Cargo - Central Analysis Bureau

Beecher’s Handmade Cheese, LLC v. New Sound Transp. LLC

United States District Court for the District of New Jersey

August 25, 2022, Decided; August 25, 2022, Filed

Civil Action No. 21-12809

Reporter

2022 U.S. Dist. LEXIS 152984 *; 2022 WL 3681258

BEECHER’S HANDMADE CHEESE, LLC, Plaintiff, v. NEW SOUND TRANSPORTATION LLC, and RAY S.F., INC., d/b/a Freezpak Logistics, Defendants.

Notice: NOT FOR PUBLICATION

Core Terms

carrier, transportation, allegations, shipment, cheese, breach of contract, motion to dismiss, interstate

Counsel: [*1] For BEECHER’S HANDMADE CHEESE, LLC, Plaintiff: TIMOTHY DONALD BARROW, GRIST MILL SQUARE, LEBANON, NJ.

For NEW SOUND TRANSPORTATION LLC, Defendant: MARC I. KUNKIN, LEAD ATTORNEY, CASEY & BARNETT LLC, NEW YORK, NY.

For RAY S.F., INC., doing business as, FREEZPAK LOGISTICS, Defendant: GEORGE W. WRIGHT, NARINDER S. PARMAR, LEAD ATTORNEYS, GEORGE W. WRIGHT & ASSOCIATES, LLC, HACKENSACK, NJ.

Judges: John Michael Vazquez, United States District Judge.

Opinion by: John Michael Vazquez

Opinion

John Michael Vazquez, U.S.D.J.

This matter arises out of a trucking accident. Presently before the Court is the motion of Defendant Ray S.F., Inc. d/b/a Freezpak Logistics (“Freezpak”), to dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 51. The Court reviewed all submissions in support and in opposition¹ and considered the motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons discussed below, the motion to dismiss the Amended Complaint is DENIED. The Court also orders additional briefing as to the scope of the Carmack Amendment‘s preemptive effect.

I. BACKGROUND²

Plaintiff is a Washington-state limited liability company. D.E. 48 (“AC”) ¶ 1. Plaintiff contacted Freezpak to arrange a shipment of 17 pallets’ worth (or 877 cases) of cheese from [*2] a facility in South Plainfield, New Jersey to Burien, Washington; the transportation was to start on May 7 or 8, 2020. Id. ¶¶ 10, 13. Freezpak, a New Jersey corporation, is registered as a “transportation property broker” under the Federal Motor Carrier Safety Administration. Id. ¶¶ 3, 6 (citing 49 U.S.C. § 13904). Plaintiff informed Freezpak that the cheese had to be transported in a cooled truck at a temperature between thirty-four and thirty-nine-degrees Fahrenheit. Id. ¶ 10. The bill of lading reflected as much. Id. ¶ 13. Plaintiff did not communicate with any other entity to arrange the shipment; Plaintiff avers that Freezpak “took responsibility for the transportation of the subject cargo[.]” Id. ¶ 12.

Defendant New Sound Transportation, LLC (“NST”), received the shipment in South Plainfield on May 8, 2020. Id. ¶ 13. The cheese was loaded into the specialized trailer called for in the bill of lading. Id. On May 14, 2020, the truck was involved in an accident near Billings, Montana. Id. ¶ 14. The cheese was loaded into another truck and brought to an NST warehouse in Fife, Washington. Id. Freezpak informed Plaintiff of the accident, and the cheese was inspected at the Fife warehouse. Id. ¶¶ 15, [*3] 16. The cheese had superficial blemishes but otherwise appeared to have weathered the crash. Id. However, Defendants were unable to produce records that the cheese was kept at the necessary temperature throughout the trip either before or after the accident, and Plaintiff assumes that the cheese must have been exposed to harmfully high temperatures because of the accident. Id. ¶¶ 16-20. As a result, the cheese effectively became damaged goods, and Plaintiff realized a loss of $243,433.46 when Plaintiff sold it for salvage value on October 24, 2020. Id. ¶¶ 22-23.

Plaintiff commenced this action on June 21, 2021. D.E. 1. Plaintiff filed the operative Amended Complaint on May 24, 2022. D.E. 48. The Amended Complaint brings claims under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 101, et seq., against both Defendants. AC ¶¶ 27-29. It also brings a claim for breach of contract against Freezpak. Id. ¶¶ 30-32. The current motion to dismiss followed. D.E. 51.

II. STANDARD OF REVIEW

Freezpak moves to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its [*4] face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A claim is facially plausible “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. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and legal elements. Fowler, 578 F.3d at 210-211 (3d Cir. 2009). A court “must accept all of the complaint’s well-pleaded facts as true.” Id. at 210. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a plausible claim. Feingold v. Graff, 516 F. App’x 223, 226 (3d Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

In evaluating the sufficiency of a complaint, a district court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If, after viewing the allegations in the complaint most favorable to the plaintiff, it appears that no relief could be granted under any set of facts consistent with [*5] the allegations, a court may dismiss the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., No. 10-2945, 2010 U.S. Dist. LEXIS 131357, 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).

III. ANALYSIS

A. Interstate Commerce Act Claims

The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 (the “Carmack Amendment“), governs the field of interstate shipping. See Certain Underwriters at Int. at Lloyds of London v. UPS of Am., Inc., 762 F.3d 332, 335 (3d Cir. 2014). Pursuant to the Carmack Amendment, “a carrier is liable for damages incurred during a shipment of goods, whereas a broker—someone who merely arranges for transportation—is not liable.” Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 285 (3d Cir. 2019) (footnote omitted). “To establish a prima facie case against a carrier under the Carmack Amendment, a shipper must prove (1) delivery of goods to the initial carrier in good condition, (2) damage of the goods before delivery to their final destination, and (3) the amount of the damages.” Mrs. Ressler’s Food Prods. v. KZY Logistics LLC, 675 F. App’x 136, 140 (3d Cir. 2017) (internal quotation omitted).

Plaintiff alleges that NST is a carrier and that Freezpak “has acted as a de facto carrier in taking responsibility for the transportation of interstate shipments for Plaintiff[.]” See AC ¶ 4 (NST), ¶ 7 (Freezpak). Freezpak argues that it is not subject to the Carmack Amendment because Plaintiff has not plausibly alleged that Freezpak acted as an interstate carrier. D. Br. at 5-7. Plaintiff accuses Freezpak of putting form over substance and maintains that courts treat brokers as carriers for Carmack Amendment claims when [*6] those parties “accept[] responsibility for ensuring the delivery of goods.” Plf. Opp’n at 6 (quoting Tryg, 767 F. App’x at 287).

The question of whether a party has accepted such responsibility is ultimately one of fact. E.g., Tryg, 767 F. App’x at 286 (deciding question after bench trial). At the motion to dismiss stage, “[i]t is inappropriate . . . to make any factual determinations regarding the precise nature of [Freezpak’s] business status and/or activities as to the transactions at issue.” Hartford Fire Ins. Co. v. Dynamic Worldwide Logistics, Inc., No. 17-553, 2017 U.S. Dist. LEXIS 142926, 2017 WL 3868702, at *2 (D.N.J. Sept. 5, 2017) (rejecting defendant’s argument that Carmack Amendment did not apply because defendant was a freight broker and not a “carrier” and denying motion to dismiss).

In addition, Plaintiff’s allegations are sufficiently alleged. The Amended Complaint outlines the negotiations between the parties and alleges that Freezpak assumed responsibility for the shipment. See AC ¶¶ 7, 12. It sufficiently alleges that there was an agreement, the date of transport, the conditions of transport (maintaining the required the temperature), the pick-up location, and the delivery location. Id. ¶¶ 10-13. And, as noted, Plaintiff indicates that it only dealt with Freezpak. Id. ¶ 12. Plaintiff has plausibly pled that Freezpak is subject to carrier liability.³

B. State Law Claim

Plaintiff [*7] also brings what appears to be a state-law claim against Freezpak for breach of contract. AC ¶¶ 30-32. Specifically, Plaintiff alleges that Freezpak breached their agreement by failing to properly arrange transportation for Plaintiff’s cheese. Id. ¶ 31. Freezpak argues that Plaintiff’s breach-of-contract claim is better understood as a breach-of-warranty claim, but that, in any event, the AC does not plausibly allege such a claim. D. Br. at 10.

To state a claim under New Jersey law for breach of contract,⁴ a party must plausibly allege four elements:

[F]irst, that the parties entered into a contract containing certain terms; second, that plaintiffs did what the contract required them to do; third, that defendants did not do what the contract required them to do, defined as a breach of the contract; and fourth, that defendants’ breach, or failure to do what the contract required, caused a loss to the plaintiffs.

Goldfarb v. Solimine, 245 N.J. 326, 245 A.3d 570, 577 (N.J. 2021) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 139 A.3d 57, 64 (N.J. 2016)). The Amended Complaint contains sufficient facts to state a claim for breach of contract. For the same reasons that Plaintiff plausibly alleges a Carmack Amendment claim, it also sufficiently alleges a breach of contract count. AC ¶¶ 10-13. Plaintiff has sufficiently alleged an agreement [*8] and sufficient certain terms of the agreement, including when and where the carrier was to pick up the shipment, the size of the shipment, the conditions under which the shipment had to be made, and the location to which the shipment was to be delivered. Id.

However, the Court has a separate concern that was not raised by either party. “For over one hundred years, the Supreme Court has consistently held that the Carmack Amendment has completely occupied the field of interstate shipping.” Certain Underwriters, 762 F.3d at 335. The Third Circuit has observed “that the Carmack Amendment preempts all state law claims for compensation for the loss of or damage to goods shipped by a ground carrier in interstate commerce.” Id. at 333. Preemption extends to claims for breach of contract under state common law. Id. at 336. In light of this potential issue, the Court instructs the parties to submit additional briefing as to whether Plaintiff’s claim for breach of contract claim is preempted by the Carmack Amendment.

IV. CONCLUSION

For the reasons set forth above, Freezpak’s motion is DENIED. However, the Court will order additional briefing on whether Plaintiff’s claim for breach of contract is preempted by the Carmack Amendment. An appropriate Order accompanies this Opinion.

Dated: August 25, 2022

/s/ John [*9] Michael Vazquez

John Michael Vazquez, U.S.D.J.

ORDER

John Michael Vazquez, U.S.D.J.

For the reasons set forth in the accompanying Opinion, and for good cause shown,

IT IS on this 25th day of August, 2022,

ORDERED that Freezpak’s motion to dismiss, D.E. 51, is DENIED; and it is further

ORDERED that no later than September 16, 2022, Plaintiff and Freezpak shall each submit a brief as to whether Plaintiff’s claim for breach of contract is preempted by the Carmack Amendment. Each party may also submit a response to the other’s brief no later than September 23, 2022.

/s/ John Michael Vazquez

John Michael Vazquez, U.S.D.J.

End of Document

¹Freezpak’s brief in support of its motion to dismiss, D.E. 51-1 (“D. Br.”); Plaintiff’s opposition to the motion to dismiss, D.E. 54 (“Plf. Opp’n”); Freezpak’s reply, D.E. 56 (“D. Rep.”).

²The factual background is taken from the Amended Complaint (“AC”), D.E. 48. When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

³Plaintiff alternatively argues that Freezpak can still be held liable as a broker for negligently hiring NST. Plf. Opp’n at 3-4. The Court does not reach this argument because of its ruling that Plaintiff has plausibly pled a claim against Freezpak. The Court notes, however, that there do not appear to be sufficient allegations in the AC to support a negligent hiring claim. The Court adds that Plaintiff fails to indicate whether this alternative argument refers to a Carmack Amendment or common law claim.

⁴Plaintiff asserts that the Court has jurisdiction over the Carmack Amendment claim under 28 U.S.C. § 1337(a) and supplemental jurisdiction under 28 U.S.C. § 1367. AC ¶ 8. Neither party, however, performs a choice of law analysis, and neither party analyzes the breach of contract claim in terms of its legal elements. The Court notes that while Plaintiff invokes the Court’s supplemental jurisdiction, the Court may have diversity jurisdiction, 28 U.S.C. § 1332, as the parties appear to be completely diverse and the amount in controversy appears to be over $75,000. However, whether the Court exercised diversity jurisdiction or supplemental jurisdiction, its choice of analysis would be the same.

“In a case based on federal question jurisdiction where a court is exercising supplemental jurisdiction over state law claims, the federal court applies the choice of law rules of the forum state.” Carlton v. Choicepoint, Inc., No. 08-5779, 2009 U.S. Dist. LEXIS 109522, 2009 WL 4127546, at *5 (D.N.J. Nov. 23, 2009). New Jersey, the forum state here, utilizes the “most significant relationship” test to determine the applicable substantive law. See, e.g., Maniscalco v. Brother Int’l Corp., 793 F. Supp. 2d 696, 704 (D.N.J. 2011); Mills v. Ethicon, Inc., 406 F. Supp. 3d 363, 373 (D.N.J. 2019). The test consists of two prongs. The first prong requires that a court assess the potentially applicable laws to determine if there is a conflict between the laws at issue. Maniscalco, 793 F. Supp. 2d at 704. Where no conflict exists, the Court applies the forum state’s law. Id. Neither party indicates that the law of a state other than New Jersey should apply. As a result, the Court applies New Jersey law.

Stewart v. Fed. Express Corp.

United States District Court for the District of Columbia

August 3, 2022, Decided; August 3, 2022, Filed

Civil Action No. 21-2478 (CKK)

Reporter

2022 U.S. Dist. LEXIS 138114 *; 2022 WL 3081420

PASSION STEWART, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.

Core Terms

packages, carrier, allegations, state-law, amended complaint, bill of lading, motion to dismiss, pro se, construes, pleadings, seller

Counsel: [*1] PASSION STEWART, Plaintiff, Pro se, Washington, DC.

For FEDERAL EXPRESS CORPORATION, Defendant: Colleen Hitch Wilson, FEDERAL EXPRESS CORPORATION, Memphis, TN.

Judges: COLLEEN KOLLAR-KOTELLY, United States District Judge.

Opinion by: COLLEEN KOLLAR-KOTELLY

Opinion

MEMORANDUM OPINION AND ORDER

Plaintiff Passion Stewart (“Stewart”), proceeding pro se, alleges that Defendant Federal Express Corporation (“FedEx”) has mishandled packages delivered to her address in Washington, DC. After removing the action from the Superior Court of the District of Columbia, FedEx has moved to dismiss Stewart’s complaint for failure to state a claim. To the extent that Stewart meant to advance a state-law claim, any such claim is preempted by federal statute, the “Carmack Amendment” to the Interstate Commerce Act, 49 U.S.C. § 14706(a)(1). Furthermore, even construing Stewart’s complaint liberally, she has not shown she has standing to maintain an Interstate Commerce Act claim. Accordingly, and upon consideration of the pleadings,¹ the relevant legal authority, and the entire record, the Court shall GRANT FedEx’s [8] Motion to Dismiss and DISMISS WITHOUT PREJUDICE Plaintiff’s [6] amended Complaint. However, because it appears possible that a more definite complaint would establish standing to proceed, the Court will afford [*2] Plaintiff an opportunity to file a second amended complaint.

I. BACKGROUND

Plaintiff filed her first complaint in the Superior Court of the District of Columbia. ECF No. 1-2 at 2. The complaint alleges that Stewart has submitted “multiple claims with Fedex due to their carriers leaving [her] packages in open spaces which results in the packages being stolen.” Id. Plaintiff states that she and her neighbors have given FedEx specific instructions as to delivery but that FedEx has improperly delivered her packages, resulting in pecuniary loss of $ 100,000. Id. FedEx removed pursuant to 28 U.S.C. § 1441(b). Shortly after removal, Plaintiff filed a second “Complaint,” which the Court construes as an amended complaint. Am. Compl., ECF No. 6. Plaintiff realleges that FedEx has mishandled her packages. Id. Plaintiff “request[s] the max of $ 75,000 for the negligence of [FedEx’s] drivers, ignoring all signs posted in my building [regarding package delivery], and lying on my leasing officer [*3] when they know for a fact they can deliver packages to our door.” Id.

FedEx maintains that this complaint fails to state a claim for two reasons. First, FedEx argues, rather perfunctorily, that “Plaintiff does not allege any facts that entitle her to recovery” because “she does not specify for which packages she seeks redress.” Mot. at 4. FedEx does not cite any authority for such a proposition and does not explain why, in FedEx’s view, Plaintiff’s allegations are “[un]tethered to any legal basis for recovery.” Id. Second, FedEx reads Plaintiff’s complaint to advance, exclusively, a state-law negligence claim. Id. at 5. FedEx notes that federal law preempts state-law claims against common carriers such as FedEx. Id. (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S. Ct. 148, 57 L. Ed. 314 (1913)). Plaintiff has filed a short opposition essentially restating her factual allegations. Opp. at 1-2. Defendant has not filed a reply. The Motion is now ripe for resolution.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader [*4] is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678. In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. See In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994).

III. DISCUSSION

Most shopping happens online nowadays. When a consumer wants to purchase a particular good, they visit, for example, Amazon.com. After purchase, Amazon contracts with a package carrier, FedEx, for example, to deliver the purchased goods from Amazon to the buyer. FedEx then issues the seller (e.g., Amazon) a receipt, sometimes called a [*5] “bill of lading,” reflecting the goods to be shipped to Amazon’s buyer. Under federal law, whoever holds rights under that receipt, and only that person, can sue the carrier (FedEx) for misdelivered or undelivered parcels. 49 U.S.C. § 14706(a)(1); see also, e.g., Coughlin v. United Van Lines, LLC, 362 F. Supp. 2d 1166, 1167-68 (C.D. Cal. 2005). That law, often called the Carmack Amendment to the Interstate Commerce Act, goes even further to preempt all state-law claims against a package carrier. See Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S. Ct. 148, 57 L. Ed. 314 (1913); see generally 14 Am. Jur. 2d Carriers § 503 (West 2022) (collecting cases). As such, the only remedy against a package carrier for misdelivered or undelivered goods arises under the Interstate Commerce Act. See Worldwide Moving & Storage, Inc. v. District of Columbia, 445 F.3d 422, 426, 370 U.S. App. D.C. 343 (D.C. Cir. 2006). Accordingly, to the extent the complaint alleges state-law claims, they are dismissed as preempted.

FedEx goes further, however, arguing that the entire complaint must be dismissed because Plaintiff has not pleaded a Carmack Amendment claim. That misapprehends both Plaintiff’s complaint and the law of pro se pleading.

As a threshold matter, Plaintiff’s pro se complaint must be “‘liberally construed'” and held to “‘less stringent standards than formal pleadings drafted by lawyers.'” Williams v. Bank of N.Y. Mellon, 169 F. Supp. 3d 119, 123-24 (D.D.C. 2016) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)). “Construing a document liberally means, at a minimum, that a plaintiff need not use ‘magic words’ or legal jargon.” Walker v. Spirit Aerosystems, Inc., 276 F. Supp. 3d 1224, 1230 (N.D. Okla. 2017). Where, after drawing all factual inferences [*6] in the pro se plaintiff’s favor, some legitimate claim for relief lies, the court may not grant a motion to dismiss for failure to state a claim. See Anyanwutaku v. Moore, 151 F.3d 1053, 1059, 331 U.S. App. D.C. 379 (D.C. Cir. 1998) (“Even if [a plaintiff] might lose on the merits, . . . the district court should [] permit[] [a] claim, drafted pro se and based on legitimate factual allegations[] to proceed.”); Williams, 169 F. Supp. 3d at 124.

In support of Defendant’s argument that the complaint states only state-law claims, Defendant notes that Stewart uses the term “negligence” in the operative complaint and does not say the very specific words “Carmack Amendment.” See Mot. at 5. As a pro se litigant, the Court cannot find that Plaintiff has failed to allege a particular claim by omitting certain “magic words.” Walker, 276 F. Supp. 3d at 1230. Nor is the use of the word “negligence” obviously and exclusively indicative of a state-law claim. As the Supreme Court has explained, the Carmack Amendment serves the purpose of “reliev[ing] [sellers] of the burden of searching out a particular negligent carrier from among numerous carriers handling an interstate shipment.” See Reider v. Thompson, 339 U.S. 113, 119, 70 S. Ct. 499, 94 L. Ed. 698 (1950) (emphasis added). Put differently, a plaintiff states an Interstate Commerce Act claim by “establish[ing] a prima facie case of negligence.” Distribuidora Mari Jose, S.A. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (emphasis added). A prima facie case under the Interstate Commerce Act requires a showing of [*7] injury to goods, collected by the carrier in good condition, that caused identifiable, economic loss. See id. Because the operative complaint states as much, the Court construes it to advance an Interstate Commerce Act claim.

Next, FedEx argues that Stewart cannot maintain an action under the Interstate Commerce Act because she is not a “shipper,” i.e., the seller who gave Stewart’s purchase to FedEx for shipment. Mot. at 6. Because most plaintiffs in actions such as these are literally, per 49 U.S.C. § 11706(a)(1), the “person[s] entitled to recover under the receipt or bill of lading,” FedEx is correct that Plaintiff may (or may not) fall within the ambit of those cases. It remains unclear, for instance, from Plaintiff’s pleadings whether she shipped goods to herself via FedEx or whether she purchased goods from a seller who entrusted those goods to FedEx for shipment. Yet it is not only shippers (i.e., sellers) who have standing to enforce the terms of a receipt or a bill of lading. “Cases interpreting the [Interstate Commerce] Act have confined the right to sue [not just] to shippers or consignors[] or holdings of the bill of lading issued by the carrier, [but also] persons beneficially interested in the shipment although not in possession of the [*8] actual bill of lading[] or assignees thereof.” Harrah v. Minn. Min. and Mfg. Co., 809 F. Supp. 313, 318 (D.N.J. 1992) (citations omitted) (collecting cases). This final category includes consignees, i.e., those “‘to whom the carrier may lawfully make delivery in accordance with the contract of carriage.'” Id. (quoting Consignee, Black’s Law Dictionary (4th ed. 1968)). As such, it remains entirely possible that Stewart can maintain an action under the Interstate Commerce Act.

The complaint fails, however, not for failure to state a claim, but for lack of definiteness pursuant to Federal Rule of Civil Procedure 8(a). The operative complaint does not identify which packages were purportedly mishandled, who sent the packages to Plaintiff, whether there is a receipt or bill of lading associated with the allegedly offending packages, and Plaintiff’s relationship to the sender of the packages. As such, the operative complaint does not give FedEx sufficiently “fair notice of the basis for [Plaintiff’s] claims.” See Charles v. United States, Civ. A. No. 21-064, 2022 WL 1045293, at *3 (D.D.C. Apr. 7, 2022) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)). Because the complaint does not plead facts that, taken as true, would definitely endow Plaintiff with standing to advance an Interstate Commerce Act claim, the Court must dismiss Plaintiff’s operative complaint. See Stokes v. Cross, 327 F.3d 1210, 1215, 356 U.S. App. D.C. 73 (D.C. Cir. 2003). Nevertheless, as it appears possible that Plaintiff does have standing to proceed, the Court shall [*9] exercise its discretion to afford Plaintiff an opportunity to file a second amended complaint. See Ciralsky v. CIA, 355 F.3d 661, 674, 359 U.S. App. D.C. 366 (D.C. Cir. 2004).

IV. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED, that Defendant’s [8] Motion to Dismiss is GRANTED. It is further

ORDERED, that Plaintiff’s [6] amended Complaint is DISMISSED WITHOUT

PREJUDICE. It is further

ORDERED, that Plaintiff shall file a second amended complaint on or before September 7, 2022. If no complaint is filed by that date, this case shall be dismissed.

Dated: August 3, 2022

/s/ COLLEEN KOLLAR-KOTELLY

United States District Judge

End of Document

¹This Memorandum Opinion and Order focuses on the following documents:

• Plaintiff’s Complaint, ECF No. 1-2 (“Compl.”);

• Plaintiff’s amended Complaint, ECF No. 6 (“Am. Compl.”);

• Defendant’s Memorandum of Law in Support of Motion to Dismiss (“Mot.”);

• Plaintiff’s Opposition, ECF No. 11 (“Opp.”);

In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).