United States District Court for the Northern District of Texas, Dallas Division

June 6, 2023, Decided; June 6, 2023, Filed

CIVIL ACTION NO. 3:23-CV-0001-S

MOLLIE MALONE and DIDRAIL JENNINGS v. BRIAN LOUIS RUSSELL, RUSSELL TRUCKING, LLC, DM TRANS, LLC d/b/a ARRIVE LOGISTICS, LUIS ALBERTO LOVO, Individually and d/b/a LOVO TRANSPORTS, ARMSTRONG TRANSPORT GROUP, LLC, NAVISTAR, INC, and SOUTHWEST INTERNATIONAL TRUCKS, INC.

Core Terms

preemption, Broker, preempts, cause of action, removal, federal issue, federal court, federal law, state law, state-law, district court, federal question, transportation, crash

Counsel:  [*1] For Mollie Malone, Didrail Jennings, Plaintiffs: Joseph Andrew Mokodean, LEAD ATTORNEY, Law Firm of Roger Walton, Arlington, TX; Roger D Walton, Law Firm of Roger ‘Rocky’ Walton PC, Arlington, TX.

For Brian Louis Russell, Russell Trucking LLC, Defendants: Jeffrey D Smith, Fletcher Farley Shipman & Salinas, LLP, Dallas, TX.

For DM Trans LLC, doing business asArrive Logistics, Defendant: Matthew Francis Popp, LEAD ATTORNEY, Christina K Schovajsa, Robert L Klawetter, PRO HAC VICE, Schouest Bamdas Soshea BenMaier & Eastham PLLC, Houston, TX.

For Luis Alberto Lovo, Individually, doing business asLovo Transports, Defendant: Brett David Timmons, LEAD ATTORNEY, Fee Smith & Sharp LLC, Dallas, TX; Adam J Strange, Michael P Sharp, Fee Smith & Sharp LLP, Dallas, TX.

For Armstrong Transport Group LLC, Defendant: Carlos A Balido, LEAD ATTORNEY, Laura A Wright, Walters Balido & Crain, LLP, Meadow Park Tower, Dallas, TX.

For Navistar Inc, Southwest International Trucks Inc, Defendants: Jeff S Patterson, LEAD ATTORNEY, Bowman and Brooke LLP, Plano, TX; Luke Charles Spencer, Bowman and Brooke, LLP, Plano, TX.

Judges: KAREN GREN SCHOLER, UNITED STATES DISTRICT JUDGE.

Opinion by: KAREN GREN SCHOLER

Opinion

MEMORANDUM OPINION AND ORDER

This [*2]  Memorandum Opinion and Order addresses Plaintiffs Mollie Malone and Didrail Jennings’s Motion to Remand (“Motion”) [ECF No. 14]. The Court has reviewed and considered the Motion, Defendant Arrive Logistics, LLC’s Response in Opposition to Plaintiffs’ Motion to Remand¹ (“Response”) [ECF No. 20], the arguments of counsel at the March 21, 2023, hearing on the Motion, and the applicable law. For the following reasons, the Court GRANTS the Motion.

I. BACKGROUND

This case arises out of a July 19, 2022, motor vehicle crash. See Pls.’ First Am. Pet. [ECF No. 1-11] ¶¶ 21, 25. Malone stopped on the highway due to traffic caused by a crash involving Defendant Luis Alberto Lovo. Id. ¶ 22-23, 70. Defendant Brian Louis Russell, an employee of Russell Trucking, was driving a tractor-trailer behind Malone on the same highway, failed to stop, and crashed into Malone’s vehicle. Id. ¶¶ 24-25, 43. As a result of the crash, Malone is paralyzed from the waist down. Id. ¶ 32. Malone and her husband, Jennings, sued multiple individuals and entities, including Broker Defendants, for their alleged roles in the crash. See, e.g., id. ¶¶ 50-52, 76-78. According to Plaintiffs, Arrive Logistics “acted as a broker [*3]  to arrange the transportation of the goods being transported by Defendant Russell,” id. ¶ 50, and Armstrong “acted as a broker to arrange the transportation of the goods being transported by Defendant Lovo,” id. ¶ 76. Plaintiffs assert Texas state-law negligence and/or negligent hiring claims against Broker Defendants. Id. ¶¶ 50-52, 76-78.

Plaintiffs filed suit in the 192nd Judicial District Court of Dallas County, Texas. Arrive Logistics removed the case, asserting that the Court has subject-matter jurisdiction because: (1) the Interstate Commerce Commission Termination Act, 49 U.S.C. § 14501, preempts Plaintiffs’ claims; and (2) Plaintiffs’ claims raise significant federal issues.² See Notice of Removal by DM Trans, LLC d/b/a Arrive Logistics [ECF No. 1] ¶¶ 6-11. Armstrong later consented to removal.³ See Consent to Removal by Carlos A. Balido [ECF No. 6-1].

II. LEGAL STANDARD

Any civil action brought in a state court of which the district courts have original jurisdiction may be removed to the district court embracing the place where such action is pending. 28 U.S.C. § 1441(a). “Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013) (internal quotation marks and citation omitted). A federal court must [*4]  presume that a case lies outside its limited jurisdiction, and the party asserting jurisdiction bears the burden of establishing the contrary. Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014) (citation omitted). Because removal raises significant federalism concerns, the removal statute is strictly construed, and any doubt about the propriety of removal jurisdiction is resolved in favor of remand. Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007) (citations omitted). The two principal bases upon which a district court may exercise removal jurisdiction are: (1) the existence of a federal question, see 28 U.S.C. § 1331; and (2) complete diversity of citizenship among the parties, see 28 U.S.C. § 1332.

III. ANALYSIS

A. Complete Preemption

Broker Defendants argue that the Court has federal question jurisdiction because Section 14501 completely preempts Plaintiffs’ state-law claims. Notice of Removal ¶¶ 6-8. Under the well-pleaded complaint rule, “[a] defendant cannot remove an action to federal court unless the plaintiff pleaded a federal question on the face of his complaint.” Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242 (5th Cir. 2022) (citation omitted). “The complete preemption doctrine is an exception to the well-pleaded complaint rule.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330 (5th Cir. 2008) (citing McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416 (5th Cir. 2008)). The complete preemption doctrine provides a basis for federal question jurisdiction if “a federal statute so completely preempts a particular [*5]  area that any civil complaint raising the select group of claims is necessarily federal in character.” La. Indep. Pharmacies Ass’n v. Express Scripts, Inc., 41 F.4th 473, 479 (5th Cir. 2022) (cleaned up).

Here, Broker Defendants acknowledge that Plaintiffs only bring state-law claims but contend that the Court has jurisdiction because federal law completely preempts those claims. In arguing that the Court should find complete preemption, Broker Defendants cite two provisions of Section 14501:

“[N]o State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.

49 U.S.C. § 14501(b)(1).

“[A] state, political subdivision of a State, or political authority of 2 or more States 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.

Id. § 14501(c)(1). According to Broker Defendants, each of these provisions “provide for preemption of Plaintiffs’ claims.” [*6]  Resp. ¶ 11. Broker Defendants rely heavily on the “plain language” of each provision to argue in favor of preemption, but their arguments miss the mark because they focus on the wrong form of preemption. Id. ¶ 14.

Although Broker Defendants’ opposition to the Motion is ostensibly based on the complete preemption doctrine, they fail to cite the Fifth Circuit’s standard for complete preemption. “The Fifth Circuit has developed a stringent tripartite test to determine whether a statute is among the few falling within the complete preemption exception.” Rogers v. Am. Airlines, Inc., 192 F. Supp. 2d 661, 665 (N.D. Tex. 2001) (citing Aaron v. Nat’l Union Fire Ins. Co., 876 F.2d 1157, 1164 (5th Cir. 1989)). First, federal law must “create[] a cause of action that both replaces and protects the analogous area of state law.” Manyweather, 40 F.4th at 243 (citation omitted). Second, Congress must have “empowered federal courts to hear that cause of action.” Id. Third, Congress must have “clearly intended that grant of jurisdiction to be exclusive.” Id. “Once those conditions are met, the party invoking federal jurisdiction must show that the plaintiff ‘could have brought his state-law claims under th[at] federal cause of action.'” Id. (alteration in original). This analysis is “required under [the Fifth Circuit’s] precedents.” Bellfort Enters. Inc. v. PetroTex Fuels Inc., 339 F. App’x 416, 418 (5th Cir. 2009).

Broker Defendants confuse complete [*7]  preemption with ordinary preemption.⁴ This error is significant because “complete preemption is less common and more extraordinary than defensive or ordinary preemption.” Barrois, 533 F.3d at 331 (citation omitted); see also Meade v. Avant of LLC, 307 F. Supp. 3d 1134, 1140 (D. Colo. 2018) (“The doctrine of complete preemption should not be confused with ordinary preemption, which occurs when there is the defense of ‘express preemption,’ conflict preemption,’ or ‘field preemption’ to state law claims.”). Unlike complete preemption, “[d]efensive preemption does not create federal jurisdiction and simply declares the primacy of federal law, regardless of the forum or the claim.” Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011) (internal quotation marks and citation omitted). The ordinary preemption analysis asks “the more common question of whether a given federal law preempts a conflicting state cause of action.” Rogers, 192 F. Supp. 2d at 665. By contrast, “[t]he complete preemption doctrine applies only when Congress intends not merely to preempt a field in state law, but also intends to transfer jurisdiction of the subject matter from state to federal courts.” Id. at 671 (citation omitted). “Complete preemption is rare,” and the Supreme Court has only found complete preemption three times. Woodard-Hall v. STP Nuclear Operating Co., 473 F. Supp. 3d 740, 747 (S.D. Tex. 2020) (citation omitted); see also Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 510 (N.D. Tex. 2020) (setting forth contexts in which Supreme [*8]  Court has found complete preemption).

Broker Defendants’ misunderstanding of the difference between complete and ordinary preemption is evident in the cases they cite, many of which do not contain the Fifth Circuit’s complete preemption standard. For example, Broker Defendants rely on Gillum v. High Std., LLC, No. SA-19-CV-1378-XR, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371 (W.D. Tex. Jan. 27, 2020). But as other district courts have noted, the Gillum court did not undertake the Fifth Circuit’s complete preemption analysis and instead appeared to evaluate ordinary preemption. See, e.g., Moyer v. Simbad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *6 (S.D. Ohio Jan. 12, 2021) (citation omitted), report and recommendation adopted by 2021 U.S. Dist. LEXIS 62056, 2021 WL 1209469 (S.D. Ohio Mar. 31, 2021). Other cases cited by Broker Defendants explicitly involve only ordinary preemption. See, e.g., Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1272 (11th Cir. 2023) (dismissing the plaintiff’s claims as “barred by [Section 14501‘s] express preemption provision”); McCarter v. Ziyar Express, Inc., No. 3:21-CV-2390, 2023 U.S. Dist. LEXIS 4552, 2023 WL 144844, at *1-2 (N.D. Ohio Jan. 10, 2023) (conducting ordinary preemption analysis at motion to dismiss stage where jurisdiction was not disputed); Ga. Nut Co. v. C.H. Robinson Co., No. 17-C-3018, 2017 U.S. Dist. LEXIS 177269, 2017 WL 4864857, at *2 (N.D. Ill. Oct. 26, 2017) (analyzing the defendant’s argument that Section 14501 “expressly preempts [the plaintiff’s] negligent hiring and negligent supervision claim”). Because “[o]nly complete preemption would give this Court federal question jurisdiction over [Plaintiffs’] claim[s],” Broker Defendants’ “arguments applying the [ordinary] preemption standard are erroneous.” Caulley v. Interprise/Southwest Interior & Space Design, Inc., No. 3:20-CV-03077-X, 2021 U.S. Dist. LEXIS 108577, 2021 WL 2376720, at *2 (N.D. Tex. June 10, 2021).

For this reason alone, Broker Defendants [*9]  have not carried their burden to justify removal. Even if the Court conducted the complete preemption analysis, however, Broker Defendants’ argument would fail at the first step. As noted above, for a federal statute to completely preempt a state-law cause of action, the federal law must “create[] a cause of action that both replaces and protects the analogous area of state law.” Manyweather, 40 F.4th at 243 (citation omitted). But “[Section] 14501 doesn’t contain any cause of action.” Gulf Winds Int’l Inc. v. Almanzar, No. 4:20-CV-04136, 2021 U.S. Dist. LEXIS 187181, 2021 WL 4481340, at *4 (S.D. Tex. Sept. 29, 2021); see also M, G, & B Servs. v. Buras, No. 04-1512, 04-1509, 2004 U.S. Dist. LEXIS 16624, 2004 WL 1872718, at *4 (E.D. La. Aug. 19, 2004) (“[Section 14501] does not contain a civil enforcement provision that creates a private cause of action. . . . Without a civil enforcement provision, [Section 14501] cannot completely preempt [the plaintiffs] state law claims.”); Lyles v. Wren, No. 2:23-CV-00051-JM, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (E.D. Ark. May 9, 2023) (finding that “the absence of a replacement cause of action for negligence claims in Section 14501 “creates an exceptionally strong presumption against complete preemption” (internal quotation marks omitted)). “The absence of a federal remedy makes it difficult to conclude that Congress intended to displace state law.” Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 686 (5th Cir. 2001) (citation omitted) (affirming district court’s dismissal for lack of subject-matter jurisdiction because the federal statute at issue did not completely displace state-law remedies).

In sum, Broker Defendants did not provide the [*10]  Court with the correct standard by which to evaluate its jurisdiction. And even if they had, the Court concludes that Section 14501 is not one of the rare statutes that completely preempts state law. “Fortifying the Court’s conclusion is the jurisdictional standard,” which requires the Court to resolve all doubts in favor of remand. Gerred v. Fedex Ground Packaging Sys., No. 4:21-CV-1026-P, 2021 U.S. Dist. LEXIS 187602, 2021 WL 4398033, at *3 (N.D. Tex. Sept. 23, 2021) (citations omitted) (holding that Section 14501 did not completely preempt the plaintiffs state-law claims and remanding case). In reaching this conclusion, the Court expresses no opinion on the merits of Broker Defendants’ ordinary preemption arguments, which are more properly asserted in state court in support of a defense to Plaintiffs’ claims. See White v. Scotty’s Contr. & Stone, LLC, No. 1:21-CV-00161-GNS, 2022 U.S. Dist. LEXIS 177300, 2022 WL 4588417, at *9 (W.D. Ky. Sept. 29, 2022). In other words, Plaintiffs’ claims implicate Section 14501 only to the extent that Broker Defendants are likely to rely on it as a defense to Plaintiffs’ claims, and “the assertion of a defense of federal preemption of state law is insufficient to invoke federal-question jurisdiction.” Beers v. N. Am. Van Lines, Inc., 836 F.2d 910, 913 (5th Cir. 1988) (citations omitted), overruled on other grounds by Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003). As such, the Court lacks subject-matter jurisdiction over this case.

B. Significant Federal Issue

For largely the same reasons, the Court holds that Plaintiffs’ claims also are not removable on the ground that [*11]  the claims raise a significant federal issue. “[E]ven when a state court petition pleads only state law causes of action,” a federal court has jurisdiction “if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Box v. PetroTel, Inc., 33 F.4th 195, 201 (5th Cir. 2022) (citation omitted). “The category of cases that satisfy these requirements is ‘special and small.'” Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 588 (5th Cir. 2022) (quoting Bd. Of Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 721 (5th Cir. 2017)).

Broker Defendants argue that Plaintiffs’ claims raise a significant federal issue because their right to relief necessarily depends on the resolution of a substantial question of federal law, their allegations represent a dispute as to the effect and breadth of federal law concerning freight brokers, and their argument that state law applies to their claims will impact freight brokers’ selection of federally licensed motor carriers. Notice of Removal ¶ 11. All of these arguments go back to whether Section 14501 expressly preempts Plaintiffs’ claims, which, as stated above, is a defense to Plaintiffs’ claims. Broker Defendants’ “affirmative defense of [preemption] belongs in a responsive pleading, which cannot itself support federal [*12]  jurisdiction.” Box, 33 F.4th at 202. “That is true even for federal defenses that are ‘inevitable.'” Id. (citation omitted); see also Mitchell, 28 F.4th at 588-89 (holding that the plaintiff’s claims did not raise a significant federal issue where preemption was raised as a defense because the federal issues “are neither raised nor disputed on the face of the complaint”); Lyles, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (concluding that the plaintiff’s claims did not raise a significant federal issue and rejecting arguments nearly identical to those asserted in the instant case).

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiffs’ Motion to Remand [ECF No. 14]. This case is REMANDED to the 192nd Judicial District Court of Dallas County, Texas.

SO ORDERED.

SIGNED June 6, 2023.

/s/ Karen Gren Scholer

KAREN GREN SCHOLER

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Defendant Armstrong Transport Group, LLC (“Armstrong”) also requests that the Court deny the Motion for the reasons set forth in the Response. See Def. Armstrong Transport Group, LLC’s Mem. Concerning Suppl. Jurisdiction [ECF No. 34] 3. The Court will refer to DM Trans d/b/a Arrive Logistics, LLC (“Arrive Logistics”), and Armstrong Transport Group, LLC, collectively as “Broker Defendants” throughout this Order.

² In its Response, Arrive Logistics no longer argues that Plaintiffs’ claims raise significant federal issues. Instead, Arrive Logistics argues only that removal was proper based on the complete preemption doctrine. Nonetheless, the Court will address both arguments below.

³ Because the asserted bases for federal jurisdiction only apply to freight brokers, none of the other defendants have joined in the notice of removal. However, some of the defendants have requested that the Court exercise supplemental jurisdiction over the claims against them should the Court deny the Motion. See ECF Nos. 32, 33.

⁴ There are three categories of ordinary preemption: (1) express, (2) field, and (3) conflict. See Washington v. Fred’s Stores of Tenn., Inc., 427 F. Supp. 2d 725, 728 (S.D. Miss. 2006) (citation omitted). Broker Defendants’ arguments primarily go to the issue of express preemption.

United States District Court for the District of Kansas

June 16, 2023, Decided; June 16, 2023, Filed

Case No. 23-1013-JWB

THE ESTATE OF THOMAS PETERSON, By Special Administrator, Tammy Peterson, and TAMMY PETERSON, individually, Plaintiff, v. DANIEL RODRIGUEZ d/b/a/ NON-STOP TRUCKING, et al., Defendants.

Core Terms

preempted, preemption, broker, federal question, regulation, state law, removal, motor carrier, Trucking, cases, negligence claim, federal court, federal law, route, cause of action, doctrine of preemption, federal statute, transportation, intrastate, district court, state court, tractor-trailer, courts

Counsel:  [*1] For Tammy Peterson, Administrator of the Estate of Thomas Peterson, individually and as a representative of the heirs of Thomas Peterson, estate of, Thomas Peterson, Plaintiff: Daniel Shane Bangerter, LEAD ATTORNEY, Bangerter Law, PA, Dodge City, KS; David J. Rebein, Pablo H. Mose, LEAD ATTORNEYS, Rebein Brothers PA, Dodge City, KS.

For Daniel Rodriguez, doing business as, Non-Stop Trucking, Defendant: John Lavelle Mullen, Matthew M. Clifford, LEAD ATTORNEYS, Franke Schultz & Mullen, PC, Kansas City, MO; Tony L. Atterbury, William LeFevre Barr, Jr., LEAD ATTORNEYS, Bull Attorneys, PA, Wichita, KS.

For Hannebaum Grain Co., Inc., Defendant: Daphne Rae Halderman, Mark D. Chuning, Todd C. Barrett, LEAD ATTORNEYS, McCausland Barrett & Bartalos, PC, Kansas City, MO; Thomas Chet Compton, LEAD ATTORNEY, Fleeson, Gooing, Coulson & Kitch, LLC – Wichita, Wichita, KS.

For Hannebaum Trucking, LLC, Defendant: Daphne Rae Halderman, Mark D. Chuning, LEAD ATTORNEYS, Todd C. Barrett, McCausland Barrett & Bartalos, PC, Kansas City, MO; Thomas Chet Compton, LEAD ATTORNEY, Fleeson, Gooing, Coulson & Kitch, LLC – Wichita, Wichita, KS.

For Alfredo Degollado, doing business as, Degollado Transport, Nicholas L. [*2]  Oswald, special administrator of the Estate of Eliazar Degollado, Defendants: Bradley Akins, Brette S. Hart, LEAD ATTORNEYS, Harris & Hart, LLC, Overland Park, KS.

Judges: JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE.

Opinion by: JOHN W. BROOMES

Opinion

MEMORANDUM AND ORDER

This matter is before the court on Plaintiffs’ motion to remand (Doc. 25).¹ The motion has been fully briefed and is ripe for decision. (Docs. 33, 35.) Plaintiffs’ motion to remand is GRANTED for the reasons stated herein.

I. Facts

The facts addressed herein are taken from Plaintiffs’ state court petition. (Doc. 1-10.) On December 15, 2021, there were multiple accidents on U160 in Grant County, Kansas. On that date, significant wind resulted in limited visibility. Thomas Peterson and others were involved in a series of three collisions. No one was seriously injured during the initial three collisions. According to the petition, Defendant Daniel Rodriguez was driving a tractor-trailer when he came upon the scene and negligently caused a fourth collision. Rodriguez then left his tractor-trailer partially on the roadway obstructing traffic. Rodriguez also failed to put out warning triangles or failed to properly secure the warning triangles. Another [*3]  driver of a tractor-trailer, Defendant Eliazar Degollado, came upon the scene and ran into the back of Rodriguez’s tractor-trailer and other vehicles. One of those vehicles struck Thomas Peterson resulting in his death.

Plaintiff Tammy Peterson filed this action in the District Court of Grant County, Kansas, on behalf of the Estate of Thomas Peterson, individually, and as a representative of the heirs of Thomas Peterson. Plaintiffs, Kansas citizens, alleged several claims of negligence against multiple Defendants, all of whom are also Kansas citizens. (Doc. 48 at 1-2.) One of those Defendants is Alfredo Degollado who had been hired by Defendants Hannebaum Trucking, LLC, and Hannebaum Grain Co., Inc. to pick up and deliver grain on December 15, 2021.

Plaintiffs allege that the Hannebaum Defendants were negligent in selecting Degollado to transport their load when they knew or should have known that the weather conditions were not safe, allowing Degollado to pick up the load in unsafe weather conditions, and overloading the tractor-trailer which resulted in its inability to stop quickly to avoid a collision. (Doc. 1-10 at 5-6.) Plaintiffs have since amended their petition and now include [*4]  a direct negligence claim against the Hannebaum Defendants on the basis that they acted as a hidden motor carrier. (Doc. 48 at 5-6.) Plaintiffs’ allegations in the second amended complaint involve expanded claims of negligence based on the Hannebaum Defendants’ selection of Degollado including that he was not qualified to transport the goods and had prior safety violations. (Id. at 8-10.) Further, Plaintiffs have alleged that the goods were being transported in interstate commerce.

Hannebaum Trucking (referred to as “Defendant” or “Hannebaum Trucking” hereinafter) removed the action to this court alleging that removal is proper because Plaintiffs’ claims implicate the court’s original jurisdiction in that they raise a federal question pursuant to 28 U.S.C. § 1331. (Doc. 1 at 3-4.) Essentially, Hannebaum Trucking asserts that Plaintiffs’ claims are completely preempted by 49 U.S.C. § 14501(c)(1) and 49 U.S.C. § 14501(b)(1). (Doc. 1 at 4.) Plaintiffs have now moved to remand this action to state court arguing that the claims are not completely preempted and that Hannebaum Trucking’s defense of preemption does not allow removal. (Doc. 25.)

II. Standard

Under 28 U.S.C. § 1447(c), a district court must remand a case “[i]f at any time before final judgment it appears that [*5]  the district court lacks subject matter jurisdiction.” Federal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction. Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013). The party removing an action to federal court has the burden to establish that federal jurisdiction exists. Id.; Christensen v. BNSF Ry. Co., 242 F. Supp. 3d 1186, 1189 (D. Kan. 2017). “Doubtful cases must be resolved in favor of remand.” Thurkill v. The Menninger Clinic, Inc., 72 F. Supp. 2d 1232, 1234 (D. Kan. 1999).

III. Analysis

A defendant may remove a state court action to federal court if the court has original jurisdiction over a plaintiff’s claim.² 28 U.S.C. § 1441(a); 28 U.S.C. § 1367. Defendant argues that this court has original jurisdiction over Plaintiffs’ negligence claim regarding Defendant’s role as a broker.

Under § 1331, federal district courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “To determine whether [a] claim arises under federal law, [courts] examine the ‘well[-]pleaded’ allegations of the complaint and ignore potential defenses….” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003); accord Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1060 (10th Cir. 2006). Under this standard, “a suit arises under federal law ‘only when the plaintiff’s statement of his own cause of action shows that it is based’ on federal law.” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012) (citation omitted). This rule “makes the plaintiff the master of the claim” and, “by omitting [*6]  federal claims,” Plaintiff can almost “guarantee an action will be heard in state court.” Id. (citations and quotations omitted). As the Supreme Court has consistently recognized, “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986). Moreover, a federal defense cannot be the basis for federal question jurisdiction “even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Becker v. Ute Indian Tribe of the Uintah & Ouray Reserve, 770 F.3d 944, 947 (10th Cir. 2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987)).

Here, Plaintiffs’ claims are based entirely on state negligence law. Therefore, from the face of the petition, the claims are not based on federal law. Defendant raises two arguments here: removal is proper because Plaintiffs’ claims are completely preempted by federal law and Plaintiffs’ claims raise a substantial federal question. Both arguments fail.

A. Complete Preemption

Defendant claims that Plaintiffs’ negligence claim against it in its role as a broker is completely preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 108 Stat. 1605-06. The Supreme Court explained the history of legislation with respect to the deregulation of trucking and the preemption of state trucking regulations [*7]  as follows:

In 1980, Congress deregulated trucking. See Motor Carrier Act of 1980, 94 Stat. 793. And a little over a decade later, in 1994, Congress similarly sought to pre-empt state trucking regulation. See Federal Aviation Administration Authorization Act of 1994, 108 Stat. 1605-1606; see also ICC Termination Act of 1995, 109 Stat. 899. In doing so, it borrowed language from the Airline Deregulation Act of 1978 and wrote into its 1994 law language that says: “[A] State … may not enact or enforce a law … related to a price, route, or service of any motor carrier …[or broker] with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1); see also § 41713(b)(4)(A) (similar provision for combined motor-air carriers).

Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 368, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008).

The statutory language quoted in Rowe comes from the section preempting state laws with respect to motor carriers and brokers. § 14501(c)(1). Similar to § 14501(c)(1), the immediately preceding provision, § 14501(b)(1), provides that “no State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.” While § 14501(b)(1) expressly applies to “intrastate” services of a broker, § 14501(c)(1) does not limit its application and applies to both brokers and motor carriers. Notably, § 14501(c)(2) further [*8]  provides that § 14501(c)(1) does not restrict the safety regulatory authority of a State with respect to motor vehicles.

Defendant spends much time arguing that § 14501(b)(1) is applicable here instead of § 14501(c)(1) because the route it hired Degollado for was an intrastate route. Plaintiffs argue that the amended complaint alleges that the route contracted for was interstate and that Defendant has not submitted sufficient evidence of the route at issue for resolution at this stage of the proceedings. The court finds that it need not resolve this issue because Defendant has failed to show that either provision completely preempts state negligence law concerning brokers’ acts in hiring motor carriers. Moreover, both provisions are substantively identical in that they prevent states from enforcing laws that are related to prices, routes, or services of a broker.³

Turning to the issue at bar, the court notes that ordinary or express preemption is not the same as the complete preemption doctrine, which is what is required to show that removal was appropriate here. See Devon Energy, 693 F.3d at 1203 n.4. There is no doubt that the preemption clauses contained in § 14501(b) and (c) expressly preempt certain state laws.⁴ See Rowe, 552 U.S. at 375-76 (finding that a state law regulating delivery service [*9]  procedures was preempted by the FAAAA). The fact that a federal statute may expressly preempt a state law, however, does not render a state-law claim removable to federal court. Devon Energy, 693 F.3d at 1203 n.4. Rather, it is an affirmative defense that may be invoked. Id. Complete preemption, however, provides grounds for removal of an action to federal court. Id. at 1203 n.4, 1204.

For complete preemption to exist, then, Congress must have manifested an intent for the federal statute to “wholly displace[ ]” the state-law cause of action. Aetna Health Inc. v. Davila, 542 U.S. 200, 207-08, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004). So, complete preemption occurs only where “a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress’s intent to permit removal.” Devon Energy, 693 F.3d at 1205.

Christensen, 242 F. Supp. 3d at 1190 (internal citations omitted).

The Supreme Court has only recognized complete preemption in three instances: “§ 301 of the Labor Management Relations Act of 1947 (“LMRA”), § 502 of the Employee Retirement Income Security Act of 1974 (“ERISA”), and actions for usury against national banks under the National Bank Act.” Devon Energy, 693 F.3d at 1204-05 (citations omitted). While the Supreme Court has addressed whether certain laws are expressly preempted by the FAAAA, neither the Supreme Court nor the Tenth Circuit (or any circuit court for that matter) has addressed the complete preemption issue presented here. See Rowe, 552 U.S. at 375; Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 263, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013) (finding that state [*10]  law claims for damages stemming from the storage and disposal of a towed vehicle were not preempted by § 14501(c)(1)). Notably, the Supreme Court has “cautioned that § 14501(c)(1) does not preempt state laws affecting carrier prices, routes, and services ‘in only a ‘tenuous, remote, or peripheral … manner.'” Pelkey, 569 U.S. at 261 (citing Rowe, 552 U.S., at 371).

To find that Plaintiffs’ claim is completely preempted by the FAAAA, the Tenth Circuit has instructed courts that it must answer the following two questions affirmatively: (1) does “the federal [statute] at issue preempt[ ] the state law relied on by the plaintiff”; and (2) did Congress intend to allow removal in this case “as manifested by the provision of a federal cause of action to enforce the” federal statute? Devon Energy, 693 F.3d at 1205. The court should start with the second question. Id. at 1206. Notably, Defendant does not address this standard in its brief.

In support of its position that Plaintiffs’ claim is completely preempted, Defendant almost exclusively relies on two cases from the Western District of Texas decided by the same judge, Gillum v. High Standard, LLC, et al., Civil Action No. SA-19-CV-1378-XR, 2020 U.S. Dist. LEXIS 14820 (W.D. Tex. Jan. 27, 2020) and Zamorano v. Zyna LLC et al., Civil Action No. SA-20-00151-XR, 2020 U.S. Dist. LEXIS 82289. (Doc. 33 at 11.) In Gillum, the court discussed both § 14501(b)(1) and (c)(1) and found that the plaintiff’s negligent hiring claims against the defendant broker were completely preempted by the [*11]  FAAAA. Gillum, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371, at *6. While the court in Gillum discussed the complete preemption doctrine, the court’s decision was based on an ordinary preemption analysis and courts have declined to find the decision persuasive on that basis. See Est. of Wray by & through Wray v. Kennedy Bros. Logistics, Inc., No. 5:22-CV-70-FL, 2022 U.S. Dist. LEXIS 197815, 2022 WL 16550315, at *4 (E.D.N.C. Oct. 31, 2022) (“Gillum’s analysis, however, fails to distinguish between complete preemption and ordinary preemption, and draws upon ordinary preemption principles in its complete preemption analysis. Tellingly, the two Supreme Court cases on which it relies when outlining the complete preemption doctrine, Rowe [] and Dan’s City Used Cars, Inc., 569 U.S. at 261, dealt with ordinary preemption in actions that were originally filed in federal court.”); Moyer v. Simbad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *6 (S.D. Ohio Jan. 12, 2021); Lyles v. Wren, No. 2:23CV00051-JM, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *3 (E.D. Ark. May 9, 2023). Defendant cites to several other cases in its brief; however, none of those cases involved the question of complete preemption. (See Doc. 33 at 11) (listing cases). Rather, those cases dealt with ordinary preemption in actions in which the court’s jurisdiction was not at issue and the court declines to address those cases.

Here, Defendant has failed to meet its burden to show that the FAAAA completely preempts Plaintiffs’ negligence claim involving motor carrier selection because it has not identified an FAAAA provision or regulation that gives Plaintiffs a “federal cause of [*12]  action sufficiently similar to their state-law claim[] to justify applying the complete preemption doctrine.” Christensen, 242 F. Supp. 3d at 1191. Simply put, Defendant has failed to show that Congress intended to ‘”displace the application of state tort law to personal physical injury inflicted’ by brokers.” See Lyles, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (quoting Hodges v. Delta Airlines, Inc., 44 F.3d 334, 338 (5th Cir. 1995) (finding the Airline Deregulation Act, which tracks the FAAAA preemption clause, did not completely preempt state law)). Moreover, the courts which have thoroughly addressed the complete preemption doctrine have found that the FAAAA did not completely preempt negligence claims. See, e.g., id.; Est. of Wray by & through Wray v. Kennedy Bros. Logistics, Inc., No. 5:22-CV-70-FL, 2022 U.S. Dist. LEXIS 197815, 2022 WL 16550315, at *4 (E.D.N.C. Oct. 31, 2022) (“the statutory text of the FAAAA contains no clear Congressional intent to engulf the entire area of personal injury and wrongful death claims involving transportation brokers and motor carriers.”); Moyer v. Simbad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *6 (S.D. Ohio Jan. 12, 2021) (“To that end, this Court finds that Greatwide has failed to identify ‘clear congressional intent’ for the FAAAA to engulf the entire area of personal injury and wrongful death claims involving transportation brokers and motor carriers…”); Morrison v. JSK Transp., Ltd., No. 20-CV-01053-JPG, 2021 U.S. Dist. LEXIS 43094, 2021 WL 857343, at *4 (S.D. Ill. Mar. 8, 2021); White v. Scotty’s Contr. & Stone, LLC, No. 1:21-CV-00161-GNS, 2022 U.S. Dist. LEXIS 177300, 2022 WL 4588417, at *8-9 (W.D. Ky. Sept. 29, 2022).

Based on the arguments presented and the authority discussed herein, the court finds that Defendant has failed to establish that Congress intended to allow for removal [*13]  in a case involving claims of broker negligence. Further, the statutory text of the FAAAA contains no clear Congressional intent to include claims involving personal injury as a result of broker negligence. Therefore, the complete preemption doctrine does not apply to this case.

B. Substantial Federal Question

Alternatively, Defendant argues that removal is proper under the substantial question test in Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005). The test applies when a plaintiff’s “claim is pleaded under state law but invokes a substantial federal question such that the ostensible state-law claim can be considered to arise under federal law for jurisdictional purposes.” Robertson v. Big Blue Healthcare, Inc., 523 F. Supp. 3d 1271, 1286 (D. Kan. 2021) (citing Becker, 770 F.3d at 947). “[T]his branch of arising-under jurisdiction is a slim one” and requires a federal question to be an essential element of a plaintiff’s claim. Gilmore v. Weatherford, 694 F.3d 1160, 1171 (10th Cir. 2012). Under this test, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013).

Here, while Defendant has cited the factors, Defendant makes little effort to demonstrate that Plaintiffs’ claims invoke a substantial [*14]  federal question. Defendant argues that there is a substantial federal question involved in Plaintiffs’ negligence claim because the standard of care is determined from the federal statute and/or regulation. (Doc. 33 at 5.) Notably, Plaintiffs’ complaint does not allege that Defendant violated a specific federal statute or regulation with respect to their claim regarding negligent selection of a motor carrier. (Doc. 48 at 8-10.) Moreover, even if Plaintiffs made such a claim, this would not give rise to jurisdiction in this court under the substantial federal question doctrine. See Colbert v. Union Pac. R. Co., 485 F. Supp. 2d 1236, 1246 (D. Kan. 2007) (citing Grable, 545 U.S. at 318-19). “[I]t is well settled that a claim for a violation of state law based upon a breach of a duty created by federal law does not present a substantial federal question for purposes of federal question jurisdiction.” Kurz v. Fid. Mgmt. & Research Co., No. 07-CV-709-JPG, 2007 U.S. Dist. LEXIS 80127, 2007 WL 3231423, at *4 (S.D. Ill. Oct. 30, 2007). As set forth in Grable, “[a] general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would … herald [ ] a potentially enormous shift of traditionally state cases into federal courts.” 545 U.S. at 319. Therefore, the fact that there might be evidence of a federal regulation to establish the standard of care is not sufficient to present [*15]  a substantial federal question in this case. Notably, the only regulation Defendant points to in support of its argument is a section defining a broker. (Doc. 33 at 6.) Defendant fails to explain how this regulation identifies the standard of care or that there is a dispute pertaining to the regulation. Further, Defendant’s affirmative defense of preemption is not sufficient to invoke this court’s jurisdiction.

The court finds that Defendant has failed to establish that this court has jurisdiction under the substantial federal question doctrine.⁵ Therefore, this case must be remanded to state court. In doing so, the court does not determine whether the FAAAA preempts Plaintiffs’ claim against Defendant. That question is one for the state court and, therefore, Defendant’s motions to dismiss (Docs. 27, 50) remain pending. See Christensen, 242 F. Supp. 3d at 1193.

IV. Conclusion

Plaintiffs’ motion to remand (Doc. 25) is GRANTED. The clerk is instructed to REMAND this action to the District Court of Grant County, Kansas.

IT IS SO ORDERED. Dated this 16th day of June, 2023.

/s/ John W. Broomes

JOHN W. BROOMES [*16] 

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Defendant Hannebaum Trucking, LLC has filed two motions to dismiss. (Docs. 27, 50.) As a result of this court’s ruling on the motion for remand, the court lacks jurisdiction to consider the motions and will leave them pending for ruling by the state court.

² Defendant does not argue that this court has original jurisdiction under § 1332 because the parties are not diverse.

³ The distinction between the two sections may be relevant to the question of whether Plaintiffs’ claim is expressly preempted by the statute. Because the court has determined that the claim is not completely preempted, however, the court need not resolve the question of express preemption.

⁴ With respect to Plaintiffs’ claim against Defendant alleging negligent selection in a motor carrier, courts are split on whether such a claim is preempted by the FAAAA. See, e.g. Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1264 (11th Cir. 2023) (finding that claim is preempted); Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1023 (9th Cir. 2020) (finding that claim is not preempted).

⁵ Defendant also argues that Plaintiffs have invoked this court’s jurisdiction by filing an amended complaint in this action. (Doc. 33 at 16-18.) Defendant’s argument lacks merit. A party cannot “confer on federal courts subject-matter jurisdiction.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986).