Underwood v. Allied Van Lines, Inc.

Filing 31

ORDER. IT IS HEREBY ORDERED that plaintiff's 20 motion to file a second amended complaint is granted in part and denied in part in accordance with this order. The bond previously posted by plaintiff shall remain deposited with the cl erk of court. FURTHERMORE, upon the filing of the plaintiff's second amended complaint, the defendant's 9 motion to dismiss, or in the alternative for a more definite statement, shall be denied as moot. The denial is without prejudice should the defendant elect to file a motion to dismiss the second amended complaint. Signed by Judge Howard D. McKibben on 4/14/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD UNDERWOOD,

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Plaintiff,

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vs.

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ALLIED VAN LINES, INC.,

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Defendant.

3:11-cv-00035-HDM-RAM

ORDER

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The court has been advised that plaintiff has complied with the
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required claims process pursuant to 49 C.F.R. § 370.3(a), 49 C.F.R.
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§ 1005.2(a), and the defendant’s

tariff. Accordingly, leave is

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granted to the plaintiff to file a second amended complaint. Any such
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complaint shall be limited to a claim under the Carmack Amendment.
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The inclusion of a claim for intentional infliction of emotional
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distress would be futile as it is preempted by the Carmack Amendment
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“to the extent it arises from the same conduct as the claims for
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delay, loss or damage to shipped property.” White v. Mayflower
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Transit,
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L.L.C.,

543

F.3d

581,

586

(9th

Cir.

2008).

Despite

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plaintiff’s assertion otherwise, his proposed claim for intentional

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infliction

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underlying his Carmack Amendment claim. Plaintiff is therefore denied

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leave to amend his complaint to add a claim for emotional distress.

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Accordingly,

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complaint (#20) is granted in part and denied in part in accordance

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with this order. The bond previously posted by plaintiff shall remain

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deposited with the clerk of the court.

of

emotional

the

distress

plaintiff’s

arises

motion

to

from

file

the

a

same

second

conduct

amended

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Upon the filing of the plaintiff’s second amended complaint, the

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defendant’s motion to dismiss, or in the alternative motion for a

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more definite statement(#9), shall be denied as moot. The denial is

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without prejudice should the defendant elect to file a motion to

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dismiss the second amended complaint.

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IT IS SO ORDERED.

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DATED this 14th day of April, 2011.

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UNITED STATES DISTRICT JUDGE