HURST BOILER & WELDING CO INC v. CCI-KCE LLC

Filing 9

ORDER granting in part and denying in part 4 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 3/6/2025. (ksl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
HURST BOILER & WELDING CO.,
Plaintiff,
v.
CCI-KCE, LLC,
Defendant.

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CASE NO.: 7:24-CV-53 (WLS)

ORDER
Before the Court is Defendant CCI-KCE, LLC’s (“Defendant”) Motion to Dismiss
Plaintiff’s Complaint, or Alternatively, to Transfer the Case (Doc. 4) (“Motion to Dismiss”).
Therein, Defendant moves to dismiss Plaintiff Hurst Boiler & Welding Company’s
(“Plaintiff”) Complaint, or alternatively, to transfer the above-captioned action to the United
States District Court for the Northern District of Georgia. For the reasons discussed below,
Defendant’s Motion to Dismiss (Doc. 4) is GRANTED-IN-PART and DENIED-INPART. The case will proceed to general discovery.
I.

BACKGROUND
A. Relevant Procedural Background
On May 24, 2024, Plaintiff initiated this action by filing a Complaint (Doc. 1) against

Defendant, alleging a breach of contract claim and liability under the Carmack Amendment to
the Interstate Commerce Act, 49 U.S.C. § 14706. Defendant filed the instant Motion to
Dismiss (Doc. 4) on July 11, 2024. Plaintiff filed a Response (Doc. 7) on August 1, 2024. And
Defendant filed a Reply (Doc. 8) on August 15, 2024. As the Parties’ respective briefs have
been submitted, the Motion is ripe for ruling.
B. Plaintiff’s Allegations
As alleged, in March of 2022, Plaintiff, a manufacturer of steam and hot water boilers,
contracted with Defendant, a freight forwarding company, for the shipment of a boiler from

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its facility in Coolidge, Georgia, to a customer in Antlers, Oklahoma. 1 (Doc. 1 ¶¶ 6–8). A
document was issued detailing the equipment to be shipped, including one 1200 HP, 150 PSI
Scotch Boiler. (Doc. 1-1). At the time of shipment on March 24, 2022, the boiler was
undamaged and in good condition. (Doc. 1 ¶ 10). Defendant accepted the boiler, and its driver
set off for Oklahoma. (Doc. 4 at 2). While en route, the driver struck a bridge at an unspecified
location in the State of Mississippi, which damaged the boiler. (Doc. 1 ¶ 11). The driver
continued on to Oklahoma where, upon arrival, Plaintiff’s customer refused the shipment due
to the damage the boiler sustained during transport. (Id. ¶ 12).
The driver set out to return the boiler to Plaintiff’s Coolidge, Georgia, business
location. (Doc. 1 ¶ 13). On the return trip, the driver struck another bridge at another
unknown location along the route causing additional damage to the boiler. (Id. ¶ 13). The
boiler arrived at Plaintiff’s Coolidge location where it underwent repairs, inspections, and
testing before it was shipped to the State of Oklahoma once again. (Id. ¶¶ 14–15). As a result
of the damage and subsequent repair, the boiler required additional inspections prior to its
use. (Id. ¶ 16).
On April 8, 2022, Plaintiff sent a letter to Defendant requesting damages resulting from
the incidents that occurred during the boiler’s transport. (Doc. 1-2). Plaintiff requested
payment for the cost of repairing the visible damage to the boiler, as well as unknown future
costs incurred from additional testing and inspection of the boiler. (Id.)
II.

LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits a party to assert by motion the defense

of failure to state a claim upon which relief can be granted. A motion to dismiss a plaintiff’s
complaint under Rule 12(b)(6) should not be granted unless the plaintiff fails to plead enough
facts to state a claim for relief that is plausible, and not merely conceivable, on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Dismissal for failure to state a claim is proper
if the factual allegations are not ‘enough to raise a right to relief above the speculative level.’”

1 The facts contained herein, consistent with the standard of review for motions to dismiss, are derived from

the Complaint (Doc. 1), accepted as true, and construed in the light most favorable to Plaintiff. See Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003).

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Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (quoting Rivell v. Priv. Health Care
Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008)). “Stated differently, the factual allegations in
the complaint must ‘possess enough heft’ to set forth ‘a plausible entitlement to relief.’”
Edwards, 602 F.3d at 1291 (quoting Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282
(11th Cir. 2007)). The plausibility standard “calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of the defendant’s liability. Twombly, 550 U.S.
at 556. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice”; rather, a complaint must make plausible, factual
assertions that allow the Court to draw the required connections from the alleged harm and
the requested relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
The Court must conduct its analysis “accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003). In evaluating the sufficiency of a plaintiff’s pleadings, the Court makes
reasonable inferences in plaintiff’s favor but is not required to draw plaintiff’s inference.
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (internal quotation marks
omitted and citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S.
449 (2012). On a motion to dismiss “a court must accept as true all of the allegations contained
in a complaint,” this principle “is inapplicable to legal conclusions,” which “must be supported
by factual allegations.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 555), for the
proposition that courts “are not bound to accept as true a legal conclusion couched as a factual
allegation” in a complaint).
B. Carmack Violation Claim
1.

Pre-Filing Requirements

The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq.,
provides shippers with the statutory right to recover for actual losses or injuries to their
property caused by carriers involved in the shipment. 49 U.S.C. 14706(a)(1); see A.I.G. Uru.
Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 1003 (11th Cir. 2003) (citing 49
U.S.C. § 14706(a)(1)). Prior to filing suit under the Carmack Amendment, a shipper must file
a notice of a claim with the carrier that satisfies the “minimum filing requirements” set forth

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in the Surface Transportation Board (STB) 2 regulations governing claims for damage to cargo.
Siemens Power Transmission & Distrib., Inc. v. Norfolk S. Ry. Co., 420 F.3d 1243, 1245 (11th Cir.
2005) (holding that a shipper’s compliance with the filing requirements in 49 C.F.R.
§ 1005.2(b) is a prerequisite to filing suit under the Carmack Amendment).
Under STB regulations, a claimant-shipper must file a “written or electronic
communication” with the proper carrier “within the time limits specified in the bill of lading
or contract of carriage or transportation[.]” 3 49 C.F.R. § 1005.2(b). The written
communication must “(1) [c]ontain[] facts sufficient to identify the baggage or shipment of
property, (2) assert[] liability for alleged loss, damage, injury, or delay, and (3) mak[e] [a] claim
for the payment of a specified or determinable amount of money[.]” 49 C.F.R. § 1005.2(b).
Further, “[s]ection (e) of the Carmack Amendment provides that ‘[a] carrier may not provide
by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under
this section and a period of less than 2 years for bringing a civil action against it under this
section.’” Siemens Power Transmission, 420 F.3d at 1243 (quoting 49 U.S.C. § 14706(e)(1)). “The
period for bringing a civil action is computed from the date the carrier gives a person written
notice that the carrier has disallowed any part of the claim specified in the notice.” 49 U.S.C.
§ 14706(e)(1).
Here, Defendant does not dispute that Plaintiff sent timely notice of its claim for
damages. (Doc. 8 at 4). Attached to Plaintiff’s Complaint is a letter Plaintiff sent to Defendant
on April 8, 2022, less than one month after the alleged incidents that resulted in the boiler’s
damage. (Doc. 1-2). The letter identifies the damaged shipment as the boiler damaged during
transport from Coolidge, Georgia, to Oklahoma “on or about 3/26/22.” (Id.) Plaintiff asserts
Defendant’s liability for the damage caused by its driver as well as a claim for $140,532.60 in
damages associated with repairs and other costs. (Doc. 1 ¶ 17); (Doc. 1-2). Based on these
allegations, the Court finds that Plaintiff has sufficiently alleged that the minimum filing
requirements set forth in § 1005.2(b) have been met. (See Doc. 8 at 4).
2 The Surface Transportation Board, formerly the Interstate Commerce Commission, is the agency designated

by the Department of Transportation to regulate interstate commercial transportation.

3 Section 1005.1 provides that the regulations govern all claims “for loss, damage, injury, or delay to property

transported or accepted for transportation, in interstate or foreign commerce, by each railroad, express
company, motor carrier, water carrier, and freight forwarder (hereinafter called carrier), subject to the Interstate
Commerce Act.” 49 C.F.R. § 1005.1.

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2.

Prima Facie Case

To establish a prima facie case of liability under the Carmack Amendment, the shipper
must show three things: (1) the goods were delivered to the carrier in good condition; (2) the
goods were damaged during transit; and (3) a specified amount of damages resulted. Atl.
Specialty Ins. v. Digit Dirt Worx, Inc., 793 F. App’x 896, 899 (11th Cir. 2019). If Plaintiff makes
these showings, the burden shifts to the defendant to demonstrate it was not negligent and
the damage was caused by one of five enumerated causes. Mo. Pac. R. R. v. Elmore & Stahl, 377
U.S. 134, 138 (1964). Making out a prima-facie case under the Carmack Amendment is a low
burden. Id.
Here, Plaintiff’s Complaint alleges that (1) the boiler was in a “good and undamaged
condition” at the time of shipment, (2) the boiler was damaged in transit when the driver
transporting the load struck a bridge in Mississippi and another bridge at an unknown location
along the return route, and (3) Plaintiff incurred $140,532.60 in damages as a result. (Doc. 1
¶¶ 10–11, 26); (see also Doc. 1-2). Thus, as alleged, Plaintiff’s Complaint pleads sufficient facts
to make out a plausible claim under the Carmack Amendment.
Defendant does not contest the sufficiency of these allegations. Rather, Defendant
contends that Plaintiff’s liability claim under § 14706 fails to state a claim because (1) Plaintiff
fails to demonstrate the existence of a bill of lading “in order to bring this claim[,]” and (2)
Plaintiff fails to allege that it received a response from Defendant demonstrating Defendant’s
denial of the claim. (Doc. 4 at 5–7). Defendant also asserts that Plaintiff’s suit is time-barred
because more than two years passed from the date of the notice to the date of the
commencement of the instant action. (Doc. 8 at 4). For the reasons discussed below, each of
Defendant’s arguments fail.
First, as Plaintiff correctly notes, there is no statutory requirement that a bill of lading
exist, nor is its existence a necessary condition for a successful liability claim. Indeed, the text
of the Carmack Amendment is clear that the “[f]ailure to issue a receipt or bill of lading does
not affect the liability of a carrier.” 49 U.S.C. § 14706(a)(1). And it is the duty of the carrier, in
this case Defendant, to issue a receipt or bill of lading. Id. (“A carrier providing transportation
or service . . . shall issue a receipt or bill of lading for property it receives for transportation
under this part.”). Plaintiff’s Complaint plainly alleges that a bill of lading was issued for the
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shipment. (Doc. 1 ¶ 9). Thus, even if the existence of a bill of lading was an essential element
for stating a claim, which it is not, Plaintiff’s Complaint sufficiently alleges that one was indeed
issued. 4
Additionally, even if Defendant failed to issue a bill of lading for the shipment, Plaintiff
could still bring a Carmack Amendment claim. See Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit
Corp., 561 U.S. 89, 103 (2010) (holding that, in the context of rail shipments, carriers are subject
to liability for damage done to property for which the Carmack Amendment requires the
carrier to issue a bill of lading, regardless of whether the carrier erroneously fails to issue such
a bill); Hubbard v. All States Relocation Servs., Inc., 114 F. Supp. 2d 1374, 1381 (S.D. Ga. 2000)
(finding that the existence of a bill of lading is irrelevant to the applicability of the Carmack
Amendment).
Second, unlike the regulatory pre-suit filing requirements under 49 C.F.R. § 1005, the
denial of a written notice is relevant only to the commencement of the limitations period as
prescribed in the parties’ bill of lading. See Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799
F.2d 697, 699 (11th Cir. 1986) (“Among other things, the Carmack Amendment . . . allows
carriers to provide in their contracts with shippers statutes of limitations for bringing civil suits
of not less than two years.”). Once the written notice is sent and received, carriers have an
obligation to acknowledge receipt of that claim, indicate any additional information or
evidence that may be required to process the claim, and create a separate file and assign thereto
a successive claim file number. 49 C.F.R. § 1005.3(a)-(b). In other words, the requirement of
written notice denying a claim is a regulatory requirement imposed upon Defendant, as the
carrier, rather than a statutory requirement levied upon Plaintiff, as the shipper. Thus, Plaintiff
is not required to allege facts showing Defendant’s denial of its claim in order to sufficiently
state a claim under the Carmack Amendment.
Third, the statutory language governing time limits for filing civil actions could not be
clearer: the limitations period is “computed from the date the carrier gives a person written

4 Defendant contends that the document referred to in the Complaint as a bill of lading, and which is attached

as an exhibit to the same, (see Doc. 1-2), is not a bill of lading as Plaintiff purports but is instead a packing list
issued by Plaintiff prior to the shipment. (Doc. 4 at 5). In effect, this is a factual argument which is inappropriate
to resolve on a Rule 12(b)(6) motion. The Court makes no finding as to the classification of this document or
whether a bill of lading was in fact issued.

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notice that the carrier has disallowed any part of the claim specified in the notice[,]”not the
date from which the written notice is sent. 49 U.S.C. § 14706(e)(1). “A statute of limitations
bar is an affirmative defense, and a plaintiff is not required to negate an affirmative defense in
[its] complaint.” Wainberg v. Mellichamp, 93 F.4th 1221, 1224 (11th Cir. 2024) (internal quotation
omitted); see Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 1304 (11th Cir. 2020) (“A complaint
need not anticipate and negate affirmative defenses and should not ordinarily be dismissed
based on an affirmative defense unless the defense is apparent on the face of the complaint.”).
Here, Plaintiff sent its written notice on April 8, 2022. (See Doc. 1-2). The action was
filed on May 24, 2024. (See Doc. 1). Plaintiff does not allege that Defendant denied its claim,
nor is Plaintiff required to do so to state a Carmack Amendment claim. To the extent
Defendant argues, relying on facts outside of the pleading and not before the Court, that
Plaintiff’s claim is time-barred, Defendant asserts an affirmative defense which is not apparent
from the face of the Complaint. Thus, dismissal on statute-of-limitations grounds is
inappropriate at this stage. 5
In sum, the Court finds that Plaintiff’s Complaint alleges sufficient facts to state a claim
for relief under the Carmack Amendment. As such, Defendant’s Motion to Dismiss (Doc. 4),
as it pertains to Plaintiff’s claim under § 14706 is DENIED. 6
C. Preemption of State Law Claims
The Carmack Amendment was enacted “to achieve uniformity in rules governing
interstate shipments, including the rules governing injury or loss to property shipped.” UPS
Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1285 (11th Cir. 2014). “To
accomplish the goal of uniformity, the Carmack Amendment preempts state law claims arising
from failures in the transportation and delivery of goods.” Smith v. United Parcel Serv., 296 F.3d
1244 (11th Cir. 2002) (citing Adams Express Co. v. Croninger, 226 U.S. 491, 506 (1913)). This
preemptive effect is broad and “embraces ‘all losses resulting from any failure to discharge a
5 Of course, Defendant may raise this statute of limitations defense at a later stage in the proceedings.
6 Defendant also challenges the Court’s subject matter jurisdiction, arguing that because Plaintiff fails to state a

claim under the Carmack Amendment, there is no federal question jurisdiction, and there is no diversity of
citizenship jurisdiction because the Parties are citizens of the same state. (Doc. 4 at 8). The Court need not
address Defendant’s argument, however, because the Court finds that Plaintiff states a plausible claim for relief
under the Carmack Amendment, and thus, the Court may properly exercise subject matter jurisdiction pursuant
to 28 U.S.C. § 1331.

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carrier’s duty as to any part of the agreed transportation.’” Skanes v. FedEx, 734 F. App’x 671,
673 (11th Cir. 2018) (quoting Ga., Fla. & Ala. Ry. v. Blish Milling, 241 U.S. 190, 196 (1916)).
The only state law claims not preempted by the Carmack Amendment are those based on
conduct that is “separate and distinct” from the conduct causing the loss of or damage to
goods. Smith, 296 F.3d at 1249.
Here, Defendant seeks the dismissal of Plaintiff’s state law breach of contract claim on
the grounds that it is preempted by the Carmack Amendment. (Doc. 4 at 4–5). The claim
alleges that Defendant breached the contract for shipment when it failed to “deliver the boiler
to its destination in an undamaged condition,” and that Plaintiff incurred damages as a result
of this breach. (Doc. 1 ¶¶ 20–21). Plaintiff concedes that the breach of contract claim is based
upon the same factual allegations underlying its Carmack violation claim. (Doc. 7 at 3). As
such, the Court finds that the conduct giving rise to Plaintiff’s state law breach of contract
claim is not sufficiently “separate and distinct” from the conduct underlying its Carmack
Amendment claim, and thus, the claim is preempted. Plaintiff has therefore failed to state a
claim for breach of contract sufficiently separate and distinct from its Carmack Amendment
claim. Accordingly, Defendant’s Motion to Dismiss (Doc. 4), as it pertains to Plaintiff’s breach
of contract claim is GRANTED. Count I of the Complaint is thus DISMISSED, with
prejudice.
D. Venue
Defendant moves the Court to transfer the case to the Atlanta Division of the United
States District Court for the Northern District of Georgia. (Doc. 4 at 9–10). While Defendant
does not specifically move for dismissal under Federal Rule of Civil Procedure 12(b)(3) for
improper venue, Defendant contends that venue is improper in this district. (Doc. 4 at 9);
(Doc. 8 at 7). Thus, the Court construes Defendant’s motion as seeking dismissal under
Rule 12(b)(3), in addition to moving to transfer under 28 U.S.C. § 1404.
1. Carmack Amendment Venue Provisions
The Carmack Amendment contains a special venue provision that governs actions
brought under the statute. See Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S.
49, 55–56 (2013) (holding that venue is governed by the general venue provision of 28 U.S.C.
§ 1391 unless a more specific venue provision applies). In an action against a “delivering
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carrier,” venue is proper in the federal judicial district “through which the defendant carrier
operates.” 49 U.S.C. § 14706(d)(1). And in an action against a “carrier responsible for loss,”
venue is proper in the “judicial district in which such loss or damage is alleged to have
occurred.” § 14706(d)(2). Here, Plaintiff alleges, and Defendant does not dispute, that
Defendant is a freight forwarding company, and as such, it is considered both the receiving
and delivering carrier. (Doc. 1 ¶ 7); (Doc. 8 at 7); see § 14706(a)(2) (“A freight forwarder is
both the receiving and delivering carrier.”). Therefore, venue is proper in this Court if
Defendant “operates” in this district, or the loss occurred in this district. See id.
Whether venue is proper under § 14706(d)(1) depends on the definition of “operates.”
When courts have encountered this issue, they have concluded that a carrier operates in a
district when it performs some action in the district. Compare Thompson Tractor Co. v. Daily
Express Inc., No. 2:20-CV-02210, 2020 WL 6121158, at *4 (C.D. Ill. Oct. 16, 2020) (finding
that the defendant carrier “clearly operated within th[e] judicial district when it entered th[e]
district, loaded and received the generator, and then transported it through and out of th[e]
district[]”), Ponce De Leon Hosp. Corp. v. Avalon Logistics, Inc., 117 F. Supp. 3d 124, 130 (D.P.R.
2015) (finding venue proper under § 14706(d)(1) when a carrier transported the goods at issue
through the district), and Donaldson Tech. Grp. LLC. v. Landstar Ranger, Inc., 347 F. Supp. 2d 525,
527 (S.D. Ohio 2004) (finding that venue was proper under § 14706(d)(1) in a district though
which the carrier passed while delivering the goods at issue), with Starr Indem. & Liab. Co. v.
Luckey Logistics, Inc., No. 116CV01377, 2017 WL 2466505, at *2 (C.D. Ill. June 7, 2017) (finding
that an allegation that the defendant operated in the State of Illinois without alleging any
specific operations in the Central District of Illinois was insufficient to establish proper venue
under § 14706(d)(1)), and Cargo-Master, Inc. v. Coast Midwest Transp., Inc., No. 3:97-CV-1637,
1998 WL 485685, at *4 (N.D. Tex. Aug. 7, 1998) (finding that “[a]n allegation that defendant
operates within the state says nothing about its operations within this district. . . .”).
Here, Plaintiff alleges that Defendant provided shipping services from Plaintiff’s
business location in the Middle District of Georgia to Plaintiff’s customer in Oklahoma.
(Doc. 1 ¶ 8); (Doc. 7 at 10). From this, it is reasonable to infer that Defendant entered this
district to receive the boiler shipment and subsequently transported it through and out of the
district. Thus, drawing all reasonable inferences from the allegations in Plaintiff’s favor, as the
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Court must, the Court finds that Plaintiff has alleged sufficient facts to establish proper venue
in this district. 7
2.

General Venue Provisions

Defendant further contends that venue is not proper in this district under the general
venue statute, 28 U.S.C. § 1391. (See generally Docs. 4 & 8). The statute provides three paths to
proper venue in a civil action, two of which are relevant here. See Jenkins Brick Co. v. Bremer,
321 F.3d 1366, 1371 (11th Cir. 2003) (noting that the venue statute “contemplates some cases
in which venue will be proper in two or more districts.”).
First, venue is proper in “a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located[.]” 28 U.S.C. § 1391(b)(1).
An entity that is a defendant, is “deemed to reside . . . in any judicial district in which such
defendant is subject to the court’s personal jurisdiction with respect to the civil action in
question[.]” § 1391(c)(2). Venue is proper here because Defendant is subject to the Court’s
personal jurisdiction. As alleged, Defendant agreed to transport a boiler located in Coolidge,
Georgia, and subsequently dispatched an employee to receive and load the generator in
Coolidge and then transport it from Coolidge to Oklahoma. (Doc. 1 ¶¶ 8, 13). These alleged
contacts demonstrate that Defendant directed its activities and purposefully availed itself of
the privilege of conducting business within this judicial district, and Defendant has not
contested the Court’s exercise of personal jurisdiction. See Thompson Tractor, 2020 WL 6121158,
at *3.
Second, venue is proper in “a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred . . . .” 28 U.S.C. § 1391(b)(2). A plaintiff does
not have to select the venue with the most substantial nexus to the dispute, so long as she
chooses a venue where a substantial part of the events giving rise to the claim occurred. Morgan
v. N. Miss. Med. Ctr., Inc., 403 F. Supp. 2d 1115, 1123 (S.D. Ala. 2005) (citing § 1391), aff’d
Morgan v. N. Miss. Med. Ctr., Inc., 225 F. App’x 828 (11th Cir. 2007) (“[T]he question is simply
whether ‘a substantial part’ of the events transpired [in the Southern District of Alabama].”).

7 The Parties agree that Defendant is the delivering carrier under § 14706(d)(1), and thus, the Court need not

determine whether Plaintiff has sufficiently alleged venue under the second Carmack venue provision,
§ 14706(d)(2).

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Here, venue is proper under § 1391(b)(2) because a substantial part of the events giving rise
to Plaintiff’s Carmack Amendment violation claim, as alleged, occurred in this district, namely,
that the boiler was delivered to Defendant in good condition at Plaintiff’s Coolidge, Georgia
location, Plaintiff received the boiler from Defendant’s driver in a damaged state at the
Coolidge location, and the repairs, inspections, and testing which are alleged to have
culminated in Plaintiff’s damages took place in Coolidge as well. (See Doc. 1 ¶¶ 8, 10, 13–15).
For the foregoing reasons, the Court finds that venue is proper in this district under
the special venue provision of the Carmack Amendment, 49 U.S.C. § 14706(d)(1), and under
the general venue statute, 28 U.S.C. § 1391(b)(1)-(2). Thus, to the extent Defendant’s Motion
to Dismiss (Doc. 4) could be construed as a Rule 12(b)(3) motion to dismiss for improper
venue, that Motion is DENIED.
E. Motion to Transfer Under § 1404
In the alternative, Defendant moves the Court under 28 U.S.C. § 1404 to transfer venue
to the United States District Court for the Northern District of Georgia, the district within
which it has its principal place of business. (Doc. 4 at 9–10).
The transfer of venue is governed by 28 U.S.C. § 1404(a), which states: “[f]or the
convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought or to any district
or division to which all parties have consented.” 8 On a motion to transfer venue under
§ 1404(a), the threshold inquiry is whether the case could have been brought in the alternative
court. See Talley v. City of LaGrange, No. 4:23-CV-32, 2023 WL 4919652, at *1 (M.D. Ga. Aug.
1, 2023) (finding that, as a threshold matter, the case could have been brought in the Northern
District of Georgia (citing 28 U.S.C. § 1404(a)). The Court agrees with Defendant to the extent
that venue would be proper in the Northern District of Georgia because it is the judicial district
in which Defendant has its principal place of business. See § 1391(b)(1).

8 A party may request a venue change when: “(1) venue is improper, so a court must then dismiss or transfer

the case under section 1406; or (2) venue is proper, but the court should apply section 1404 to transfer the case
to another district on convenience grounds.” Swallow v. EAN Holdings, LLC, No. CV 323-064, 2024 WL
4360605, at *3 (S.D. Ga. Sept. 30, 2024). As noted above, venue is proper in this district, and thus, the Court
considers the convenience of transfer under § 1404(a).

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Even so, the Court must also “evaluate both the convenience of the parties and various
public-interest considerations.” See Atlantic Marine, 571 U.S. at 62. The movant bears the
burden to persuade the court that transfer is warranted. Id. (citing In re Ricoh Corp., 870 F.2d
570, 573 (11th Cir. 1989) and Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966)). The
Court considers the following factors in determining whether transfer is appropriate:
(1) the convenience of the witnesses; (2) the location of relevant documents and
the relative ease of access to sources of proof; (3) the convenience of the parties;
(4) the locus of operative facts; (5) the availability of process to compel the
attendance of unwilling witnesses; (6) the relative means of the parties; (7) a
forum’s familiarity with the governing law; (8) the weight accorded a plaintiff’s
choice of forum; and (9) trial efficiency and the interests of justice, based on the
totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). Of the above criteria, the
three given the most weight are (1) plaintiff’s choice of forum, if his selected forum is the
district in which he resides; (2) inconvenience of key witnesses; and (3) the public interest.
Prather v. Raymond Constr. Co., 570 F. Supp. 278, 284 (N.D. Ga. 1983). On balance, the Court
finds that the factors weigh against transfer of venue for two key reasons.
First, Defendant bears the burden of persuasion yet fails to argue under the relevant
factors. For instance, Defendant does not assert that the Northern District is a more
convenient forum for the Parties and witnesses, or that appearing in this district would present
an inconvenience to potential witnesses. Likewise, Defendant does not contend that relevant
documents and other evidence are more easily accessible to the Parties in the Northern
District, nor does Defendant put forth any argument pertaining to the availability of process
for unwilling witnesses or the relative means of the Parties. The Court will not make these
arguments on Defendant’s behalf. Defendant’s only contention is that venue is improper in
this district, and therefore, the Court should transfer the case to the district in which it has its
principal place of business. (Doc. 4 at 10); (Doc. 8 at 7). As a result, the Court finds that
Defendant has not met its burden of persuading the Court that transfer is appropriate here.
Second, notwithstanding the absence of any particularized argument from Defendant,
the Court finds, based upon its own independent review of the factors, that transfer is not
warranted here. The Court briefly addresses each of the factors in turn.

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As for the first factor, the convenience of witnesses, the focus is on “non-party
witnesses’ willingness and ability to testify in the forum.” Moss & Assocs., LLC v. E Light Elec.
Servs., Inc., No. 1:16-cv-702, 2016 WL 4578144, at *5 (N.D. Ga. Sept. 2, 2016). Courts also
consider “the number of witnesses who may be inconvenienced by a particular forum.”
PuffCuff, LLC v. Quality Plastic Prods., Inc., No. 1:21-CV-04663, 2022 WL 3700103, at *3 (N.D.
Ga. June 2, 2022). In this case, the pool of non-party witnesses could potentially include
individuals residing in various states, including Georgia, Oklahoma, and Mississippi, given that
part of the alleged incidents occurred during the boiler’s cross-country transport. It is more
likely, however, that many of these witnesses will be Plaintiff’s employees who witnessed the
boiler’s departure and who conducted the repairs, testing, and inspection upon its return.
Thus, this factor weighs against transfer. For similar reasons, the second factor also weighs
against transfer, as relevant documents and other evidence of the boiler’s condition are likely
located at Plaintiff’s place of business.
As for the third factor, the convenience of the parties, courts seeks to determine
whether transfer would be more convenient for the parties collectively as opposed to “merely
shift[ing] inconvenience from one party to another.” Wetherington v. Ameripath, Inc., No.
1:10-CV-1108, 2010 WL 11452377, at *5 (N.D. Ga. June 25, 2010). As previously noted,
Defendant is a limited liability company located in Atlanta, Georgia. (Doc. 4 at 10, 13). Plaintiff
is a corporation with its principal place of business in Coolidge, Georgia, which falls within
the jurisdiction of this district. (Doc. 1 ¶ 1). This district is therefore more convenient for
Plaintiff, and transferring this case would only serve to shift any asserted inconvenience from
Defendant to Plaintiff. Thus, this factor too weighs against transfer.
As for the fourth factor, the Court notes that this case presents the potential for more
than one locus of operative facts, in other words, more than one place where the facts giving
rise to the dispute occurred. For instance, the locations of the alleged collisions resulting in
the damage to the boiler could be considered two distinct loci of operative fact. The Court,
however, views Plaintiff’s Coolidge, Georgia location, from which the boiler was dispatched,
returned, and later repaired, as the more readily apparent locus of operative fact, namely
because the alleged collisions transpired in an unspecified locale in Mississippi and a second,
unknown location somewhere between Oklahoma and Georgia. (Doc. 1 ¶¶ 11, 13). In any
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case, none of the events giving rise to Plaintiff’s claims are alleged to have occurred in the
Northern District of Georgia. For those reasons, this factor too weighs against transfer.
The fifth, sixth, and seventh factors do not tip the scales in either Party’s favor. The
availability of process to compel the attendance of unwilling witnesses favors transfer where
“most witnesses reside outside the subpoena power of the Court[,]” but carries neutral weight
in a court’s analysis where “most witnesses are employees of the parties” whose attendance
can be assured without the need for process. Regenicin, Inc. v. Lonza Walkersville, Inc., No.
1:13-CV-3596, 2014 WL 11930591, at *6 (N.D. Ga. May 1, 2014). Similarly, the relative means
of the parties carries little weight where the party moving for transfer is a business entity. C.f.
Weintraub v. Advanced Corr. Healthcare, Inc., 161 F. Supp. 3d 1272, 1284 (N.D. Ga. 2015) (finding
the relative means of the parties particularly relevant where one party was an individual and
the other was a corporation). Here, there is no apparent difference in the relative means of the
Parties, as both are commercial businesses. Lastly, the seventh factor, the forum’s familiarity
with the governing law, is “one of the least important factors in determining a motion to
transfer, especially where no complex questions of foreign law are involved.” Harvard v. Inch,
408 F. Supp. 3d 1255, 1264–65 (N.D. Fla. 2019). This is especially true in the instant case as
the Court is applying federal law to Plaintiff’s claim under the Carmack Amendment.
Perhaps most significant to the Court’s analysis is the eighth factor, the weight accorded
to a plaintiff’s choice of forum. As noted above, courts in this Circuit recognize a “strong
presumption against disturbing plaintiffs’ initial forum choice.” SME Racks, Inc. v. Sistemas
Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 (11th Cir. 2004) (“[U]nless the balance is
strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”
(quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). This is especially true where, as
here, a plaintiff files suit in its home district, and the facts of the case are related to the selected
forum. Compare Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–56 (1981) (“[A] plaintiff’s choice
of forum is entitled to greater deference when the plaintiff has chosen the home forum.”) with
Internap Corp. v. Noction Inc., 114 F. Supp. 3d 1336, 1342 (N.D. Ga. 2015) (“[M]ultiple district
courts within the Eleventh Circuit have found, and this Court agrees, that Plaintiff's choice of
forum should be entitled to less weight where the locus of operative facts is outside of the
chosen forum.”). Plaintiff’s choice of forum weighs heavily against transfer to the Northern
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District. Plaintiff, whose place of business is located within this district, elected to file this
action in the Middle District, a choice which must be accorded the requisite deference. (See
Doc. 1 ¶ 1).
As for the ninth factor, trial efficiency and the interests of justice, courts consider
numerous factors, including “access to evidence, availability of witnesses, the cost of obtaining
witnesses, the possibility of a jury review of relevant premises, and all other practice problems
that make trial of a case easy, expeditious and inexpensive.” Griffin Cap. Co. v. Essential Props.
Realty Tr., Inc., No. 1:18-CV-4255, 2019 WL 5586547, at *7 (N.D. Ga. Jan. 18, 2019). There is
no indication that transfer to the Northern District would result in a more efficient or
inexpensive resolution of this case. As discussed above, the relevant evidence and potential
witnesses are located in this district. There is no connection between the underlying claims
and the Northern District, other than the location of Defendant’s place of business. This
factor, and the interests of justice more generally, weigh against transfer.
In sum, having considered the relevant factors, Defendant’s Motion to Transfer in the
alternative (Doc. 4) is DENIED.
III.

CONCLUSION
In sum, for the foregoing reasons, Defendant’s Motion to Dismiss (Doc. 4) under

Rule 12(b)(6) is GRANTED-IN-PART and DENIED-IN-PART. Plaintiff’s state law
breach of contract claim, at Count I, is DISMISSED, with prejudice. To the extent
Defendant’s Motion to Dismiss (Doc. 4) could be construed as a Rule 12(b)(3) motion to
dismiss for improper venue, that Motion is DENIED. Additionally, Defendant’s Motion to
Transfer (Doc. 4) in the alternative is DENIED.
As a result, the only claim that remains in the action is Plaintiff’s claim under 49 U.S.C.
§ 14706, at Count II. With the instant Motion to Dismiss (Doc. 4) having now been resolved,
the case will proceed to general discovery. The Court will notice an Initial Discovery
Conference by separate notice or order.
SO ORDERED, this 6th day of March 2025.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT

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