Broker - Central Analysis Bureau

Meek v. Toor

United States District Court, E.D. Texas, Marshall Division.

Louis J. MEEK, Plaintiff,

and

Makayla Fitzgerald, Intervenor-Plaintiff,

Alamjit TOOR, Avnoor Transport Inc., and Keystone Logistics, Inc., Defendants.

CIVIL ACTION NO. 2:21-cv-0324-RSP

Signed March 5, 2024

Attorneys and Law Firms

Mark Wham, Rene S. Rogers, Ryan W. Wham, Wham & Rogers PLLC, The Woodlands, TX, for Plaintiff.

Andre Toce, The Toce Law Firm, APLC, Lafayette, LA, Peter John Rutter, DC Law, PLLC, Austin, TX, for Intervenor-Plaintiff.

Bryan P. Reese, Eugene T. Rhee, Fee Smith Sharp & Vitullo, LLP, Dallas, TX, for Defendants Ajamjit Toor, Avnoor Transport Inc.

Kristopher Michael Stockberger, James Ross Broussard, Lewis Brisbois Bisgaard & Smith LLP, Houston, TX, Todd Allen Gray, Lewis Brisbois Bisgaard & Smith, LLP, Cleveland, OH, for Defendant Keystone Logistics, Inc.

MEMORANDUM ORDER

ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE

*1 Before the Court is Keystone Logistics, Inc.’s Motion for Summary Judgment. (Dkt. No. 84.) Keystone argues that Plaintiff’s negligence claims against Keystone are preempted by federal law and also that no competent evidence supports such claims. For the reasons provided below, the Court DENIES the Motion.

I. BACKGROUND

This action arises out of a motor vehicle accident involving dismissed defendants Alamjit Toor and Avnoor Transport. (Mot. at 1.) Plaintiff contends Keystone is also liable for this incident based on its negligent hiring of Avnoor Transport to ship a load of cabbages. (Id.)

II. LEGAL STANDARD

Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Any evidence must be viewed in the light most favorable to the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Summary judgment is proper when there is no genuine dispute of material fact. Celotex v. Catrett, 477 U.S. 317, 322 (1986). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Anderson, 477 U.S. at 247–48. The substantive law identifies the material facts, and disputes over facts that are irrelevant or unnecessary will not defeat a motion for summary judgment. Id. at 248. A dispute about a material fact is “genuine” when the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party must identify the basis for granting summary judgment and evidence demonstrating the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. “If the moving party does not have the ultimate burden of persuasion at trial, the party ‘must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.’ ” Intellectual Ventures I LLC v. T Mobile USA, Inc., No. 2:17-CV-00577-JRG, 2018 WL 5809267, at *1 (E.D. Tex. Nov. 6, 2018) (quoting Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)).

III. ANALYSIS

A. FEDERAL PREEMPTION

Keystone argues that Plaintiff’s state-law negligence claim is preempted by 49 U.S.C. §§ 14501(b)(1), (c)(1). (Mot. at 2.) Those sections provide:

… no State or political subdivision thereof a … 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.

§ 14501(b)(1)

… a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier, … broker, or freight forwarder with respect to the transportation of property.

*2 § 14501(c)(1)

Keystone argues the Supreme Court precedent in Rowe v. N.H. Motor Transp. Ass’n, 522 U.S. 364,370 (2008) requires that this preemption should be read broadly. (Mot. at 3.) Keystone contends this broad preemption impacts state laws that only indirectly affect the price, route, or services of a freight broker, including state law claims of negligent hiring. (Id.) In support of this argument, Keystone contends that several other courts have ruled this way. (Id. at 4.)

Plaintiff’s opposition is largely unhelpful on this issue. (See Opp.) Rather than clearly addressing Keystone’s preemption argument, Plaintiff instead argues that Keystone should be liable under § 411 Restatement (Second) of Torts. (See Opp. at 7-9.)

The Court is not convinced 49 U.S.C. § 14501 preempts Plaintiff’s claims here.

This preemption issue is not one of first impressions, rather our sister courts across the country have largely decided this issue in one of three ways: finding the preemption language of § 14501 does not cover claims of negligent hiring; the preemption language does cover such claims but the claims fall under the safety exception of § 14501(c)(2); or that the preemption language covers such claims and they do not fall under the safety exception. See Bertram v. Progressive Se. Ins. Co., No. 2:19-CV-01478, 2021 WL 2955740, at *2 (W.D. La. July 14, 2021) (collecting cases).

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.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 252, 133 S. Ct. 1769, 1773, 185 L. Ed. 2d 909 (2013) (internal citations removed). The courts finding negligent hiring is preempted generally find enforcement “would have a direct and substantial impact on the way in which freight brokers hire and oversee transportation companies [and] would hinder this objective of the FAAAA.” See Georgia Nut Co. v. C.H. Robinson Co., No. 17 C 3018, 2017 WL 4864857, at *3 (N.D. Ill. Oct. 26, 2017). Courts finding no preemption find state negligent hiring claims bear only a tenuous relationship to “services” provided by brokers, and that Supreme Court precedent acknowledges preemption of traditional state court claims is unlikely. See Montes de Oca v. El Paso-Los Angeles Limousine Exp., Inc., No. CV 14-9230 RSWL MANX, 2015 WL 1250139, at *1 (C.D. Cal. Mar. 17, 2015) (citing Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 251 (1984)); see also Mann v. C. H. Robinson Worldwide, Inc., No. 7:16-CV-00102, 2017 WL 3191516, at *7 (W.D. Va. July 27, 2017).

The Court is not convinced by the rationale that hiring and oversight of transportation companies is so central to the services of freight brokers that negligent hiring claims would significantly impact the services of a freight broker. “[T]he breadth of the words ‘related to’ does not mean the sky is the limit.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260, 133 S. Ct. 1769, 1778, 185 L. Ed. 2d 909 (2013). While hiring is broadly “related to” the services of a freight broker, so too is everything a freight broker does. The Court does not find hiring and oversight of transportations companies has such particular relevance to the services of a freight broker that any tort happening to touch that process is preempted here.

*3 However, even if negligent hiring fell under the purview of the preemption clause, it would also fall under the safety regulation exception. § 14501(c)(2) provides preemption does not cover “the safety regulatory authority of a State with respect to motor vehicles …” “Case law … has on the whole given a broad construction to the safety regulation exception” of § 14501. VRC LLC v. City of Dallas, 460 F.3d 607, 612 (5th Cir. 2006). Considering, as applied to the case at hand, negligent hiring is a tort doctrine concerning the safety of the public, and that the safety regulatory exception is to be read broadly, the Court sees no reason why it would not apply to except Plaintiff’s claim.

Having found there is no preemption, the Court need not decide whether Keystone is a freight broker that might fall under the cited statute. Further, as Keystone’s motion was filed well before the close of discovery, it would be untimely to make such a determination on this record. See Dkt. No. 103.

B. EVIDENCE OF NEGLIGENCE

In addition to preemption, Keystone argues Plaintiff has no competent evidence to prove the essential elements of the negligent hiring claim. (Mot. at 6.)

First, Keystone contends no duty exists for Keystone to have violated. (Id. at 6-7.) In addition to preemption, Keystone argues that § 411 Restatement (Second) of Torts upon which Plaintiff basis its claim has never been adopted as Texas law and thus plaintiff cites not legal duty owed by Keystone. (Id. at 7.)

Second, Keystone contends there is no evidence to show Keystone knew or should have known Avnoor Transport was incompetent. (Id.) Likewise, Keystone argues there is no evidence that Plaintiff was injured because of Avnoor Transport’s incompetence or Keystone’s disregard for the same. (Id. at 8.)

Plaintiff argues that Texas recognizes a cause of action for the negligent hiring of an independent contractor. (Opp. at 8.) Plaintiff cites a variety of state court cases for this theory. (See id.) Plaintiff further identifies the Federal Motor Carrier Safety Regulations and manuals discussing the various responsibilities in play. (Id. at 10-11.)

Plaintiff further argues its expert, Roger Allen, found Keystone failed to vet Avnoor and Avnoor had no safety rating and thus Keystone violated the relevant duty of care. (Id. at 7.) Plaintiff further provides that Avnoor’s disregard for public safety, which should have prevented Keystone’s hiring of Avnoor, resulted in the injury to Plaintiff. (Id. at 11-12.)

The Court finds that Keystone has failed to show its motion for summary judgment should be granted. First, Texas recognizes the tort of negligent hiring, including for an independent contractor and thus a duty for Keystone to violate. See Adhikari v. KBR Inc., No. 4:16-CV-2478, 2017 WL 4237923, at *10 (S.D. Tex. Sept. 25, 2017). Second, Plaintiff has provided evidence that, when viewed in the light most favorable to Plaintiff, would show Keystone violated its duty by failing to vet Avnoor and that but for that violation Plaintiff would not have been injured.

IV. CONCLUSION

For the reasons discussed above, Keystone’s motion for summary judgment is DENIED.

All Citations

End of Document

Golibart v. Complete Oilfield Servs., LLC

United States District Court, W.D. Texas, Austin Division.

Christian GOLIBART and Brooklyn Michelle, Plaintiffs

Tifini Furst and Gayle Havel Blum, Intervenors

COMPLETE OILFIELD SERVICES, LLC; Christopher Carman; Nickel Rock, LLC; Devonian Services, LLC; Horlando Urquidi; O&S Trucking, LLC; Endeavor Energy Resources, LP; Endeavor Petroleum LLC; Yvette Ochoa; Zackory Ochoa; and Martin Ochoa, Defendants

Case No. 1:24-CV-00020-DII

Filed January 31, 2024

Attorneys and Law Firms

Negin Roberts, Begum Law Group, Daniel J.T. Sciano, Tinsman & Sciano, San Antonio, TX, Alexander Begum, Brownsville, TX, for Plaintiffs.

Neely Fortinberry, Pro Hac Vice, Wilson Elser Moskowitz Edelman & Dicker, LLP, Alexander George Blue, Efrain Forte, III, Dallas, TX, Richard William Espey, Espey & Associates, PC, San Antonio, TX for Defendants.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

*1 TO: THE HONORABLE DISTRICT COURT

Now before the Court are Claimants’ Joint Emergency Motion for Remand, filed January 13, 2024 (Dkt. 11); Defendant Nickel Rock, LLC’s Response, filed January 19, 2024 (Dkt. 13); and Claimants’ Joint Reply, filed January 26, 2024 (Dkt. 18).¹ No Defendant other than Nickel Rock has filed a response to the Motion for Remand, which is ripe for consideration.

I. Background

On July 8, 2022, Plaintiffs Christian Golibart and Brooklyn Michelle filed this wrongful death action in the 428th District Court in Hays County, Texas against Defendants Complete Oilfield Services, LLC; Christopher Carman; Nickel Rock, LLC; Horlando Urquidi; O&S Trucking, LLC; Endeavor Energy Resources, LP; Yvette Ochoa; Zackory Ochoa; and Martin Ochoa. Dkt. 3-1 at 1-24. Intervenors Tifini Furst and Gayle Havel Blum filed their Original Petition in Intervention on September 1, 2022, adding claims against Defendants Devonian Services, LLC, and Endeavor Petroleum, LLC. Dkt. 3-1 at 70-118. Plaintiffs and Intervenors amended their petitions on December 8, 2023; their live pleadings are Plaintiffs’ Second Amended Petition and Intervenors’ First Amended Petition in Intervention. Dkt. 3-3 at 788-906.

Plaintiffs allege that Carman was driving a commercial tractor-trailer owned by Complete Oilfield Services on June 6, 2022, when he struck and killed Paul Golibart, who had parked his motorcycle on the side of a highway near Tarzan, Texas. Id. at 794-96. Plaintiffs also allege that Carman, who did not have a valid Commercial Driver’s License, fled the scene and failed to stop to render aid, and was arrested for “felony accident involving a personal injury or death.” Id. at 795, 797. Plaintiffs allege that Nickel Rock, a Texas commercial truck carrier and broker, was negligent in failing to use ordinary care in hiring and supervising Carman and Complete Oilfield Services. Id. at 789, 804, 825-27. Intervenors allege similar negligence claims. Id. at 893-95.

Nickel Rock removed the case to this Court on January 5, 2024. Dkt. 1. Nickel Rock asserts that the Court has federal question jurisdiction because Plaintiffs and Intervenors allege negligence claims arising out of Nickel Rock’s services as a licensed freight broker. Id. ¶ 13. Nickel Rock contends that those claims raise a substantial question of federal law and are completely preempted by the Federal Aviation Administration Authorization Act (“FAAAA”). Id. ¶¶ 14-15, 24-25.

II. Legal Standard

*2 Under 28 U.S.C. § 1441(a), a defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” District courts have original jurisdiction over two types of cases: those arising under federal law, and those in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties. 28 U.S.C. §§ 1331, 1332(a).

A district court must remand a case to state court if it determines that it lacks subject matter jurisdiction at any time before final judgment. 28 U.S.C. § 1447(c). On a motion to remand, a court also must remand if removal is procedurally defective, even if it otherwise would have original jurisdiction. Lopez v. Truckers Transp. All., Inc., 465 F. Supp. 3d 689, 694 (W.D. Tex. 2020). The party that removed the case “bears the burden of showing that federal jurisdiction exists and that removal was proper.” Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (citation omitted). The removal statute is construed strictly in favor of remand. Id.

III. Analysis

Plaintiffs and Intervenors argue that this case should be remanded because removal was “egregiously untimely” under 28 U.S.C. § 1446(b)(1). Dkt. 11 at 2. They also acontend that removal was substantively defective because the pleadings allege only state law claims and the FAAAA does not completely preempt state negligence claims against freight brokers. Id. In response, Nickel Rock argues that (1) its Notice of Removal was timely; (2) Plaintiffs and Intervenors are attempting to create a state law standard of care for a federally licensed freight broker that substantially interferes with interstate commerce; and (3) the issue of preemption raises a federal question, giving this Court jurisdiction. Dkt. 13 at 3. The Court’s analysis begins and ends with Plaintiffs and Intervenors’ argument that Nickel Rock’s removal was untimely.

A removing defendant must file the notice of removal within 30 days after the receipt of the “initial pleading setting forth the claim for relief.” 28 U.S.C. § 1446(b)(1). If “the case stated by the initial pleading is not removable,” the defendant must file the notice within 30 days of receiving an amended pleading or other paper “from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). The defendant must file the notice of removal within 30 days of receiving the first document “that triggers the removal clock.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397-98 (5th Cir. 2013). The initial pleading will trigger the removal clock when “the basis for federal jurisdiction is evident ‘on [the] face’ of the complaint.” Par. of Plaquemines v. Chevron USA, Inc., 7 F.4th 362, 368 (5th Cir. 2021) (quoting Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).

For removal based on federal issues in negligence claims against a freight broker or based on FAAAA preemption, the removal clock started running when Nickel Rock was served with Plaintiff’s Original Petition if a negligence claim in its capacity as a freight broker was “evident on the face of the initial pleading.” Par. of Plaquemines, 7 F.4th at 368; see also Lopez, 465 F. Supp. 3d at 698-99 (finding removal based on preemption untimely because an earlier petition “affirmatively revealed” negligence claims against the defendant “in its capacity as a broker”).

*3 In their Original Petition, Plaintiffs allege that Nickel Rock “was the trucking broker that facilitated the various transportation/freight jobs” by Carman for Complete Oilfield Services, including the job involved in the collision. Dkt. 3-1 at 7. Plaintiffs make many allegations of negligence against Nickel Rock in their Original Petition, including: “Failing to conduct due diligence in facilitating the transportation of caliche”; “Improperly selecting motor carriers”; “Failing to ensure that [Complete Oilfield Services and Carman] were compliant with the federal regulations and/or federal agencies”; negligent hiring, training, and supervision and monitoring; and “Failing to have clear, concise, unambiguous, easily understood safety policies and procedures.” Id. at 16-17.

It is evident from the face of the Original Petition that Plaintiffs asserted a claim that Nickel Rock, as a freight broker, “was negligent in the selection of Complete Oilfield Services, LLC as an independent contractor.” Dkt. 13 at 2. Nickel Rock has not shown that the amended pleadings revealed “anything in support of federal jurisdiction that was not already revealed by” Plaintiffs’ Original Petition. Lopez, 465 F. Supp. 3d at 699.

The Court finds that Nickel Rock has not shown that FAAAA preemption could not have been asserted within 30 days of its receipt of the Original Petition. Because Nickel Rock was served with the Original Petition on July 15, 2022, its removal on January 5, 2024 based on federal preemption is untimely. The Court recommends remand.²

IV. Recommendation

This Magistrate Judge RECOMMENDS that the District Court GRANT Plaintiffs Christian Golibart and Brooklyn Michelle and Intervenors Tifini Furst and Gayle Havel Blum’s Joint Emergency Motion for Remand (Dkt. 11) and REMAND this action to the 428th District Court in Hays County, Texas.

V. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except on grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

All Citations

Footnotes

By Text Order entered January 22, 2024, the District Court referred the Motion for Remand to this Magistrate Judge for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas. The District Court also referred Plaintiffs’ Motion for Sanctions and/or Attorneys’ Fees (Relating to Notice of Removal), which will be addressed in a separate report and recommendation after the deadline for Plaintiffs’ reply brief has expired. Dkt. 17; Text Order entered January 23, 2024.
Because removal was untimely, the Court does not consider Plaintiffs and Intervenors’ argument that the FAAAA does not preempt their claims or that Nickel Rock did not obtain consent of all Defendants. See Lopez, 465 F. Supp. 3d at 699 n.6 (“[I]t is unnecessary to consider the [preemption] issue any further because removal is untimely.”).

End of Document