Northside Towing L L C v. Mountain Movers Transportation & Logistics L P et al

Filing 17

ORDER DENYING 8 Motion to Remand AND ORDERING CONSOLIDATION. This case is ordered consolidated with Lead Case 1:09-cv-1599 for all purposes. Signed by Magistrate Judge James D Kirk on 2/8/2010. (crt,Keifer, K)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION NORTHSIDE TOWING L L C VERSUS CIVIL ACTION NO. U.S. 09-2134

DISTRICT JUDGE ~ANES T. TRIMBLE JR~

ALMAGUER WHOLESALE

U.S. MAGISTRATE K IRK

JUDGE JAMES D.

ORDER DENYING REMAND AND ORDERING CONSOLIDATION Before the court is a motion to remand, doc. #8.

This is a suit on open account by a towing company to recover for towing and storing an eighteen wheeler following an accident. Suit was filed in City Court and was removed to this court by a defendant on the basis of the Carmack Amendment. Plaintiff argues that this case has nothing whatsoever to do with damage to cargo in interstate commerce and, remanded. Defendant asserts that the issues in thus, this should be case are

related to those in 09--1599 on the docket of this court. latter case, loss of the

In the

the shipper, Mountain Movers seeks recovery for the cargo. It suggests that the two cases should be

consolidated for resolution of all of the issues. Discussion _____The liability of a carrier for damage or loss to an interstate shipment is controlled by the Interstate Commerce Act. The Carmack Amendment carriers to for the Act, 49 U.S.C. to goods 17706,
it

imposes

liability unless
it

on can

actual loss

transports

demonstrate that the damage to the goods was caused by "(a) the act of God; (d) (b) the public enemy; (e) (c) the act of the shipper himself;

public authority;

or the inherent vice or nature of the

goods." Missouri Pacific Railroad Co. v. Elmore & Stahl, 84 S. Ct. 1142 (1964)
.

In order to establish a prima facie case for loss or

damage to goods arising from the interstate transportation of those goods by a of common the carrier, in the good shipper must (2) demonstrate: receipt by (1) the

delivery

goods

condition,

consignee of less goods or of damaged goods, and (3) the amount of damages. Hoskins v. Bekins Van Lines, 343 F.3d 769 The Mountain Movers case court pursuant to the (09-1599)
(5th

Cir. 2003)

is properly before this Were it not for the

Carmack Amendment.

existence of that suit, the instant suit would be a simple suit on open account and would not be governed by the Carmack Amendment. However, it appears that in this suit Northside wants to be paid

for its services before releasing the vehicle and load and in the other case Mountain I~4overs wants to recover for the "lost" load. Obviously there involved. may be equities each way and a setoff may be This

Therefore,

the two cases should be consolidated.

court will then exercise supplemental jurisdiction over Northsicle's claims in this suit. For these reasons, the motion to remand, doc. #8, is DENIED.

This case is ORDERED CONSOLIDATED with 09-1599, Mountain Movers Transportation and Logistics, LP v. Continental Trans Express,

2

Inc.,

et al, for all purposes. THUS DONE AND SIGNED at Alexandria, Louisiana, THIS
TH 8

DAY OF February, 2010

MAGISTRATE JUDGE

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