Isupov v. American Relocation Moving Specialist

Filing 4

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gary S. Austin on 5/23/2011. Amended Complaint due by 6/27/2011. (Bradley, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELENA ISUPOV,
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Plaintiff,
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v.
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AMERICAN RELOCATION MOVING
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SPECIALIST,
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Defendant.
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_____________________________________ )

1:11-cv-00780 LJO GSA
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
(Document 1)

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INTRODUCTION

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On May 13, 2011, Plaintiff Elena Isupov filed a complaint in this Court. (See Doc. 1.)

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Plaintiff alleges she entered into negotiations with a moving company in order to relocate her

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belongings from Fresno, California, to Calhoun, Tennessee. (Doc. 1 at 1.) On the date of the

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move, Plaintiff contends Defendant American Relocation Moving Specialist “breach[ed] the

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original binding estimate” and demanded additional money to complete the move. (Doc. 1 at 1-

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2.) Although it appears Plaintiff paid a $500.00 deposit on the date of the move, her belongings

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remain in the possession of Defendant. (Doc. 1 at 5.) Plaintiff seeks relief by way of a demand

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“that her belongings be returned to her” or, if those belongings have been sold at auction,

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monetary compensation in the sum of $100,000.00. Plaintiff also demands that the “systematic

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fraud conducted by the Defendant [] be halted immediately.” (Doc. 1 at 2.)

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DISCUSSION

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A.

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid,” the

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Court shall dismiss a case at any time if it determines that the action or appeal is frivolous or

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malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

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against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). See also Omar v.

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Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 361-62

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Screening Standard

(9th Cir. 1981).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . ..” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff

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must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations

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are accepted as true, legal conclusion are not. Id. at 1949.

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If the Court determines that the complaint fails to state a claim, leave to amend should be

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granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Dismissal of a pro se complaint for failure to state a

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claim is proper only where it is obvious that the Plaintiff cannot prevail on the facts that he has

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alleged and that an opportunity to amend would be futile. Lopez, at 1128.

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A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams,

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490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A frivolous claim is based on an

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inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a

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claim as frivolous if it is based on an indisputably meritless legal theory or if the factual

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contentions are clearly baseless. Id.

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The Court must accept as true the allegations of the complaint in question, Hospital Bldg.

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Co. V. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally

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in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000),

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and resolve all doubts in the Plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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A pleading may not simply allege a wrong has been committed and demand relief. The

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underlying requirement is that a pleading give “fair notice” of the claim being asserted and the

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“grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47-48 (1957); Yamaguchi v.

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United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997).

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B.

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As Rule 8(a) of the Federal Rules of Civil Procedure states, a complaint must contain "a

Rule 8(a)

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short and plain statement of the claim." The rule expresses the principle of notice-pleading,

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whereby the pleader need only give the opposing party fair notice of a claim. Conley v. Gibson,

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355 U.S. 41, 45-46 (1957). Rule 8(a) does not require an elaborate recitation of every fact a

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plaintiff may ultimately rely upon at trial, but only a statement sufficient to "give the defendant

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fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47.

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Plaintiff will be given an opportunity to amend her complaint to comply with Rule 8(a).
As noted above, an elaborate recitation of the facts is not required.

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C.

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Federal courts are courts of limited jurisdiction and lack inherent or general subject

Discussion

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matter jurisdiction. Federal courts can adjudicate only those cases authorized by the United

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States Constitution and Congress. Generally, those cases involve diversity of citizenship or a

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federal question, or cases in which the United States is a party. Kokkonen v. Guardian Life Ins.

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Co., 511 U.S. 375, 114 S.Ct. 1673, 1677 (1994); Finley v. United States, 490 U.S. 545, 109 S.Ct.

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2003, 2008 (1989). Federal courts are presumptively without jurisdiction over civil actions, and

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the burden to establish the contrary rests on the party asserting jurisdiction. Kokkonen, 511 U.S.

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at 377. Lack of subject matter jurisdiction is never waived and may be raised by the Court sua

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sponte. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir.

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1996). “Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is

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what its power rests upon. Without jurisdiction it is nothing.” In re Mooney, 841 F.2d 1003,

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1006 (9th Cir. 1988).

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Plaintiff indicated on the Civil Cover Sheet filed simultaneously with her complaint that

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she was making a “breach of moving contract” claim, but this reference is insufficient. Plaintiff's

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complaint is void of establishing the court's jurisdiction because she has not cited to any statutory

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or other legal authority in the complaint to establish federal court jurisdiction. Plaintiff must

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clearly identify which federal constitutional and/or statutory right she alleges has been violated

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by Defendant.

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Assuming Plaintiff intended to bring an action against Defendant for a breach of contract

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arising out of interstate commerce, the following information is provided. “[T]he Carmack

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Amendment is the exclusive cause of action for contract claims alleging delay, loss, failure to

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deliver or damage to property.” Hall v. North American Van Lines, 476 F.3d 683, 688 (9th Cir.

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2007). The amendment limits a carrier’s liability under an interstate bill of lading to “actual loss

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or injury to the property caused by” the carrier. 49 U.S.C. § 14706(a). A plaintiff may bring

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such a claim in state or federal court, but the district court has original jurisdiction only where the

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amount in controversy exceeds $10,000, exclusive of interest and costs. See 49 U.S.C. §

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14706(d)(3) & 28 U.S.C. § 1337(a). The Ninth Circuit has described the Carmack Amendment

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as providing “a uniform national liability policy for interstate carriers.” Hall v. North American

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Van Lines, Inc., 476 F.3d at 688.

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To state a claim and establish a prima facie case of a violation of the Carmack

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Amendment, a plaintiff must allege three elements: (1) delivery of the goods to the initial carrier

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in good condition; (2) damage of the goods before delivery to their final destination, or failure to

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deliver altogether; and (3) the amount of damages. See Beta Spawn, Inc. v. FFE Transportation

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Services, Inc., 250 F.3d 218, 223 (3rd Cir. 2001); see also Wright v. Neptune Society of Central

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California, Inc., 2007 WL 963302 *2 (E.D. Cal. Mar. 29, 2007).

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Assuming Plaintiff intended to present such a claim, she has not established the first

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element: delivery of the goods to the initial carrier. It is unclear whether a bill of lading was

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issued.1 Plaintiff has not appended a bill of lading to her complaint, nor has she referred to one

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in the text of the complaint itself. A bill of lading is both a receipt and a contract. New York

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Cent. R. Co. v. Mutual Orange Distributors, 251 F. 230 (9th Cir. 1918).

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The Court does note that Plaintiff relies on the fact that Defendant’s “estimate was

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binding.” (See Doc. 1 at 1, emphasis in original.) Although the “Revised Written Estimate”

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appended to the complaint does not specifically indicate whether the estimate was binding or

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non-binding (Doc. 1 at 5)2, the Court will accept this allegation as true. Hospital Bldg. Co. V.

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Trustees of Rex Hospital, 425 U.S. at 740. However, an estimate is not a bill of lading. See, e.g.,

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Cullen v. Allied Van Lines, Inc., 514 F.2d 1196, 1198 (9th Cir. 1975) (bill of lading issued

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following cost estimate).

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Additionally, the document also expressly provides that:

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If non-binding, the total charges are based on the actual weight of the
property and may exceed the estimate subject to the 110% rule; maximum amount
demanded at time of delivery is the amount of the non-binding estimate plus 10%.
If binding, then total amount of the binding estimate (100%) must be paid in full
prior to unloading.

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(Doc. 1 at 5.) From the information provided to the Court - pursuant the text of Plaintiff’s

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complaint and from the exhibits appended thereto - it appears Plaintiff has only paid a $500 cash

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deposit. (Doc. 1.) Therefore, if Plaintiff has not paid 100 percent (assuming the estimate was

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A bill of lading is a receipt for one’s goods and the contract for their transportation. Black’s Law
Dictionary defines “bill of lading” as follows: “A document acknowledging the receipt of goods by a carrier or by
the shipper’s agent and the contract for the transportation of those goods; a document that is issued by a person
engaged in the business of transporting or forwarding goods.” Black’s Law Dictionary 188 (9th ed. 2009).
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The document reflects the reason for the rescission of the original estimate: “Shipper moving more

items/weight then was first anticipated.”

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binding) of the total cost of the move, it appears that Defendant may not have breached any

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contract it had with Plaintiff. This is so because the entire amount of the binding estimate must

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be paid before unloading, to wit: $1,175.00. (Doc. 1 at 4 [“service quote” of $1175.00"].)

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Because it is unclear from the complaint whether Plaintiff in fact complied with the requirements

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of the purportedly binding estimate, the Court will permit her to address this issue and amend her

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complaint accordingly.

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Notably too, it is clear that Plaintiff is displeased with Defendant’s “revised written

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estimate” wherein the original estimate was rescinded and a higher estimate for the cost of her

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move was provided at the time of the move. However, Plaintiff is advised that her displeasure

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with the revised estimate does not itself state a claim. A pleading may not simply allege a wrong

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has been committed and demand relief. Conley v. Gibson, 355 U.S. at 47-48; Yamaguchi v.

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United States Department of Air Force, 109 F.3d at 1481.

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Finally, Plaintiff’s complaint concludes by calling for “the systematic fraud conducted by

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the Defendant” to halt immediately. (Doc. 1 at 2.) Plaintiff is advised that common law fraud is

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equally preempted by the Carmack Amendment. Hall v. North American Van Lines, Inc., 476

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F.3d at 689. Therefore, Plaintiff cannot bring a separate claim for fraud against Defendant.

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White v. Mayflower Transit, LLC, 543 F.3d 581, 584-85 (9th Cir. 2008).

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In sum, and erring on the side of caution, the Court will allow Plaintiff an opportunity to
amend her complaint to state a proper claim against Defendant, if she is able to do so.
CONCLUSION
For the reasons given above, Plaintiff’s complaint is DISMISSED WITH LEAVE TO

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AMEND. Plaintiff’s first amended complaint is due within thirty (30) days of the date of

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service of this order. If Plaintiff fails to file a first amended complaint, the Court will

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recommend that this action be dismissed for failure to follow a court order.

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Plaintiff is cautioned that an amended complaint supercedes the original complaint, and

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must be “complete in itself without reference to the prior or superceded pleading.” See Forsyth

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v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987); Local Rule 220. Plaintiff is warned that “[a]ll causes of action alleged in an original

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complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d at 567,

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citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981); accord Forsyth, 114

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F.3d at 1474.

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IT IS SO ORDERED.

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Dated:
6i0kij

May 23, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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