Cargo - Central Analysis Bureau

Tobias v. Smith

United States District Court for the District of Massachusetts

April 15, 2022, Decided; April 15, 2022, Filed

Civil Action No. 21-11736-FDS

Reporter

2022 U.S. Dist. LEXIS 69745 *; 2022 WL 1129376

THEODORE TOBIAS, Plaintiff, v. FREDERICK SMITH, Defendant.

Core Terms

carrier, package, motion to dismiss, motion to amend, personal jurisdiction, preemption, futility, general jurisdiction, preempted

Counsel: [*1] Theodore Tobias, Plaintiff, Pro se, Quincy, MA.

For Frederick Smith, Defendant: Daniel D. Johnson, LEAD ATTORNEY, Hinckley Allen & Snyder, LLP, Boston, MA; Ryan M. Gainor, LEAD ATTORNEY, PRO HAC VICE, Hinckley, Allen & Snyder OOP, Providence, RI.

Judges: F. Dennis Saylor IV, Chief United States District Judge.

Opinion by: F. Dennis Saylor IV

Opinion

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S MOTIONS TO AMEND

SAYLOR, C.J.

This is a case about a lost FedEx package. Pro se plaintiff Theodore Tobias has sued Frederick Smith, founder and chief executive officer of FedEx Corporation, alleging that FedEx Ground negligently lost or stole a package sent to his house. The complaint seeks $200 billion in damages and appears to assert claims for breach of contract, negligence, larceny, theft, and violations of Mass. Gen. Laws ch. 93A.

Smith has moved to dismiss the complaint on different grounds, including lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), failure to state a claim under Fed. R. Civ. P. 12(b)(6), and preemption by the Carmack Amendment, 49 U.S.C. § 14706 et seq. Tobias has subsequently filed several motions to amend the complaint. For the following reasons, the motion to dismiss will be granted and the motions to amend will be denied.

I. Background

A. Factual Background

The following facts [*2] are set forth as alleged in the complaint.

Theodore Tobias is a resident of Quincy, Massachusetts. (Compl. at 3).¹ Frederick Smith is the chief executive officer of FedEx Corporation and a resident of Memphis, Tennessee. (Id.).²

FedEx allegedly informed Tobias that a package was shipped to him on February 22, 2018, at his address of 79 Berrios Hill Road in Windsor, Connecticut. (Id. at 4, 7).³ That package was apparently never delivered. (Id. at 7). Tobias subsequently filed a claim with FedEx on February 26. (Id.). According to the claim form, the lost package contained “original writings” and a “McDonalds Prototype (modified).” (Id.). The claim form included a declared value of $1,000 and a merchandise value of $200 billion. (Id.).⁴ He wrote in the “customer remarks” section that a “Driver FedEx worker at 11:44 a.m. ran away, pulled off (put this receipt on my door).” (Id.).

On March 9, Tobias called the police about that incident. (Id. at 4). He informed them that on February 26 at 11:44 a.m., a FedEx driver ran away with his package and put a FedEx Ground receipt on his door. (Id. at 4, 8). He told the police that he believed that the FedEx driver stole his package. (Id. at 5, 8).

On March [*3] 13, he reported the incident again by filing a claim with the Cargo Claims Department at FedEx. (Id. at 4). He contends that despite FedEx’s instructions stating that “most claims will normally be resolved in 5 to 7 business days,” he has not received a response from FedEx’s Cargo Claims Department or Smith in more than three years. (Id. at 4, 12).⁵

B. Procedural Background

This case was originally filed in Massachusetts state court. On October 25, 2021, Smith removed the matter to this Court.

The complaint appears to allege several claims, including breach of contract (arising from the purported breach of FedEx’s money-back guarantee), negligence, larceny, theft, and violations of Mass. Gen. Laws ch. 93A. (Compl. at 5-6).

II. Motion to Dismiss

A. Personal Jurisdiction

Defendant first contends that the complaint must be dismissed under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction.

A plaintiff bears the burden of establishing that the court has personal jurisdiction [*4] over a defendant. See Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(2), the court may use several standards to assess whether a plaintiff has carried that burden: the “prima facie” standard, the “preponderance of the evidence” standard, or the “likelihood” standard. See id. at 50-51, 51 n.5; Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145-46 (1st Cir. 1995). Where, as here, the court is called to make that assessment without first holding an evidentiary hearing, the prima facie standard is applied. See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

Under that standard, the court takes the plaintiff’s “properly documented evidentiary proffers as true and construe[s] them in the light most favorable to [the plaintiff’s] jurisdictional claim.” A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (citing Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008)). The plaintiff may not “rely on unsupported allegations in its pleadings.” Id. (quoting Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)) (internal alteration omitted). Instead, the plaintiff “must put forward ‘evidence of specific facts’ to demonstrate that jurisdiction exists.” Id. (quoting Foster-Miller, 46 F.3d at 145). Facts offered by the defendant “become part of the mix only to the extent that they are uncontradicted.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009) (quoting Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007)).

The exercise of personal jurisdiction over a defendant must be authorized by statute and consistent with the due-process requirements of the United States Constitution. See A Corp., 812 F.3d at 58 (citing Daynard, 290 F.3d at 52). Consistent with those [*5] requirements, a court may exercise either general or specific jurisdiction. See Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 35 (1st Cir. 2016).

Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff’s claims and a defendant’s forum-based activities. General jurisdiction exists when the litigation is not directly founded on the defendant’s forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state.

Swiss Am. Bank, 274 F.3d at 618 (internal citations and quotation marks omitted).

1. General Jurisdiction

As to general jurisdiction, the “paradigm forum” for an individual is his domicile. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011). Here, the complaint alleges that defendant lives in Memphis, Tennessee. (Compl. at 3). It does not otherwise allege any “continuous and systematic activity” by defendant in Massachusetts such that the exercise of general jurisdiction over him would comport with federal due-process demands. Accordingly, the Court may not exercise general jurisdiction over defendant.

2. Specific Jurisdiction

As to specific jurisdiction, due process requires that a plaintiff establish three conditions:

First, the claim underlying the litigation must directly arise out of, or relate to, the defendant’s forum-state [*6] activities. Second, the defendant’s in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state’s laws and making the defendant’s involuntary presence before the state’s courts foreseeable. Third, the exercise of jurisdiction must be reasonable.

Copia Commc’ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016) (quoting Phillips, 530 F.3d at 27) (internal alteration omitted).

First, plaintiff’s claims must arise out of, or relate to, defendant’s forum-state activities. See id. Here, the complaint does not identify that defendant engaged in any activities or contacts in Massachusetts at all. Plaintiff’s claims all arise out of, or relate to, events that took place in Connecticut with the missing or stolen package. Defendant did not participate in those events in any way. Therefore, plaintiff has failed to show that his claims arise out of, or relate to, defendant’s activities in Massachusetts.

Because plaintiff has not satisfied the relatedness prong, the Court need not consider whether defendant purposely availed himself of the forum state or whether the exercise of specific jurisdiction would be reasonable. See Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 288 (1st Cir. 1999) (“An affirmative finding on each of the three [*7] elements of the test is required to support a finding of specific jurisdiction.”).⁶

Accordingly, the exercise of personal jurisdiction over defendant would not comport with due process. The Court will therefore grant defendant’s motion to dismiss.⁷

III. Motions to Amend

Plaintiff has filed two motions that, in substance, seek leave to amend the complaint. The first is a “motion to change captions,” in which plaintiff seeks to name FedEx Corporation, FedEx Ground Corporation, and Federal Express Corporation as defendants.⁸ The second is a motion to amend. The proposed amended complaints appear to add the corporate defendants as well as attach additional documents.⁹

Under Rule 15(a), a party may amend a pleading without leave of court in certain relatively narrow circumstances. Fed. R. Civ. P. 15(a). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Nonetheless, amendments may be denied on the basis of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing [*8] party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). The court does not have to “mindlessly grant every request for leave to amend. When a proffered amendment . . . would be an exercise in futility, or otherwise would serve no useful purpose, the district court need not allow it.” Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006).

“‘Futility’ means that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). The court must review a proposed amended complaint for futility under the “standard [that] applies to motions to dismiss under Fed. R. Civ. P. 12(b)(6).” Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).

A. Preemption by Carmack Amendment

Defendant contends that allowing plaintiff to amend his complaint would be futile because his claims are preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq.

The Court will consider that argument under the standard applicable to a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011) (applying Rule 12(b)(6) standard when considering motion to dismiss on grounds of preemption); Burrill v. XPO Logistics Freight, Inc., 2019 U.S. Dist. LEXIS 200402, 2019 WL 6134391, at *1 (D.N.H. Nov. 19, 2019) (considering preemption under Carmack Amendment pursuant to Rule 12(b)(6)).

The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, states in relevant part:

A carrier providing transportation or service . . . shall issue a receipt or bill of lading for property it receives for transportation under this part. [*9] That carrier and any other carrier that delivers the property and is providing transportation or service . . . are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States . . . .

“[T]he principal purpose of the Amendment was to achieve national uniformity in the liability assigned to carriers.” Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir. 1997). “The preemptive effect of the Carmack Amendment over state law governing damages for the loss or damage of goods has been reiterated by the Supreme Court in many cases and is well established.” Id. “Preempted state law claims, therefore, include all liability stemming from damage or loss of goods, liability stemming from the claims process, and liability related to the payment of claims.” Id. at 506.

There are cases suggesting that FedEx, as an air carrier, is not subject to the Carmack Amendment. See Kemper Ins. Co. v. Fed. Exp. Corp., 252 F.3d 509, 514 n.5 (1st Cir. 2001) (“We note, however, that there is significant precedent indicating that the Carmack Amendment simply does not apply to an air carrier such as FedEx”). Here, however, it would appear [*10] that plaintiff’s package was processed and allegedly stolen by FedEx Ground Package System, Inc., because the complaint asserts that plaintiff received a FedEx Ground door tag. The Eleventh Circuit has applied the Carmack Amendment to FedEx Ground Package System, Inc., as a proper “carrier.” See Skanes v. FedEx, 734 Fed. App’x 671 (11th Cir. 2018) (per curiam); see also Soto v. FedEx Exp. Corp., 2009 U.S. Dist. LEXIS 61591, 2009 WL 2146600, at *1 (S.D.N.Y. July 17, 2009) (“Plaintiff’s claims as to the third letter, which he sent by FedEx Ground, are governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706(c)(1)(A), which permits carriers to limit their liability for loss of goods or other damages.”); Crypto Crane, LLC v. FedEx Ground Package Sys., Inc., 2018 U.S. Dist. LEXIS 223475, 2018 WL 6816104, at *2 (E.D. Mich. Nov. 7, 2018) (asserting that FedEx Ground Package System, Inc. was common carrier of goods under Carmack Amendment).

The proposed amended complaints assert state-law claims for breach of contract, negligence, larceny, theft, and violations of Mass. Gen. Laws ch. 93A. Those claims all stem from the loss of goods and the claims process, and the sole injury asserted is the loss of property.¹⁰ Such claims would be preempted by the Carmack Amendment. See Rini, 104 F.3d at 506-07 (holding that Carmack Amendment preempted state-law claims of negligence, misrepresentation, and Chapter 93A); Burrill, 2019 U.S. Dist. LEXIS 200402, 2019 WL 6134391, at *3-4 (granting motion to dismiss on preemption grounds for consumer-protection claim); Noble v. Wheaton Van Lines, 2010 U.S. Dist. LEXIS 84108, 2010 WL 3245421, at *6-7 (D. Mass. Aug. 17, 2010) (finding breach-of-contract claim preempted by Carmack Amendment).

The requested amendments to the complaint would [*11] therefore be futile, and will be denied. The Court will therefore deny plaintiff’s motions to amend.

IV. Conclusion

For the foregoing reasons, defendant’s motion to dismiss (Docket No. 7) is GRANTED and plaintiff’s motion to change captions (Docket No. 9) and motion to amend the complaint (Docket No. 12) are DENIED.

So Ordered.

Dated: April 15, 2022

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Chief Judge, United States District Court

End of Document

¹The allegations in the complaint are not labeled consistently, and therefore the Court will cite to the relevant ECF page numbers for clarity.

²The complaint does not distinguish between FedEx Corporation, a holding company, and FedEx Ground, the entity that allegedly handled Tobias’s package.

³It is unclear from the complaint whether Tobias has separate addresses in Quincy, Massachusetts, and Windsor, Connecticut.

⁴To support the value claimed for those “original writings,” he has attached a letter from a representative at Apple, Inc., stating that Apple was returning materials that Tobias sent because it was Apple’s policy not to accept “outside submissions of product ideas for any purpose.” (Compl. at 5, 14).

⁵Tobias has also attached several photographs to the complaint, the relevance of which is unclear.

⁶In some circumstances, the First Circuit’s “sliding scale” approach to specific jurisdiction may allow a plaintiff to overcome a weaker showing of relatedness and purposefulness with a stronger showing of reasonableness. See Brown v. Dash, 2020 U.S. Dist. LEXIS 216442, 2020 WL 6806433, at *8 (D. Mass. Nov. 18, 2020) (citing Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 717 (1st Cir. 1996)). Here, however, plaintiff has failed to muster even a weak showing of relatedness.

⁷Because the exercise of personal jurisdiction over defendant would not satisfy due process, the Court need not consider whether personal jurisdiction is appropriate under the potentially “more restrictive” Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3. See A Corp., 812 F.3d at 59.

⁸Defendant contends that FedEx Ground Corporation is not a legal entity at all; the proper designation is apparently FedEx Ground Package System, Inc. (See Def. Opp’n Mot. Change Caption at 3, 7).

⁹Plaintiff also failed to comply with Local Rule 15.1, which requires that a “party moving to amend a pleading to add a new party shall serve, in the manner contemplated by Fed. R. Civ. P. 5(b), the motion to amend upon the proposed new party at least 14 days in advance of filing the motion, together with a separate document stating the date on which the motion will be filed. A motion to amend a pleading to add a new party shall be accompanied by a certificate stating that it has been served in advance on the new party as required by this rule.” “Compliance with local rules of procedure is mandatory, even for pro se parties.” Monahan v. Sabatis, 2014 U.S. Dist. LEXIS 198140, 2014 WL 12703711, at *2 (D. Mass. Dec. 16, 2014).

¹⁰The First Circuit has held that the Carmack Amendment does not preempt “state law claims for injuries that are separate and distinct from [ ] loss or damage” to goods, such as intentional infliction of emotional distress. See Rini, 104 F.3d at 506-07. However, that issue is not presented here.

Barker v. EAN Holdings LLC

Supreme Court of New York, New York County

February 4, 2022, Decided

INDEX NO. 159482/2018

Reporter

2022 N.Y. Misc. LEXIS 524 *; 2022 NY Slip Op 30365(U) **

[**1] GALE BARKER, NOAH SULLIVAN, Plaintiff, – v- EAN HOLDINGS LLC, MID BAY FORD LINCOLN/EAN HOLDINGS, ENTERPRISE LEASING COMPANY OF PHILADELPHIA, LLC, ELRAC LLC D/B/A ENTERPRISE RENT A CAR, ENTERPRISE HOLDINGS INC. D/B/A ENTERPRISE RENT-A-CAR, CARSON JACKSON, Defendant.

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Core Terms

license, negligent entrustment, driving, rented, restricted license, driver’s license, motor vehicle, restrictions, affirmation, deposition, verified, amend, unreasonable danger

Judges: [*1] HON. LISA S. HEADLEY, Justice.

Opinion by: LISA S. HEADLEY

Opinion

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 006) 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127

were read on this motion to/for AMEND CAPTION/PLEADINGS

Plaintiff Gale Barker (“plaintiff’) moves, pursuant to CPLR §3025, to amend the complaint and verified bill of particulars to plead allegations of negligent entrustment, which is denied for the reasons stated herein.

This personal injury action arises out of a motor vehicle accident that occurred on June 16, 2018 when the vehicle, operated by defendant Carson Jackson (“defendant Jackson”) and owned by the Enterprise defendants, was involved in a collision with the vehicle in which plaintiff was a passenger. The incident occurred near South Street and Pike Slip in New York, N.Y. The parties have since settled the claims brought by co-plaintiff Noah Sullivan. (See, NYSCEF Doc. No. 131).

Here, plaintiff moves separately to amend the complaint and the verified bill of particulars to allege a claim for negligent entrustment. Plaintiff argues that defendant Jackson possessed a “restricted” [*2] driver’s license at the time he rented the vehicle from the Enterprise defendants. In addition, plaintiff contends that the Enterprise defendants made no inquiry into the restriction or his driving record.

In support of the motion, plaintiff submitted defendant Jackson’s deposition testimony, the deposition testimony of defendants’ witness, Daniel Madden (Madden), and printouts pertaining to restricted licenses in New York and defendant Jackson’s driving record. Defendant Jackson testified at his deposition that he had a “restricted license” in June 2018 because of his child support payment arrears. (See, NYSCEF Doc No. 109, Stephen A. Strauss [Strauss] affirmation, exhibit E [Jackson tr] at 30-31). The term “restricted license” appeared across the top of defendant Jackson’s license (id. at 38). Further, defendant Jackson testified that the restrictions allowed him, “driving privileges only at certain times, and going to work, and essential things that you have to do (sic).” (id. at 24). Defendant Jackson also testified that when he rented the vehicle, the Enterprise employee never asked any questions about his license. (id. at 19).

[**2] The Enterprise defendants’ witness, Madden, testified [*3] that Enterprise requires a potential renter to have a valid driver’s license in order to rent its vehicles. ( See, NYSCEF Doc No. 110, Strauss affirmation, exhibit F [Madden tr] at 17). Madden testified that Enterprise would not “knowingly” rent a vehicle to a customer without a license or one with a suspended license. (id). Madden testified that when a customer presents an Enterprise employee with a restricted driver’s license, the employee is required to “ask what the restrictions are.” (id. at 18-19). If the restriction relates to “any type of interlock device with interlock restrictions,” then that is “the only time [Enterprise] we’re not allowed to rent that car to that individual.” (id).

In further support of the motion, plaintiff submits the printout from the New York State Department of Motor Vehicles website detailing the types of driving activities a driver with a restricted license may engage in, which include driving “to and from your place of employment,” “during the hours of your employment, if your occupation requires the operation of a motor vehicle,” and “to and from a medical appointment which is part of a necessary medical treatment for you or a member of your household. [*4] (See, NYSCEF Doc No. 112, Straus affirmation, exhibit H at 1). Plaintiff also submits that an abstract of defendant Jackson’s driving history, which revealed that his license has been suspended or revoked more than once, although many of the suspensions occurred after the date of the subject accident. (See, NYSCEF Doc No. 113, Strauss affirmation, exhibit I). (Emphasis added). Plaintiff contends that defendant Jackson’s license was suspended on Oct 12, 2017, which was eight months prior to the accident.

In opposition, the Enterprise defendants argue, inter alia, that the cause of action of negligent entrustment should not be added this case. The Enterprise defendants contend that co-defendant Jackson provided a facially valid and restricted driver’s license when he rented the vehicle with Enterprise. The Enterprise defendants argue that Enterprise was limited to verifying the facial validity of defendant Jackson’s license, and that Enterprise has no legal duty beyond verifying that defendant Jackson’s license was facially valid. In addition, the Enterprise defendants argue that there is no cognizable legal duty under an action for negligent entrustment for a rental vehicle. To further [*5] support their position, the Enterprise defendants submit defendant Jackson’s deposition testimony where he denies that his vehicle came into contact with plaintiff’s vehicle. (NYSCEF Doc No. 118, Joseph J. Karlya [Karlya] affirmation, exhibit A [Jackson tr] at 46). The Enterprise defendants also submit a copy of Jackson’s rental agreement with Enterprise. (NYSCEF Doc No. 119, Karlya affirmation, exhibit B).

Discussion

It is well settled that “[1]eave to amend a complaint should be freely given absent prejudice or surprise so long as the proposed claims are not palpably insufficient or devoid of merit.” Brummer v. Wey, 187 A.D.3d 566, 566, 135 N.Y.S.3d 4 (1st Dep’t 2020); Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580, 26 N.Y.S.3d 231, 46 N.E.3d 614 (2015). “To obtain leave, a plaintiff must submit evidentiary proof of the kind that would be admissible on a motion for summary judgment.” Velarde v. City of New York, 149 A.D.3d 457, 457, 51 N.Y.S.3d 73 (1st Dep’t 2017). The party opposing the motion bears the burden of demonstrating prejudice or surprise, or that the proposed amendment is devoid of merit. See, Lennon v. 56th & Park (NY) Owner, LLC, 199 A.D.3d 64, 71, 153 N.Y.S.3d 535 (2d Dep’t 2021); Peach Parking Corp. v. 346 W. 40th St., LLC, 42 A.D.3d 82, 86, 835 N.Y.S.2d 172 (1st Dep’t 2007) [stating that the party opposing the motion must establish that the facts alleged cannot support the amendment).

Relevant here is the Safe, Accountable, Flexible, Efficient Transportation Equity Act (the “Graves Amendment”) (49 USC §30106), which “prohibits imposition of vicarious liability on vehicle lessors for injuries [*6] resulting from the negligent use or operation of the leased vehicle.” Jones v. Bill, 10 N.Y.3d 550, 553, 890 N.E.2d 884, 860 N.Y.S.2d 769 (2008), cert dismissed sub nom. DCFS Trust v. Jones, 555 U.S. [**3] 1028, 129 S. Ct. 593, 172 L. Ed. 2d 451 (2008). Thus, the Graves Amendment shields parties engaged in the trade or business of renting, or leasing motor vehicles from being held vicariously liable “for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if — (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).” Villa-Capellan v. Mendoza, 135 A.D.3d 555, 556, 25 N.Y.S.3d 72 (1st Dep’t 2016) [internal quotation marks and citation omitted]. However, the Graves Amendment does not insulate a lessor from claims predicated upon its own negligence, such as failure to repair or maintain the vehicle. See, Alfaro v. Lavacca, 186 A.D.3d 1591, 1592, 129 N.Y.S.3d 846 (2d Dep’t 2020); Collazo v. MTA-New York City Tr., 74 A.D.3d 642, 643, 905 N.Y.S.2d 30 (1st Dep’t 2010).

In terms of negligent entrustment, “[a]n owner of a motor vehicle may be liable for negligent entrustment if it was negligent in entrusting it to a person it knew, or in exercise of ordinary care should have known, was not competent to operate it.” Kornfeld v. Chen Hua Zheng, 185 AD3d 420, 420, 127 N.Y.S.3d 452 (1st Dep’t 2020). To prevail on a claim for negligent entrustment, the plaintiff must show that the defendant had “some [*7] special knowledge concerning a characteristic or condition peculiar to the [person to whom a particular chattel is given], which renders [that person’s] use of the chattel unreasonably dangerous … or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous.” Byrne v. Collins, 77 A.D.3d 782, 784, 910 N.Y.S.2d 449 (2d Dep’t 2010), lv denied 17 N.Y.3d 702, 952 N.E.2d 1087, 929 N.Y.S.2d 92 (2011) [citations omitted] (emphasis added).

In the case at hand, the Enterprise defendants, in their opposition papers, have demonstrated that the proposed amendment lacks merit. Here, this court finds that plaintiff has not set forth a legal duty obligating defendants to do more than check for a facially valid license based on the plaintiff’s contentions that the Enterprise defendants breached a duty of care by failing to investigate the circumstances of Jackson’s restricted license. See, Byrne v. Collins, supra [reasoning that the plaintiff failed to raise a triable issue of fact as to “whether or not the appellants possessed special knowledge concerning a characteristic or condition peculiar to [the defendant] that rendered his use of the truck unreasonably dangerous,” where abstracts of the defendant’s driving record revealed he had a valid restricted license]; Sigaran v. ELRAC, Inc., 875 N.Y.S.2d 824, 22 Misc. 3d 1101[A], 2008 NY Slip Op 52569[U], *6-7 (Sup Ct, Bronx County 2008) [granting dismissal [*8] where the “[p]laintiffs failed to cite any legal authority that ELRAC was under an obligation to check Fernandez’s driver’s record beyond verifying that he had a valid driver’s license”]; Vedder v Cox, 859 N.Y.S.2d 900, 18 Misc. 3d 1142[A], 2008 NY Slip Op 50408[U], *6 [Sup Ct, Nassau County 2008] [granting dismissal where the defendant driver had a valid license that was not under suspension when he rented the vehicle, and the plaintiff failed to cite any legal authority to support the contention that defendants had a duty to investigate his driving record].

Furthermore, the plaintiff actually establishes that defendant Jackson possessed a valid driver’s license, albeit with restrictions, based on Jackson’s deposition testimony. To the extent plaintiff asserts that Enterprise employees failed to inquire as to what specific restrictions were imposed upon defendant Jackson, a violation of an internal policy does not constitute “actionable negligence.” See, Byrne v. Collins, supra at 785. Furthermore, the restrictions described by defendant Jackson at his deposition do not implicate an “interlock” restriction, which would warrant the Enterprise defendants to not issue the rental vehicle, based upon their policy. Further, the plaintiff points to no other evidence demonstrating that the Enterprise defendants were aware defendant [*9] Jackson was “incapable of operating a motor vehicle in a safe and careful manner.” See, Pinkerton v. Pinkerton, 2010 NY Slip Op 30453[U], *5 (Sup Ct, Queens County 2010) [rejecting [**4] the claim that a driver who had his license for only three to four years, and drove twice a week were indicators of his inexperience, or that he would drive in an unreasonably dangerous manner]. In the absence of a specific characteristic or condition peculiar to defendant Jackson that would have rendered his use of the vehicle unreasonably dangerous, the negligent entrustment cause of action lacks merit. See, Monette v. Trummer, 105 A.D.3d 1328, 1330, 964 N.Y.S.2d 345 (4th Dep’t 2013), aff’d 22 N.Y.3d 944, 999 N.E.2d 174, 976 N.Y.S.2d 696 (2013). Furthermore, this court finds that, although defendants have not demonstrated that have been prejudiced or caught by surprise of plaintiff pursuing this claim, plaintiff has failed to demonstrate the right to obtain leave and to amend the complaint in that plaintiff failed to submit evidentiary proof to warrant the negligent entrustment cause of action.

Accordingly, it is

ORDERED that the motion of plaintiff Gale Barker to amend the complaint and the verified bill of particulars to plead allegations of negligent entrustment is DENIED; and it is further

ORDERED that any relief sought not expressly addressed herein has nonetheless been considered; and it is further [*10]

ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendants with notice of entry.

This constitutes the Decision/Order of the Court.

2/4/2022

DATE

/s/ Lisa S. Headley

LISA S. HEADLEY, J.S.C.

End of Document