Ricci et al v. Superior Moving & Storage, Inc.

Filing 12

MEMORANDUM AND RECOMMENDATIONS re 5 MOTION to Dismiss filed by Superior Moving & Storage, Inc. Objections to M&R due by 9/29/2008. Signed by Magistrate Judge Dennis Howell on 9/11/08. (pdf)

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A SH E V IL L E DIVISION 1 :0 8 c v2 7 4 P A SQ U A L E RICCI and wife, K A T H Y RICCI, P la in t if f s , V s. SU P E R IO R MOVING & ST O R A G E , INC., D e f e nd a nt. _______________________________ ) ) ) ) ) ) ) ) ) ) ) )

M E M O R A N D U M AND R E C O M M E N D A T IO N

T H I S MATTER is before the court upon defendant's Motion to Dismiss C omp la int (#5). Also pending is defendant's Motion to Change Venue (#4). Plaintiffs a re proceeding without counsel. I. D ism issa l for Procedural Default O n July 7, 2008, the undersigned entered a Roseboro Order advising the pro se p la intif f s that a motion to dismiss had been filed under Rule 12(b)(6), Federal Rules of Civil Procedure, and explained that such rule provided for dismissal where a party ha s failed to state a cause of action as a matter of law. The court further explained that d ef end a nt had specifically argued that their claims were preempted under the Carmack A mend ment to the Interstate Commerce Act, 49 U.S.C. § 14706. Plaintiffs were a d vised that they had until July 21, 2008, to file a written response to defendant's motion. Plaintiffs were further advised that their legal interests would best be protected through hiring an attorney to assist them. Upon motion, plaintiffs were allowed

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a d d itiona l time to respond, up to and including August 22, 2008. O n August 22, 2008, plaintiff Kathy Ricci filed what she captioned as a Motion to Dismiss Without Prejudice. In such motion, such plaintiff stated as follows: D ue to medical and household economy reasons, a request to file and c ontinue at a latter time is needed. Not to exceed 1-year term from this d a te . D oc k et Entry #10, at 1 (errors in the original). In response to such motion, which was not signed by plaintiff Pasquale Ricci, the court entered an Order as follows: M s. Ricci is advised that this court has no authority to enlarge any d ead line for the filing of a civil action, known as a "statute of limita tions" deadline. It is up to plaintiff to determine when a statute of limita tion is to run. Further, if plaintiff desires to take a voluntary d ismissa l of her action without prejudice, she may do so under Rule 4 1 ( a ) ( 1 )(A ), Federal Rules of Civil Procedure, at any time prior to d ef end a nt filing an answer of moving for summary judgment by filing a "notic e of dismissal without prejudice." Inasmuch as there are two p la intif f s in this matter, both plaintiffs would need to sign the notice for the entire case to be voluntarily dismissed. Finally, plaintiff is advised tha t if she has previously dismissed this action, a second dismissal would op era te as an adjudication on the merits. Fed.R.Civ.P. 41(a)(1)(B). P la intif f s are again advised that they need the assistance of counsel in this ma tter inasmuch as important legal rights are at stake. T he court will deny plaintiff's Motion to Dismiss without prejudice a s it seeks relief that this court cannot grant as a matter of law. Plaintiffs w ill be allowed until September 5, 2008, to either respond to defendant's M otion to Dismiss or file a notice of voluntary dismissal signed by both p la intif f s. Plaintiffs are advised that such a dismissal may operate as an a d jud ic ation on the merits if these claims were previously dismissed or if the statute of limitations has already run. O rd er, Docket Entry #11. Despite again enlarging the deadline for the filing of

resp onse or a proper Rule 41 notice of dismissal, plaintiffs have filed no response to the defendant's Motion to Dismiss. Thus, the undersigned must respectively

rec ommend that the Motion to Dismiss be allowed and that plaintiffs' Complaint be

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d ismissed with prejudice based on such default in responding. II. D ism issa l of the Complaint as Preempted In an abundance of caution, the undersigned has also considered the substance o f defendant's motion, which seeks dismissal under Rule 12(b)(6) for failure to state a cognizable claim inasmuch as such claims are preempted under the Carmack A m en d m en t. A. Sta nda rd Applicable to Rule 12(b)(6) Motions

W h e r e a defendant contends that a plaintiff has failed to state a cognizable c la im, Rule 12(b)(6) authorizes dismissal based on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King & Spalding, 4 6 7 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957). As the Court d isc uss ed in Neitzke: T h is procedure [for dismissal], operating on the assumption that the f a ctua l allegations in the complaint are true, streamlines litigation by d isp ensin g with needless discovery and fact finding. Nothing in Rule 1 2 (b )(6 ) confines its sweep to claims of law which are obviously insup p orta b le. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be d ismissed , without regard to whether it is based on outlandish legal theory . . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations." Id ., at 1832 (citation omitted). Dismissal of a complaint is proper under Rule 12(b)(6) w here it is clear that no set of facts consistent with the allegations in the plaintiffs' c omp laint could support the asserted claim for relief. Taubman Realty Group LLP v. M in eta , 320 F. 3d 475, 479 (4th Cir. 2003); Migdal v. Rowe Price-Fleming Intl Inc., 2 4 8 F. 3d 321, 325-36 (4th Cir. 2001).

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W hile the court accepts factual allegations in the complaint as true and considers the facts in the light most favorable to a plaintiff in ruling on a motion to dismiss, a c ourt "need not accept as true unwarranted inferences, unreasonable conclusions, or a rguments." Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s, LLP, 213 F. 3d 175, 180 (4th C ir. 2000). The presence of a few conclusory legal terms does not insulate a c omp la int from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion. And although the p lea d ing requirements of Rule 8(a) are very liberal, more detail often is req uir e d than the bald statement by plaintiff that he has a valid claim of some type against defendant. This requirement serves to prevent costly d iscovery on claims with no underlying factual or legal basis. M igd a l, at 326 (citations and internal quotations omitted). In addition, a court cannot "ac c ep t as true allegations that contradict matters properly subject to judicial notice or b y exhibit." Venev v. Wyche, 293 F. 3d 726, 730 (4th Cir. 2002) (citations and internal quotations omitted). For the limited purpose of ruling on defendants' motion, the court has accepted as true the facts alleged by plaintiffs in the Complaint and as rep resented in the Response, and has viewed them in a light most favorable to p la intif f s. B. D is c u s s io n

R esolution of this dispute between plaintiffs and a household moving company is governed by the Carmack Amendment to the Interstate Commerce Act. 49 U.S.C. § 14706. All of plaintiffs claims in the complaint sound in state tort and contract law. A s a matter of well settled law, the Carmack Amendment preempts all of plaintiffs' state law claims inasmuch as this action arises exclusively from interstate transport

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servic es performed by defendants. As recognized by the United States Supreme Court in Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134 (1964), the Carmack A mend ment replaced varying state causes of action with uniform "strict liability" of ca rriers to shippers. To assert a prim facie case under the Carmack Amendment, all tha t a shipper need prove are: (1) that their goods were in good condition when d elivered to the carrier; (2) the good were not delivered or delivered damages; and (3) d a ma ges in the amount of "actual loss." Id., at 138. Accordingly, the Carmack A mend ment completely preempts all state law remedies for damage or loss of goods tra nsp orted in interstate commerce. Shao v. Link Cargo(Taiwan) Ltd., 986 F.2d 700 (4 th Cir. 1993). Plaintiffs have not asserted such a claim in their Complaint. T hus, the only possible claim against an interstate motor carrier for loss or d amage to goods during or as part of an interstate shipment of household good is a c la im under the Carmack Amendment. Review of the allegations of the Complaint ma k e it clear that the damage or loss of plaintiffs' household goods in an interstate ship ment by motor carrier is the basis of all of their claims. The Carmack Amendment a lso applies to damage or loss that may have occurred when defendants stored p la intif f 's household goods. Margeston v. United Van Lines, Inc., 785 F.Supp. 917, 9 2 0 (D.N.M. 1991); I.C.R.R. § 1056.12. Preemption of the state law in such situations is well recognized in the district. A s succinctly summarized by Honorable Graham C. Mullen, then Chief Judge of this court, the Carmack Amendment preempts all state law claims: C ircuit courts of appeals, including the Fourth Circuit, have also una nimously held that Carmack's broad scope preempts all state law
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c la im s , whether they contradict or supplement Carmack remedies. Rini v . United Van Lines, Inc., 104 F.3d 502, 506 (1st Cir.), cert. denied, 522 U .S. 809, 118 S.Ct. 51, 139 L.Ed.2d 16 (1997) ("Preempted state law c la ims, therefore include all liability stemming from damage or loss of good s, liability stemming from the claims process, and liability related to th e payment of claims."); Cleveland v. Beltman North American Van Lin e s Co., Inc., 30 F.3d 373, 379 (2d Cir.1994) (stating that one of the p rima ry purposes of the Carmack Amendment is to provide uniformity in the disposition of claims brought under a bill of lading); Shao v. Link C a r g o (Taiwan) Limited, 986 F.2d 700, 706-707 (4th Cir.1993) ("[I]f the Intersta te Commerce Commission had jurisdiction over the shipment in this case, Shao's common law claims are preempted by the Carmack A mend ment."); Moffit v. Bekins Van Lines Co., 6 F.3d 305, 306-7 (5th C ir.1 9 9 3 ) (Carmack Amendment preempted state law claims, including c la ims of misrepresentation, fraud, gross negligence and intentional and negligent infliction of emotional distress); Hughes Aircraft Co. v. North A m e ric a n Van Lines, 970 F.2d 609, 613 (9th Cir.1992) ("Hughes [the s h ip p er] wisely concede[d] that federal law preempts any state common la w action against ... a common carrier."). Underwriters at Lloyds of Lo n d o n v. North American Van Lines, 890 F.2d 1112, 1120 (10th C ir.1 9 8 9 ) ("[T]he Carmack amendment preempts state common law remed ies against a carrier for negligent loss or damage to goods shipped und e r a proper bill of lading."); Hughes v. United Van Lines, Inc., 829 F.2 d 1407, 1415 (7th Cir.1987) ("We ... hold that the remedy provision of the Carmack Amendment preempts all state and common law remedies inc onsistent with the Interstate Commerce Act ..."); W.D. Lawson & Co. v . Penn. Central Co., 456 F.2d 419, 421 (6th Cir.1972) ("As to the ... iss ue ... [of] whether or not the Carmack Amendment preempted c ommon law suits ... we hold that it did.") T a ylor v. Mayflower Transit, Inc., 22 F.Supp.2d 509, 510-511 (W.D.N.C. 1998). The und ersigned is compelled to recommend to the district court that all of plaintiffs' state la w claims be dismissed with prejudice.

R E C O M M E N D A T IO N

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IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that (1 ) the Motion to Dismiss (#5) be ALLOWED due to plaintiffs' default in f ailing to properly respond within the time allowed, and that the C omp la int be dismissed with prejudice; and, in the alternative (2 ) the Motion to Dismiss (#5) be GRANTED in its entirety, and that all c la ims asserted herein be DISMISSED with prejudice as PREEMPTED b y the Carmack Amendment; and (3) the Motion to Change Venue (#4) be DENIED as moot.

T he parties are hereby advised that, pursuant to 28, United States Code, Section 6 3 6 (b )(1 )(C ), written objections to the findings of fact, conclusions of law, and rec ommend a tion contained herein must be filed within ten (10) days of service of sa me. Failure to file objections to this Memorandum and Recommendation with the d istric t court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Sc hronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).

Signed: September 11, 2008

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