Straley et al v. Thomas Logistics, LLC d/b/a SPS Moving et al

Filing 18

ORDER Pltfs 15 Objection to Memorandum and Recommendations OVERRULED; Bekins' 2 Motion to Dismiss DENIED without prejudice as MOOTED by Pltf's Amended Complaint; Bekins' 8 Motion to Dismiss Amended Complai nt in Part GRANTED; Thomas' 12 Motion to Dismiss GRANTED; and claims one through five asserted in original Complaint and reasserted in Amended Complaint are DISMISSED WITH PREJUDICE as to all Defts; adopting Memorandum and Recommendations re 13 Memorandum and Recommendations.. Signed by District Judge Martin Reidinger on 3/31/10. (ejb)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA B R Y S O N CITY DIVISION C IV IL CASE NO. 2:10cv02

R O N AL D L. STRALEY and wife, ) M AR Y STRALEY, ) ) P la in t if f s , ) ) vs . ) ) TH O M AS LOGISTICS, LLC, ) d /b /a SPS Moving; BEKINS ) V AN LINES, LLC; and ) V AN L IN E R INSURANCE ) C O M P AN Y , ) ) D e fe n d a n ts . ) ___________________________ )

ORDER

THIS MATTER is before the Court on the Magistrate Judge's M e m o ra n d u m and Recommendation [Doc. 13] regarding the following m o tio n s : (1) Defendant Bekins Van Lines, LLC's Motion to Dismiss [D o c . 2]; (2) Defendant Bekins Van Lines, LLC's Motion to Dismiss A m e n d e d Complaint in Part [Doc. 8]; and (3) Defendant Thomas Logistics, LLC's Motion to Dismiss [Doc. 1 2 ].

I.

P R O C E D U R AL BACKGROUND O n December 17, 2009, the Plaintiffs filed a Complaint against the

D e fe n d a n ts Thomas Logistics, LLC, d/b/a SPS Moving ("Thomas"), Bekins V a n Lines, LLC ("Bekins"), and Vanliner Insurance Company ("Vanliner") in th e Macon County General Court of Justice, Superior Court Division, a lle g in g claims under North Carolina law for breach of contract, vicarious lia b ility, unfair and deceptive trade practices, and attorney's fees. [Complaint, Doc. 1-1]. The action was removed to this Court on the basis o f federal question jurisdiction on January 13, 2010. [Notice of Removal, D o c . 1]. Bekins subsequently filed a motion to dismiss, asserting that the c a u s e s of action asserted in the Plaintiffs' Complaint are completely p re e m p te d by federal law, namely the Carmack Amendment, 49 U.S.C. §§ 1 4 7 0 6 , et seq. [Doc. 2]. In response to Bekins's motion, the Plaintiffs filed a n Amended Complaint reasserting their five causes of action and adding a c la im under the Carmack Amendment. [Amended Complaint, Doc. 5]. Bekins subsequently moved to dismiss this Amended Complaint as well, to th e extent that the Plaintiffs continued to assert the state causes of action

2

th a t were asserted in the original Complaint. [Doc. 8]. Thomas filed its m o tio n to dismiss on February 25, 2010. [Doc. 12]. Pursuant to 28 U.S.C. § 636(b) and the standing Orders of D e s ig n a tio n of this Court, the Honorable Dennis L. Howell, United States M a g is tra te Judge, was designated to consider the Defendants' pending m o tio n s . On March 18, 2010, Judge Howell entered a Memorandum and R e c o m m e n d a tio n , concluding that all of the Plaintiffs' state law claims s h o u ld be dismissed, as the Carmack Amendment preempts all claims re la te d to the interstate shipment of household goods, including claims, the c la im s process, and the denial of claims. [Doc. 13 at 6]. T h e Plaintiffs now file a limited objection to the Magistrate Judge's R e c o m m e n d a tio n , challenging only the dismissal of their claim for a tto rn e y's fees. [Doc. 15].

II.

S TAN D AR D OF REVIEW T h e Federal Magistrate Act requires a district court to "make a de

n o v o determination of those portions of the report or specific proposed fin d in g s or recommendations to which objection is made." 28 U.S.C. § 6 3 6 (b )(1 ). The Court is not required to review, under a de novo or any

3

o th e r standard, the factual or legal conclusions of the magistrate judge to wh ic h no objections have been raised. Thomas v. Arn, 474 U.S. 140, 150, 1 0 6 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Additionally, the Court need n o t conduct a de novo review where a party makes only "general and c o n c lu s o ry objections that do not direct the court to a specific error in the m a g is tra te 's proposed findings and recommendations." Orpiano v. J o h n s o n , 687 F.2d 44, 47 (4th Cir. 1982).

III.

A N A L Y S IS T h e Plaintiffs argue that the Magistrate Judge erred in recommending

th e dismissal of their claim for attorney's fees because such fees are re c o ve ra b le under the Carmack Amendment. Specifically, the Plaintiffs re ly upon a booklet they received from Thomas entitled "Your Rights and R e s p o n s ib ilitie s When You Move," which outlined the limited conditions u n d e r which a shipper, such as the Plaintiffs, could recover their attorney's fe e s . [Doc. 15 at 1]. The language of this booklet tracks the relevant s ta tu te , 49 U.S.C. § 14708(d), which provides, in pertinent part, as follows: (d ) Attorney's Fees to Shippers. ­ In any court action to resolve a dispute between a shipper of household g o o d s and a carrier providing transportation or service s u b je c t to jurisdiction under subchapter I or III of
4

c h a p te r 135 concerning the transportation of h o u s e h o ld goods by such carrier, the shipper shall be a wa rd e d reasonable attorney's fees if ­ (1) the shipper submits a claim to the carrier within 1 2 0 days after the date the shipment is delivered or th e date the delivery is scheduled, whichever is later; (2 ) the shipper prevails in such court action; and (3 )( A ) the shipper was not advised by the carrier d u rin g the claim settlement process that a dispute s e ttle m e n t program was available to resolve the d is p u te ; (B) a decision resolving the dispute was not rendered th ro u g h arbitration under this section within the period p ro vid e d under subsection (b)(8) of this section or an e xte n s io n of such period under such subsection; or (C ) the court proceeding is to enforce a decision re n d e re d through arbitration under this section and is in s titu te d after the period for performance under such d e c is io n has elapsed. 4 9 U.S.C. § 14708(d). In their Amended Complaint, the Plaintiffs allege that they filed their written claim to the carrier within nine months of delivery. [Doc. 5 at ¶3]. The Plaintiffs make no allegation that they submitted a claim within 120 d a ys after delivery, nor do they allege a failure of the carrier to advise of th e availability of arbitration. See Ewanchew v. Bekins Van Lines, LLC, N o . 3:07-cv-00403-J-34HTS, 2008 WL 4642614, at *3 (M.D. Fla. Oct. 20,
5

2 0 0 8 ) . Having failed to make these necessary allegations, the Plaintiffs are n o t entitled to recover any attorney's fees pursuant to 49 U.S.C. § 1 4 7 0 8 (d ). Accordingly, the Plaintiff's Objection to the Magistrate Judge's M e m o ra n d u m and Recommendation must be overruled.

IV .

C O N C L U S IO N A fte r a careful review of the Magistrate Judge's Recommendation,

th e Court finds that the proposed findings of fact are supported by the re c o rd and that the proposed conclusions of law are consistent with current c a s e law. Accordingly, the Court hereby accepts the Magistrate Judge's R e c o m m e n d a tio n [Doc. 13] that Bekins's Motion to Dismiss [Doc. 2] be d e n ie d without prejudice as mooted by the Plaintiffs' Amended Complaint; th a t Bekins's Motion to Dismiss Amended Complaint in Part [Doc. 8] be g ra n te d ; that Thomas's Motion to Dismiss [Doc. 12] be granted; and that c la im s one through five asserted in the original Complaint and reasserted in the Amended Complaint be dismissed with prejudice as to all D e fe n d a n ts , as such claims are completely preempted by the Carmack A m e n d m e n t.

6

A c c o rd in g ly, IT IS, THEREFORE, ORDERED that the Plaintiffs' O b je c tio n to Memorandum and Recommendation [Doc. 15] is O V E R R U L E D ; that Bekins's Motion to Dismiss [Doc. 2] is DENIED without p re ju d ic e as MOOTED by the Plaintiffs' Amended Complaint; that Bekins's M o tio n to Dismiss Amended Complaint in Part [Doc. 8] is GRANTED; that T h o m a s 's Motion to Dismiss [Doc. 12] is GRANTED; and that claims one th ro u g h five asserted in the original Complaint and reasserted in the A m e n d e d Complaint are hereby DISMISSED WITH PREJUDICE as to all D e fe n d a n ts . IT IS SO ORDERED.

Signed: May 31, 2010

7