United States District Court for the District of Colorado
April 26, 2022, Decided; April 26, 2022, Filed
Civil Action No. 21-cv-01968-CMA-STV
Reporter
2022 U.S. Dist. LEXIS 86466 *; 2022 WL 1508506
TAYLOR SWENSON, KYLE BUNTING, JAMIE BUNTING, THOMAS PEVEAR, JORDAN CHURCHILL, MILLARD MCQUAID, CAITLAND MCQUAID, BEN WARREN, and MEGHAN WARREN, on behalf of themselves and all others similarly situated, Plaintiffs, v. ALLIANCE MOVING AND STORAGE LLC, B.I.D. COMPANY LLC d/b/a REAL MOVERS, POLARIS MOVING SYSTEMS INC d/b/a ROADRUNNER MOVING, UNLIMITED MOVING AND STORAGE LLC, and ALL TIME MOVING INC d/b/a RAPID VAN LINES, Defendants.
Subsequent History: Adopted by, Dismissed by, in part, Motion denied by, in part Swenson v. Storage LLC, 2022 U.S. Dist. LEXIS 86231 (D. Colo., May 12, 2022)
Core Terms
carrier, Movers, broker, allegations, preempted, customer, moving company, argues, damages, notice, respectfully, consumer, shipper, state law claim, transportation, disgorgement, estimate, requirement of notice, moving truck, delivery, profits, bill of lading, belongings, preemption, cases, incorporates, compliance, quotation, deposit, shotgun
Counsel: [*1] For Taylor Swenson, on behalf of herself and all others similarly situated, Kyle Bunting, Jamie Bunting, Thomas Pevear Churchill, Jordan Churchill, Millard McQuaid, Caitland McQuaid, Ben Warren, Meghan Warren, Plaintiffs: Christopher Allen German, LEAD ATTORNEY, Law Office of Christopher A. German, LLC, Denver, CO; Matthew Ross Osborne, Matthew R. Osborne, P.C., Northglenn, CO.
For Alliance Moving and Storage LLC, Defendant: David William Smith, Smith Eilers, PLLC, Plantation, FL.
BID Company LLC, Defendant, Pro se.
Judges: Scott T. Varholak, United States Magistrate Judge.
Opinion by: Scott T. Varholak
Opinion
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Scott T. Varholak
This matter is before the Court on two motions: Defendant Alliance Moving & Storage, LLC’s (“Alliance”) Motion to Dismiss (the “Alliance Motion”) [#18] and Defendant B.I.D. Company LLC d/b/a Real Movers’ (“Real Movers”) Motion to Dismiss (the “Real Movers Motion”) [#19] (collectively, the “Motions”). The Motions have been referred to this Court. [#39] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially [*2] assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Alliance Motion be GRANTED IN PART and DENIED IN PART and that the Real Movers Motion be GRANTED IN PART and DENIED IN PART.
I. BACKGROUND1
A. The Alleged Scheme
According to the Amended Complaint, Defendant Alliance is engaged in a scheme whereby it holds itself out to consumers as an interstate mover. [#15, ¶ 2] Consumers locate Alliance through online searches for moving companies. [Id.] Alliance’s website states that they are “Denver Movers” or a “Moving Company in Denver.” [Id. at ¶ 23]
When a consumer contacts Alliance, Alliance conducts a walk-through for the move and then provides the consumer with a quote for the move. [Id. at ¶ 2] Alliance incentivizes consumers to sign up for the move by providing the lowest quote and offering discounts. [Id.] Alliance tells the consumers that free storage is included with their move. [Id. at ¶ 4] Alliance informs the consumer that someone from Alliance will call them approximately five days before the scheduled move date. [Id. at ¶ 3]
After the consumer signs up for the move and pays a deposit to Alliance, Alliance provides the [*3] customer’s information to a separate moving company to handle the actual move. [Id. at ¶¶ 2, 27, 107] Alliance’s website does not disclose to the consumer that Alliance is a broker and does not actually handle the move. [Id. at ¶ 23] Rather, “Alliance customarily held themselves out as a moving company with their own trucks.” [Id. at ¶ 78] Instead of handling the move itself, Alliance sends one of the defendant moving companies—Real Movers, Polaris Moving Systems Inc. d/b/a Roadrunner Moving (“Roadrunner”), Unlimited Moving and Storage LLC (“Unlimited”), and All Time Moving Inc. d/b/a Rapid Van Lines (“Rapid”) (collectively referred to herein as the “Moving Company Defendants”)—to move the customer’s belongings, at which time the moving company allegedly “will charge astronomical additional fees and [ultimately] fail to deliver [the customer’s] belongings.” [Id. at ¶¶ 14-17, 27]
Consistent with its statement to the customer during the initial call, approximately five days before the scheduled move date, an individual named Conor, purportedly from Alliance’s quality assurance department, calls the customer. [Id. at ¶ 3] Conor tells the customer that he thinks the customer should commit [*4] to a larger or second truck for the move. [Id.] He promises the customer that they will only pay for the space that they use. [Id.] He then sends the customer a new estimate which is higher than the original estimate, but assures the customer that this is simply the “worst case scenario.” [Id.] Despite assuring the customer that the increased estimate is the worst case scenario, Conor nonetheless demands an additional deposit, which is kept by Alliance. [Id.]
On moving day, a moving truck that is too small is sent to the customer’s home. [Id. at ¶ 4] The customer is told that a significantly increased price is required to move their belongings. [Id.] This new fee is often multiple times higher than the original quote. [Id.] If the customer refuses to pay the increased fee, Alliance refuses to refund the customer’s deposit and often blocks the number of callers who try to request a refund. [Id. at ¶ 5]
Customers generally have no choice but to comply with the demand for the higher fee, because they are required to move on that date. [Id. at ¶ 4] If the customer agrees to the higher fee, their belongings are loaded onto the moving trucks and moved to an unknown location. [Id.] The movers [*5] then inform the customer that additional fees must be paid in order for the movers to deliver the items to the customer’s new home. [Id. at ¶ 6] The customer is not told where their belongings are located, and the items often go missing for several months. [Id.] Alliance then acts as if it is intervening to find the property, but later denies liability. [Id.] When the property is ultimately recovered, it is often damaged or ruined. [Id.] Plaintiffs allege “[o]n information and belief” that Alliance and the moving companies either share in the various additional fees charged after the initial quote provided by Alliance or that Alliance receives some type of benefit or kickback from the moving companies. [Id. at ¶ 27]
B. Plaintiff Taylor Swenson’s Move2
On or about May 3, 2021, Plaintiff Taylor Swenson contacted Alliance after searching for “best moving company in Denver” or similar search terms. [Id. at ¶ 28] Alliance’s website represented that it was “so far voted #1 moving company of 2020.” [Id.] Ms. Swenson spoke with a man named Christopher who became her point of contact. [Id. at ¶ 29] Ms. Swenson informed Christopher that her family was moving from Kiowa, Colorado, to [*6] a two-bedroom house in Little River, South Carolina. [Id.] Based upon Ms. Swenson’s description of the items to be moved, including a piano and other items, Christopher informed her that he would send a moving truck with a 26-foot bed and a separate auto transporter for the vehicles. [Id.] Christopher told Ms. Swenson that the total price for the moving truck would be $3,263, with a required initial deposit of $1,633, $800 due at the time of pick-up, and a final $800 due at the time of delivery. [Id. at ¶ 30] Christopher provided an online link that detailed the quote. [Id.] Alliance has since removed that link. [Id.]
The next day, Ms. Swenson called Christopher who indicated that the deposit would be $1,746.22 because the Swenson family was moving from a 3-bedroom house. [Id. at ¶ 31] Ms. Swenson paid the deposit with her credit card. [Id.] Ms. Swenson believed she had hired a local moving company to complete her interstate move. [Id.] The move was scheduled for May 19, 2021. [Id. at ¶ 32]
On May 17, 2021, Christopher called Ms. Swenson and informed her that a man named Mike with Real Movers would be at her home on the day of the scheduled move. [Id.] Mike arrived on May 19, 2021 in [*7] a Chevrolet pickup truck towing a small trailer. [Id.] Mike informed the Swenson family that they had only paid for 443 cubic feet of space and that their belongings would not fit in the trailer. [Id.] Mike told the Swenson family that the move would cost an additional $6,500, payable in cash only, and that there would be an additional $3,070 due upon delivery. [Id.] Ms. Swenson, who was seven months pregnant and who had already sold her home and was expected out of the property, had no choice but to pay the $6,500 in cash. [Id. at ¶ 33] Mike then loaded a few of the Swenson family’s items into the small trailer. [Id.] A Real Movers’ employee told Ms. Swenson that Real Movers would return the following day to load the remaining items. [Id.] Ms. Swenson had to rent a storage unit because the family had nowhere else to store their furniture and packed household items. [Id. at ¶ 34]
The next day, Real Movers returned. [Id.] Real Movers loaded up its moving truck but still could not fit all of the Swenson family’s belongings. [Id.] The Swenson family thus had to leave or give away many of their belongings. [Id.] Ms. Swenson was promised that it would take between one and 24 business days [*8] for the family’s items to be delivered. [Id.] Nonetheless, by the filing of the Amended Complaint more than two months after the move, the Swenson family’s items still had not been delivered. [Id.] As a result, the Swenson family is missing important and irreplaceable items, such as items for the new baby, birth certificates, social security cards, antiques, and heirlooms. [Id.]
C. Procedural Background
Ms. Swenson, on behalf of herself and all others similarly situated, initiated this action against Alliance and Real Movers on July 20, 2021. [#1] The Amended Complaint added Plaintiffs Kyle and Jamie Bunting, Thomas Pevear and Jordan Churchill, Millard and Caitland McQuaid, and Ben and Meghan Warren as well as Defendants Roadrunner, Unlimited, and Rapid. [See generally #15]
Plaintiffs bring this action on behalf of themselves and: (1) “All persons who, within the applicable statute of limitations period, . . . were quoted a price by [Alliance], and then were quoted a higher price on or within[] a few days of the date of moving by [Real Movers] or a moving company hired by [Alliance],” and (2) “All persons who, within the applicable statute of limitations period, . . . entered into a contract [*9] with [Alliance] after being led to believe they were the moving company and later [Alliance] denied liability for those consumers’ property damage during the move by claiming they are only brokers.” [Id. at ¶¶ 80-81] The Amended Complaint brings five claims asserted against all Defendants: (1) violation of the Carmack Amendment, 49 U.S.C. § 14706 [id. at ¶¶ 86-94]; (2) disgorgement of profits [id. at ¶¶ 95-97]; (3) breach of contract [id. at ¶¶ 98-101]; (4) violation of the Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-105 [id. at ¶¶ 102-15]; and (5) permanent injunctive relief [id. at ¶¶ 116-20].
The Alliance Motion seeks to dismiss Count One without prejudice and Counts Two through Five with prejudice. [#18 at 16] Plaintiffs responded to the Alliance Motion [#32], and Alliance did not file a reply. The Real Movers Motion seeks to dismiss all claims with prejudice. [#19 at 7] Plaintiffs responded to the Real Movers Motion [#33], and Real Movers filed a reply [#38]. Roadrunner, Unlimited, and Rapid did not respond to the Amended Complaint and default has been entered by the Clerk of Court against those three Defendants. [## 29-31]
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a [*10] motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. ANALYSIS
The Alliance Motion [*11] seeks to dismiss Count One without prejudice and Counts Two through Five with prejudice. [#18 at 16] The Real Movers Motion seeks to dismiss all claims with prejudice. [#19 at 7] The Court address each Motion in turn.
A. The Alliance Motion
Alliance argues that: (1) Plaintiffs have violated Federal Rule of Civil Procedure 10(b) and, as a result, Alliance cannot meaningfully respond to the allegations [#18 at 4-5]; (2) Plaintiffs have impermissibly engaged in “shotgun pleading” [id. at 5-6]; (3) the Carmack Amendment does not apply to Alliance [id. at 7-8]; (4) Plaintiffs failed to plead their claim for disgorgement of profits with the particularity required of fraud claims under Federal Rule of Civil Procedure 9(b) [id. at 8]; and (5) Plaintiffs’ state law claims (Counts Two through Five) are preempted by the Carmack Amendment and Section 14501(c)(1) of the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”), 49 U.S.C. § 14501(c)(1) [id. at 9-15].3 The Court addresses each argument in turn.
1. Rule 10(b)
Under Federal Rule of Civil Procedure 8(a), a complaint must include:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative [*12] or different types of relief.
Federal Rule of Civil Procedure 10(b) effectively elaborates on Rule 8(a)(2)‘s “short and plain statement of the claim” requirement by obligating a party to “state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Alliance argues that Plaintiffs have instead “chosen long narratives [and] attempts at rhetorical flourish” thereby preventing Alliance from “respond[ing] in any meaningful way.” [#18 at 4]
The Court disagrees. “What constitutes a single set of circumstances will depend upon the nature of the action and be determined in light of the basic objective of [Rule 10], which is to insure that the contents of each paragraph are composed so as to produce a lucid pleading and permit the framing of a response.” 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1322 (4th ed. 2021). While “no easy rule can be extracted from the cases to advise a pleader as to when separate paragraphs—or how many—will be necessary,” a “reliance on common sense and a conscientious effort to produce a pleading that is readily comprehensible to the opposing litigant and the district court are the best guides for a pleader to follow.” Id.
Here, the [*13] Court does not find the Amended Complaint so convoluted as to justify dismissal pursuant to Rule 10.4 As set forth in the Background section above, the Court can easily articulate the allegations in the Amended Complaint and sees no reason why Alliance cannot answer those allegations. Accordingly, the Court respectfully RECOMMENDS that the Alliance Motion be DENIED to the extent it seeks dismissal based upon an alleged failure to comply with Rule 10(b). Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (“It follows that, where the absence of numbering or succinct paragraphs does not interfere with one’s ability to understand the claims or otherwise prejudice the adverse party, the pleading should be accepted.”).
2. Shotgun Pleading
Next, Alliance argues that Plaintiffs have improperly engaged in “shotgun pleading.” [#18 at 5-6] Alliance argues that “Count II incorporates by reference all allegations of Count I, Count III incorporates all allegations of Counts I and II, and so on throughout the complaint.” [Id. at 5] The result, according to Alliance, “is that Counts II through V each include multiple causes of action and inconsistent allegations in direct contravention of [*14] Rules 8(a)(2) and 10(b).” [Id.]
“The law recognizes a significant difference between notice pleading and ‘shotgun’ pleading.” Glenn v. First Nat’l Bank in Grand Junction, 868 F.2d 368, 371 (10th Cir. 1989). “Shotgun pleading is a type of pleading that ‘contains several counts or causes of action, each of which incorporates by reference the entirety of its predecessors.'” Elec. Payment Sys., LLC v. Elec. Payment Sols. of Am. Inc., No. 14-CV-02624-WYD-MEH, 2018 WL 6790307, at *1 (D. Colo. Nov. 28, 2018) (quoting Jacobs v. Credit Suisse First Boston, No. 11-cv-00042-CMA-KLM, 2011 U.S. Dist. LEXIS 112967, 2011 WL 4537007, at *6 (D. Colo. Sept. 30, 2011)). “[T]he shotgun pleader foists off one of the pleading lawyer’s critical tasks—sifting a mountain of facts down to a handful of those that are relevant to a given claim—onto the reader.” Jacobs, 2011 U.S. Dist. LEXIS 112967, 2011 WL 4537007, at *6. Courts in this District have disparaged pleadings in which the plaintiff “simply recite[s] an extended narrative at the beginning of the pleading, and proceed[s] to state numerous claims by simply reciting the formulaic elements of the claim and referring holistically to the preceding narrative as support.” Jacobs, 2011 U.S. Dist. LEXIS 112967, 2011 WL 4537007, at *6.
Although this Court agrees that, technically, it is inappropriate for a plaintiff to incorporate by reference all prior allegations into each of their claims, in this Court’s experience, it is a practice that is almost universally employed by the attorneys who practice before this Court. This Court does not find such a technical violation to warrant dismissing a complaint where, despite the overbroad incorporation [*15] of preceding allegations, the defendant is provided fair notice of the factual and legal basis for each claim. Although each of Plaintiffs’ five claims do incorporate by reference all prior allegations, the Court finds that each claim sets forth the general conduct at issue sufficiently to allow Alliance to identify which of the more specific allegations incorporated by reference apply to that claim. Each claim thus provides Alliance “fair notice of what the . . . claim is and the grounds upon which it rests.” Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (quotation omitted). Moreover, the Court notes that Plaintiffs’ claims overlap and largely involve the same conduct such that the incorporation of prior allegations into a claim (though perhaps not all prior allegations as Plaintiffs have done here) is more efficient than restating all of the relevant factual allegations within each of the separate claims.
In sum, the Court concludes that “[t]his is not a case where incorporating prior allegations makes it impossible to understand [Plaintiffs’] claims.” Churchill Med. Sys., Inc. v. Rubacha, No. 19-CV-0226-WJM-STV, 2019 U.S. Dist. LEXIS 195870, 2019 WL 5894132, at *4 (D. Colo. Nov. 12, 2019). Accordingly, this Court respectfully RECOMMENDS that the Alliance Motion be DENIED to the extent it seeks to dismiss the Amended Complaint in its entirety as a “shotgun pleading.” [*16]
3. Applicability of the Carmack Amendment
Next, Alliance argues that Count One should be dismissed because the Carmack Amendment does not apply to transportation brokers. [#18 at 7-8] Plaintiffs acknowledge that the Carmack Amendment would not apply to Alliance if Alliance were acting as a broker, but maintain that the issue of whether Alliance was acting as a carrier or a broker is a question of fact that cannot be resolved at this stage of the litigation.5 [#32 at 2-4] The Court agrees that Plaintiffs have plausibly pled that Alliance held itself out as a carrier and, accordingly, may be subject to the Carmack Amendment.
The Carmack Amendment to the Interstate Commerce Act imposes absolute liability on carriers for actual loss or injury to the property transported in the United States. 49 U.S.C. § 14706(a)(1). Courts, however, have held that Carmack Amendment liability does not attach to brokers. See, e.g., Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1300 (11th Cir. 2018) (noting that the Carmack Amendment “does not apply to brokers”); CorTrans Logistics, LLC v. Landstar Ligon, Inc., 489 F. Supp. 3d 824, 829 (S.D. Ind. 2020) (citing cases for proposition that “uniform liability for carriers does not extend to brokers”). A “carrier” is defined as a “motor carrier, a water carrier, and a freight forwarder.”6 49 U.S.C. § 13102(3). “The term ‘freight forwarder’ means a person holding itself out to the general public . . . to provide transportation of property for compensation [*17] . . . .” 49 U.S.C. § 13102(8); see also Ensco, Inc. v. Weicker Transfer & Storage Co., 689 F.2d 921, 925 (10th Cir. 1982) (finding that under a previous version of the statute that a “carrier’s status as a common carrier [under the Carmack Amendment] is determined not by reference to its authority but rather by reference to what it holds itself out to be.”).
Here, Plaintiffs have alleged that Alliance “hold themselves out as interstate movers to consumers,” including by stating on their website that they are “Denver Movers” or a “Moving Company in Denver.” [Id. at ¶¶ 2, 23] They further allege that Alliance represented that it was “so far voted #1 moving company of 2020.” [Id. at ¶ 28] These allegations are sufficient to allege that Alliance held itself out to be a carrier for purposes of the Carmack Amendment. Suarez v. United Van Lines, Inc., 791 F. Supp. 815, 816 (D. Colo. 1992) (finding that a moving company qualifies as a “carrier” for purposes of the Carmack Amendment).
Moreover, numerous courts have found that “the key distinction” between a carrier and a broker “is whether the disputed party accepted legal responsibility to transport the shipment,” in which case the party is a carrier. Essex Ins. Co., 885 F.3d at 1301 (emphasis in original) (collecting cases); see also Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 286-87 (3d Cir. 2019) (“[I]n determining whether a party is a carrier or a broker, the crucial question is whether the party has legally bound itself to transport goods by accepting [*18] responsibility for ensuring the delivery of the goods.”). “This is necessarily a case-specific analysis.” Essex Ins. Co., 885 F.3d at 1302. Although a broker “can insulate itself from strict liability with respect to a particular shipment if it makes clear in writing that it is merely acting as a go-between to connect the shipper with a suitable third-party carrier[,] . . . [w]here no such writing exists, the question will depend on how the party held itself out to the world, the nature of the party’s communications and prior dealings with the shipper, and the parties’ understanding as to who would assume responsibility for the delivery of the shipment in question.” Id. As an initial matter, the Court notes that this “case-specific” and fact intensive analysis likely is not appropriate for resolution on a motion to dismiss. See id. (noting that “summary judgment might not be appropriate in many cases”). Regardless, here, Plaintiffs have alleged that Alliance held itself out to consumers as a moving company, failed to notify Plaintiffs that Alliance was acting as a broker, and Plaintiffs believed that Alliance was the moving company that would handle the move. [See, e.g., #15, ¶¶ 2, 23, 31, 81] Although Plaintiffs [*19] acknowledge in the Amended Complaint that the Moving Company Defendants were the entities who conducted the physical transportation of their household goods, “[i]f an entity accepts responsibility for ensuring the delivery of goods, then that entity qualifies as a carrier regardless of whether it conducted the physical transportation.” Tryg Ins., 767 F. App’x at 287.
Accordingly, the Court finds the allegations in the Amended Complaint sufficient to plausibly plead a Carmack Amendment claim based upon Alliance’s status as a carrier. Tryg Ins., 767 F. App’x at 287; Louis M. Marson Jr., Inc. v. All. Shippers, Inc., 438 F. Supp. 3d 326, 334 (E.D. Pa. 2020) (finding issue of disputed fact with regard to whether defendant acted as a carrier or broker). Accordingly, the Court respectfully RECOMMENDS that Alliance’s Motion be DENIED to the extent it argues that Plaintiffs have not plausibly alleged that it acted as a carrier for purposes of Plaintiff’s Carmack Amendment claim.
4. Application of Rule 9(b) to Plaintiffs’ Disgorgement Claim
Next, Alliance argues that Plaintiffs failed to plead their claim for disgorgement of profits with the particularity required of fraud claims under Federal Rule of Civil Procedure 9(b).7 [#18 at 8] Disgorgement of profits is an “extraordinary remedy” and, in determining whether disgorgement of profits is permissible, a “court must resort to general considerations of [*20] fairness, taking into account the nature of the defendant’s wrong, the relative extent of his or her contribution, and the feasibility of separating this from the contribution traceable to the plaintiff’s interest.” EarthInfo, Inc. v. Hydrosphere Res. Consultants, Inc., 900 P.2d 113, 119-20 (Colo. 1995). Alliance argues that because Plaintiffs rely upon allegations of fraud to seek the extraordinary remedy of disgorgement of profits, Plaintiffs must satisfy the higher pleadings standards of Rule 9(b).8 [#18 at 8; see also #15, ¶ 96 (alleging that Defendants’ “unlawful conduct . . . constitutes deceptive, fraudulent, and wrongful conduct”)] Plaintiffs do not challenge this assertion and, accordingly, the Court will assume without deciding that Rule 9(b) applies to Plaintiffs’ disgorgement of profits claim. [See #32 at 8-9 (arguing that Plaintiffs’ claim for disgorgement of profits is adequately pled without addressing the applicability of Rule 9(b))]
“Rule 9(b)‘s purpose is to afford defendant fair notice of plaintiff’s claims and the factual ground upon which [they] are based.” Koch v. Koch Indus., Inc., 203 F.3d 1202, 1236 (10th Cir. 2000) (quotation omitted). The Tenth Circuit thus “requires a complaint alleging fraud to set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences [*21] thereof.” Id. (quotation omitted). Plaintiffs’ Amended Complaint satisfies this standard. With regard to Ms. Swenson, for example, the Amended Complaint alleges that on or about May 3, 2021, Ms. Swenson contacted Alliance and spoke to an employee named Christopher who told Ms. Swenson that the cost for a 26-foot moving truck would be $3,263 and that this would be sufficient to move the Swenson family’s piano and other household items. [#15, ¶¶ 28-30] The Amended Complaint further alleges that, instead of a 26-foot moving truck, the movers arrived in a pickup truck with a small trailer on the date of the move, and that Mike with Real Movers then demanded a significant additional payment for a truck large enough to complete the move. [Id. at ¶ 32] According to the Amended Complaint, Alliance consistently employs this tactic of sending smaller moving trucks and then demanding additional payments for a truck that can make the move. [Id. at ¶ 4] The Amended Complaint then provides specific examples for each of the other named Plaintiffs, identifying the individuals at Alliance who made the false representations and the dates when such false representations allegedly were made. [Id. at ¶¶ [*22] 35-45 (identifying that the Buntings spoke to Frank Jackson at Alliance on May 14, 2021, and that Mr. Jackson gave a “binding estimate” of $14,339.81 for the move which included free storage, all of which proved to be untrue); ¶¶ 46-54 (identifying that Thomas Pevear and Jordan Churchill spoke with Chloe at Alliance on May 15, 2021 and Chloe provided a “binding estimate” of $3,600 based upon an itemized moving list, yet a significantly higher estimate was provided by the moving company on the date of the move and when Mr. Pevear and Ms. Churchill refused to pay that higher estimate, Alliance refused to refund the down payment); ¶¶ 55-64 (identifying that the McQuaids spoke with Alliance employee Clark Forham on May 16, 2021 who then provided a “binding estimate” of $7,730.83, which on June 28, 2021 was raised by Conor at Alliance to $16,652.63, and that Alliance refused to return the deposit paid by the McQuaids despite never sending a moving truck on June 30, 2021, the scheduled date of the move); ¶¶ 65-77 (identifying that the Warrens spoke with Chloe Collins at Alliance on April 19, 2021 who provided a “binding estimate” for the move of $9,662.52, that Conor at Alliance significantly [*23] raised this amount a few days before the scheduled move on June 30, 2021, and that ultimately only a portion of their items were moved at a cost significantly higher than the estimate provided by either Ms. Collins or Conor)]
The allegations in the Amended Complaint clearly identify the time, place,9 and contents of the false representation, the identity of the party making the false representation, and the consequences thereof. They thus are sufficient to satisfy the heightened pleading requirements of Rule 9(b). See Koch, 203 F.3d at 1236. The Court thus respectfully RECOMMENDS that the Alliance Motion be DENIED to the extent it argues that Plaintiff’s disgorgement of profits claim fails to satisfy Rule 9(b)‘s heightened pleading requirements.
5. Preemption
Finally, Alliance argues that Plaintiffs’ state law claims (Counts Two through Five) are preempted by the Carmack Amendment and the FAAAA. [#18 at 9-15] The Court addresses each argument in turn.
a. Carmack Amendment
The Carmack Amendment preempts state common law remedies for a common carrier’s negligence. See, e.g., Underwriters at Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112, 1113 (10th Cir. 1989) (holding that “state common law remedies are preempted by the Carmack Amendment“); Certain Underwriters at Int. at Lloyds of London v. United Parcel Serv. of Am., Inc., 762 F.3d 332, 336 (3d Cir. 2014) (“The Courts of Appeals have . . . unanimously held that the Carmack Amendment preempts all state or common law remedies available to a shipper against a [*24] carrier for loss or damage to interstate shipments.” (quotation omitted)). Here, however, Alliance itself argues that the Carmack Amendment does not apply to Alliance, because Alliance was acting as a broker and not a carrier. [#18 at 7-8] Although, for the reasons explained above, the Court finds that the Amended Complaint plausibly alleges that Alliance held itself out as a carrier [see supra Section III.A.3], the Amended Complaint also acknowledges that Alliance subsequently claimed to only be a broker and it is clear from the Alliance Motion that Alliance intends to defend itself against Plaintiffs’ Carmack Amendment claim by arguing that it was a broker and not a carrier. [See #15, ¶¶ 43, 54, 81; #18 at 7-8] To the extent Alliance ultimately is able to prove that it acted only as a broker and not as a carrier, Plaintiff’s state law claims against Alliance would not be preempted by the Carmack Amendment. See, e.g., Atlas Aerospace LLC v. Advanced Transp., Inc., No. 12-1200-JWL, 2013 U.S. Dist. LEXIS 58378, 2013 WL 1767943, at *2 (D. Kan. Apr. 24, 2013) (collecting cases for proposition that the Carmack Amendment does not preempt state law claims brought against a broker); JAS Forwarding (USA), Inc. v. Owens Truckmen, Inc., No. 17CV03589ADSAYS, 2017 WL 5054715, at *6 (E.D.N.Y. Nov. 1, 2017) (“Because the Carmack Amendment does not apply to brokers, courts have held that Carmack’s preemption of state law claims does not extend to brokers.”). The federal pleading rules “impose no impediment [*25] to a [plaintiff’s] ability to plead alternative and inconsistent claims.” United States v. Roe, 913 F.3d 1285, 1300 n.21 (10th Cir. 2019). “Indeed, [Federal Rule of Civil Procedure] 8(d) specifically allows for the pleading of inconsistent claims and inconsistent facts.” Id. Accordingly, the Court respectfully RECOMMENDS that the Motion be DENIED to the extent it argues that Plaintiffs’ state law claims are preempted by the Carmack Amendment. See Hammock v. Moving State to State, LLC, No. 18CV5628RPKST, 2021 WL 4398086, at *4 (E.D.N.Y. Sept. 26, 2021) (refusing to dismiss state law claims on the basis of Carmack Amendment preemption where the allegations in the complaint alleged that defendants were both brokers and carriers).
b. FAAAA
Section 14501(c)(1)10 of the FAAAA provides:
Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
49 U.S.C. § 14501(c)(1).11 In the context of interpreting a similar preemption provision in the Airline Deregulation Act (“ADA”), the United States Supreme Court interpreted the phrase “other provision having the force and effect of law” to include common law [*26] claims.12Northwest, Inc. v. Ginsberg, 572 U.S. 273, 284, 134 S. Ct. 1422, 188 L. Ed. 2d 538 (2014); see also Dixon v. Stone Truck Line, Inc., No. 2:19-CV-000945-JCH-GJF, 2021 WL 5493076, at *9 (D.N.M. Nov. 23, 2021) (applying Ginsberg to Section 14501(c)). Nonetheless, the FAAAA’s preemption provisions do not apply to “routine breach-of-contract claims” because such breaches involve a “self-imposed undertaking.” Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228, 232, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995) (interpreting preemption provision of the ADA); see also Traction Tire, LLC v. Total Quality Logistics, LLC, No. 19-5150, 2020 WL 6044179, at *8 (E.D. Pa. Oct. 13, 2020) (citing cases for proposition that the FAAAA and the ICCTA do not preempt routine breach of contract claims); Hartford Fire Ins. Co. v. Dynamic Worldwide Logistics, Inc., No. 17-553-SDW-LDW, 2017 U.S. Dist. LEXIS 142926, 2017 WL 3868702, at *3 (D.N.J. Sept. 5, 2017) (same); Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., No. 2:08CV894 DAK, 2011 U.S. Dist. LEXIS 47029, 2011 WL 1656504, at *4 (D. Utah May 2, 2011) (finding “no merit” to argument that breach of contract claim was preempted by ADA and FAAAA).13
Additionally, the Supreme Court has held that the phrase “with respect to the transportation of property” in Section 14501(c)(1) “massively limits the scope of preemption ordered by the FAAAA.” Dan’s City Used Cars, Inc. v. Pelkey (“Dan’s City”), 569 U.S. 251, 261, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013) (quotation omitted). Thus, “it is not sufficient that a state law relates to the ‘price, route, or service’ of a motor carrier in any capacity; the law must also concern a motor carrier’s ‘transportation of property.'” Id. And Title 49 defines “transportation,” in relevant part, to include “services related to the movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, [*27] unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23)(B).
Here, Plaintiffs acknowledge that their “CCPA claims focus on 1) false advertising and 2) bait and switch pricing.” [#32 at 7] Contrary to Plaintiffs’ unsupported contention that these claims are not “related to the transportation of property” [id.], Plaintiff’s CCPA claims “relate[] to the price . . . of a motor carrier . . . [concern]ing [that] motor carrier’s transportation of property.” Dan’s City, 569 U.S. at 261 (quotation omitted). Specifically, they relate to the price charged by the motor carrier for “services related to the movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23)(B). And, indeed, several courts have found FAAAA preemption with respect to claims similar to the CCPA claim advanced by Plaintiffs here. See, e.g., Inter Metals Grp. v. Centrans Marine Shipping, No. 20-7424, 2022 WL 489404, at *3-4 (D.N.J. Feb. 17, 2022) (finding that state law claims, including fraud claims and claims brought pursuant to the New Jersey Consumer Fraud Act, were preempted by the FAAAA); Gregory Poole Equip. Co. v. ATS Logistics Servs., Inc., No. 5:13-CV-549-BO, 2014 WL 1053517, at *2-3 (E.D.N.C. Mar. 14, 2014) (finding that claims brought pursuant to North Carolina’s [*28] Unfair and Deceptive Trade Practices Act based, in part, upon a transport company providing “artificially low quote[s]” were preempted by the FAAAA); Radiant Global Logistics, Inc. v. Cooper Wiring Devices, Inc., No. 1:11-cv-4254-SCJ, 2012 WL 13013638, at *1, 3 (N.D. Ga. Sept. 21, 2012) (holding that plaintiff’s state law claims, based upon allegation that carrier charged “an allegedly inflated rate for shipment . . . that did not reflect the understanding between the parties,” including claim brought pursuant to Georgia’s Fair Business Practices Act were preempted by Section 14501(c)(1)); Frey v. Bekins Van Lines, Inc., 802 F. Supp. 2d 438, 441-42 (E.D.N.Y. 2011) (collecting cases for the proposition that state law claims related to deceptive trade practice statutes, negligence, and negligent misrepresentation were preempted by Section 14501(c)(1)); see also Monga v. A.B.S. Moving & Storage, Inc., No. PWG-16-2000, 2017 WL 3228139, at *4 (D. Md. July 31, 2017) (holding ICCTA preempted the plaintiff’s state law claims based upon bait-and-switch tactics related to prices charged by moving carrier). Although Plaintiffs argue that false advertising and bait-and-switch pricing are not “services” offered by Alliance [#18 at 7], the false advertising and bait-and-switch pricing alleged here both relate to the “transportation of property,” thus satisfying the Dan’s City requirement.14
Plaintiffs argue that finding the CCPA preempted by the FAAAA “would lead [*29] to the absurd result that a person could never sue a moving broker under any circumstances, and would never have a remedy against a broker.” [#32 at 8] This is simply untrue. As explained above, the FAAAA does not preempt Plaintiffs’ breach of contract claim. Moreover, as also explained above, when the broker holds itself out as a motor carrier—as Alliance is alleged to have done here—the customer may bring a Carmack Amendment claim. As a result, the injured party is not left without recourse for the broker’s misdeeds.
Accordingly, the Court respectfully RECOMMENDS that the Alliance Motion be GRANTED to the extent it seeks to dismiss Plaintiffs’ CCPA claim (Count Four) as that claim is preempted by the FAAAA.
6. Conclusion
For the reasons set forth above, the Court respectfully RECOMMENDS that the Alliance Motion be GRANTED with respect to its argument that Plaintiffs’ CCPA claim (Count Four) is preempted by the FAAAA but DENIED in all other respects.
B. The Real Movers Motion
The Real Movers Motion makes three arguments. First, Real Movers argues that Plaintiffs’ Carmack Amendment claim should be dismissed due to Plaintiffs’ failure to plead compliance with the Carmack Amendment‘s required notice of claim procedure. [#19 [*30] at 3-5] Second, Real Movers argues that the Amended Complaint “lacks any plain and singular allegation that Real Movers took possession of specific items in good condition, that those items were either lost or damaged by Real Movers and the amount of damages Plaintiffs sustained.” [Id. at 5-6] Finally, Real Movers “adopts and alleges, as though originally stated herein, the authority and argument raised in” the Alliance Motion.15 [Id. at 6] The Court addresses each argument below.
1. The Carmack Amendment Notice Requirement
49 C.F.R. § 1005.2 states that “[a] claim for loss or damage to baggage or for loss, damage, injury, or delay to cargo, shall not be voluntarily paid by a carrier unless filed [pursuant to the requirements of a subsequent provision] with the receiving or delivering carrier, or carrier issuing the bill of lading, receipt, ticket, or baggage check, or carrier on whose line the alleged loss, damage, injury, or delay occurred.” Real Movers argues that Plaintiffs must plead compliance with Section 1005.2 as part of their Carmack Amendment claim.16 [#19 at 3-5] As a preliminary matter, Real Movers “cites no binding authority for the proposition that an adequate written claim under . . . § 1005.2 is a condition precedent to filing a lawsuit under [*31] the Carmack Amendment.” Thompson Tractor Co. Inc. v. Daily Express Inc., No. 2:20-CV-02210, 2022 WL 585141, at *4 (C.D. Ill. Feb. 25, 2022). The Tenth Circuit does not appear to have considered the issue and the Circuit Courts that have considered it have reached differing results. In Wisconsin Packing Co. v. Indiana Refrigerator Lines, Inc., the Seventh Circuit held that Section 1005.2 applies only to “the voluntary disposition of claims by carriers” and thus “does not even apply to a contested case such as this.” 618 F.2d 441, 445 (7th Cir. 1980). Although the remaining Circuit Courts that have considered the issue, including the First, Second, Third, Fifth, Sixth, Ninth, and Eleventh Circuits—have found that Section 1005.2’s notice requirements apply to both contested and uncontested claims, they have adopted different approaches with regard to whether Section 1005.2 requires “strict compliance” or “substantial compliance” with the rule. See Tesmer v. Allied Van Lines, Inc., 82 F. Supp. 2d 1216, 1218 (D. Kan. 2000) (discussing the varying approaches taken by the First, Second, Fifth, Sixth, and Ninth Circuits); S & H Hardware & Supply Co. v. Yellow Transp., Inc., 432 F.3d 550, 554 (3d Cir. 2005) (finding that “a claimant must file notice of loss or damage with the carrier within the time specified on the bill of lading”); Siemens Power Transmission & Distrib., Inc. v. Norfolk S. Ry. Co. (“Siemens”), 420 F.3d 1243, 1250 (11th Cir. 2005) (holding that “at least the minimum claim requirements contained in section 1005.2(b) apply to contested as well as voluntarily resolved claims”); but see Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 408 n.3 (3d Cir. 2008) (observing that that “[w]ere [the panel] writing on a clean slate, the [shippers’] [*32] argument [that the notice requirements do not apply to contested claims] might have greater force because, as the Seventh Circuit pointed out in Wisconsin Packing, [the notice provisions] explicitly refer[ ] only to claims paid ‘voluntarily’ by a carrier”). Real Movers makes no attempt to discuss this split in authority or explain why it believes the Tenth Circuit would side with the majority of circuits that have found that Section 1005.2 applies to contested claims.
The Court finds it unnecessary to resolve this issue in the context of the instant Motions. Even if notice ultimately is required in a contested case such as this, Real Movers has provided no authority that a plaintiff must affirmatively plead compliance with the notice of claim procedure when pleading a claim pursuant to the Carmack Amendment, particularly where, as here, Plaintiffs have not alleged that they were provided a bill of lading or contract setting forth the notice requirements.17See Thompson Tractor Co. Inc. v. Daily Express Inc., No. 2:20-cv-02210, 2020 WL 6121158, at * 9 (C.D. Ill. Oct. 16, 2020) (“Given the lack of clarity whether Plaintiff was under any obligation to file a written claim with Defendant prior to seeking relief under the Carmack Amendment in court, allegations of such need not appear [*33] in the Complaint.”); Ace Motors, Inc. v. Total Transp., Inc., No. 08 C 1552, 2009 U.S. Dist. LEXIS 59458, 2009 WL 2031780, at *2 (N.D. Ill. July 10, 2009) (finding that shipper “need not plead around movants’ affirmative defense[ ]” of failure to comply with the notice requirements); Neely v. Mayflower Transit, LLC, No. 02 C 9347, 2003 U.S. Dist. LEXIS 25682, 2003 WL 23648655, at *2 (N.D. Ill. Aug. 4, 2003) (“[A] plaintiff does not have to affirmatively plead that it filed a claim within the statutory period.”); see also Mercer Transp. Co. v. Greentree Transp. Co., 341 F.3d 1192, 1196 (10th Cir. 2003) (stating that a shipper establishes a prima facie case under the Carmack Act by demonstrating: “(1) delivery of the property to the carrier in good condition; (2) arrival of the property at the destination in damaged or diminished condition; and (3) the amount of its damages”); S & H Hardware & Supply Co., 432 F.3d at 554 (finding that “a claimant must file notice of loss or damage with the carrier within the time specified on the bill of lading” (emphasis added)). Indeed, each of the cases cited by Real Movers involved disposition at the summary judgment stage and addressed the specific notice requirements set forth in the applicable bill of lading and the specific notice of loss provided to the carrier by the shipper. See Siemens, 420 F.3d at 1254 (reversing grant of summary judgment for carrier upon finding that notice of claim provided by shipper “satisfied the minimum claim filing requirements in 49 C.F.R. § 1005”); Kellog v. Wheaton Van Lines, No. 16-cv-1187 SCY/LF, 2017 WL 3881417, at *1, 3-6 (D.N.M. Sept. 1, 2017) (granting summary judgment on Carmack Amendment claim upon finding that plaintiff failed to comply [*34] with the notice requirements of the bill of lading and 49 C.F.R. § 370.3); Molloy v. Allied Van Lines, Inc., 267 F. Supp. 2d 1246, 1257 (M.D. Fla. 2003) (denying carrier’s motion for summary judgment upon finding that documents shipper submitted to carrier were sufficient when considered together to satisfy the notice requirements set forth in the bill of lading and the code of regulations); Miracle of Life, L.L.C. v. N. Am. Van Lines, Inc., 444 F. Supp. 2d 478, 479, 481-84 (D.S.C. 2006) (finding on summary judgment record that telephone call from shipper to carrier failed to satisfy the written notice of claim requirement established in the bill of lading and applicable federal law); St. Paul Fire & Marine Ins. Co. v. Triad Installation & Moving Servs., Inc., 157 F. Supp. 2d 223, 224-27 (D. Conn. 2001) (granting carrier’s motion for summary judgment upon finding that letter submitted by shipper did not comply with notice requirements). Because Real Movers has failed to provide this Court with any authority for its proposition that Plaintiffs must affirmatively plead compliance with Section 1005.2 as part of their Carmack Amendment claim, and because contrary authority exists, the Court respectfully RECOMMENDS that the Real Movers Motion be DENIED to the extent it seeks dismissal of Count One for failure to plead compliance with Section 1005.2.
2. Sufficiency of Plaintiff’s Carmack Amendment Allegations
Real Movers next argues that the Amended Complaint “lacks any plain and singular allegation that Real Movers took possession of [*35] specific items in good condition, that those items were either lost or damaged by Real Movers and the amount of damages Plaintiffs sustained.” [#19 at 5] Under the Carmack Amendment, “the shipper establishes a prima facie case against either the initial carrier or the delivering carrier by proving: (1) delivery of the property to the carrier in good condition; (2) arrival of the property at the destination in damaged or diminished condition; and (3) the amount of damages.” Mercer Transp. Co., 341 F.3d at 1196. “The burden then shifts to the carrier to demonstrate both that it was not negligent and that the damage was caused by an event excepted at common law.” Id. (emphasis omitted).
Here, Plaintiffs have plausibly alleged a prima facie Carmack Amendment claim. Plaintiffs have alleged that the items shipped by the Swenson family included “important and irreplaceable items” and that Ms. Swenson paid over $8,000 to have the family’s goods shipped. [#15, ¶¶ 31, 32, 34] Drawing all reasonable inferences in favor of Plaintiffs as the Court must at this stage of the proceedings, the Court finds these allegations sufficient to allege that the items were in good condition—both because they are described as important and because Ms. Stenson presumably would not [*36] have paid such a high amount had the items not been in good condition. See Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 275 (1st Cir. 2000) (affirming trial court’s conclusion that items were in good condition when delivered because “the parties d[id] not dispute that a change in the condition of the equipment occurred while [the carrier] had custody of it: the equipment existed at the point of origin . . . and then vanished in transit”). Similarly, Plaintiffs allege that the goods never arrived, thus satisfying the second element of their prima facie case. See, e.g., id.; A.I.G. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1005 n.2 (11th Cir. 2003) (finding that damaged or diminished condition would include lost goods shipped in unsealed container). Finally, while the Amended Complaint does not specifically identify each item lost, it does identify some of those items specifically—including birth certificates and social security cards—and further indicates that Real Movers had yet to deliver any of the Plaintiffs’ items. [#15, ¶ 34] And presumably the value of these items was at least the $8,000 Ms. Swenson paid to have them moved. The Court thus finds that Plaintiffs have plausibly alleged the third prima facie element of their Carmack Amendment claim. See, e.g., Chisesi Bros. Meat Packing Co., Inc. v. Transco Logistics Co., No. 17-2747, 2017 WL 2189829, at *4 (E.D. La. May 18, 2017) (finding damages adequately alleged where “plaintiff contend[ed] that its [*37] damages amount[ed] to nearly $100,000″); Sorrento Assocs., Inc. v. Moving Co., Inc., No. 07CV0558 JAH (AJB), 2007 U.S. Dist. LEXIS 106362, 2007 WL 9776740, at *3 (S.D. Cal. Dec. 6, 2007) (finding damages adequately alleged where plaintiff alleged that it “ha[d] suffered actual and consequential damages . . . in a sum of not less than $50,000.00”); Mallory v. Allied Van Lines, Inc., No. Civ.A. 02-CV-7800, 2003 WL 22391296, at *3 (E.D. Pa. Oct. 23, 2003) (finding that the plaintiff plausibly alleged a Carmack Amendment claim where she stated that defendants had lost “certain priceless documents and a pair of Gucci sunglasses” and that plaintiff had “incurred damages in an amount not in excess of $150,000” (quotation omitted)). Accordingly, the Court finds that Plaintiffs have plausibly alleged a Carmack Amendment claim against Real Movers. The Court thus respectfully RECOMMENDS that the Real Movers Motion be DENIED to the extent it seeks dismissal of the Carmack Amendment claim.
3. Incorporation of Alliance’s Arguments
Finally, Real Movers “adopts and alleges . . . the authority and argument raised in” the Alliance Motion. [#19 at 6] As detailed above, the Court rejected each of Alliance’s arguments except its argument that Section 14501(c)(1) of the FAAAA preempts Plaintiffs’ CCPA claims. See supra Section III.A.5.b. Because Section 14501(c)(1) by its own terms applies to carriers like Real Movers, the Court concludes that it also preempts Plaintiffs’ CCPA claims against Real Movers. Accordingly, the Court respectfully RECOMMENDS [*38] that the Real Movers Motion be GRANTED to the extent it seeks to dismiss Plaintiffs’ CCPA claim.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that:
(1) The Alliance Motion [#18] be GRANTED to the extent it seeks to dismiss Plaintiffs’ CCPA claim (Count Four) as asserted against Alliance but DENIED to the extent it seeks to dismiss Plaintiffs’ remaining claims; and
(2) The Real Movers Motion [#19] be GRANTED to the extent it seeks to dismiss Plaintiffs’ CCPA claim (Count Four) as asserted against Real Movers but DENIED to the extent it seeks to dismiss Plaintiffs’ remaining claims.18
DATED: April 26, 2022
BY THE COURT:
/s/ Scott T. Varholak
United States Magistrate Judge
End of Document
1 The facts are drawn from the allegations in Plaintiffs’ First Amended Complaint (the “Amended Complaint”) [#15], which must be taken as true when considering the Motions. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
2 Although all of the named plaintiffs allege misconduct by Alliance with regard to their moves, they all allege similar conduct on the part of Alliance. [See generally #15, ¶¶ 28-77] Plaintiff Taylor Swenson is the only named plaintiff whose move is alleged to have involved Real Movers; the other named plaintiffs’ moves were all allegedly handled by the other Moving Company Defendants. Because Real Movers is the only Moving Company Defendant that has filed a motion to dismiss, for purposes of the instant Motions, the Court only recounts the allegations with regard to Ms. Swenson’s move.
3 In the introductory portion of the Alliance Motion, Alliance also states that the breach of contract claim “fails to meet the most basic pleading standards” because “Plaintiffs fail to allege any specific contract, fail to allege any specific contractual provision, and fail to allege any specific act of breach.” [#18 at 2] Alliance does not develop this argument in the Memorandum of Law portion of the Alliance Motion and Alliance’s “failure to develop this argument has waived it.” Crystal S. v. Kijakazi, No. 20-2425-JWL, 2021 WL 3089216, at *3 (D. Kan. July 22, 2021) (collecting cases). In any event, and in the absence of any developed argument challenging Plaintiffs’ breach of contract claim, the Court finds the allegations that Alliance agreed to move Plaintiffs’ items for a certain amount, did not move Plaintiffs’ items for that amount despite Plaintiffs paying the required deposit, and Plaintiffs suffering delay and damage of goods as a result sufficient to state a breach of contract claim. Shell v. Am. Fam. Rights Ass’n, 899 F. Supp. 2d 1035, 1058 (D. Colo. 2012) (stating that a breach of contract claim under Colorado law requires: (1) existence of a contract; (2) performance by the plaintiff; (3) failure to perform by the defendant; and (4) resulting damages).
4 Nor is it clear that a motion to dismiss—as opposed to a motion to strike or a motion for a more definitive statement—is the appropriate means to challenge an alleged Rule 10(b) deficiency. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1322 (4th ed. 2021); see also Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005)( “And even where a violation of Rule 10(b) is not harmless, dismissal is not typically the appropriate course of action.”).
5 Alliance did not file a reply and thus has not countered this argument.
6 A “broker” is defined as “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).
7 Pursuant to Rule 9(b), “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake” but “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”
8 Alliance does not make this same argument with respect to Plaintiff’s CCPA claim despite the fact that courts in this District “have consistently held that CCPA claims must be pled with the particularity required of fraud claims under [Federal] Rule [of Civil Procedure] 9(b).” Pertile v. Gen. Motors, LLC, No. 15-cv-0518-WJM-NYW, 2017 WL 4237870, at *8 (D. Colo. Sept. 22, 2017) (collecting cases); see also Hauschild GMBH & CO. KG v. FlackTek, Inc., No. 20-CV-02532-PAB-STV, 2022 WL 392501, at *10 (D. Colo. Feb. 9, 2022) (“CCPA claims must be pled with particularity pursuant to Federal Rule of Civil Procedure 9(b).”).
9 For each Plaintiff, the Amended Complaint indicates that the conversations occurred by phone and identifies the place where Plaintiffs were living at the time of the call. [Id. at ¶¶ 29, 35, 46, 55, 66]
10 Section 14501(b) of the FAAAA—an amendment titled the Interstate Commerce Commission Termination Act (“ICCTA”)—includes a second, more narrowly focused preemption provision that prohibits states from “enact[ing] or enforce[ing] 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.” 49 U.S.C. § 14501(b)(1); Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 510 (N.D. Tex. 2020). Though Alliance briefly mentions the ICCTA, the Alliance Motion focuses exclusively on Section 14501(c)(1). [#18 at 14-15] The Court’s analysis thus likewise focuses on that preemption provision.
11 Section 14501(c)(1) preemption thus applies regardless of whether Alliance is a carrier, broker, or freight forwarder and Plaintiffs do not dispute its applicability to Alliance in their response to the Alliance Motion. [#32 at 6-8] Instead, Plaintiffs argue that the FAAAA does not preempt the types of state law claims Plaintiffs assert here. [Id.]
12 In Rowe v. New Hampshire Motor Transport Association., 552 U.S. 364, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008), “the Supreme Court made clear that its interpretation of the [ADA’s] broad language of preemption applies with equal force to the broad language” of Section 14501(c)(1). Frey v. Bekins Van Lines, Inc., 802 F. Supp. 2d 438, 442 (E.D.N.Y. 2011).
13 The FAAAA preemption section of the Alliance Motion is captioned: “FAAAA Preemption of Consumer Protection Statutes.” [#18 at 14] It would thus appear that Alliance is only arguing FAAAA preemption with respect to Plaintiffs’ CCPA claim. Elsewhere in the Alliance Motion, however, Alliance states that the “FAAAA expressly applies to freight brokers, such as Alliance here, and requires dismissal of each of these common law causes of action.” [Id. at 15 (emphasis added)]. The reference to multiple causes of action and common law causes of action may simply be the result of poor draftsmanship. But, to the extent the Alliance Motion seeks to dismiss Plaintiffs’ Count Three, the Court respectfully RECOMMENDS that the Alliance Motion be DENIED because Count Three is a routine breach of contract claim. To the extent the Alliance Motion seeks to dismiss Count Two and/or Count Five based upon FAAAA preemption, the Court respectfully RECOMMENDS that the Alliance Motion be DENIED because Alliance has failed to make any argument that disgorgement of profits and/or injunctive relief are unavailable under Plaintiff’s contract and/or federal Carmack Amendment claim. The Court thus focuses the remainder of its analysis of FAAAA preemption in this Recommendation only on Plaintiff’s CCPA claim.
14 Although the Court agrees with Plaintiffs that the “FAAAA [does not] preempt state law claims against a broker where the conduct complained of occurred after the moving of the property” was completed [#32 at 7], Plaintiffs’ CCPA claims here all relate to the representations made prior to the movement and pre-delivery storage of the property, and relate to the price ultimately charged for those services. Indeed, with regard to several of the named plaintiffs, the Amended Complaint alleges that the movement (i.e., delivery) of their property was not yet complete at the time the Amended Complaint was filed. [See #15, ¶¶ 34, 45] ; cf. Dan’s City, 569 U.S. at 262 (finding that “[t]emporary storage of an item in transit en route to its final destination relates to the movement of property and therefore fits within § 13102(23)(B)‘s definition” but “property stored after delivery is no longer in transit”).
15 Like Alliance, Real Movers makes a conclusory argument that Plaintiffs’ breach of contract claim fails because the Amended Complaint “never alleges which, if any, of the Plaintiffs entered into a contract with . . . Real Movers” and “[e]ven if one were to infer the existence of the contract, the [Amended] Complaint still lacks any detail as to the terms of the agreement or how . . . Real Movers breached the agreement.” [#19 at 6] But the Amended Complaint clearly alleges that “Mike” with Real Movers would only agree to move the Swenson family’s property if the Swensons agreed to pay an additional $6,500 in cash (the offer), Ms. Swenson agreed (acceptance) and paid Mike $6,500 (performance by Ms. Swenson), Real Movers neither took all of the Swenson family’s property nor delivered the property it did take (breach by Real Movers), and the Swensons suffered resulting damages (damages). [#15 at ¶¶ 32-34] The Court finds these allegations sufficient to state a breach of contract claim, especially given Real Movers’ limited development of this argument. Shell, 899 F. Supp. 2d at 1058 (stating that a breach of contract claim under Colorado law requires: (1) existence of a contract; (2) performance by the plaintiff; (3) failure to perform by the defendant; and (4) damages).
16 In its reply, Real Movers also argues that a claim procedure set forth in 49 C.F.R. § 370.3 applies. [#38 at 1-4] Arguments raised for the first time in a reply brief are waived. See Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (finding that “a party waives issues and arguments raised for the first time in a reply brief” (quotation omitted)); M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009) (“[T]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.”).
17 Plaintiffs contend in their response to the Real Movers Motion that it would be difficult for Plaintiffs, at this stage of the litigation, to plead compliance with Section 1005.2 when Plaintiffs believed that they were hiring Alliance to handle their moves and were “not provide[d] a contract . . . requiring that a claim notice be made within 9 months of the shipment.” [#33 at 3] Although Real Movers submitted with its reply brief a contract/bill of lading Ms. Swenson allegedly signed with Real Movers, the contract/bill of lading is not referenced in the Amended Complaint and Plaintiffs have not stipulated to its authenticity. The Court thus may not consider it in connection with the Real Movers Motion. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”); Gutierrez, 841 F.3d at 902 (finding that “a party waives issues and arguments raised for the first time in a reply brief” (quotation omitted)); M.D. Mark, Inc., 565 F.3d at 768 n.7 (10th Cir. 2009) (“[T]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.”).
18 Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge’s proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo [*39] review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge’s proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge’s order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
