Ester Reta Montes de OCA vs. El Paso-Los Angeles Limousine Express Inc et al

Filing 51

AMENDED ORDER Re: PLAINTIFF'S MOTION TO REMAND 36 by Judge Ronald S.W. Lew: This Court therefore GRANTS Plaintiff's Motion to Remand Case to Superior Court 36. Defendants' pending Motion to Dismiss 12 is thus VACATED AS MOOT. Case Remanded to LASC, BC561249. MD JS-6. Case Terminated. (Amended as to clerical/typographical error pg 1, line 18 - correcting Plaintiff's name). (jre)

1 cc: Order, Letter transmittal and
2 docket sheet to LASC,
3 Case No. BC561249
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 ESTHER RETA MONTES DE OCA,
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Plaintiff,
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v.
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EL PASO-LOS ANGELES
LIMOUSINE EXPRESS, INC., et )
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al
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Defendants.
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___________________________

CV 14-9230 RSWL (MANx)

AMENDED

ORDER Re: PLAINTIFF’S
MOTION TO REMAND [36]

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18

Now before the Court is Plaintiff Esther Reta

19 Montes De Oca’s Motion to Remand Case to Superior Court
20 [36]. Having reviewed the papers submitted on this
21 issue, the Court hereby GRANTS Plaintiffs’ Motion.
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I. BACKGROUND
This Action for personal injuries was commenced on

24 October 21, 2014 in California Superior Court for the
25 County of Los Angeles.
26 Removal.

See Compl., Exh. 1 to Notice of

Plaintiff has alleged that Defendants’

27 negligent conduct caused him bodily injury.

See id.

28 Defendants then removed this Action to federal court,
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1 asserting a federal question under 28 U.S.C. § 1331.
2 See Notice of Removal.

Specifically, Defendants have

3 argued that the Interstate Commerce Commission
4 Termination Act (“ICCTA”), 49 U.S.C.A. § 14501(c)(1),
5 preempts state jurisdiction because claims for personal
6 injury “are a veiled attempt at regulating the
7 ‘services’ offered by a freight broker.”

Notice of

8 Removal ¶ 7.
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II. LEGAL STANDARD
Under 28 U.S.C. § 1331, the district court has

11 “original jurisdiction of all civil actions arising
12 under the Constitution, laws, or treaties of the United
13 States.” 28 U.S.C. § 1331. “If at any time before
14 final judgment it appears that the district court lacks
15 subject matter jurisdiction, the case shall be
16 remanded.” 28 U.S.C. § 1447(c). “Only state-court
17 actions that originally could have been filed in
18 federal court may be removed to federal court by the
19 defendant.” Caterpillar, Inc. v. Williams, 482 U.S.
20 386, 392 (1987). The “strong presumption against
21 removal jurisdiction means that the defendant always
22 has the burden of establishing that removal is proper.”
23 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)
24 (per curiam) (internal quotation marks omitted).
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III.

DISCUSSION

Once again, the Court has noted in multiple

27 opinions arising from the events that led to the
28 litigation against these Defendants, “[w]here a
2

1 plaintiff invokes traditional elements of tort law and
2 the issue of preemption arises, ‘the courts almost
3 uniformly have resolved against federal preemption.’”
4 Jimenez-Ruiz v. Spirit Airlines, Inc., 794 F. Supp. 2d
5 344, 348 (D.P.R. 2011) (quoting Dudley v. Bus. Exp.,
6 Inc., 882 F. Supp. 199, 206 (D.N.H. 1994)); see, e.g.,
7 Owens v. Anthony, No. 2-11-0033, 2011 WL 6056409, at *1
8 (M.D. Tenn. Dec. 6, 2011) (finding that personal injury
9 negligence claims are not preempted by the FAAAA); Gill
10 v. JetBlue Airways Corp., 836 F. Supp. 2d 33, 42 (D.
11 Mass. 2011) (state law negligence claim was not
12 preempted by ADA).

The Supreme Court has argued that

13 “is difficult to believe that Congress would, without
14 comment, remove all means of judicial recourse for
15 those injured by illegal conduct.”

Silkwood v.

16 Kerr-McGee Corp., 464 U.S. 238, 251 (1984).
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Defendants argue that notwithstanding the near-

18 universal refusal of the courts to find personal injury
19 actions preempted, Plaintiff’s claim is an attempt to
20 regulate the services of a freight carrier in violation
21 of the ICCTA.

In attempting to define the word

22 “service,” as used in the Airline Deregulation Act
23 (“ADA”), the Ninth Circuit has warned that a broad
24 interpretation would “ignore the context of its use”
25 and effectively “result in the preemption of virtually
26 everything” a transporter does.

Charas v. Trans World

27 Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998),
28 opinion amended on denial of reh'g, 169 F.3d 594 (9th
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1 Cir. 1999). The Ninth Circuit concluded that ADA
2 regulations were “intended to insulate the industry
3 from possible state economic regulation,” not to
4 “immunize the airlines from liability for personal
5 injuries caused by their tortious conduct.” Id.
6 Accordingly, the Ninth Circuit defines “service” “in
7 the public utility sense-i.e., the provision of air
8 transportation to and from various markets at various
9 times.” More specifically, the court explained,
10 “Congress used the word ‘service’ ... to refer to the
11 prices, schedules, origins and destinations of the
12 point-to-point transportation of passengers, cargo, or
13 mail.” Id.
Importantly, precedent from this District holds
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15 that “Section 14501(c)(1) is nearly identical to 49
16 U.S.C. § 41713 [formerly § 1305], part of the Airline
17 Deregulation Act (“ADA”). Therefore, interpretations of
18 this part of the ADA are applicable to § 14501(c)(1).”
19 Works v. Landstar Ranger, Inc., 2011 WL 9206170 at *1
20 (C.D. Cal., Apr. 13, 2011 (citing Rowe v. N.H. Motor
21 Transp. Ass'n, 552 U.S. 364, 368, 370 (2008)). Thus,
22 the same line of logic that rejects ADA preemption of
23 personal injury claims applies to the argument that the
24 ICCTA preempts Plaintiff’s personal injury claims.
25 Plaintiff’s claims for negligence, peculiar risk, and
26 non-delegable duty are not sufficiently related to
27 Defendants’ “service” to be preempted by § 14501(c)(1).
28 See id. at *2. To hold otherwise would do exactly as
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1 the Supreme Court of the United States warned against
2 in Silkwood–it would prevent a plaintiff from obtaining
3 any recourse against illegal and/or tortious conduct.
Defendant has responded to this reality by arguing
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5 that brokers are somehow different, and that Congress
6 must necessarily have intended for them to be insulated
7 in a way that the courts have determined that all other
8 motor carriers specified in the act are not–that is,
9 insulated for tort liability. It is in this argument
10 that Defendant has missed the forest for the trees. As
11 many courts have noted, 49 U.S.C. 14501(c)(1) is an
12 attempt to prevent the states from regulating carrier
13 rates, routes, or services–in short, to prevent states
14 from interfering with federal economic deregulation
15 related to carriers. See, e.g., Morales v. Trans World
16 Airlines, Inc., 504 U.S. 374, 378, 112 S. Ct. 2031,
17 2033, 119 L. Ed. 2d 157 (1992) (“Congress, determining
18 that maximum reliance on competitive market forces
19 would best further efficiency, innovation, and low
20 prices as well as variety [and] quality ... of air
21 transportation services, enacted the Airline
22 Deregulation Act . . . .”); Rowe v. New Hampshire
23 Motor Transp. Ass'n, 552 U.S. 364, 372, 128 S. Ct. 989,
24 996, 169 L. Ed. 2d 933 (2008)“the effect of the
25 regulation is that carriers will have to offer . . .
26 services that differ significantly from those that, in
27 the absence of the regulation, the market might
28 dictate”; City of Columbus v. Ours Garage & Wrecker
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1 Serv., Inc., 536 U.S. 424, 426, 122 S. Ct. 2226, 2229,
2 153 L. Ed. 2d 430 (2002) (explaining that the statute’s
3 purpose is to ensure that the preemption of States'
4 economic authority over motor carriers of property does
5 not restrict the preexisting and traditional state
6 police power over safety, a field which the states have
7 traditionally occupied). Unsurprisingly, Defendant can
8 cite no legal authority for its proposition. As has
9 been discussed in previous opinions against Defendant,
10 the courts have consistently held that a state’s police
11 power for ensuring safety is not preempted by the Act,
12 and traditional tort actions are still within a state’s
13 jurisdiction.
The sole case to which Defendant cites, Ameriswiss
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15 Tech., LLC v. Midway Line of Illinois, Inc., 888 F.
16 Supp. 2d 197, 207 (D.N.H. 2012), is inapposite. First,
17 it does not address personal injury claims, but instead
18 claims for cargo loss, which are not at issue here.
19 Id. Indeed, in the paragraph to which Defendant cites,
20 Defendant omits the very language that limits this
21 holding to cargo damage claims:
[W]hen a state common-law claim against
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a motor carrier arising out of damage to

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cargo in interstate transportation is

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preempted, a plaintiff still has a claim

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against the carrier under the Carmack

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Amendment.

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Amendment creates a federal statutory

But

because

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the

Carmack

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remedy against motor carriers only, when

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a state common-law claim against a motor

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private carrier or a broker is preempted

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by 49 U.S.C. 14501(c)(1), a plaintiff is

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left with no claim at all against a

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defendant who has successfully invoked

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preemption.

8 Id. (emphasis added). The opinion discusses at length
9 the interplay between the ICCTA and the Carmack
10 Amendment, and the entire opinion notes that the
11 Carmack Amendment exists specifically to fulfill
12 Congress’s desire to preempt state claims for cargo
13 damage. Defendant’s arguments that its status as a
14 broker exempt it from liability notwithstanding,
15 Ameriswiss does not change the Court’s mind because it
16 assumes an entirely different area of law, and depends
17 on the juxtaposition of the ICCTA and the Carmack
18 Amendment, which only applies to cargo loss, for its
19 reasoning.
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Second, the Ameriswiss court explicitly refused to

21 resolve the relevance of broker vs. carrier question
22 (“[t]he court bypasses the question of [defendant’s]
23 status” ). Thus, this Court will not take Ameriswiss
24 to stand for the proposition that a broker has been
25 Congressionally-mandated as exempt from liability.
26 Third, Ameriswiss is a single case in district court in
27 New Hampshire, and has been declined to be followed on
28 this issue by subsequent courts. See, e.g., AIG Europe
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1 Ltd. v. Gen. Sys., Inc., No. CIV.A. RDB-13-0216, 2014
2 WL 3671566, at *5 (D. Md. July 22, 2014). The Court
3 can also cite authority from other circuits that has
4 come to the opposite conclusion of Ameriswiss, holding
5 that unlike carriers, brokers are not exempt from state
6 law claims under the Carmack Amendment. See, e.g.
7 AIG Europe Ltd. v. Gen. Sys., Inc., No. CIV.A.
8 RDB-13-0216, 2014 WL 3671566, at *5 (D. Md. July 22,
9 2014).
In short, the Ninth Circuit has been clear about
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11 how it treats personal injury liability under the
12 ICCTA. Accordingly, Plaintiff’s Motion to Remand is
13 granted. Defendant’s Request for Judicial Notice is
14 made irrelevant by the Court’s decision. While the
15 Court acknowledges Plaintiff’s request for Rule 11
16 sanctions, it opts not to assign them at this time.
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IV. CONCLUSION
This Court therefore GRANTS Plaintiff’s Motion to

19 Remand Case to Superior Court [36]. Defendants’
20 pending Motion to Dismiss [12] is thus VACATED AS MOOT.
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IT IS SO ORDERED.

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23 DATED: March 17, 2015

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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