2006) (citing Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003); Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 877 (5th Cir. 1996); Johnson & Johnson v. Chief Freight Lines Co., 679 F.2d 421, 421 (5th Cir. 1982)).
Once the shipper establishes a prima facie case, there is a rebuttable presumption of negligence on the part of the carrier. Man Roland, 438 F.3d at 479 (citing Frosty Land Foods Int’l v. Refrigerated Transp. Co., 613 F.2d 1344, 1346-47 (5th Cir. 1980)). To overcome this presumption of negligence, the carrier must show that (1) it was free from negligence, and (2) the damage or loss to the cargo was caused by “(a) [an] act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent [*9] vice or nature of the goods.” Chief Freight Lines Co., 679 F.2d at 422 & n.1 (citing Mo. Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964)).
Plaintiff’s Complaint alleges that Plaintiff, a shipper, had a contract with Defendant, a carrier, to transport 30 printers to Eau Claire, Wisconsin. See Compl. 2. Plaintiff has provided a copy of the bill of lading for the printers, which constitutes prima facie evidence of delivery of the printers to Defendant in good condition. See Accura Sys., 98 F.3d at 878. The Complaint alleges that Plaintiff secured the printers in a trailer with “air ride” technology to reduce the effects of bumps on the road during transport. See Compl. 2. The Complaint further alleges that when the printers arrived in Eau Claire, they were no longer strapped down in an “air ride” equipped trailer. See Compl. 3. Plaintiff has also submitted an affidavit from the company’s co-owner stating that the printers arrived at their destination in a damaged condition. See Pl.’s App. 9 [ECF No. 14]. The affidavit further establishes that Plaintiff incurred $43,900 in damages. See Pl.’s App. 10. Based on this evidence, the Court finds Plaintiff has established a prima facie case of negligence under Section 14706.
Because Defendant is in default, there is no evidence before the Court to rebut the presumption of negligence [*10] or contest the amount of damages incurred by Plaintiff. The Court finds the amount of $43,900 in damages is supported by Plaintiff’s evidence and the record. See James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993) (holding that when the amount of damages and/or costs can be determined with certainty by reference to the pleadings and supporting documents, and when a hearing would not be beneficial to the court, the court may determine the amount of damages without a hearing). Accordingly, the Court finds that Plaintiff is entitled to recover from Defendant a total amount of $43,900 in actual damages.
Although Plaintiff’s Complaint also sought to recover prejudgment interest and costs of suit, Plaintiff did not mention prejudgment interest or court costs in its Amended Motion and did not submit any evidence to support an award of such interest or costs. Thus, Plaintiff should not recover prejudgment interest or costs of suit.

RECOMMENDATION
For the foregoing reasons, the District Court should GRANT Plaintiff’s Amended Motion for a Default Judgment [ECF No. 12], in part, and order that final default judgment be entered for Plaintiff against Defendant in the amount of $43,900, plus post-judgment interest at the applicable federal rate.
SO [*11] RECOMMENDED.
June 25, 2018.
/s/ Rebecca Rutherford
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE

Diezelski v. All My Sons Moving & Storage of Baton Rouge, Inc.
United States District Court for the Middle District of Louisiana
June 25, 2018, Decided; June 25, 2018, Filed
CIVIL ACTION NO. 16-694-RLB

Reporter
2018 U.S. Dist. LEXIS 105698 *; 2018 WL 3118683
KATIE VON DIEZELSKI AND PAUL DIEZELSKI VERSUS ALL MY SONS MOVING & STORAGE OF BATON ROUGE, INC.

RULING
Before the Court is Defendant’s Motion for Partial Summary Judgment (R. Doc. 20) filed on March 15, 2018. The motion is opposed. (R. Doc. 23).

I. Background
This action involves an interstate move of personal property from Baton Rouge, Louisiana to Houston, Texas. Katie von Diezelski and Paul von Diezelski (collectively, “Plaintiffs”) allege that Ms. von Diezelski initially contracted with All My Sons Moving & Storage of Baton Rouge, Inc. (“Defendant” or “AMS”) on or about July 13, 2016 regarding the move. (R. Doc. 1 at 7).1 There is no dispute that AMS picked up the property in Baton Rouge, Louisiana on July 30, 2016,2 and unloaded the property in Houston, Texas on July 31, [*2] 2016. Plaintiffs allege that the shipped property was damaged in transit, and seek recovery for property damage, mental anguish, loss of enjoyment of life, and all other recoverable damages. (R. Doc. 1 at 7-9).
AMS removed the action based on the Court’s jurisdiction under the 49 U.S.C. § 14706 (the “Carmack Amendment” to the Interstate Commerce Act). (R. Doc. 1). AMS asserts that while it charged Plaintiffs $2,871.75 for the move, the amount in controversy, exclusive of interest and costs, exceeds $10,000, as required by 28 U.S.C. § 1337. (R. Doc. 1 at 2). There is no dispute that the Court has jurisdiction pursuant to 49 U.S.C. § 14706 and 28 U.S.C. § 1337. There is no also no dispute that both Plaintiffs have standing to sue under the Carmack Agreement. See Banos v. Eckerd Corp., 997 F. Supp. 756, 762 (E.D. La. 1998) (“[C]onsignors, holders of the bills of lading issued by the carrier, and persons beneficially interested in the shipment although not in possession of the actual bill of lading, in addition to shippers, have standing to sue under the Carmack Amendment.”).
AMS now moves for partial summary judgment for the purpose of clarifying the substantive law governing this dispute; to establish that AMS’s liability for damaged property is limited to sixty (60) cents per pound per article; and to obtain dismissal of Plaintiffs’ general [*3] damage claims for “past and future mental anguish and emotional distress.” (R. Doc. 20-2 at 3).
In support of partial summary judgment, AMS relies on an Affidavit of Brandon Pollard, AMS’s Operations Manager (R. Doc. 20-3), and the following documents: the Order for Service (R. Doc. 20-1); the Uniform Household Goods Bill of Lading and Freight Bill (“Uniform Bill of Lading”) (R. Doc. 20-5); and the Combined Uniform Household Goods Bill of Lading and Freight Bill (“Combined Uniform Bill of Lading”) (R. Doc. 20-6). Mr. Pollard, asserts that each of the foregoing documents “were reviewed and signed by the shipper [Katie von Diezelski] or her father, Paul Von Diezelski.” (R. Doc. 20-3 at 2). Mr. Pollard further asserts that the Combined Uniform Bill of Lading “contains Valuation causes which were approved by the shipper” and that “state the carrier’s standard liability is sixty (60) cents per pound per damaged item.” (R. Doc. 20-3 at 2). Finally, Mr. Pollard asserts that the shipper, Ms. von Diezelski, “was provided with the opportunity to obtain insurance from a third party to protect the shipment but chose not to do so.” (R. Doc. 20-3 at 2).
The Combined Uniform Bill of Lading provides, [*4] in relevant part, the following language in its “Valuation” clause:
CUSTOMER (SHIPPER) IS REQUIRED TO DECLARE IN WRITING THE RELEASED VALUE OF THE PROPERTY. THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE CUSTOMER (SHIPPER) AND CONFIRMED BY THEIR SIGNATURE HEREON TO BE NOT EXCEEDING 60 CENTS PER POUND PER ARTICLE UNLESS SPECIFICALLY EXCEPTED. THE CUSTOMER (SHIPPER) HEREBY DECLARES VALUATIONS IN EXCESS OF THE ABOVE LIMITS ON THE FOLLOWING ARTICLES:
SHIPPER-IMPORTANT-READ WHAT YOU ARE SIGNING[.]
(R. Doc. 20-6 at 1). The “Valuation” clause is signed, but there are no articles or valuations listed. The Combined Uniform Bill of Lading also provides, in relevant part, the following language regarding obtaining insurance and the carrier’s standard liability:
1. ALL MY SONS ADVISES YOU TO OBTAIN ADDITIONAL INSURANCE TO PROTECT YOURSELF FROM LOSS AND/OR DAMAGE OF GOODS. HOUSEHOLD GOOD CARRIER’S LIABILITY FOR LOSS OR DAMAGES TO ANY SHIPMENT IS 60 CENTS PER POUND PER ARTICLE, UNLESS THE CARRIER AND SHIPPER AGREE, IN WRITING, TO A GREATER LEVEL OF LIABILITY . . . . INITIAL .
A. I REALIZE THE CARRIER’S STANDARD LIABILITY IS 60 CENTS PER POUND PER ARTICLE (THIS IS [*5] NOT INSURANCE). INITIAL
(R. Doc. 20-6 at 3). The foregoing spaces are initialed, and the document is signed and dated July 30, 2016. (R. Doc. 20-6 at 3). Plaintiffs have neither confirmed nor denied, however, that one of them initialed and signed the Combined Uniform Bill of Lading on July 30, 2016.
AMS argues that in light of the foregoing language in the documents presented to Plaintiffs prior to the shipment, and the signatures obtained, the Court must find that AMS’s liability is limited to sixty (60) cents per pound per article. AMS also seeks a ruling providing that Plaintiffs’ general damage claims for past and future mental anguish and emotional distress are preempted by the Carmack Agreement.
In opposition, Plaintiffs rely on an Affidavit of Paul von Diezelski (R. Doc. 23-2),3 and focus on the Order for Service and the Uniform Bill of Lading. Mr. von Diezelski submits that he signed these documents, under protest, on July 31, 2016, the day the shipped items were unloaded in Houston, Texas. (R. Doc. 23-2 at 1). The Uniform Bill of Lading contains a “Valuation” clause providing two options. At an additional cost, Option 1 provides the shipper with “full replacement value protection,” [*6] which provides coverage of the value declared or six (6) dollars per pound per article shipped. Option 2 provides that the shipper with the opportunity to waive “full replacement value protection,” and agree to limit the shipper’s liability to sixty (60) cents per pound per article shipped. The affidavit does not state whether one of the Plaintiffs signed the Combined Uniform Bill of Lading prior to the move.
Plaintiffs represent that prior to unloading the items, an AMS mover told Mr. von Diezelski to sign ‘Option 2’ under the carrier’s liability section. Mr. von Diezelski refused, and instead signed “Option 1,” adding the following statement in handwriting: “I am not sure what this is but I’ll sign so I can get my stuff — I am not waiving any damage done.” (R. Doc. 20-5 at 1). Mr. von Diezelski also added the following statement above his signature on the Order of Service: “Note: My furniture is a mess — damages and gashed, cut — dirty — I am not sure what I signed but they will not release my stuff without.” (R. Doc. 20-1).
Plaintiffs oppose AMS’s motion for partial summary judgment on the basis that AMS failed to provide them with a “reasonable opportunity to choose between levels [*7] of liability or to obtain insurance from a third party,” and, accordingly, AMS has not established that it is entitled to limited liability under 49 U.S.C. § 14706. (R. Doc. 23 at 4).

II. Law and Analysis

A. Legal Standards for Summary Judgment
Summary judgment shall be granted when there are no genuine issues as to any material facts and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. When a motion for summary judgment is properly made and supported under Rule 56(c), the opposing party may not rest on the mere allegations of their pleadings, but rather must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Fed. R. Civ. P. 56(c)(1). The non-movant’s evidence is to be believed for purposes of the motion and all justifiable inferences are to be drawn in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). However, summary judgment must be entered against the plaintiff, if he or she fails to make an evidentiary showing sufficient to establish the existence of an element essential to his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Without a showing sufficient to establish the existence of an element essential to the plaintiff’s claim, there can be “no genuine issue as to any material fact since a complete failure of proof concerning an essential [*8] element of the nonmoving party’s case necessarily renders all facts immaterial.” Celotex Corp., 477 U.S. at 323.
Furthermore, only evidence that is competent, or admissible, may be used to support summary judgment. Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). “‘[U]nsupported allegations or affidavits setting forth ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Serna v. Law Office of Joseph Onwuteaka, P.C., 614 F. App’x 146, 153 (5th Cir. 2015) (quoting Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)).

B. The Carmack Amendment Applies to Plaintiffs’ Claims
There is no dispute that the Carmack Amendment applies to Plaintiffs’ claims. The Fifth Circuit has held that because the Carmack Amendment provides the exclusive cause of action for claims involving the loss or damage to goods arising from the interstate transportation of those goods by a common carrier, an action filed in state court that does not seek relief under the Carmack Amendment is nevertheless removable under the doctrine of complete preemption, so long as the amount in controversy requirement provided by 28 U.S.C. § 1337 is satisfied. See Hoskins v. Bekins Van Lines, 343 F. 3d 769, 778 (5th Cir. 2003). Plaintiffs do not challenge the Carmack Amendment as the basis for removal in this action, or as the source of substantive law governing this action.

C. Limited Liability Under the Carmack Amendment
The Carmack Amendment provides that a carrier is liable for any “actual loss or injury to the [shipper’s] property caused by (A) the receiving carrier, (B) the delivering carrier, [*9] or (C) another carrier over whose line or route the property is transported.” 49 U.S.C. § 14706(a)(1). To succeed on a claim under the Carmack Amendment, a plaintiff must establish a prima facie case of negligence by demonstrating (1) delivery of the goods in good condition, (2) receipt by the consignee of less goods or damaged goods, and (3) the amount of damages. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 479 (5th Cir. 2006). If a plaintiff establishes a prima facie case, a rebuttable presumption arises that the carrier was negligent. Id. (citing Frosty Land Foods Int’l v. Refrigerated Transp. Co., 613 F.2d 1344, 1346-47 (5th Cir. 1980)). The carrier can overcome this presumption by showing that it was free from negligence and that the damage was due to the inherent nature of the goods or attributable to an act of God, public enemy, the shipper, or public authority. Id. (citing Mo. Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964)).
If a shipper establishes a prima facie case, a carrier may offer evidence that it limited its liability. The Fifth Circuit has adopted the Seventh Circuit’s four-point “Hughes test” for determining whether a carrier has limited its liability. Rohner Gehrig Co. v. Tri-State Motor Transit, 950 F.2d 1079, 1081 (5th Cir. 1992) (en banc) (citing Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987)). The Hughes test, which statutory changes have since altered, requires that a carrier must (1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission (now the Surface Transportation Board), (2) obtain the [*10] shipper’s agreement as to his choice of liability, (3) give the shipper a reasonable opportunity to choose between two or more levels of liability, and (4) issue a receipt or bill of lading prior to moving the shipment. Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003) (citing Rohner, 950 F.2d at 1081). The carrier bears the burden of proving that it complied with these requirements. NipponKoa Ins. Co. v. Port Terminal R.R. Ass’n, No. 10-0284, 2011 U.S. Dist. LEXIS 29892, 2011 WL 1103584, at *5 (S.D. Tex. Mar. 23, 2011) (citing Rohner, 950 F.2d at 1081).
Assuming that Plaintiffs have established a prima facie case under the Carmack Amendment, the parties dispute whether AMS properly limited its liability to 60 cents per pound per article shipped. Having considered the relevant factors for the Hughes test, as well as all summary judgment evidence submitted, the Court concludes that AMS has not met its burden of establishing that it has limited its liability to 60 cents per pound per article shipped.

1. Whether AMS Maintains a Tariff
Legislation and jurisprudence issued since the Fifth Circuit’s adoption of the Hughes test provides that a carrier must now provide a shipper a copy of its tariff upon request:
Since Hughes was decided in 1992, Congress has amended the statutory provisions underlying the Hughes test. The first part of the Hughes test was derived from the Carmack Amendment’s provision that the I.C.C. would authorize a motor carrier to establish [*11] rates limiting its liability. See Rohner Gehrig, 950 F.2d at 1082. In 1994 Congress eliminated the requirement that carriers of non-household goods file tariffs with the I.C.C. See Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 841 (11th Cir. 2003) (citing Trucking Industry Regulatory Reform Act of 1994, Pub.L. No. 103-311, 108 Stat. 1673, 1683-85, codified at 49 U.S.C. §§ 10702 and 10762). In 1995 Congress added a requirement that carriers “provide to the shipper, on request of the shipper, 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.” Id. (quoting I.C.C. Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803, 907-10 (quoting 49 U.S.C. § 13710(a)(1)). See also 49 U.S.C. § 14706(c)(1)(B)). As the Eleventh Circuit has observed, “the most that can be said about the latest version of the statute is that a carrier is now required to provide a shipper with the carrier’s tariff if the shipper requests it, instead of the carrier filing its tariff with the now defunct I.C.C.” Id. Accordingly, courts have held that the Hughes test remains the same with one exception: Instead of maintaining a tariff in compliance with the I.C.C., a motor carrier must now, at the shipper’s request, provide the shipper with “a written or electronic copy of the rate, classification, rules, and practices upon which any [*12] rate applicable to a shipment, or agreed to between the shipper and the carrier, is based.” 49 U.S.C. § 14706(c)(1) (B). See Emerson Electric Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 188 (3d Cir. 2006); OneBeacon Insurance Co. v. Haas Industries, Inc., 634 F.3d 1092, 1100 (9th Cir. 2011); Gulf Rice Arkansas, LLC v. Union Pacific R.R. Co., 376 F.Supp.2d 715, 722 (S.D. Tex. 2005) (quoting Fireman’s Fund McGee v. Landstar Ranger, Inc., 250 F.Supp.2d 684, 689 (S.D. Tex. 2003) (“If a shipper is unaware of the ‘rate, classifications, rules and practices … agreed to between the shipper and carrier,’ the shipper has the burden to request a copy of the carrier’s tariff.”)).
Tronosjet Maint., Inc. v. Con-Way Freight, Inc., No. 10-3459, 2011 U.S. Dist. LEXIS 84503, 2011 WL 3322800, at *3 (S.D. Tex. Aug. 2, 2011).
AMS does not submit any evidence supporting a finding that this prong has been satisfied. There is no evidence in the record indicating that AMS maintains a tariff, that Plaintiffs requested such a tariff and were provided one, or that AMS is otherwise exempt from maintaining a tariff. Other than AMS’s reference to the Hughes test, this prong is not addressed in AMS’s motion, memorandum in support, or statement of undisputed facts. This prong is likewise not addressed by the Plaintiffs.
Accordingly, the motion is not sufficiently supported for the Court to determine whether or not there is a genuine issue of material fact as to whether AMS has established the first prong of the Hughes test.

2. Whether AMS Provided a Reasonable Opportunity to Choose Between Levels of Liability and Received Plaintiffs’ Agreement as to Their Choice of Liability
Plaintiffs argue that “AMS failed to [*13] reach an agreement with plaintiffs regarding their choice of carrier liability limit prior to moving the property from Baton Rouge to Houston” and failed “to provide plaintiffs with a reasonable opportunity to choose between levels of liability or to obtain insurance from a third party.” (R. Doc. 23 at 3-4). Based on the foregoing, Plaintiffs argue that AMS has not satisfied the second and third prongs of the Hughes test. (R. Doc. 23 at 4).4
The Combined Uniform Bill of Lading provides, in relevant part, the following language in its “Valuation” clause:
CUSTOMER (SHIPPER) IS REQUIRED TO DECLARE IN WRITING THE RELEASED VALUE OF THE PROPERTY. THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE CUSTOMER (SHIPPER) AND CONFIRMED BY THEIR SIGNATURE HEREON TO BE NOT EXCEEDING 60 CENTS PER POUND PER ARTICLE UNLESS SPECIFICALLY EXCEPTED. THE CUSTOMER (SHIPPER) HEREBY DECLARES VALUATIONS IN EXCESS OF THE ABOVE LIMITS ON THE FOLLOWING ARTICLES:
SHIPPER-IMPORTANT-READ WHAT YOU ARE SIGNING
. . .
1. ALL MY SONS ADVISES YOU TO OBTAIN ADDITIONAL INSURANCE TO PROTECT YOURSELF FROM LOSS AND/OR DAMAGE OF GOODS. HOUSEHOLD GOOD CARRIER’S LIABILITY FOR LOSS OR DAMAGES TO ANY [*14] SHIPMENT IS 60 CENTS PER POUND PER ARTICLE, UNLESS THE CARRIER AND SHIPPER AGREE, IN WRITING, TO A GREATER LEVEL OF LIABILITY . . . . INITIAL .
A. I REALIZE THE CARRIER’S STANDARD LIABILITY IS 60 CENTS PER POUND PER ARTICLE (THIS IS NOT INSURANCE). INITIAL
(R. Doc. 20-6 at 1, 3).
There is insufficient evidence submitted to support a finding, as a matter of law, that Plaintiffs had an opportunity to review the foregoing language prior to shipment, and that Plaintiffs signed the Combined Uniform Bill of Lading, without declaring any specific values of articles to be shipped. If actually provided before the move with adequate time for consideration, the Combined Uniform Bill of Lading would have provided Plaintiffs with an opportunity to declare the value of their goods, to obtain additional insurance, and to elect a greater level of liability than “60 cents per pound per article” through additional agreement. The information contained within the Combined Uniform Bill of Lading, if provided prior to shipment, would have provided Plaintiffs with an opportunity to choose between different levels of liability. See Haemerle v. All States Shipping, LLC, No. 11-1986, 2013 U.S. Dist. LEXIS 202370, 2013 WL 12284642, at *5 (N.D. Tex. Feb. 25, 2013) (finding that bill of lading with “declared value box” that included [*15] banks for shippers to declare a value of goods provided an opportunity to the shippers to elect a higher level of liability); Johnson v. Bekins Van Lines Co., 808 F. Supp. 545, 549 (E.D. Tex. 1992), aff’d, 995 F.2d 221 (5th Cir. 1993) (finding that second prong of Hughes test was satisfied where “the face of the document clearly provided Plaintiff with a choice of differing levels of liability, and it contained a valid provision setting a default rate of $1.25 per pound if no other valuation was specified.”).
Given the record, however, there remains genuine issues of material fact regarding when the Combined Uniform Bill of Lading was provided, to whom it was provided, and whether that individual was given “reasonable notice of the liability limitation, and the opportunity to obtain information necessary to making a deliberate and well-informed choice.” Johnson, 808 F. Supp. at 549 (quoting Hughes, 829 F.2d at 1419). Mr. Pollard’s affidavit merely provides that the Combined Uniform Bill of Lading was “reviewed and signed” by one of the Plaintiffs. (R. Doc. 20-3 at 2). Plaintiffs do not mention anything about the Combined Uniform Bill of Lading in their opposition. AMS has not established that it provided Plaintiffs with a reasonable opportunity to review the language in the Combined Uniform Bill of Lading prior to shipment.

3. Whether [*16] AMS Issued a Receipt or Bill of Lading Prior to Moving the Property
Finally, as suggested above, AMS has not met its burden of establishing that it issued a receipt or bill of lading prior to the move. Mr. Pollard’s affidavit does not definitely state that one of the Plaintiffs signed the Combined Uniform Bill of Lading prior to the move. Similarly, AMS’s statement of undisputed facts provides no definitive statement regarding the date or time when the Combined Uniform Bill of Lading was provided to Plaintiffs. There is also no evidence in the record that AMS provided any other written document to Plaintiffs prior to the move.

D. Plaintiffs’ General Damage Claims are Preempted
Summary judgment is proper, however, on the issue of whether Plaintiffs may recover general mental anguish damages. “[T]he Carmack Amendment preempts any common law remedy that increases the carrier’s liability beyond “the actual loss or injury to the property,” 49 U.S.C. § 11707(a)(1), unless the shipper alleges injuries separate and apart from those resulting directly from the loss of shipped property.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 382 (5th Cir. 1998). Accordingly, even if Plaintiffs failed to limit their liability to 60 cents per pound per article with repsect to any “actual loss or injury to the [*17] property” shipped, the Carmack Amendment preempts Plaintiffs’ claims for mental anguish and loss of enjoyment of life resulting from the loss of the shipped property. Morris, 144 F.3d at 382.

III. Conclusion
Based on the foregoing,
IT IS ORDERED that Defendant’s Motion for Partial Summary Judgment (R. Doc. 20) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff’s claims for mental anguish and loss of enjoyment of life are DISMISSED WITH PREJUDICE.
Signed in Baton Rouge, Louisiana, on June 25, 2018.
/s/ Richard L. Bourgeois, Jr.
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE