Pickett et al v. Graebel/Kansas City Movers, LLC et al
MEMORANDUM AND ORDER granting in part and denying in part 8 Motion to Amend Complaint and finding as moot 5 Motion to Dismiss;. See Order for further details. Signed by Chief District Judge Julie A Robinson on 05/24/2017. (cv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENISE PICKETT, et al.,
Case No. 17-2021-JAR-JPO
GRAEBEL KANSAS CITY MOVERS INC., et
MEMORANDUM AND ORDER
Plaintiffs brought this removal action against their moving company alleging claims
under 49 U.S.C. § 14706 (“the Carmack Amendment”), 49 U.S.C. § 14915, et seq., and a state
law claim of negligence. Before the Court is Defendant Graebel/Kansas City Movers, LLC and
Graebel Van Lines, LLC’s Motion to Dismiss With Memorandum in Support (Doc. 5), and
Plaintiffs J.D. and Denise Pickett’s Motion to Amend (Doc. 8). As described more fully below,
the Court grants in part and denies in part the motion for leave to amend. Plaintiffs’ motion for
leave to amend is granted as unopposed on proposed Count I, and denied as to proposed Count
II. As such, Defendants’ motion to dismiss the original petition is moot.
Because granting Plaintiffs’ motion for leave to amend would render Defendants’ motion
to dismiss moot, the Court addresses that motion first. Under Fed. R. Civ. P. 15(a), leave to
amend is freely given when justice so requires.1 Courts typically grant leave to amend under this
rule unless there is “a showing of undue delay, undue prejudice to the opposing party, bad faith
Fed. R. Civ. P. 15(a)(2).
or dilatory motive, failure to cure deficiencies by amendment previously allowed or futility of
A proposed amendment is futile if the amended complaint would be subject to dismissal.3
To pass muster under 12(b)(6), “the complaint must give reason to believe this plaintiff has a
reasonable likelihood of mustering factual support for these claims.”4 The plausibility standard
does not require a showing of probability that a defendant has acted unlawfully, but requires
more than a “sheer possibility.”5 “[M]ere ‘labels and conclusions’, and ‘a formulaic recitation of
the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual
allegations to support each claim.”6 Finally, the court must accept the nonmoving party’s factual
allegations as true and may not dismiss on the grounds that it appears unlikely the allegations can
Facts Alleged in Proposed Second Amended Complaint
The following facts are alleged in Plaintiffs’ proposed Amended Complaint and are
accepted as true for the purposes of deciding these motions. On August 3, 2015, Plaintiffs
Denise and J.D. Pickett entered into a contract with Defendant Graebel Van Lines. Plaintiffs
hired Defendant to move their belongings from their residence in Johnson County, Kansas to
their new residence in Morgantown, West Virginia. On August 28, 2015, Defendants delivered
some of Plaintiffs’ personal property to their residence in West Virginia; however, some of the
property was missing. Defendants demanded an additional payment of $6,287.89 to deliver the
Duncan v. Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2015).
Anderson v. Merrill Lynch Pierce Fenner & Smith Inc., 521 F.3d 1278, 1288 (10th Cir. 2008).
Ridge at Red Hawk LLC. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Kan Penn. Gaming, LLC v. Collins, 656 F. 3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
missing property. On January 28, 2016, Plaintiffs received a portion of the remaining property,
but valuable items were missing and some of their furniture was damaged or broken.
Plaintiffs’ proposed Amended Complaint alleges two claims for relief: a claim under the
Carmack Amendment, and a claim alleging unconscionable acts and practices under the Kansas
Consumer Protection Act (“KCPA”).8 Defendants do not oppose amending the complaint to add
the Carmack Amendment claim alleged in Count I. But Defendants argue that the proposed
KCPA claim would be futile because it is preempted by either the Carmack Amendment, or by
49 U.S.C. § 14501.
Federal law preempts state law where it can be established Congress intended to do so.9
Congress’s intent can be express in a statute; however, “[a]bsent explicit preemptive language,
Congress’s intent to supersede state law altogether may be found from a scheme of federal
regulation so pervasive as to make reasonable inference that Congress left no room for the state
to supplement it.”10 This is commonly referred to as field preemption.11 The Court’s “ultimate
task in any preemption case is to determine whether a state regulation is consistent with the
structure and purpose of the statute as a whole.”12
Because Congress enacted the Carmack Amendment to codify uniform liability for
interstate carriers, the United States Supreme Court held it has a broad preemptive effect.13 When
addressing the scope of the Carmack Amendment, the Supreme Court said: “Almost every detail
See K.S.A. §§ 50-690, -6,101.
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
Gade v. Nat’l Solid Waste Mgmt. Ass’n., 505 U.S. 88, 98 (1992).
See Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913) (explaining that Congress sought to
eliminate uncertainty for interstate shippers caused by a patchwork of state rules governing liability).
of the subject is covered so completely that there can be no rational doubt but that Congress
intended to take possession of the subject and supersede all state regulation with reference to
it.”14 Given the Supreme Court’s history of extensively interpreting the Carmack Amendment,
virtually every circuit to consider the issue has held that the Carmack Amendment preempts state
remedies for negligent loss or damage to goods during interstate shipping.15 The Tenth Circuit,
specifically, has held that “the Carmack Amendment preempts state common law remedies for
negligent loss or damage to goods shipped under a lawful bill of lading.”16
However, a plaintiff may be allowed recovery under a state statute in addition to the
Carmack Amendment if the state statute merely provides for incidental costs and does not allow
an additional remedy.17 In A.T. Clayton & Co. v. Missouri-Kansas-Texas Railroad, the Tenth
Underwriters at Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112, 1120–21 (10th Cir. 1989) (citing
Intech, Inc. v. Consolidated Freightways, Inc., 836 F.2d 672, 677 (1st Cir. 1987)); Hughes v. United Van Lines, Inc.,
829 F.2d 1407, 1415 (7th Cir. 1987) (“We reject the plaintiff's argument and their reliance on the cases of the Tenth
Circuit and hold that the remedy provision of the Carmack Amendment preempts all state and common law
remedies inconsistent with the Interstate Commerce Act . . . .”); Hopper Furs, Inc. v. Emery Air Freight Corp., 749
F.2d 1261, 1264 (8th Cir. 1984) (“A shipper who brings a negligence action may not recover in excess of the
amount specified in the receipt or bill of lading.”); Air Prods. & Chems., Inc. v. Ill. Cent. Gulf R.R, 721 F.2d 483,
487 (5th Cir. 1983) (“As the authorities previously noted hold, Congress intended by the Carmack Amendment to
provide a uniform national remedy against carriers for breach of the contract of carriage, including a liability for
default in any common-law duty as a common carrier.”); Millers Mut. Ins. Ass’n of Ill. v. S. Ry. Corp., 483 F.2d
1044, 1049 (4th Cir. 1973) (stating that the court was inclined to accept the preemption argument, although not
called upon to decide the issue in that case); Fulton v. Chicago Rock Island & Pac. R.R., 481 F.2d 326, 331 (8th Cir.
1973) (“[W]e agree that the Carmack Amendment has preempted suits in specific negligence by holders of bills of
lading against their carriers.”); W.D. Lawson & Co. v. Penn Cent. Co., 456 F.2d 419, 421 (6th Cir. 1972) (“As to the
second issue posed by this appeal concerning whether or not the Carmack Amendment preempted common law suits
of the nature of the first count stated in this case against both appellants, we hold that it did.”); Am. Synthetic Rubber
Corp. v. Louisville & Nashville R.R., 422 F.2d 462, 466, 468 (6th Cir. 1970) (“These cases make it clear that when
damages are sought against a common carrier for failure to properly perform, or for negligent performance of, an
interstate contract of carriage, . . . a tort action does not lie.”); United States v. Reading Co., 289 F.2d 7, 9 (3d Cir.
1961) (presuming that an action for negligence would be brought under the Carmack Amendment, which “codifies
the common law rule of a carrier’s liability”).
Underwriters at Lloyds of London, 890 F.2d at 1121.
See A.T. Clayton & Co. v. Missouri-Kansas-Texas R.R., 901 F. 2d 833, 835 (10th Cir. 1990).
Circuit held the Carmack Amendment did not preempt an Oklahoma statute18 allowing plaintiffs
to recover attorney’s fees where an interstate carrier willfully or negligently damaged goods.19
The Tenth Circuit relied on the Supreme Court’s decision in Missouri, Kansas & Texas Railway
v. Harris, which held that a state remedy incidentally affecting a carrier’s responsibility is not
preempted by the Carmack amendment.20 In contrast, the Carmack Amendment does preempt
state remedies that enlarge or limit the responsibility of a carrier for the loss or damage of
property entrusted to it.21 The Tenth Circuit reasoned that the Oklahoma statute did not “provide
an alternative avenue of recovery.”22 Rather, it allowed plaintiffs to recover “incidental
compensatory allowance for the expense of employing an attorney.”23 Furthermore, the court
explained that Oklahoma had good reason to provide the additional remedy of attorneys’ fees, as
it encouraged fast resolution to claims with merit. Therefore, the Tenth Circuit concluded that
the Carmack Amendment did not preempt the Oklahoma Statute.24
Here, Plaintiffs request relief under K.S.A. § 50-6,101(c), which provides: “The court
shall award a consumer who prevails in such an action twice the amount of any pecuniary loss,
together with cost, disbursements and reasonable attorney fees and any equitable relief that the
court determines is appropriate.”25 Although this statute grants recovery of attorney’s fees, it
also provides an alternative avenue of recovery for goods that were lost or damaged in interstate
Okla. Stat. Ann. tit. 12 § 940 (West 2017) (“In any civil action to recover damages for the negligent or
willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed
reasonable attorney’s fees, court costs and interest to be set aside by the court . . . . ”).
901 F.2d 833, 836 (1990).
Id. at 834 (citing Missouri, Kansas & Texas Ry. v. Harris, 234 U.S. 412 (1914)).
Id. at 835.
K.S.A. § 50-6,101(c) (emphasis added).
commerce. Furthermore, Plaintiffs do not allege any facts in addition to their Carmack
Amendment claim that would warrant an additional recovery. Allowing Plaintiffs to recover
under K.S.A. § 50-6,101(c) would expand the carrier’s liability from “the value set forth in the
bill of lading,” as allowed under the Carmack Amendment, to twice the pecuniary loss. This
additional avenue of recovery could not be considered an incidental cost as was the case in A.T.
Clayton. Allowing this recovery would frustrate Congress’s purpose of creating a scheme of
uniform liability for interstate carriers.26 Therefore, Plaintiffs’ Count II alleging a violation of
the KCPA is preempted by the Carmack Amendment . The Court need not consider Defendants
argument that Count II is also preempted by 49 U.S.C. § 14501.
IT IS THEREFORE ORDERED BY THE COURT that that Plaintiff’s Motion for
Leave to Amend (Doc. 8) is granted in part and denied in part. Plaintiff shall file the
proposed Amended Complaint (Doc. 8-1) as to Count I. The motion is denied as futile on the
KCPA claim alleged in Count II.
IT IS FURTHER ORDERED BY THE COURT that Defendant’s Motion to Dismiss
(Doc. 5) is denied as moot.
IT IS SO ORDERED.
Dated: May 24, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
Plaintiff’s citation to Judge Vratil’s decision in Hoover v. Allied Van Lines, Inc., 205 F. Supp. 2d 1232,
1240 n.4 (D. Kan. 2002), is unavailing. The cited footnote merely states that the plaintiffs in that case took the
position that their state law claims for misrepresentation, fraud, and violations of the KCPA are not preempted by
the Carmack Amendment. She did not rule on whether their KCPA claims were in facts preempted. Her decision
was in the context of a motion to remand where the Defendant maintained that the court lacked jurisdiction because
there was no federal claim alleged; Plaintiffs maintained that the Carmack Amendment preempted their breach of
contract and negligence claims and thus provided a basis for federal court jurisdiction. Id. at 1236.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?