Broker - Central Analysis Bureau

Total Quality Logistics, LLC v. Trade Link Capital, Inc.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

District Court of Appeal of Florida, Third District.

TOTAL QUALITY LOGISTICS, LLC, Appellant,

TRADE LINK CAPITAL, INC., et al., Appellees.

No. 3D22-579

Opinion Filed March 8, 2023

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Lower Tribunal No. 19-37303

Attorneys and Law Firms

Baker Donelson Bearman Caldwell & Berkowitz, PC, and Eve A. Cann (Fort Lauderdale) and Marisa R. Dorough (Orlando), for appellant.

Spector Rubin, P.A., and Andrew R. Spector and Marc A. Rubin, for appellees.

Before EMAS, LINDSEY and GORDO, JJ.

EMAS, J.

INTRODUCTION

*1 Total Quality Logistics, LLC, defendant below, appeals a nonfinal order denying its motion to dismiss the amended complaint filed by Trade Link Capital, Inc. and Taste Trackers, Inc., plaintiffs below. Total Quality Logistics sought dismissal based on improper venue, contending that a mandatory forum selection clause in the written agreements between the parties required that Clermont County, Ohio serve as the exclusive venue for any dispute arising in connection with any transaction between the parties.

Because the forum selection clause was presumptively valid and enforceable, and because Plaintiffs failed to meet their burden below—to show that this presumptively valid and enforceable forum selection clause was unjust, unreasonable, or otherwise unenforceable—we reverse and remand with directions to dismiss the amended complaint against Total Quality Logistics.

FACTUAL BACKGROUND

Trade Link Capital and Taste Trackers (together, Plaintiffs) entered into a business relationship with Total Quality Logistics, whereby Total Quality Logistics would arrange transportation of cargo for Plaintiffs. At the inception of the relationship, Trade Link Capital and Taste Trackers each signed a written agreement with Total Quality Logistics. Each agreement contained an identical forum selection clause providing that Clermont County, Ohio “shall be the exclusive venue with respect to any claim, counterclaim or dispute arising in connection with any transactions, loads, or other business between Total Quality Logistics and applicant.” In August 2019, one such cargo shipment was lost and/or stolen in transit to its destination.

Plaintiffs contend that, before requesting transport of the subject cargo, they procured insurance from Total Quality Logistics to protect themselves in the event the cargo was lost or stolen. When Total Quality Logistics refused to pay Plaintiffs for the lost cargo shipment, Plaintiffs sued Total Quality Logistics in an eight-count complaint alleging various state law claims (e.g., breach of agreement to insure, fraudulent misrepresentation) and also seeking damages under the federal Carmack Amendment.¹

*2 Total Quality Logistics moved to dismiss the complaint, relying on the mandatory forum selection clause contained in the parties’ written agreements. Total Quality Logistics also contended that Plaintiffs could not state a valid claim under the federal Carmack Amendment because Total Quality Logistics is a broker, not a carrier, and the Carmack Amendment imposes liability only upon carriers. See Nat’l Union Fire Ins. Co. of Pittsburgh v. All Am. Freight, Inc., No. 14-CIV-62262, 2016 WL 633710, at *7 (S.D. Fla. Feb. 17, 2016) (“In general, the Carmack Amendment governs interstate cargo claims, controls and limits the liability of common carriers for in-transit cargo, and preempts common or state law remedies that increase a common carrier’s liability beyond the actual loss or injury to the property.”) In further support of its motion to dismiss, Total Quality Logistics filed an affidavit from its risk manager, setting forth the business relationship between the parties and attaching and authenticating the parties’ signed, written agreements which included the mandatory forum selection clause providing that Clermont County, Ohio “shall be the exclusive venue with respect to any… dispute arising in connection with any transactions, loads, or other business” between Plaintiffs and Total Quality Logistics.

Plaintiffs filed a memorandum in response to Total Quality Logistics’ motion to dismiss, but provided no sworn proof or evidence to support its position.² Plaintiffs contended that the forum selection clause (1) was unenforceable under the Carmack Amendment because that federal law contains its own special venue provision, see 49 U.S.C. § 14706(d); and (2) was invalid as contrary to public policy because Total Quality Logistics’ alleged conduct amounted to the unlicensed sale of insurance in violation of state law.

The trial court held a hearing on the motion to dismiss, at which no live testimony was presented and no depositions were offered or introduced. At the conclusion of the hearing, the trial court announced its ruling denying the motion to dismiss, and later entered an order denying the motion “for the reasons set forth in the record.” A review of the transcript, however, shows the trial court provided no reasons for its ruling, and made no findings regarding (1) whether Total Quality Logistics was a motor carrier or broker (central to the applicability of the federal Carmack Amendment claim); (2) whether (and why) the forum selection clause was unenforceable as to the state law claims; or (3) whether application of the forum selection clause violated public policy. This appeal follows.³

ANALYSIS AND DISCUSSION

The forum selection clause contained in the written agreement between Total Quality Logistics and Plaintiffs provides:

The state courts located in Clermont County, Ohio shall have exclusive and irrevocable jurisdiction and shall be the exclusive venue with respect to any claim, counterclaim, or dispute arising in connection with any transactions, loads, or other business between Total Quality Logistics and [Plaintiff].

Plaintiffs do not dispute that they each signed an agreement containing this provision. On its face, this is a valid, enforceable, and mandatory forum selection provision.⁴ Moreover, “[b]ecause Florida law presumes that forum selection clauses are valid and enforceable, the party seeking to avoid enforcement of such a clause must establish that enforcement would be unjust or unreasonable.” Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592, 594-95 (Fla. 3d DCA 2013) (quotation omitted). See also Steiner Transocean Ltd. v. Efremova, 109 So. 3d 871, 873 (Fla. 3d DCA 2013) (“[I]n Florida, forum selection clauses are presumptively valid and it is the burden of the party seeking to avoid that contractual agreement to establish ‘that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court’ ”) (quoting Corsec, S.L. v. VMC Intern. Franchising, LLC, 909 So. 2d 945, 947 (Fla. 3d DCA 2005)) (additional citations omitted); Norwegian Cruise Line, Ltd. v. Clark, 841 So. 2d 547, 549-50 (Fla. 2d DCA 2003) (“The United States Supreme Court has held that forum selection clauses are prima facie valid even though they have not been historically favored ‘given controlling weight in all but the most exceptional cases.’ ”) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)) (Kennedy, J., concurring)).

*3 To establish the “unjust or unreasonable” nature of a forum selection clause, the party seeking avoidance must show that enforcement of the clause would result in “no forum at all.” Espresso Disposition, 105 So. 3d at 595; Est. of Stern v. Oppenheimer Tr. Co., 134 So. 3d 566, 568 (Fla. 3d DCA 2014) (“A party seeking to avoid enforcement of a mandatory forum selection clause bears a heavy burden of establishing that the enforcement is unjust or unreasonable and must demonstrate that the contractually designated forum essentially amounts to ‘no forum at all,’ thereby depriving the party of its day in court.”)

Once Total Quality Logistics submitted the affidavit and the written agreements containing the presumptively valid and enforceable forum selection clause agreed to by the parties, the burden shifted to Plaintiffs to show that the forum selection clause was “unjust or unreasonable”—in essence, that Clermont, Ohio amounts to “no forum at all.” Further, and as to the claim filed pursuant to the Carmack Amendment, Plaintiffs would have had to provide evidence to establish (or at least create a disputed issue of fact whether) the Carmack Amendment (49 U.S.C. § 14706) is applicable to the cargo shipment at issue and renders the contractual forum selection clause unenforceable. However, Plaintiffs failed to meet its burden⁵ to overcome the presumptively valid and enforceable mandatory forum selection clause.⁶

Moreover, at the conclusion of the hearing, the trial court did not make any findings on the record regarding the unjust or unreasonable nature of the agreement’s forum selection clause, nor any findings whether (or why) the Carmack Amendment (and its special venue provision) would apply to the instant lawsuit. Notwithstanding the absence of any such oral findings, the subsequent written order provided only that the motion to dismiss was denied “for the reasons set forth in the record.”⁷

CONCLUSION

Because Plaintiffs failed to meet their burden to establishing that the presumptively valid and enforceable mandatory forum selection clause was unjust, unreasonable, or otherwise unenforceable in the instant lawsuit, the trial court erred in denying Total Quality Logistics’ motion to dismiss for improper venue. We reverse and remand with directions to dismiss the amended complaint against Total Quality Logistics and for further proceedings consistent with this opinion.

All Citations

Footnotes

The Revised Interstate Commerce Act, 49 U.S.C. § 14706 et seq., known as the “Carmack Amendment,” is a federal statutory scheme that governs interstate cargo claims. For our purposes, the Carmack Amendment provides special venue provisions for filing a civil action against a carrier alleged to have caused the loss of or damage to cargo of a shipper. See id. § 14706(d). Such an action may be brought “in the judicial district in which such loss or damage is alleged to have occurred,” see id. § 14706(d)(2). Importantly here, the applicability of the Carmack Amendment turns on whether Total Quality Logistics is a carrier or merely a broker. If the Carmack Amendment applies, its special venue provision preempts the contractual forum selection clause in this case, at least as to the single Carmack claim pleaded by Plaintiffs in the operative complaint. Compare Mgmt. Computer Controls, Inc. v. Charles Perry Const., Inc., 743 So. 2d 627, 633 (Fla. 1st DCA 1999) (citing First Pacific Corp. v. Sociedade de Empreendimentos e Construcoes, Ltd., 566 So. 2d 3 (Fla. 3d DCA 1990)) (holding that a forum selection clause was inapplicable to FDUPTA claim—i.e., it was severable from the other claims—requiring it to be litigated separately) with Fairbanks Contracting & Remodeling, Inc. v. Hopcroft, 169 So. 3d 282, 283 (Fla. 4th DCA 2015) (“Whether a forum selection provision in a contract applies to an FDUTPA claim depends on the circumstances, including the language employed in the clause.”)
Plaintiffs’ response noted “the protracted discovery” in this case, quoted from communications between the parties, and cited to several deposition transcripts purportedly showing conflicting statements made by Total Quality Logistics officials. However, no such communications or deposition transcripts were submitted by Plaintiffs in opposition to the motion to dismiss. Nor was the trial court requested to take judicial notice of such deposition excerpts at the hearing on the motion to dismiss. During oral argument, counsel for Plaintiffs acknowledged that, if the depositions were not in the record or considered by the trial court at the time of the hearing, this court could not affirm the lower court’s ruling.
We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(A) (providing for appellate review of nonfinal orders that concern venue).
As the Florida Supreme Court recognized in Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273 (Fla.1987), mandatory forum selection clauses provide “for a mandatory and exclusive place for future litigation,” whereas permissive forum selection clauses “constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum.” Id. at 274-75. See also Michaluk v. Credorax (USA), Inc., 164 So. 3d 719, 722 (Fla. 3d DCA 2015) (“A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the forum named in the clause, whereas ‘permissive forum selection clauses are essentially a ‘consent’ to jurisdiction or venue in the named forum and do not exclude jurisdiction or venue in another forum.’ ”) (additional citations omitted).
There are exceptions to the general rule that a trial court considering a motion to dismiss is limited to the “four corners” of the complaint and any attachments. One of those exceptions permits a court to consider evidence outside the four corners of the complaint where the motion to dismiss is based upon improper venue. See Steiner Transocean Ltd. v. Efremova, 109 So. 3d 871 (Fla. 3d DCA 2013).
On appeal, Plaintiffs attempt to rely on the content of unfiled depositions to argue that Total Quality Logistics acted as more than a mere broker. But again, such evidence was not filed with the court, nor was judicial notice sought or taken. As explained above, the only evidence submitted was Total Quality Logistics’ affidavit and the parties’ written agreements, which expressly provide that Total Quality Logistics “is a transportation broker only who arranges the transportation of freight by an independent third party motor carrier.”
During oral argument, Plaintiffs conceded that the trial court did not “explicitly” find the forum selection clause was unreasonable or make any findings pertaining to applicability of the Carmack Amendment.

End of Document

McCarter v. Ziyar Express, Inc.

United States District Court, N.D. Ohio, Western Division.

Akisha MCCARTER, Plaintiff,

ZIYAR EXPRESS, INC., et al., Defendants.

Case No. 3:21 CV 2390

Filed January 10, 2023

Attorneys and Law Firms

Joshua M. Leizerman, Rena M. Leizerman, Michael J. Leizerman, Law Firm for Truck Safety, Toledo, OH, for Plaintiff.

Shannon J. George, Ritter, Robinson, McCready & James, Toledo, OH, for Defendants, Ziyar Express, Inc., Hakim Niazi.

David R. Hudson, Reminger Co., Toledo, OH, for Defendants, P.A.M. Transport, Inc., P.A.M. Transportation Services, Inc.

Christopher E. Cotter, Lidia B. Ebersole, Roetzel & Andress, Akron, OH, for Defendant, Universal Logistics Holdings, Inc.

Robert D. Boroff, Cleveland, OH, for Defendants, Centra, Inc., Matthew Moroun.

MEMORANDUM OPINION AND ORDER

James R. Knepp II, UNITED STATES DISTRICT JUDGE

Introduction

*1 Plaintiff Akisha McCarter brings negligence, vicarious liability, and survival claims individually and on behalf of her deceased husband’s estate against Defendants Ziyar Express, Inc. (“Ziyar”), Hakim Niazi, P.A.M. Transport, Inc. and P.A.M. Transportation Services, Inc. (“the P.A.M. Defendants”), Universal Logistics Holdings, Inc. (“Universal”), CenTra, Inc. (“CenTra”), and Matthew Moroun in this commercial truck crash case. (Doc. 26). Currently pending before the Court are Motions to Dismiss by the P.A.M. Defendants (Doc. 39), Defendants CenTra and Moroun (Doc. 41), and Defendant Universal (Doc. 42). All are fully briefed and ripe for decision. Jurisdiction is proper under 28 U.S.C. § 1332. For the reasons below, the Court grants all three Motions to Dismiss.

Background

This case stems from an auto accident between a commercial truck and a passenger vehicle in Toledo, Ohio, on October 15, 2021. (Doc. 26, at 5). Decedent Michael McCarter (Plaintiff’s husband) was driving a passenger vehicle on Interstate 75 South merging onto Interstate 475 West; Defendant Niazi was driving a commercial truck without a trailer on Interstate 75 North merging onto Interstate 475 West. Id. Niazi’s truck crossed the grass median at the junction between I-75 and I-475, crashed into the decedent’s vehicle at highway speed, and landed on top of the decedent’s vehicle as both vehicles left the highway to the right and rolled onto the grass shoulder. Id. Video footage of the crash was captured by Department of Transportation highway cameras. Id.

Emergency personnel removed the decedent from the vehicle after about 90 minutes. Id. at 15. He died after being transported from the crash scene. Plaintiff alleges Niazi was watching a movie on his cell phone while he was driving at the time of the crash. Id. at 5.

Plaintiff brings¹ claims against several defendants in connection with the crash, including:

(1) Niazi, the driver (id. at 5); (2) Ziyar, which Plaintiff identifies as Niazi’s employer and the owner of the commercial truck (id. at 6-7); and (3) the P.A.M. Defendants, which Plaintiff identifies as the transportation broker and a “closely related” entity involved with the crash as the freight broker² for the commercial truck. Id. at 3.

Plaintiff also brings claims against Defendants Universal, CenTra, and Moroun. Plaintiff does not allege a connection between Universal and the crash or any parties to it in the Amended Complaint. In a later filing, Plaintiff states Universal could have had several “potential roles”, such as motor carrier, shipper of the load, hirer of the P.A.M. Defendants, or freight broker. (Doc. 47, at 2-3). Plaintiff further alleges CenTra provides administrative, legal, and human resources support to Universal. (Doc. 26, at 13). Finally, Plaintiff alleges Maroun is the “controlling officer and shareholder” of the P.A.M. Defendants, Universal, and CenTra. Id. at 14.

Standard of Review

*2 On a motion to dismiss under Federal Civil Rule 12(b)(6), the Court tests the complaint’s legal sufficiency. The Court construes the complaint in the light most favorable to Plaintiffs, accepts all factual allegations as true, and determines whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain “detailed factual allegations,” it requires more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 555. The complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Discussion

Plaintiff brings negligence claims against all Defendants; vicarious liability claims against Ziyar, Universal, the P.A.M. Defendants, and Maroun; and survival claims against all Defendants except CenTra. (Doc. 26). The P.A.M. Defendants, Universal, and CenTra/Maroun each filed a Motion to Dismiss. (Docs. 39, 41, 42). The Court will consider each motion in turn. Defendants P.A.M. Transport, Inc. and P.A.M. Transportation Services, Inc.

Plaintiff brings against the P.A.M. Defendants identical negligence claims for “failing to exercise reasonable care in arranging transportation of the Load and hiring or selecting, training, supervising and/or retaining Defendants Ziyar Express or Niazi to operate the tractor-trailer and transport the Load.” (Doc. 26 at 9, 11). Plaintiff also brings near-identical vicarious liability claims against the P.A.M. Defendants for “the negligent and reckless actions and omissions of Defendants Niazi and Ziyar Express…committed within the course and scope of their employment or agency” with the P.A.M. Defendants. Id. at 8, 9. The vicarious liability claim against Defendant P.A.M. Transportation Services, Inc., differs from that against Defendant P.A.M. Transport, Inc., only in that it also seeks to hold the former liable for the “negligent and reckless actions and omissions” of the latter as well as those of Niazi and Ziyar. Id. at 9.

The P.A.M. Defendants argue they are shielded from Plaintiffs’ claims by the preemption provision of the Federal Aviation Authorization Administration Act (“FAAAA”) as shipping brokers. (Doc. 39, at 1). Plaintiff contends the claims are not preempted by the FAAAA, or in the alternative, the claims fall within the “safety exception” of the preemption provision. (Doc. 46, at 10). Consistent with its recent holding in Lee v. Werner Enterprises, Inc., this Court holds Plaintiff’s claims against the P.A.M. Defendants are preempted by the FAAAA. See 2022 WL 16695207, at *5 (N.D. Ohio).

The FAAAA provides that:

Except as provided in paragraphs (2) and (3), 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 (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

49 U.S.C. § 14501(c)(1). The subsequent “safety exception” exempts from preemption “the safety regulatory authority of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A).

In 1992, the Supreme Court made several holdings regarding an identical preemption provision in the Airline Deregulation Act of 1978 (“ADA”):

(1) that state enforcement actions having a connection with, or reference to, carrier rates, routes, or services are pre-empted;

*3 (2) that such pre-emption may occur even if a state law’s effect on rates, routes, or services is only indirect;

(3) that, in respect to pre-emption, it makes no difference whether a state law is consistent or inconsistent with federal regulation; and

(4) that pre-emption occurs at least where state laws have a significant impact related to Congress’ deregulatory and pre-emption-related objectives.

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-87 (1992) (cleaned up). The Supreme Court subsequently held the same principles applied to the FAAAA preemption section.

In Morales, this Court interpreted the pre-emption provision in the Airline Deregulation Act of 1978. And we follow Morales in interpreting similar language in the 1994 Act before us here. We have said that “when 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.”

Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370 (2008). There is not yet any binding law on this Court regarding whether personal injury tort claims against freight brokers are preempted under the FAAAA in keeping with Rowe and Morales. But this Court finds persuasive the Supreme Court’s holding that the identical ADA preemption section applies to state common law claims, which have “the force and effect of law.” Northwest, Inc. v. Ginsberg, 572 U.S. 273, 281-82 (2014).

This Court also adopts and incorporates its prior reasoning in Lee:

Another Judge of this Court previously held – in a truck crash case – that negligence claims brought against a shipper and broker “fall[ ] squarely within the preemption of the FAAAA.” Creagan v. Wal-Mart Trans., LLC, 354 F. Supp. 3d 808, 813 (N.D. Ohio 2018)….Additionally, if the safety exception preserved all claims related to motor vehicles, as urged by Plaintiffs and Miller, “all preempted claims would then be ‘saved’ by the exception.” Creagan, 354 F. Supp. 3d at 814. This would make the entirety of the preemption provision redundant. Rather, this Court finds “it cannot ignore the straightforward preemption analysis as laid out by the Supreme Court, and finds instructive the analysis in Rowe.” Volkova v. C.H. Robinson Co., 2018 WL 741441, at *4 (N.D. Ill.). To the eye of this Court, the FAAAA’s preemption provision protects precisely parties such as the shipper and broker, who did not have direct involvement in the accident that injured Plaintiffs.

2022 WL 16695207, at *5. This Court accordingly finds the claims against the P.A.M. Defendants, the freight brokers in this case, are preempted by the FAAAA and must be dismissed. Defendant Universal Logistics Holdings, Inc.

Plaintiff brings against Universal (1) a vicarious liability claim for “the negligent and reckless actions and omissions of Defendants P.A.M. Transport, Inc., Niazi[,] and Ziyar Express” and “for the collision as a motor carrier and statutory employer of the Load” (Doc. 26, at 11-12), and (2) a negligence claim for “failing to exercise reasonable care in arranging transportation of the Load and hiring or selecting, training, supervising and/or retaining [Defendants P.A.M., Ziyar, and Niazi] to operate the tractor-trailer and transport the Load.” Id. at 12.

*4 Plaintiff does not allege a definite connection between Universal and the crash. Universal points this out in its Motion to Dismiss. (Doc. 42-1, at 1). In response, Plaintiff claims Universal could have had “several potential roles…for this Load”, including carrier, broker, or shipper, and that “discovery is needed to clarify these roles.” (Doc. 47, at 2-3).

At the outset, in order to survive a Motion to Dismiss, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff seeks to hold Universal accountable for its alleged negligence and for the negligence of three other Defendants. The basic elements of a negligence claim are duty, breach, causation, and damages. See, e.g., Abrams v. Worthington, 169 Ohio App. 3d 94, 99 (Ohio App. 2006). “In Ohio, the existence of a duty depends upon the foreseeability of injury to the plaintiff.” Id. “The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.” Id. (quoting Menifee v. Ohio Welding Prods., Inc., 15 Ohio St. 3d 75, 77 (1984)).

Plaintiff does not state how Universal is connected to the accident, or how or why Universal was responsible for “arranging transportation” or “hiring[,] selection, training, supervising[, or] retaining” the other parties connected to the accident. Plaintiff cannot establish a duty, a breach of that duty, or any causal connection between Universal and the damages suffered without alleging facts plausibly connecting Universal to the incident. Plaintiff fails to meet basic pleading standards in its claims against Universal.

Even if Plaintiff had met these pleading standards, the claims against Universal are not substantively proper. First, to the extent Plaintiff sues Universal as a “carrier, broker or shipper”, all three of which Plaintiff lists as “examples of the potential roles of Defendant Universal”, these claims are preempted by the FAAAA for the same reasons stated above regarding the P.A.M. Defendants.

Next, to the extent Plaintiff seeks to hold Universal vicariously liable for the actions of any parties to the accident within Universal’s control, this Court notes an employer or principal can only be held liable for the conduct of its employee or agent if that employee or agent is directly liable himself. See Hayslip v. Genuine Parts Co., 420 F. Supp. 3d 666, 676 (S.D. Ohio 2019). While Plaintiff does not state Universal’s role with particularity, it is possible to discern from the Amended Complaint that Plaintiff sees Universal as “upstream” of the P.A.M. Defendants. See Doc. 51, at 2. Plaintiff alleges Niazi was employed by Ziyar, and that Ziyar was in turn hired by the P.A.M. Defendants. (Doc. 26, at 3, 12). Universal is then held out as, whatever its role, liable for the actions of the P.A.M. Defendants and the parties below them. Id. at 11. The claims against Universal are therefore derivative of the claims against the P.A.M. Defendants; Universal’s liability depends on P.A.M.’s liability. In vicarious liability cases, “[i]f the liability of the primarily liable party was extinguished, the liability of the secondarily liable party [is] likewise extinguished.” Comer v. Risko, 106 Ohio St. 3d 185, 190 (2005). Because the claims against the P.A.M. Defendants are preempted and those parties are not liable, Universal cannot be held liable via a derivative theory of liability.

*5 Finally, to the extent Plaintiff asserts a negligent hiring claim against Universal, her claim also fails. To make a negligent hiring claim, a party must show “(1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.” Viglianco v. Athenian Assisted Living, Ltd., 2015 WL 5782979, at *6 (N.D. Ohio). While Plaintiff broadly alleges an employment relationship between Universal and the P.A.M. Defendants, she does not, for example, assert any facts suggesting knowledge by Universal of P.A.M.’s incompetence or any proximate cause between the hiring and the crash.

To find proximate cause, “it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee & St. P.R. Co. v. Kellogg, 94 U.S. 469, 475 (1876). The sparse facts set forth by Plaintiff render Universal’s connection to the crash so vague and removed as to make it impossible to discern a prima facie allegation of proximate causation from the Amended Complaint.

Plaintiff asserts no other theories of liability for Universal. The claims against this Defendant must be dismissed.

Defendants Maroun and CenTra

Plaintiff brings against Maroun a vicarious liability claim for the negligence of the P.A.M. Defendants, a claim for “aiding and abetting” the P.A.M. Defendants’ “violation of federal statutes and regulations”, and a claim for “liability for [the] joint venture” of the P.A.M. Defendants, Universal, and CenTra. (Doc. 26, at 13-14). Plaintiff brings against CenTra a negligence claim for providing “administrative support services to Universal…including legal, human resource, and other services.” Id. at 13.

The Sixth Circuit at one point predicted Ohio would consider “civil aiding and abetting” a legally viable tort theory based on a then-unapproved section of the Restatement (Second) of Torts. Aetna Cas. & Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 532-33 (6th Cir. 2000). Several years later, however, the Ohio Supreme Court held that Ohio does not recognize a cause of action for civil aiding and abetting under that section, undermining the Sixth Circuit’s decision. Blake v. Wells Fargo Bank, NA, 916 F. Supp. 2d 839, 842-43 (S.D. Ohio 2013) (citing DeVries Dairy, LLC v. White Eagle Coop. Ass’n, Inc., 132 Ohio St. 3d 516, 517 (2012)). Plaintiff’s claim against Maroun for aiding and abetting is therefore dismissed.

Under Ohio law, parties to a joint venture are each “liable for the negligent and tortious acts of the other members, pursuant to the venture, that result in injury to third persons.” Hulett v. Am.’s Finest Serv. Co., 2005 WL 2233261, at *12 (N.D. Ohio). To establish the existence of a joint venture, Plaintiff must show (1) a joint contract, (2) intent among parties to form a joint venture, (3) a “community of interest and control, including contributions to the joint venture”, (4) “the mutual right” among members “to direct and control the purpose of the joint venture”, and (5) an agreement among parties to the venture to share its losses and profits. Anchor v. O’Toole, 94 F.3d 1014, 1024 (6th Cir. 1996). At the pleading stage, Plaintiff must allege “sufficient factual matter, accepted as true, to allow this court to draw the reasonable inference” of a joint venture’s existence. Lester v. Wow Car Co., 2013 WL 6058676, at *3 (S.D. Ohio).

Plaintiff’s Amended Complaint alleges that Defendant Moroun is “the controlling officer and shareholder” of the P.A.M. Defendants, Universal, and CenTra, and that he “entered into contractual relationships that manifested a joint intent between and with those entities to conduct business together with joint property interests, joint control over the ventures and to jointly earn financial rewards including shared profits and losses, from those business venture[s] together to transport the Load.” (Doc. 26, at 15). Plaintiff does not explain Moroun’s role at the P.A.M. businesses, Universal, or CenTra beyond “controlling officer and shareholder” and does not explain the purpose of the joint venture other than “to transport the Load;” Plaintiff does not allege in sufficient detail how the P.A.M. Defendants or Universal were involved with the trip that ended in the crash, and she alleges only that CenTra provided support services to Universal.

*6 These bare recitations of the elements of a claim do not provide sufficient factual matter to draw a reasonable inference or create a plausible claim. For comparison, in a case where evidence was provided of several companies’ agreements to drill wells in a particular county, the court still dismissed the claim because no facts were alleged defining the scope of the agreements or identifying whether a particular drilling activity was carried out pursuant to the joint venture. J&R Passmore, LLC v. Rice Drilling D, LLC, 2019 WL 6051112, at *3 (S.D. Ohio). In this case, where Plaintiff has not alleged in plausible detail the existence of agreements between the Defendants, much less the scope or purpose of the agreements or each company’s role, she has not pleaded sufficient facts to establish Maroun “has any stake” in the business transactions leading to the trip that ended in the crash. Id.

The remaining claims against Maroun appear to be either vicarious liability or negligent hiring claims. These theories of liability fail for the same reason they fail against Universal. Maroun’s activities as alleged by Plaintiff are “upstream” of those by Universal, the P.A.M. Defendants, Ziyar, and Niazi. Because the parties “below” Maroun cannot be held liable, Maroun would have no liability but for the liability of the underlying parties, and Plaintiff has not alleged any proximate cause between the accident and Maroun’s actions, all remaining claims against Maroun must be dismissed.

The claim against Defendant CenTra also appears to be a vicarious liability or negligent hiring claim. As is the case for the claims of this nature against Universal, Plaintiff has not sufficiently alleged liability of any “downstream” parties (extinguishing the vicarious liability claims) nor alleged facts supporting most if not all of the elements of a negligent hiring claim, such as the existence of CenTra as an employer rather than an employee or contractor, CenTra’s knowledge of incompetence, or proximate cause between CenTra’s provision of legal and human resources services and the auto accident. All claims against CenTra must therefore be dismissed.

Conclusion

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants P.A.M. Transport, Inc. and P.A.M. Transportation Services, Inc.’s Motion to Dismiss (Doc. 39), be, and the same hereby is, GRANTED; and it is

FURTHER ORDERED that Defendants Matthew Maroun and CenTra, Inc.’s Motion to Dismiss (Doc. 41), be, and the same hereby is, GRANTED; and it is

FURTHER ORDERED that Defendant Universal Logistics Holdings, Inc.’s Motion to Dismiss (Doc. 42), be, and the same hereby is, GRANTED.

All Citations

Footnotes

1 Plaintiff was qualified and appointed administrator of the decedent’s estate by the Lucas County Probate Division of the State of Ohio on November 8, 2021. (Doc. 26, at 2).

2 A freight broker is an intermediary hired to arrange for transportation of a load by hiring a motor carrier for a shipper. See Doc. 39, at 2.

End of Document