Network F.O.B., Inc. v. P & J Express, LLC
ORDER denying 6 Motion to Dismiss/General (Written Opinion). Signed by Judge Patrick J. Schiltz on 03/17/14. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
NETWORK F.O.B., INC., a Minnesota
Case No. 13-CV-3656 (PJS/LIB)
P & J EXPRESS, LLC,
Paul O. Taylor, TAYLOR & ASSOCIATES, LTD., for plaintiff.
Douglas Grawe and Scott D. Festin, GRAWE LAW PLLC; Robert G. Rothstein, LAW
OFFICE OF ROBERT G. ROTHSTEIN PLLC, for defendant.
Plaintiff Network F.O.B., Inc. (“Network F.O.B.”) alleges that it hired defendant P & J
Express, LLC (“P & J Express”) to transport a shipment of produce from Arizona to Canada.
According to Network F.O.B., however, the truck carrying the produce was involved in a traffic
accident while in route to Canada, resulting in a total loss to the produce. Network F.O.B. seeks
recovery from P & J Express pursuant to 49 U.S.C. § 14706 for the value of the produce, freight
charges, lost profits, and certain incidental costs.
This matter is before the Court on the motion of P & J Express to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6). P & J Express contends that dismissal of the complaint is
warranted for three reasons. First, P & J Express argues that the claim pleaded in the complaint
is preempted by federal law. Second, P & J Express argues that the complaint fails to plausibly
allege that P & J Express received the produce in good condition — an essential element of a
claim brought pursuant to § 14706. See Nat’l Transp., Inc. v. Inn Foods, Inc., 827 F.2d 351,
353-54 (8th Cir. 1987) (“In an action to recover for loss, the shipper must establish that (1) the
shipper delivered goods to the carrier, (2) the goods were in good condition at the time of
delivery, (3) the goods arrived in damaged condition, and (4) the shipper suffered damages.”).
And third, P & J Express argues that the complaint does not plausibly allege that Network F.O.B.
timely pursued non-judicial remedies before bringing this case.1 For the reasons explained
below, P & J Express’s motion to dismiss is denied.
First, P & J Express argues that “Plaintiff’s claim cannot survive” because § 14706 “is the
exclusive cause of action and sole remedy for Plaintiff’s claim.” ECF No. 8 at 4-5. This
argument is perplexing, as the only claim that Network F.O.B. makes in its complaint is a claim
pursuant to § 14706. Thus, whether § 14706 forbids Network F.O.B. from bringing state-law
claims is irrelevant, as Network F.O.B. has not brought such claims.
Second, P & J Express argues that the complaint fails to plausibly allege that the produce
was in good condition when it was delivered to P & J Express. See Nat’l Transp., Inc., 827
F.2d at 354 (“[T]he shipper must establish that . . . the goods were in good condition at the time
of delivery . . . .”). The Court disagrees. The complaint alleges that P & J Express “signed the
P & J Express also argues that, even if the claim pleaded by Network F.O.B. is not
dismissed, Network F.O.B. should not be permitted to recover attorney’s fees, freight charges,
lost profits, or any other losses arising out of the accident other than the value of the produce.
Network F.O.B. concedes that it may not recover attorney’s fees pursuant to § 14706, but argues
that it is entitled to “all reasonably foreseeable consequential damages,” including the other
categories just mentioned. Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., Inc., 325 F.3d 924,
931 (7th Cir. 2003). Network F.O.B. is correct. As noted by the Supreme Court, the text of the
statute at issue in this case is “comprehensive enough to embrace all damages resulting from any
failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed
destination.” Se. Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936) (quotation
omitted). Courts have regularly permitted recovery of reasonably foreseeable damages of the
kind sought by Network F.O.B. See Yellow Freight Sys., Inc., 325 F.3d at 931-35 (examining
bill of lading without notation or exception, indicating receipt of the shipment in good
condition.” Compl. ¶ 8 [ECF No. 1-1]. Attached to the complaint is what appears to be a copy
of the signed bill of lading. See ECF No. 1-1 at 9. The bill of lading indicates — as alleged in
the complaint — that P & J Express noted no damage to the produce at the time of delivery. See
Minn. Majority v. Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013) (“A court reviewing a motion to
dismiss may also consider . . . materials that are necessarily embraced by the pleadings.”
(quotation omitted)). Whether or not this evidence will be sufficient, in and of itself, to establish
at trial that the produce was delivered to P & J Express in good condition is beside the point. See
Pillsbury Co. v. Ill. Cent. Gulf. R.R., 687 F.2d 241, 244 (8th Cir. 1982). The question is the
sufficiency of the complaint — not the sufficiency of the evidence — and Network F.O.B.’s
complaint plausibly alleges that the produce was delivered in good condition. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to state a claim, complaint must contain enough
facts to be plausible).
Third, P & J Express argues that Network F.O.B. failed to plausibly allege that a claim
was filed with P & J Express notifying it of the loss suffered as a result of the accident and
seeking reimbursement for that loss. Again, however, Network F.O.B. has met its burden under
Rule 8. The complaint alleges that the entity expecting final delivery of the produce filed a claim
with P & J Express seeking recovery in an amount identical to the recovery sought in the
complaint. See Compl. ¶ 10. Moreover, Network F.O.B. has attached to the complaint what
appears to be a copy of the claim filed with P & J Express. See ECF No. 1-1 at 10. Again, the
question is not whether P & J Express has sufficient evidence to recover at trial, but whether it
has plausibly alleged that a claim was filed with P & J Express prior to the filing of the
complaint. It has.
In sum, the complaint alleges sufficient facts to state a plausible claim for relief pursuant
to § 14706. Accordingly, the motion to dismiss of P & J Express is denied.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT the motion to dismiss of defendant P & J Express, LLC [ECF
No. 6] is DENIED.
Dated: March 17 , 2014
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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