United States District Court for the Southern District of Florida

August 12, 2024, Decided; August 12, 2024, Entered on Docket

CASE NO. 24-CV-80239-ROSENBERG

Reporter

2024 U.S. Dist. LEXIS 142980 *

IRENE GODONOU, Plaintiff, v. ALLIED TRANSPORTATION GROUP LLC, et al., Defendants.

Core Terms

carrier, Transportation, allegations, broker, motor carrier, motion to dismiss, argues

Counsel:  [*1] For Allied Transportation Group LLC, 1645 Palm Beach Lakes Blvd., Allied Transportation Group LLC, Suite 1200, Allied Transportation Group LLC, West Palm Beach FL 33401, Carla Patricia Lowry, 100 SE 6th Street, Carla Patricia Lowry, 9545278885, Carla Patricia Lowry, Fort Lauderdale, Carla Patricia Lowry, Fort Lauderdale FL 33301, Carla Patricia Lowry, Lowry at Law P.A., Carla Patricia Lowry, United Sta, Defendants: Carla Lowry, Lowry at Law PA, Fort Lauderdale, FL.

For Irene Godonou, Plaintiff: David P. Reiner II, Reiner & Reiner PA, Miami, FL; ANTHONY D. COX JR., PRO HAC VICE, Cox Law Group, Harrisburg, PA.

Judges: ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE.

Opinion by: ROBIN L. ROSENBERG

Opinion

ORDER GRANTING IN PART AND DEFERRING RULING IN PART AS TO DEFENDANT’S MOTION TO DISMISS

THIS CAUSE is before the Court on Defendant Allied Transportation Group LLC’s Motion to Dismiss the Amended Complaint. DE 22. The Court has reviewed the Motion, Plaintiff’s Response [DE 25], and the record and is otherwise fully advised in the premises. For the reasons set forth below, the Motion to Dismiss is GRANTED IN PART AND THE COURT DEFERS RULING IN PART.

I. FACTUAL ALLEGATIONS & BACKGROUND

Plaintiff Irene Godonou filed his [*2]  Complaint on February 29, 2024. DE 1. He originally brought this case against a single Defendant, Allied Transportation Group LLC (“Allied”), asserting the following claims: (1) strict liability under the Carmack Amendment; (2) breach of contract; (3) unjust enrichment; (4) fraud in the inducement; and (5) negligent misrepresentation. See id. On June 17, 2024, Plaintiff filed his Amended Complaint adding SSA ENT, LLC as a Defendant and asserting the same claims against both Defendants except for breach of contract, which Plaintiff asserts only against Defendant Allied. The allegations below are taken from the Amended Complaint and accepted as true for the purpose of this Motion.

Plaintiff entered into an agreement wherein Defendant Allied agreed to transport Plaintiff’s belongings from point A to point B (“Agreement”). DE 18 ¶ 17, 19. Defendant Allied and Plaintiff were the only parties to the Agreement. Id. ¶ 18. On or about September 16, 2023, Defendant Allied picked up the property. Id. ¶ 20. Under the Agreement, Defendant Allied was supposed to deliver the property between 14-21 days from the date of pickup. Id. Defendant Allied “alleges that [Defendant] SSA was supposed to deliver the property [*3]  in question.” Id. ¶ 22. Plaintiff alleges that he has no recollection of signing any agreements with Defendant SSA, and Defendant SSA is not mentioned in the contract in question. Id. ¶ 29. To date, neither Defendant has made delivery. Id. ¶ 23.

Although Defendant Allied has provided a Bill of Lading purportedly between Defendant SSA and Plaintiff, Plaintiff alleges he has never seen this document and was not provided this document by either Defendant. Id. ¶ 31-32. Plaintiff further alleges that “[t]he alleged Bill of Lading that was never provided to Plaintiff has two mismatched signatures purported to be his with a time stamp of 10:35:56 on 9/14/23.” Id. ¶ 36.

Under the Agreement, 50 percent of Plaintiff’s balance was due upon pickup, and Plaintiff made this payment after receiving an invoice from Defendant Allied on September 12, 2023. Id. ¶ 39-41. Under the Agreement, the balance is due at delivery and prior to unloading. Id. ¶ 41-42. On several occasions, Plaintiff has requested a new invoice from Defendant Allied to pay his remaining balance. Id. ¶ 44. Defendant has failed to provide an invoice as requested. Id. Instead, on October 12, 2023, Plaintiff received an invoice informing [*4]  Plaintiff that Defendant Allied was sending his belongings to auction. Id. ¶ 46.

On June 3, 2024, Defendant filed a Motion to Dismiss. DE 17. On June 17, Plaintiff filed his Amended Complaint. DE 18. The same day, the Court denied the Motion to Dismiss as moot in light of the Amended Complaint. DE 19. On July 9, 2024, Defendant filed the instant Motion to Dismiss. DE 22. Plaintiff filed a timely Response on July 23, 2024. DE 25. The same day, the Clerk of Court issued summons for SSA ENT, LLC. DE 26. Defendant did not reply.

II. STANDARD OF REVIEW

A court may grant a motion to dismiss a complaint if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion to dismiss should be granted only when the pleading fails to 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). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The complaint must contain more than labels, conclusions, a formulaic recitation of the elements of a cause of action, and naked assertions devoid of further factual enhancement. [*5]  Id. The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (explaining that the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully”).

A court ruling on a motion to dismiss a complaint accepts the well-pled factual allegations as true and views the facts in the light most favorable to the plaintiff. Jones v. Fransen, 857 F.3d 843, 850 (11th Cir. 2017). The court need not accept legal conclusions couched as factual allegations. Diverse Power, Inc. v. City of LaGrange, 934 F.3d 1270, 1273 (11th Cir. 2019). “Under Rule 12(b)(6), dismissal is proper when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (11th Cir. 2015) (quotation marks omitted).

III. THE PARTIES’ ARGUMENTS

In its Motion, Defendant Allied argues that it is an improper party in this case, as Defendant Allied is not a carrier and therefore is not strictly liable under the Carmack Amendment. DE 22 at 1-6. Defendant Allied also argues that the Court lacks subject matter jurisdiction, as Plaintiff agreed in the contract that the valuation of his belongings is $32,340.00. Id. at 6. Therefore, even after adding the cost of replacement alleged by Plaintiff, Plaintiff does not meet the amount in controversy required to establish [*6]  diversity jurisdiction. Id.

In its Response, Plaintiff argues that Defendant Allied is a proper party to this case, as some courts have “adopted a more expansive view of a broker such that a broker could theoretically be exposed to ‘carrier-like’ strict liability.” DE 25 at 1. As to jurisdiction, Plaintiff contends that diversity jurisdiction was pled alternatively to federal question jurisdiction. Id. at 2. As to diversity jurisdiction, Plaintiff argues that it meets the $75,000 amount in controversy threshold because “the amount of damages is a question of fact and not law and at this stage Defendant is bound by what Plaintiff has alleged, and Plaintiff has alleged that the amount of damages in question exceed $75,000.” Id. at 2-3. Plaintiff specifically argues that the value of the belongings in the contract, along with “replacement costs, attorneys’ fees, travel expenses, emotional damages, etc.” exceed the amount in controversy. Id. at 2.

IV. ANALYSIS

The Court first turns to Defendant Allied’s argument that it is an improper party in this case, which the Court construes as an argument that Plaintiff has failed to state a claim against Defendant Allied under the Carmack Amendment. Then, the Court [*7]  turns to subject matter jurisdiction over the remaining claims.

A. Failure to State a Claim as to Count I (Carmack Amendment)

“The Carmack Amendment creates a uniform rule for carrier liability when goods are shipped in interstate commerce.” Smith v. United Parcel Serv., 296 F.3d 1244, 1246 (11th Cir. 2002). However, the Carmack Amendment “does not apply to brokers, which are purposefully distinguished from motor carriers throughout the [Interstate Commerce Act].” Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1300 (11th Cir. 2018). Under the Act, a “motor carrier” is “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). A broker, on the other hand, is “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. § 13102(2) (emphasis added).

The question of whether an entity is a motor carrier or broker is case-specific and fact-intensive. Essex Ins. Co., 885 F.3d at 1302. The Eleventh Circuit has held that the key distinction between brokers and carriers is “whether the disputed party accepted legal responsibility to transport the shipment.” Id. at 1301. Furthermore, companies that serve as both brokers and carriers can insulate themselves from strict liability by “mak[ing] [*8]  clear in writing that [the company] is merely acting as a go-between to connect the shipper with a suitable third-party carrier.” Id. at 1302.

Here, Defendant Allied argues that it is a broker, not a carrier, under the Carmack Amendment. In the Amended Complaint, Plaintiff does not allege any facts that demonstrate that Defendant Allied is a carrier. Instead, Plaintiff makes the conclusory statement that both Defendants “are ‘carriers’ by law” without further factual support.¹ See DE 18 ¶ 5. Furthermore, Plaintiff attached the Agreement at issue to the Amended Complaint. See DE 18-1. The Agreement explicitly states twice that Defendant Allied is not a carrier, instead acting as the “go-between” connecting the shipper with a carrier. See id. at 2, 4. For example, the Agreement states:

Please note that Allied Transportation Group, LLC. is a properly licensed interstate Broker. Allied Transportation Group is not a motor carrier and will not transport an individual shipper’s household goods, but will coordinate and arrange for the transportation of household goods by another FMCSA authorized motor carrier, whose charges will be determined by its published tariff. All estimated charges and final actual charges will be [*9]  based upon the motor carrier’s tariff which is available for inspection from the carrier upon reasonable request. In acting as an interstate broker, Allied Transportation Group, LLC., is not responsible for any acts or omissions of the motor carrier or its employees or agents. Customer agrees to exclusively pursue the motor carrier directly for all claims for property damage, including without limitation, any claims of damage to property, lost or stolen goods, delayed pickup or delivery, actions of estimators, drivers, packers, or movers, or other types of claims.

Id. at 4 (emphasis added). Here, Defendant Allied has made it abundantly clear in writing that it merely serves Plaintiff as a broker, not a carrier. Therefore, Plaintiff may not bring a strict liability claim under the Carmack Amendment against Defendant Allied. Defendant Allied’s Motion to Dismiss is therefore GRANTED as to Count I.

B. Subject Matter Jurisdiction

In light of the dismissal of the Carmack Amendment claim against Defendant Allied, the only claims that remain against Defendant Allied are state law claims. Were Defendant Allied the only Defendant in this case, at this juncture, the Court would analyze Defendant’s arguments as to diversity jurisdiction. [*10]  However, summons have recently been issued as to Defendant SSA, and Plaintiff alleges the same federal claim against that defendant. If Defendant SSA appears in this case, the Court will have another avenue for jurisdiction—supplemental jurisdiction. As the Amended Complaint was filed on June 17, 2024, the Court ORDERS that service be made on Defendant SSA by September 16, 2024. Therefore, the Court DEFERS ruling on jurisdiction until Defendant SSA appears or the deadline for service passes, whichever occurs earlier.

V. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED:

1. Defendant Allied’s Motion to Dismiss Plaintiff’s Amended Complaint, [DE 22], is GRANTED IN PART AND THE COURT DEFERS RULING IN PART.

2. Count I of Plaintiff’s Amended Complaint [DE 18] is DISMISSED.

3. Defendant Allied’s Motion to Dismiss Counts III, IV, VI, and VIII (the state law claims asserted against Defendant Allied) is DEFERRED until Defendant SSA appears or the service deadline of September 16, 2024, passes, whichever is earlier.

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 12th day of August, 2024.

/s/ Robin L. Rosenberg

ROBIN L. ROSENBERG

UNITED STATES DISTRICT JUDGE

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¹ Plaintiff also includes legal argument in the Amended Complaint, citing district court cases outside the Eleventh Circuit for the proposition that “[c]ourts have recently adopted a more expansive view of a broker such that a broker could theoretically be exposed to ‘carrier-like’ strict liability.” DE 18 ¶ 6-11.

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

July 26, 2024, Decided; July 26, 2024, Filed

Case No. 6:22-cv-1212-RBD-LHP

Reporter

2024 U.S. Dist. LEXIS 132346 *

Q1, LLC, Plaintiff, v. MPR ASSEMBLY AND LOGISTIC SERVICES, LLC; and DSV ROAD, INC., Defendants.

Core Terms

crossclaim, attorney’s fees, just reason, indemnity, preempted, cargo

Counsel:  [*1] For DSV Road Inc., Defendant: Andrew Robert Spector, Marc Alan Rubin, Spector Rubin PA, Miami, FL; Yvette M. Pace, LEAD ATTORNEY, O’Connor & O’Connor LLC, Orlando, FL.

For MPR Assembly and Logistic Services LLC, Defendant: Yvette M. Pace, LEAD ATTORNEY, O’Connor & O’Connor LLC, Orlando, FL.

For Quality One Wireless LLC, Plaintiff: Lindsay Rose Abbondandolo, Ver Ploeg & Marino P.A., Miami, FL; Michal Meiler, Stephen A. Marino Jr., Ver Ploeg & Marino PA, Miami, FL.

Judges: ROY B. DALTON, JR., United States District Judge.

Opinion by: ROY B. DALTON, JR.

Opinion

ORDER

Before the Court are Defendants MPR Assembly and Logistic Services, LLC’s (“MPR”) and DSV Road, Inc.’s (“DSV”) supplemental briefs (Docs. 111-12) on DSV’s pending crossclaim (Doc. 46, pp. 12-14), and MPR’s unopposed motion for a certificate of appealability (Doc. 114 (“Motion”)).

BACKGROUND

In this Carmack Amendment (“Carmack”) case, Plaintiff Q1 contacted DSV, a logistics broker, to arrange a shipment of cell phones from Florida to Indiana. (See Doc. 55-1, pp. 7-8.) DSV then contracted with MPR, a trucking company, to transport the phones. (See id. at 2; Doc. 55-7.) DSV’s and MPR’s very young business relationship was governed by a Broker-Carrier Agreement (“BCA”) containing this clause: [*2] 

CARRIER shall defend, indemnify, and hold DSV and its customer harmless from any attorney’s fees, claims, actions or damages, arising out of its performance under this Agreement . . . . Neither Party shall be liable to the other for any attorney’s fees, claims, actions or damages to the extent caused by the negligence or intentional wrongful act of the other Party or the shipper. The obligation to defend shall include all costs of defense as they accrue.

(Doc. 25-2, p. 2.)

The cell phones went missing in transit, so Q1 sued MPR for strict liability under Carmack and DSV for breach of contract. (Doc. 40, ¶¶ 31-45.) DSV filed a crossclaim against MPR for contractual indemnity under the BCA. (See Doc. 46.) Two summary judgment motions were filed: (1) DSV against Q1 (Doc. 53); and (2) Q1 against MPR (Doc. 55). DSV did not seek summary judgment on its crossclaim against MPR. The Court granted both motions, concluding that MPR was strictly liable to Q1 under Carmack and Q1’s claim against DSV was time-barred. (Doc. 86.) The Court dismissed DSV’s crossclaim against MPR as moot because DSV was not liable to Q1. (Id. at 16.) After review, the Court reinstated the crossclaim and ordered DSV and [*3]  MPR to file briefs (Docs. 111, 112) on whether the Carmack Amendment preempts DSV’s crossclaim. (Doc. 106.) MPR then moved unopposed to certify Q1’s Carmack claim as immediately appealable. (See Doc. 114.) The matters are ripe.

STANDARDS AND ANALYSIS

I. DSV’s Crossclaim

MPR argues that Carmack preempts DSV’s crossclaim for fees under the BCA because these fees do not arise from “separate and distinct conduct” from the cargo loss at issue, as required by the seminal case on this issue. (Doc. 111, p. 3.) DSV counters that the fees it seeks are recoverable because they do arise from “separate and distinct conduct” in that they do not bear on liability for the lost phones. (Doc. 112, pp. 5-6.) DSV’s interpretation of “separate and distinct conduct” is correct.

“The Carmack Amendment embraces all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation. Separate and distinct conduct rather than injury must exist for a claim to fall outside the preemptive scope of the Carmack Amendment.” UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1289 (11th Cir. 2014) (cleaned up) (emphasis added). To determine if “separate and distinct conduct” exists, courts look to whether a claim turns on a party’s liability for lost cargo. See id. at 1290-94 (collecting cases distinguishing “affecting [*4]  liability for losses” and “the expense of recovery”). Conduct is separate and distinct if it includes contractual obligations independent from a specific shipment, such as those in an ongoing business relationship. See id. at 1293-95 (indemnity clause not preempted where the underlying breach was of a no-subcontracting clause “not for transportation of a specific item . . . but rather in connection with ongoing business dealings between two sophisticated parties”); cf. Scotlynn USA Div., Inc. v. Titan Trans Corp., 555 F. Supp. 3d 1246, 1275 (M.D. Fla. 2021) (claim for attorney’s fees arising out of enforcement of an indemnity clause for lost cargo was preempted).

Here, there is separate and distinct conduct apart from the cargo loss between DSV and MPR: the BCA governing their business relationship, which extends beyond any one shipment. (Doc. 25-2, p. 2.) The indemnity clause in the BCA is not impacted by either party’s liability for Q1’s shipment. See UPS, 750 F.3d at 1294 (“As the Supreme Court has held, attorney’s fees do not enlarge or limit the responsibilities of the carrier for loss of property.”). Rather, this indemnity clause would have MPR pay for DSV’s defense costs as they accrue for any claims arising out of the BCA as soon as DSV was sued, regardless of any finding of liability. (Doc. 25-2, [*5]  p. 2.) As this contractual relationship between sophisticated parties is independent of the specific loss at issue, it falls outside Carmack preemption. See UPS, 750 F.3d at 1294 (“[A] claim for attorney’s fees [does not] pose an obstacle to the accomplishment of [Carmack’s] purpose.”); see also REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 698 (7th Cir. 2008) (rejecting blanket Carmack preemption of broker-carrier claims as it would “bar a jilted carrier from pursuing any claim against a shipper if the case involved damaged goods”). So DSV’s crossclaim under the BCA is not preempted by the Carmack Amendment, which means the crossclaim proceeds.¹

II. Certificate of Appealability

MPR also moves unopposed to certify the portion of the Court’s summary judgment Order (Doc. 86) and judgment (Doc. 88) addressing Q1’s Carmack claim against MPR as immediately appealable. (Doc. 114.) The Motion is due to be granted.

“When an action presents more than one claim for relief . . . the court may direct entry of a final judgment as to one or more, but fewer than all, claims . . . only if the court expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). Courts use a two-part analysis to determine whether a judgment should be certified under Rule 54(b). Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S. Ct. 1460, 64 L. Ed. 2d 1 (1980). First, the court must determine that its order [*6]  is both: (1) “final,” that is, an ultimate disposition of an individual claim entered in the course of a multiple-claim action; and (2) a “judgment,” in the sense that it is a decision on a cognizable claim for relief. See id. at 7-8. Second, the court must determine if there is any “just reason” to delay appeal of the final judgment, considering judicial administrative interests and the equities involved to discourage piecemeal litigation and ensure that the appellate court will not decide the same issues more than once. See id. at 8.

As to the first prong, the portion of its summary judgment Order relating to Q1’s Carmack claim against MPR was both final and a judgment in that it decided a cognizable claim and ultimately disposed of it. See id. at 7. Specifically, the Court decided that MPR was strictly liable for Q1’s lost cargo under Carmack and entered judgment accordingly. (See Doc. 86, pp. 13-15; Doc. 88.) So it is a final judgment for purposes of Rule 54(b). See Curtiss-Wright, 446 U.S. at 7-8.

As to the second prong, several case-specific factors guide the Court’s discretionary analysis of whether there is a just reason for delay:

(1) The relationship between the adjudicated and the unadjudicated claims; (2) the possibility that [*7]  the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Christoff ex rel. Galexa, Inc. v. Inglese, No. 2:20-cv-546, 2022 U.S. Dist. LEXIS 233504, 2022 WL 17987070, at *2 (M.D. Fla. Apr. 22, 2022) (cleaned up). As explained above, DSV’s crossclaim is not impacted by MPR’s liability for Q1’s loss, so it will not affect the Eleventh Circuit’s review of Q1’s Carmack claim on appeal. See UPS, 750 F.3d at 1294. So there is no just reason to delay MPR’s appeal of Q1’s claim. See Christoff, 2022 WL 17987070, at *2.

With both prongs met, the Court will certify its portion of the summary judgment Order on Q1’s claim as immediately appealable under Rule 54(b). (See Doc. 86, p. 16, ¶ 3.)

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED:

1. MPR’s Motion (Doc. 114) is GRANTED. The Court CERTIFIES under Federal Rule of Civil Procedure 54(b) that there is no just reason to delay the entry of a final appealable judgment. The Clerk is DIRECTED to enter an amended judgment under Federal Rule of Civil Procedure 54(b) on the portion of this Court’s [*8]  summary judgment Order pertaining to Q1’s motion for summary judgment against MPR (Doc. 86, p, 16, ¶ 3; see Doc. 88).²

2. By Wednesday, August 14, 2024, DSV and MPR are DIRECTED to file any dispositive motions related to DSV’s crossclaim. By Wednesday, August 28, 2024, DSV and MPR may file responses.

DONE AND ORDERED in Chambers in Orlando, Florida, on July 26, 2024.

/s/ Roy B. Dalton, Jr.

ROY B. DALTON, JR.

United States District Judge

End of Document

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¹ As DSV’s crossclaim is not preempted by the Carmack Amendment, the Court need not address DSV’s argument that MPR waived preemption as a defense. (See Doc. 112, pp. 1-5.)

² The judgment should take the following form: “Pursuant to the Court’s Order certifying the judgment for immediate appeal under Federal Rule of Civil Procedure 54(b), judgment is entered in favor of Q1 and against MPR on Count 1 of the Second Amended Complaint in the amount of $968,660.00, for which sum let execution issue.”