United States District Court, D. Colorado.

Audrey ZIERKE, Plaintiff,

v.

AMERICAN VAN LINES, INC. And Next Stop Moving and Storage, Defendants.

Civil Action No. 23-cv-00475-DDD-JPO

Signed February 16, 2024

Attorneys and Law Firms

Carissa V. Sears, The Sears Law Office, LLC, Denver, CO, for Plaintiff.

Emileigh S. Hubbard, Vic Houston Henry, Henry Oddo Austin & Fletcher PC, Denver, CO, for Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge James P. O’Hara

*1 This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Original Complaint (the “Motion”) [#9]. The Motion has been referred to this Court. [#16; #23] The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED and that Plaintiff’s Complaint be DISMISSED WITHOUT PREJUDICE.

I. BACKGROUND¹

Plaintiff hired Defendant American Van Lines, Inc. (“American”) for her move from California to Colorado. [#6 at ¶ 21] American provided a pick-up window for the shipment of December 22 through December 24, 2022, with a delivery window of December 24, 2022 through January 3, 2023. [Id. at ¶ 22] American assured Plaintiff that they would provide a firm pick up date “a few days in advance.” [Id. at ¶¶ 22-23] When Plaintiff had not heard anything by December 22, she contacted American and was told they would call back the next day. [Id. at ¶ 25] On December 23, American called Plaintiff and informed her that they would not be picking up Plaintiff’s shipment, but would be sending their “sister company”—Defendant Next Stop Moving and Storage (“Next Stop”)—the next day. [Id. at ¶ 26]

*2 When Next Stop arrived, Plaintiff had to sign “new paperwork” that “doubl[ed] the price.”² [Id. at ¶ 27] Next Stop assured Plaintiff numerous times that the price would return to the original quote “once [American] had the property.” [Id.] When Plaintiff later reviewed the “new paperwork” more completely, she learned that many of the listed items were not items that she owned or possessed, but were fake entries. [Id. at ¶ 28]

Plaintiff did not receive her shipment by January 3, 2023—the end of the delivery window provided by American. [Id. at ¶ 29] Plaintiff’s partner contacted American on January 6, and was told that American did not know where Plaintiff’s shipment was. [Id. at ¶ 30] It “eventually became clear” to Plaintiff that American never picked up, received, transported, or otherwise handled Plaintiff’s shipment in any way. [Id. at ¶ 31] Next Stop refuses to deliver the shipment to Plaintiff. [Id. at ¶ 32]

Plaintiff, proceeding pro se,³ initiated this action against American and Next Stop on January 27, 2023 in Colorado state court. [#6] Plaintiff’s Complaint brings six claims asserted against both Defendants: Violation of the Colorado Consumer Protection Act (“CCPA”) [id. at ¶¶ 36-41]; Conspiracy to violate the Colorado Organized Crime Control Act (“COCCA”) [id. at ¶¶ 42-46]; Fraudulent Misrepresentation in Inducement to Contract [id. at ¶¶ 47-53]; Breach of Contract [id. at ¶¶ 54-60]; Unjust Enrichment [id. at ¶¶ 61-65]; and Breach of the Implied Covenant of Good Faith and Fair Dealing [id. at ¶¶ 66-70]. Defendants removed the matter on February 21, 2023 [#1], and filed the Motion to Dismiss on February 27, 2023 [#9]. Plaintiff has responded [#21], and Defendants have replied [#22].

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 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 (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 (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

*3 Defendants argue that Plaintiff’s claims, which all arise under state law, are preempted by the Carmack Amendment to the Interstate Commerce Act. [#9 at 7-11] The Carmack Amendment 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). “The Courts of Appeals have … unanimously held that the Carmack Amendment preempts all state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments.” Certain Underwriters at Int. at Lloyds of London v. United Parcel Serv. of Am., Inc., 762 F.3d 332, 336 (3d Cir. 2014) (quotation omitted). “Courts of Appeals from the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have consistently held that the Carmack Amendment is the ‘exclusive cause of action for interstate-shipping contract [and tort] claims alleging loss or damage to property.’ ” Id. (quoting Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 688-90 (9th Cir. 2007)); see also 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”).

As an initial matter, Plaintiff briefly argues that “[b]ased on the facts … pleaded in [the] Complaint, it is unclear whether American was acting as a transportation broker or a carrier.” [#21 at 5] Carmack Amendment liability attaches to carriers, but not brokers. See, e.g., Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 285 (3d Cir. 2019) (“Under the Carmack Amendment …, a carrier is liable for damages incurred during a shipment of goods, whereas a broker … is not liable.”); 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”); Swenson v. All. Moving & Storage LLC, No. 21-CV-01968-CMA-STV, 2022 WL 1508506, at *6 (D. Colo. Apr. 26, 2022) (“Courts … have held that Carmack Amendment liability does not attach to brokers”), report and recommendation adopted, No. 21-CV-01968-CMA-STV, 2022 WL 1500778 (D. Colo. May 12, 2022); Delta Stone Prod. v. Xpertfreight, 304 F. Supp. 3d 1119, 1127 (D. Utah 2018) (“Because Carmack Amendment liability applies only to carriers, and since brokers are not carriers, brokers … are not liable for damage to property under the Carmack Amendment.” (collecting cases)). A “carrier” is defined as a “motor carrier, a water carrier, and a freight forwarder.” 49 U.S.C. § 13102(3). 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).

“[T]he key distinction [between a carrier and broker] is whether the disputed party accepted legal responsibility to transport the shipment.” Chillz Vending, LLC v. Greenwood Motor Lines, Inc., 23-cv-00065-PK, 2023 WL 7135152, at *3 (D. Utah Oct. 30, 2023) (quoting Essex Ins. Co., 885 F.3d at 1301); Swenson, 2022 WL 1508506, at *7. “[T]he 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.” Chillz Vending, 2023 WL 7135152, at *3 (quoting Essex Ins. Co., 885 F.3d at 1302)); see also Ensco, Inc. v. Weicker Transfer & Storage Co., 689 F.2d 921, 925 (10th Cir. 1982) (finding under a previous version of the statute that a “carrier’s status as a common carrier [under the Carmack Amendment] is determined … by reference to what it holds itself out to be.”). “If 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; see also id. at 286 (“[T]he definition of ‘carrier’ encompasses entities that perform services other than physical transportation.”).

*4 Here, Plaintiff plainly and singularly alleges that American held itself out as a carrier and accepted responsibility for ensuring the delivery of Plaintiff’s goods. According to the Complaint, American is a “[m]oving company” that assured its customers that it provided “accurate inventory of all items being moved” and “Dependable Long Distance Moving Services.” [#6 at ¶¶ 12, 17] Plaintiff “hired [American] for her move from California to Colorado,” and American “provided a pick up window for [Plaintiff’s] shipment.” [Id. at ¶¶ 21-22] Even when a different company arrived, Plaintiff was told that American would nevertheless receive the property at a later point. [Id. at ¶ 27] When Plaintiff’s shipment did not arrive on time, her partner contacted American. [Id. at ¶ 30] Plaintiff alleges that both Defendants are “holding Plaintiff’s cherished possessions hostage and demanding increased fees,” and that they have both “threatened to immediately commence proceedings to auction all of Plaintiff’s personal possessions.” [Id. at 1] Based on these allegations, Plaintiff brings the same claims against both American and Next Stop, with no differentiation between the two. [Id. at ¶¶ 36-70 (asserting claims against “Defendants,” or, occasionally, “Defendant” without identifying either American or Next Stop)] Indeed, Plaintiff’s theory appears to be that Next Stop is simply American “in the guise of a second alter ego company.” [Id. at ¶ 12] In sum, Plaintiff does not assert any claims against American as a broker, but only as a carrier.

The Court recognizes that the distinction between a “carrier” and a “broker” will often be a “case-specific” and fact intensive analysis that is “not appropriate for resolution on a motion to dismiss.” See Swenson, 2022 WL 1508506, at *7 (citing Essex Ins. Co., 885 F.3d at 1302). To clarify, the Court makes no finding as to American’s actual status as a carrier or as a broker in its dealings with Plaintiff. The Court simply finds that, in order to consider any claims against a defendant as a broker, a complaint must actually allege that the defendant is a broker and assert claims against that defendant as a broker. See Delta Stone Prod., 304 F. Supp. 3d at 1123, 1127 (finding that a plaintiff’s complaint only asserted claims against a defendant as a carrier, holding that the plaintiff’s breach of contract claim against that defendant was therefore preempted by the Carmack Amendment, and granting summary judgment to that defendant on the ground that the defendant was in fact a broker and the Carmack Amendment did not apply to it). Here, Plaintiff’s Complaint makes no allegation that American was a broker and asserts no claims against it as such,⁴ and any factual dispute regarding American’s actual status does not prevent the Carmack Amendment from preempting Plaintiff’s claims against American as a carrier.

Plaintiff also argues that “the Carmack Amendment’s preemption provisions do not apply to routine breach of contract claims,” and therefore her “contract claims” (Claims 4-6) are not preempted. [#21 at 5 (quotation omitted)] This is not the law.⁵ See, e.g., United Parcel Serv. of Am., Inc., 762 F.3d at 336 (“[S]tate law breach of contract and negligence claims against a carrier for loss of or damage to goods are preempted [by the Carmack Amendment].”) Hall, 476 F.3d at 688 (“[T]he Carmack Amendment completely preempts a contract claim alleging loss or damage to property.”); Sec. USA Servs., Inc. v. United Parcel Serv., Inc., 371 F. Supp. 3d 966, 971 (D.N.M. 2019) (“The Tenth Circuit and nine other federal appellate courts have ‘consistently held that the Carmack Amendment is the exclusive cause of action for interstate-shipping contract [and tort] claims alleging loss or damage to property.’ ” (quoting United Parcel Serv. of Am., Inc., 762 F.3d at 336)); Delta Stone Prod., 304 F. Supp. 3d at 1123 (“[The Carmack Amendment’s] broad preemption covers not only common law negligence claims, but also claims for breach of contract.” (quotation omitted)). Plaintiff’s contract claims—asserted against both Defendants as carriers—are therefore preempted by the Carmack Amendment.

*5 Plaintiff also makes a brief allusion to the idea that her claims alleging “intentional torts preceding shipment” may not be preempted by the Carmack Amendment. [#21 at 6; see also id. at 1] Plaintiff’s argument on this point is undeveloped, besides to simply point to a lack of authority from the Tenth Circuit on this issue, and is arguably waived. [See id. at 1, 6]; see also Crystal S. v. Kijakazi, No. 20-2425-JWL, 2021 WL 3089216, at *3 (D. Kan. July 22, 2021) (“Plaintiff’s failure to develop [an] argument has waived it.” (collecting cases)). In any event, the Court determines that, under binding Tenth Circuit precedent and pursuant to persuasive authority from other courts, Plaintiff’s claims seeking recovery under the Colorado Consumer Protection Act, under the Colorado Organized Crime Control Act, and for fraudulent misrepresentation in the inducement of a contract are preempted by the Carmack Amendment.

In A.T. Clayton & Co. v. Missouri-Kansas-Texas R. Co., the Tenth Circuit considered whether the Carmack Amendment preempted the application of an Oklahoma statute that provided attorney fees in actions brought for negligent or willful damage to property. 901 F.2d 833 (10th Cir. 1990). The Tenth Circuit explained that, in determining whether the statute was preempted, “the focus is on whether the state statute substantively enlarges the carrier’s responsibility for the loss.” Id. at 835. The Oklahoma statute at issue “simply provide[d] an incidental compensatory allowance for the expense of employing an attorney,” and therefore was “incidental to” the overall purpose of the Carmack Amendment. Id. In contrast, if a statute or state law provides “an alternative avenue of recovery” or “an additional remedy” against a carrier for damage or loss to shipped goods, then such claims are preempted. See id. at 834-35. As recently explained by a District Court in this Circuit, “the analytic focus is on the effect the state law claim has on the scope of the carrier’s liability for property that has been lost or damaged during an interstate shipment.” Shemes v. U.S. Moving Serv. LLC, No. 23-cv-02084-HLT-TJJ, 2023 WL 6390524, at *6 (D. Kan. Oct. 2, 2023).

Courts in this Circuit have applied this principle to hold that fraud and consumer protection claims brought against carriers are preempted when they seek to recover for lost or damaged goods. See id.; Pickett v. Graebel Kansas City Movers Inc., No. 17-2021-JAR-JPO, 2017 WL 2264451, at *3 (D. Kan. May 24, 2017) (finding that a claim under the Kansas Consumer Protection Act seeking relief against a carrier on account of missing and damaged goods was preempted by the Carmack Amendment because such a claim would “provide[ ] an alternative avenue of recovery for goods that were lost or damaged in interstate commerce”); Suarez v. United Van Lines, Inc., 791 F. Supp. 815, 817 (D. Colo. 1992) (finding that a plaintiff’s deceptive trade practices and intentional or negligent misrepresentation claims against a carrier were preempted and explaining that “the purposes of the Carmack Amendment and the [Colorado] Deceptive Trade Practices Act are in conflict where deceptive trade remedies provide for more than actual loss” (citing A.T. Clayton, 901 F.2d at 835)). Courts outside of this Circuit have come to the same conclusion. See, e.g., Smith v. United Parcel Serv., 296 F.3d 1244, 1247 (11th Cir. 2002) (finding that the Carmack Amendment preempted the plaintiffs’ fraud claims because the Carmack Amendment “embraces all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation” (quotation omitted) (collecting cases)); Hayes v. Stevens Van Lines, Inc., No. 14-cv-982-O, 2015 WL 11023794, at *2-3 (N.D. Tex. Jan. 27, 2015) (finding that the Carmack Amendment preempted the plaintiffs’ claims alleging that a carrier’s pre-contract misrepresentations fraudulently induced the plaintiffs to enter into an agreement because the claims “involve damages to goods arising from the interstate transportation of those goods by a common carrier”); Visram v. Darryl Flood Warehouse & Movers, Inc., No. CIV.A. H-05-0469, 2006 WL 305802, at *1-2 (S.D. Tex. Feb. 8, 2006) (finding that the Carmack Amendment preempted the plaintiffs’ fraudulent inducement and intentional misrepresentation claims arising out of the carrier’s pre-contract representations because the claims pertained to the plaintiffs’ agreement to ship goods in interstate commerce (collecting cases)).

*6 Shemes is instructive. There, as here, the plaintiffs alleged that they had a moving agreement with one company, but at the last minute were informed that a second company would be handling the move. Shemes, 2023 WL 6390524, at *1-2. The second company then demanded additional payment before it would load the plaintiffs’ items. Id. at *2. The plaintiffs made the additional payment, as well as a further “last minute” payment demanded before delivery. Id. The plaintiffs then discovered that a substantial amount of their goods had been damaged or lost. Id. The plaintiffs sued, asserting various state law claims—including fraud and consumer protection claims. Id. at *2, 6. The court determined that these claims asserted against the carrier were preempted by the Carmack Amendment. Id. at *6 (collecting cases). This was because the fraud and consumer protection claims were “directed at whether [the carrier] ultimately provided transportation services consistent with its representations, and the relief [the plaintiffs] seek is tied directly to property they allege was either lost or damaged in connection with the move.” Id. The court reached this conclusion despite the plaintiffs’ argument that the agreement between the plaintiffs and the carrier was “secured fraudulently and under duress,” indicating that “neither situation undermines the preemptive effect of the Carmack Amendment on these claims.” Id. at *6; see also id. at *6 n.12 (further explaining that “theories of recovery pertaining to how the agreement to ship was entered into … all relate to the contract of shipment” (quotation omitted)).

The same analysis applies here. As in Shemes, Plaintiff’s claims are all “directed at whether [the Defendants] ultimately provided transportation services consistent with [their] representations.” Id. at *6; [see #6 at ¶¶ 19-20 (describing the Defendants’ “deceptive business practices” as “baiting customers with low quotes to get deposits, forcing customers to use their selected third-party subcontractors, multiplying the costs on arrival with customers under duress, holding possessions hostage for increased fees, and not compensating for broken and missing items”) The relief that Plaintiff seeks is similarly “tied directly to property [she] allege[s] was … lost … in connection with the move.” Shemes, 2023 WL 6390524, at *6; [see #6 at ¶ 32 (describing Plaintiff’s injury as the “depriv[ation] of the use of essentially all of her belongings”)] The Carmack Amendment guarantees that a carrier’s liability for lost or damaged goods is limited to actual loss or injury to the transported property. Suarez, 791 F. Supp. at 816. The fact that some of the allegedly wrongful conduct occurred prior to the shipment of the goods does not “undermine[ ] the preemptive effect of the Carmack Amendment on these claims.” Shemes, 2023 WL 6390524, at *6 & n.12. Accordingly, the Court finds that all of Plaintiff’s claims, as alleged, are preempted by the Carmack Amendment and should be dismissed.

Defendants also argue that Plaintiff’s claims against Next Stop should be dismissed because Next Stop was simply the agent of its disclosed principal, American. [#9 at 3-7] Defendants argue that, under both Colorado and Federal law, American is responsible for Next Stop’s acts and Next Stop cannot have liability. [Id.] This argument relies heavily on exhibits attached to the Motion, which, as explained above, the Court declines to consider. See supra note 1. Moreover, the Court has already found that Plaintiff’s claims—all brought under state law—should be dismissed because they are preempted by the Carmack Amendment. The Complaint does not bring any claims under Federal law. [See generally #6] The Court therefore declines to consider Next Stop’s theoretical liability under an unpled claim.

In sum, the Court finds that the Carmack Amendment preempts all of Plaintiff’s claims as alleged. The Court therefore respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff’s claims on preemption grounds, and that the claims in Plaintiff’s Complaint [#6] be DISMISSED WITHOUT PREJUDICE.⁶ See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).

IV. CONCLUSION

*7 For the foregoing reasons, the Court respectfully RECOMMENDS that:

(1) Defendants’ Motion to Dismiss Plaintiff’s Original Complaint [#9] be GRANTED to the extent that it seeks dismissal of Plaintiff’s claims on preemption grounds;

(2) Plaintiff’s Complaint [#6] be DISMISSED WITHOUT PREJUDICE; and

(3) If this Recommendation is adopted, Plaintiff be given 21 days to file an Amended Complaint that addresses the deficiencies identified by this Recommendation.⁷

All Citations

Footnotes

1. The facts are drawn from the allegations in Plaintiff’s Complaint (the “Complaint”) [#6], which must be taken as true when considering the Motion. 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)). The Court does not consider any additional factual allegations raised by Plaintiff her response brief. See In re Qwest Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (disregarding additional factual claims asserted in briefing on a motion to dismiss, explaining that “plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss”). Defendants also attach exhibits to the Motion for the Court’s consideration. [#9-1; #9-2] The Court declines to consider the contents of Defendants’ exhibits. “As a general rule, the only facts [a court] consider[s] in assessing the sufficiency of a complaint are those alleged in the complaint itself.” Emps.’ Ret. Sys. v. Williams Cos., Inc., 889 F.3d 1153, 1158 (10th Cir. 2018) (citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)). However, a court “may consider ‘documents that the complaint incorporates by reference,’ ‘documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity,’ and ‘matters of which a court may take judicial notice.’ ” Id. (quoting Gee, 627 F.3d at 1186). Here, the Complaint makes two brief references to “new paperwork” provided to Plaintiff, but does not refer to any other document. [#6 at ¶¶ 27-28] The references to the “new paperwork” contain few details. [Id.] These vague references do not incorporate the specific documents attached by Defendants, and the Court is not convinced that the Complaint’s passing references make the “new paperwork” central to any of Plaintiff’s claims—let alone that the documents attached as exhibits are actually the “new paperwork” that the Complaint briefly refers to.  
2. The Complaint references an “original quote,” which the Court assumes contained a lower price provided by American to Plaintiff at some point prior to December 23, 2022. [See #6 at ¶ 27]  
3. The Complaint notes that Plaintiff received “[d]rafting assistance” from Attorney Carissa V. Sears. [#6 at 1 n.1] Attorney Sears has since entered her appearance on Plaintiff’s behalf. [#18]  
4. To be sure, Plaintiff does allege that American did not “pick up, receive[ ], transport[ ], or otherwise handle[ ]” her shipment. [#6 at ¶ 31] But what matters for this inquiry is legal responsibility, not physical transportation. Tryg Ins., 767 F. App’x at 286-87; Chillz Vending, 2023 WL 7135152, at *3. Accordingly, Plaintiff’s allegation that American did not conduct the physical transportation of Plaintiff’s goods does not suffice to state a claim against American as a broker—especially when Plaintiff’s claims are asserted without differentiation against “the Defendants” collectively.  
5. Plaintiff’s only support for the proposition that contract claims fall outside of the scope of Carmack Amendment preemption is a mis-citation to Swenson. [#21 at 1, 5] In Swenson, the Court was explicitly considering preemption by Section 14501(c)(1) of the Federal Aviation Administration Authorization Act of 1994 (the “FAAAA”)—not preemption by the Carmack Amendment as Plaintiff asserts. Swenson, 2022 WL 1508506, at *21 (explaining that “the FAAAA’s preemption provisions do not apply to ‘routine breach-of-contract claims’ ” (emphasis added)).  
6. Defendants request dismissal with prejudice. [See #9 at 1] Plaintiff, who filed her Complaint pro se, is now represented by counsel. [#18] The Court finds it especially appropriate to permit the filing of an amended complaint under such circumstances, particularly when both parties appear to agree that the allegations in Plaintiff’s Complaint may give rise to a viable claim under the Carmack Amendment. [See #9 at 2; #21 at 7] And, as discussed above, this Recommendation does not address the viability of any claims asserted against American as a broker, because no such claims were brought in the Complaint.  
7. 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 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).  

End of Document  

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