United States District Court for the Middle District of Florida, Tampa Division

August 22, 2023, Decided; August 22, 2023, Filed

Case No. 8:22-cv-962-WFJ-CPT

STEPHEN P. STARCESKI, Plaintiff, v. UNITED VAN LINES, LLC, Defendant.

Prior History: Starceski v. United Van Lines, Int’l, 2022 U.S. Dist. LEXIS 190949, 2022 WL 11201766 (M.D. Fla., Oct. 19, 2022)

Counsel:  [*1] For Stephen Starceski, Individually, Plaintiff: Keith S. McCarter, McCarter Law Group PA, Tampa, FL.

For United Van Lines International, a Missouri Corporation (State ID 00158252), Defendant: Andrew Bryan Kleiner, PRO HAC VICE, Lewis Brisbois Bisgaard & Smith, LLP, Phoenix, AZ; Taylor Kennedy McKnight, Lewis Brisbois Bisgaard & Smith, Tampa, FL.

For United Van Lines, LLC, (Missouri State Identification LC0030570)(U.S. Dot No. 077949), Valerie J. Pacer, (Individual), Defendants: Andrew Bryan Kleiner, Lewis Brisbois Bisgaard & Smith, LLP, Phoenix, AZ; Taylor Kennedy McKnight, Lewis Brisbois Bisgaard & Smith, Tampa, FL.

Judges: WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE.

Opinion by: WILLIAM F. JUNG

Opinion

ORDER

Before the Court is Defendant United Van Lines, LLC’s (“United”) Motion for Partial Summary Judgment (Dkt. 81). Plaintiff Stephen Starceski has responded in opposition (Dkt. 98). Upon due consideration, the Court grants United’s Motion.

BACKGROUND

On September 1, 2021, Mr. Starceski contracted with United to transport his household goods from California to Florida. Dkt. 7-1 at 16. United subsequently issued Mr. Starceski “Order for Service/Bill of Lading U0187-00402-1” (the “Bill of Lading”) and set the weight [*2]  of Mr. Starceski’s load at 13,499 pounds. Id. at 14. Instead of purchasing full replacement value protection, Mr. Starceski opted to accept United’s free-of-charge base shipment protection of $0.60 per pound. Id. at 15.

On January 18, 2022, after a roughly four-month period of storage, United delivered the first portion of Mr. Starceski’s goods to Florida. Dkt. 49 at 7; Dkt. 53 at 4. The remaining portion was never delivered. Dkt. 53 at 5. United claims that “[o]n or about January 18, 2022, during the interstate transport of [Mr. Starceski’s] second load, the vehicle hauling [Mr. Starceski’s] remaining two containers caught fire.” Id. at 5. Mr. Starceski, on the other hand, suggests that United’s employees may have “simply go[ne] shopping.” Dkt. 49 at 2.

On April 26, 2022, Mr. Starceski filed the instant suit. Dkt. 3. After a series of motions to dismiss and amended complaints, Mr. Starceski is left with a single Carmack Amendment, 49 U.S.C. § 14706(a)(1) claim against United.¹ United now moves for partial summary judgment on the issue of damages. Dkt. 81. United avers that its liability is limited to $8,099.40 ($0.60 x 13,499 lbs. = $8,099.40). Id. at 1.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment [*3]  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); see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). An issue of fact is “genuine” only if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if the fact could affect the outcome of the lawsuit under the governing law. Id.

The moving party bears the initial burden of identifying those portions of the record demonstrating the lack of a genuinely disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If met, the burden shifts to the non-moving party to “come forward with specific facts showing that there is a genuine issue for trial.” Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (citation omitted). To satisfy its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The non-moving party must go beyond the pleadings and “identify affirmative evidence” that creates a genuine factual dispute. Crawford-El v. Britton, 523 U.S. 574, 600, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998).

In determining whether a genuine dispute of material fact exists, the Court must view the evidence and draw all factual inferences therefrom in a light most favorable to the non-moving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). In addition, the Court must resolve any reasonable doubts in [*4]  the non-moving party’s favor. Id. Summary judgment should only be granted “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]” Matsushita, 475 U.S. at 587.

DICSUSSION

The Carmack Amendment generally provides that an interstate motor carrier is liable for “actual loss or injury to the property” at issue. § 14706(a). A carrier may, however, limit liability “to a value established . . . by a written agreement.” § 14706(f)(1). To properly do so, a carrier must show that it: 1) maintained a tariff within the prescribed guidelines of the Interstate Commerce Commission; 2) gave the shipper a reasonable opportunity to choose between multiple levels of liability protection; 3) obtained the shipper’s agreement as to liability protection; and 4) issued a receipt or bill of lading prior to moving the shipment. Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1306 (11th Cir. 2018); Werner Enterprises, Inc. v. Westwind Mar. Int’l, Inc., 554 F.3d 1319, 1326 (11th Cir. 2009).

I. The Tariff

The Eleventh Circuit has explained that:

[t]he first prong has been largely eliminated by statutory changes that abolished the Interstate Commerce Commission and replaced it with the Surface Transportation Board. . . . [C]arriers are now required to provide shippers on request with a written or electronic copy of the rates, classifications, rules, or practices applicable to the shipment [*5]  or agreed to between the shipper and carrier.

UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1286 n.3 (11th Cir. 2014) (citing Werner, 554 F.3d at 1326 n.6). This functionally means that “a carrier is now required to provide a shipper with the carrier’s tariff if the shipper requests it[.]” Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 841 (11th Cir. 2003). The goal of this requirement is to ensure that “a carrier wishing to limit its liability . . . [gave] the shipper a reasonable opportunity to choose between different levels of liability.” Id. at 842. It specifically “leads back to the issue of whether [a carrier’s] documents [gave the shipper] the requisite opportunity to choose between two or more levels of coverage” where the subject bill of lading is lacking in information pertinent to liability coverage options. Id.

Here, notwithstanding United’s affidavits to the contrary, Dkt. 81-2 at 3; Dkt. 81-8 at 1, Mr. Starceski claims that, “[o]n several occasions between the time my items were loaded onto the truck and throughout the course of the initiation of this trial[,] I requested a tariff from [United],” Dkt. 98-1 at 2. Mr. Starceski maintains that “[n]o tariff was provided in a timely matter.” Id. Mr. Starceski consequently argues that a material issue of fact exists concerning United’s liability.

The Court disagrees. To begin with, Mr. Starceski signed [*6]  the Bill of Lading on September 1, 2021, Dkt. 7-1 at 15, and United loaded his goods for storage on September 8, 2021, Dkt. 49 at 6. It follows that Mr. Starceski did not request United’s tariff until at least one week after he had entered into a binding contract with United under which he agreed to pay less for limited liability protection. Dkt. 7-1 at 15. Given this, United’s tariff would not have altered the information available to Mr. Starceski at the time he contracted for the lower price and coverage. Nor would the tariff have impacted his ability to choose between liability coverage options. This is not to mention, moreover, that Mr. Starceski was provided instructions for accessing the subject tariff prior to executing the Bill of Lading. The information was present on the Bill of Lading itself. See Dkt. 7-1 at 17; see also id. at 15 (Mr. Starceski acknowledging that he received a copy of the “Your Rights and Responsibilities When you Move” brochure); Dkt. 81-3 at 41 (the provision of the “Your Rights and Responsibilities When You Move” brochure which explains that United’s tariff can be accessed at www.UnitedVanLines.com).²

More importantly, though, the instant situation is [*7]  not one where “the bill of lading or other relevant document does not contain a declared value box,” thus depriving the shipper of a “reasonable opportunity to choose a higher level of liability.” See Sassy Doll, 331 F.3d at 842. The Bill of Lading explicitly valued Mr. Starceski’s shipment at $81,000 and gave him two options: 1) pay $27,943.46 to have the shipment delivered and covered at full replacement value, or 2) pay $27,024.26 and have the shipment delivered and covered at $0.60 per pound. Dkt. 7-1 at 15. Mr. Starceski chose the latter. This being the case, Mr. Starceski cannot plausibly claim that he was denied a meaningful opportunity to choose between coverage levels. He could determine from the Bill of Lading alone “exactly how to indicate a desire for full value coverage.” Sassy Doll, 331 F.3d at 843. The Court will not upset the parties’ contractual agreement on an alleged technicality that “has been largely eliminated” and has no bearing on the ultimate issue of whether Mr. Starceski was given a reasonable opportunity to choose between different levels of coverage. Megatrux, 750 F.3d at 1286 n.3; see also Sassy Doll, 331 F.3d at 842.

II. Reasonable Opportunity and Agreement

This brings the Court to Mr. Starceski’s arguments concerning informed consent. Mr. Starceski essentially [*8]  argues that a second material issue of fact exists as to United’s liability limitation because “[United] failed to properly inform [Mr. Starceski] of their potential liability levels and neglected to disclose any waiver of full replacement value” before he signed the Bill of Lading. Dkt. 98-1 at 2.

This contention is wholly refuted by the evidence in the record. After explaining Mr. Starceski’s full replacement value protection option, the Bill of Lading explicitly explained the following:

OPTION 2 – WAIVER of Full (Replacement) Value Protection. This LOWER level of protection is provided at no additional cost beyond the base rate; however it provides only MINIMAL protection that is considerably less than the average value of household goods. Under this option, a claim for any article that may be lost, destroyed, or damaged while in your mover’s custody will be settled based on the weight of the individual article multiplied by 60 cents. For example, the settlement of an audio component valued at $1000 that weighs 10 pounds would be $6.00 (10 pounds time 60 cents).

Dkt. 7-1 at 15 (emphasis in original). Directly above Mr. Starceski’s signature line, the Bill of Lading then provided an [*9]  acknowledgement stating that “I have: 1) WAIVED the Full (Replacement) level of protection for which I have received an estimate of charges; and 2) received a copy of the “Your Rights and Responsibilities When You Move” brochure explaining these provisions.” Id. The “Your Rights and Responsibilities When You Move” brochure provided to Mr. Starceski also contained similar language. See Dkt. 81-3 at 11-12.

Simply put, there is no genuine issue of fact concerning whether Mr. Starceski was adequately informed, whether Mr. Starceski had a meaningful opportunity to choose between multiple coverage levels, or whether Mr. Starceski in fact knowingly and willingly contracted for coverage at $0.60 per pound. There is also no dispute that United issued a receipt or bill of lading to Mr. Starceski prior to moving the shipment. United is therefore entitled to summary judgment on the issue of damages.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED:

(1) United’s Motion for Partial Summary Judgment (Dkt. 81) is GRANTED.

(2) United’s liability is limited to $0.60 per pound for the goods lost or otherwise destroyed in transit.

DONE AND ORDERED at Tampa, Florida, on August 22, 2023.

/s/ William F. [*10]  Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Mr. Starceski brought his original Complaint against United on April 26, 2022. Dkt. 3. The next day, Mr. Starceski filed a “Corrected Complaint.” Dkt. 7. On May 23, 2022, Mr. Starceski filed an Amended Complaint. Dkt. 10. Then, on July 1, 2022, Mr. Starceski filed a Second Amended Complaint which brought twenty-four counts against seven entities and individuals. Dkt. 11 at 7-112. United, as well as former Defendants United Van Lines International and Valerie Pacer, moved to dismiss Mr. Starceski’s Second Amended Complaint in late August 2022. Dkt. 13; Dkt. 16. The Court granted both motions, dismissing various claims with prejudice and other claims without prejudice due to the shotgun-nature of Mr. Starceski’s Second Amended Complaint. Dkt. 44; Dkt. 45. The Court granted Mr. Starceski one “final attempt to amend his complaint” in light of the Court’s Order. Id. at 10-11. On November 21, 2022, Mr. Starceski filed his Third Amended Complaint. Dkt. 49. Therein, Mr. Starceski brought three claims: (1) Count I—cause of action under the Carmack Amendment against United; (2) Count II—cause of action under the Carmack Amendment against Unigroup, LLC; and (3) Count III—cause of action for negligence against Unigroup, LLC and Nadia A. Gajardo. Id. at 7-19. Upon United’s renewed motion to dismiss, the Court found that Mr. Starceski had properly pled a Carmack claim against it. Dkt. 61 at 5. The Court nevertheless dismissed Mr. Starceski’s claims against former Defendants Unigroup, LLC and Nadia Gajardo approximately two weeks later for failure to prosecute. Dkt. 68.

² When one enters “United Van Lines tariff” into a web browser, United’s “Nationwide Interstate Relocation Tariff” is the first result. United Van Lines, LLC, https://www.unitedvanlines.com/wp-content/uploads/2022/12/UMT1-Tariff-BASE-Complete-Issued-12-05-22-Effective-12-05-22.pdf (last visited Aug. 22, 2023).

United States District Court for the Southern District of Texas, Houston Division

August 24, 2023, Decided; August 24, 2023, Filed

CIVIL ACTION NO. H-23-1384

HOFFMAN LOGISTICS, INC., Plaintiff, v. LOUP LOGISTICS COMPANY, LLC, et al., Defendant.

Counsel:  [*1] For Hoffman Logistics, Inc., a Florida corporation, Plaintiff: Hannah Elizabeth Taylor, LEAD ATTORNEY, Dana Keith Martin, Hill Rivkins, Houston, TX; Jessica Cappock, Mathis Law Group, Lakeland, FL.

For Loup Logistics Company, LLC, a foreign limited liability company formerly known as Union Pacific Railroad, Union Pacific Railroad Company, Defendants: Pamela C Hicks, LEAD ATTORNEY, Mary D. Borrego, Hicks Davis Wynn, Houston, TX.

For Southern Gulf Packaging & Logistics, LLC, a foreign limited liability company, Defendant: Charles M R Vethan, The Vethan Law Firm, Houston, TX.

Judges: Lee H. Rosenthal, United States District Judge.

Opinion by: Lee H. Rosenthal

Opinion

MEMORANDUM AND ORDER

Plaintiff, Hoffman Logistics Co., entered into a contract with Loup Logistics Co., LLC, to transport onions from Idaho to Texas. (Docket Entry No. 1 at 2). Loup issued a bill of lading to Hoffman and named Southern Gulf Packaging & Logistics, LLC as the transloader. (Id. at 3). In April 2023, Hoffman sued Loup and Southern Gulf for breach of contract under both state law and the Carmack Amendment, seeking damages and attorney’s fees. (Docket Entry No. 1).

Southern Gulf moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), and Hoffman responded. (Docket Entry Nos. 22, 25). Based on [*2]  a careful review of the pleadings, the motion and response, the record, and the applicable law, the court grants Southern Gulf’s motion to dismiss as to Hoffman’s state-law claims and denies in part the motion to dismiss as to Hoffman’s Carmack Amendment claim. The reasons are explained below.

I. Background

In January 2022, Hoffman Logistics Co. contracted with Loup Logistics Co., LLC to have onions shipped from Idaho to Texas. (Docket Entry No. 1 at 2). On January 25, 2022, Partners Produce Inc. inspected the onions and found “a minimal standard roughly 2% decay.” (Id.). The bill of lading Loup issued included “parameters for the method of transportation as well as the optimum temperature for the Load.” (Id. at 3).

The onions arrived at their rail destination on February 16, 2022. The transloader, Southern Gulf, did not pick the load up for several days. (Id.). Southern Gulf was to deliver the onions to their final destination via tractor-trailer. On February 22, 2022, the onions were offloaded and the United State Department of Agriculture completed an arrival inspection. (Id.). This inspection revealed decay of up to 31%, showed that the temperature of the transport unit was higher [*3]  than the temperature listed in the bill of lading, and determined that the onions were “largely spoiled and unusable.” (Id. at 4).

Hoffman notified Loup of the spoiled onions and claimed the amount of the loss. Loup denied the claim in September 2022. (Id.). In April 2023, Hoffman sued Loup and Southern Gulf, seeking damages for the spoiled onions, reimbursement for payments made to Loup, and fees associated with the shipment. (Id. at 5). Hoffman alleged that both Loup and Southern Gulf failed to timely deliver the onions and failed to ensure proper temperature regulation during the onion shipment. Southern Gulf has moved to dismiss, and Hoffman has responded. The arguments are analyzed below.

II. The Legal Standard

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) [*4]  (quoting Twombly, 550 U.S. at 555). “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. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

To withstand a Rule 12(b)(6) motion, a complaint must include “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Lincoln v. Turner, 874 F.3d 833, 839 (5th Cir. 2017) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). “A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be enough to raise a right to relief above the speculative level.'” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007) (alterations omitted) (quoting Twombly, 550 U.S. at 558).

A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).

III. Analysis

Southern Gulf argues that the Carmack Amendment preempts Hoffman’s state-law claim. The Carmack Amendment provides “the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a [*5]  common carrier.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003) (emphasis added). “In actions seeking damages for the loss of property shipped in interstate commerce by a common carrier under a receipt or bill of lading, the Carmack Amendment is the shipper’s sole remedy.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 382 (5th Cir. 1998). The Amendment bars state-law claims for loss or damage to property shipped in interstate commerce. Applying this rule, the Fifth Circuit has held that the following state-law claims are preempted:

1) the tort of outrage, 2) intentional and negligent infliction of emotional distress, 3) breach of contract, 4) breach of implied warranty, 5) breach of express warranty, 6) violation of the Texas Deceptive Trade Practices Act sections 17.46 and 17.50, 7) slander, 8) misrepresentation, 9) fraud, 10) negligence and gross negligence, and 11) violation of the common carrier’s statutory duties as a common carrier under state law.

Hoskins, 343 F.3d at 777 (citing Moffit v. Bekins Van Lines Co., 6 F.3d 305, 306 (5th Cir. 1993)).

Hoffman claims damages caused by the spoiling of the onions in the shipment from Idaho to Texas. That shipment was under a bill of lading. (Docket Entry No. 1 at 3). Hoffman asserts state-law claims for breach of contract, negligence, violation of duty, conversion, and breach of bailment obligations. The Fifth Circuit held the first three preempted in Moffit. The Fifth Circuit has since held that the Carmack Amendment preempts [*6]  conversion claims except claims for intentional conversion, Tran Enterprises, LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1009 (5th Cir. 2010), which Hoffman has not alleged, (Docket Entry No. 1 at 12). Claims for breach of bailment obligations are also preempted. Gulf Rice Arkansas, LLC v. Union Pac. R.R. Co., 376 F. Supp. 2d 715, 719 (S.D. Tex. 2005); Groupo Floristar, S. de R.L. de C.V. v. FFE Transp. Serv., Inc., No. 4:06-cv-2098, 2007 U.S. Dist. LEXIS 107754, 2007 WL 9751917, at *2 (S.D. Tex. Apr. 19, 2007). Hoffman’s state-law claims are preempted by the Carmack Amendment and must be dismissed. The court need not address Southern Gulf’s alternative bases for dismissing these claims.

Southern Gulf also challenges Hoffman’s Carmack Amendment breach of contract claim on the basis that “no privity existed” between Hoffman and Southern Gulf. (Docket Entry No. 22 at 9). Southern Gulf claims that because the bill of lading was between Hoffman and Loup, Southern Gulf cannot be liable if it was breached.

The Carmack Amendment imposes liability in the following situations:

A carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 or chapter 105 are liable to the person entitled to recover under the receipt or bill of lading. The [*7]  liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading and, except in the case of a freight forwarder, applies to property reconsigned or diverted under a tariff under section 13702. . . .

49 U.S.C.A. § 14706. Liability under the Carmack Amendment is not limited to the carrier issuing a bill of lading. Liability can extend to a carrier that delivers the property if the transportation was by motor carrier and between states. Id.

Hoffman has alleged that the onions were delivered by the transloader—Southern Gulf—and that the onions were shipped from Idaho to Texas. (Docket Entry No. 1 at 2). Southern Gulf does not dispute that it is subject to jurisdiction under chapter 135. Southern Gulf acknowledges that “Hoffman’s allegations, if taken as true, establish a contractual obligation or duty owed by Defendant Southern Gulf to Hoffman to timely transload the Load and keep the goods at the contractually required temperature.” [*8]  (Docket Entry 22 at 11).

Accepting Hoffman’s allegations as true for the purpose of the motion to dismiss, Hoffman has sufficiently alleged that Southern Gulf is liable under the Carmack Amendment for failing to meet its contractual requirements as a transloader, causing the onions to spoil. Southern Gulf’s motion for partial dismissal is granted as to Hoffman’s state-law claims against Southern Gulf and denied as to Hoffman’s Carmack Amendment claim.

SIGNED on August 24, 2023, at Houston, Texas.

/s/ Lee H. Rosenthal

Lee H. Rosenthal

United States District Judge

End of Document