Air Liquide Mexico S. de R.L. de C.V. v. Talleres Willie, Inc. et al.
Filing
130
MEMORANDUM AND ORDER ON PENDING MOTIONS. GRANTING 100 Motion for Extension of Time Respond to Plaintiffs' Motion for Summary Judgment. DENYING 85 Motion for Reconsideration, 86 Motion for Entry of Final Judgment, 91 Motion to Di smiss, 93 Motion for Summary Judgment Regarding Limitation of Liability, 96 Motion to Dismiss, 112 Opposed Motion for New Docket Control Order and Status Conference, 113 Motion for Summary Judgment, 116 Opposed Motion to Strike, 118 Opposed Motion to Strike and 126 Supplemental Motion to Dismiss. (Signed by Judge Ewing Werlein, Jr) Parties notified. (marflores, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AIR LIQUIDE MEXICO S. de R.L.
§
de C.V. and AIR LIQUIDE PROCESS §
AND CONSTRUCTION, INC.,
§
§
Plaintiffs,
§
§
v.
§
§
TALLERES WILLIE, INC.,
§
BERNARDO AINSLIE, FELIX NINO
§
LEIJA, TRAILBLAZER PILOT CAR
§
SERVICES, LLC, CLAUDE JOSEPH
§
KIMMEL d/b/a FREEDOM PILOT
§
CAR SERVICES, CHARLES VAN
§
KIRK d/b/a SLINGSHOT PILOT
§
ESCORT SERVICES, WHEELING
§
EQUIPMENT COMPANY, INC.,
§
GEORGE ORTIZ, and CONTRACTORS
§
CARGO COMPANY,
§
§
Defendants.
§
CIVIL ACTION NO. H-14-211
MEMORANDUM AND ORDER ON PENDING MOTIONS
Pending are Plaintiffs’ Motion for Reconsideration Regarding
Trailblazer Pilot Car Services, LLC, and Motion for Leave to File
Third Amended Complaint (Document No. 85); Defendant Contractors
Cargo Company’s Motion for Entry of Final Judgment (Document
No. 86), in which Defendant Trailblazer Pilot Car Services, LLC has
joinied;1 Defendants Wheeling Equipment Company, Inc. and George
Ortiz’s Joint Motion to Dismiss the Second Amended Complaint
Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) (Document
No. 91), in which Defendants Charles Van Kirk d/b/a Slingshot Pilot
1
Document No. 87.
Car Services (“Van Kirk”) and Claude Joseph Kimmel d/b/a Freedom
Pilot Car (“Kimmel”) join;2 Plaintiffs’ Motion for Summary Judgment
Regarding Limitation of Liability (Document No. 93); Defendants Van
Kirk and Kimmel’s Third Motion to Dismiss, with Prejudice (Document
No. 96); Defendants Van Kirk and Kimmel’s Counter-Motion for
Summary Judgment (Document No. 113); Plaintiffs’ Motion to Strike
Counter-Motion for Summary Judgment as Untimely (Document No. 116);
Plaintiffs’ Opposed Objections and Motion to Strike Certain Summary
Judgment Evidence Relied Upon by Pilot Cars Defendants and Talleres
Willie Defendants (Document No. 117); and Defendants Van Kirk and
Kimmel’s Supplement to Third Motion to Dismiss under FRCP 12(b)(1)
(Document No. 126).3
After carefully considering the motions,
responses, replies, and the applicable law, the Court concludes as
follows.
I. Background
Plaintiffs Air Liquide Mexico S. de R.L. de C.V. (“Air Liquide
Mexico”) and Air Liquide Process and Construction, Inc. (“Air
2
Document No. 109.
3
Also pending are Defendants Talleres Willie, Inc. and
Bernardo Ainslie’s Motion to Extend Time to Respond to Plaintiffs’
Motion for Summary Judgment (Document No. 100), which is GRANTED,
and Defendants Van Kirk’s and Kimmel’s Opposed Motion for New
Docket Control Order and Status Conference (Document No. 112),
which is DENIED. Plaintiffs’ Opposed Motion to Strike and Response
to Pilot Car Defendants’ Motion for New Docket Control Order and
Status Conference (Document No. 118) is therefore DENIED AS MOOT.
2
Liquide
Process,”
and
together
with
Air
Liquide
Mexico,
“Plaintiffs”) purchased a purification skid, which is a specialized
piece of refinery processing equipment, to be used in Air Liquide
Mexico’s facilities in Mexico.4
The purification skid (sometimes
referred to in the record as the APU skid) was more than 60 feet
long, over 15 feet tall, over 15 feet wide, weighed approximately
63 tons, and was valued at more than $1 million.5
Plaintiffs
contracted with Hansa Meyer Global Transport USA, LLC (“Hansa
Meyer”) to ship the purification skid from India to the Port of
Houston, and from there to transport it by tractor trailer overland
to Mexico.6
Hansa
Meyer
in
turn
hired
Contractors
Cargo
Company
(“Contractors Cargo”) to arrange for the overland transportation of
4
Document No. 79 ¶ 12 (Pls.’ 2d Am. Compl.).
5
Id.
6
Hansa Meyer is not a party to this suit, and Plaintiffs’
Second Amended Complaint--like their earlier pleadings--omits any
reference to Hansa Meyer. See id. ¶¶ 12-13 (“After arriving at the
Port of Houston, the APU skid was to be transported via tractor
trailer from the Port of Houston directly to its final destination
in Pesqueria, Mexico.
Contractors Cargo Company was hired to
transport the APU Skid.
While it did not itself transport the
Skid, it coordinated and arranged for the transport of the APU
skid.”). As previously noted, Plaintiffs acknowledge that their
sole contract was with Hansa Meyer.
Document No. 56 at 2 n.1
(“Plaintiffs sued Hansa Meyer Global Transport, LLC (the logistics
company with whom Air Liquide contracted) for breach of contract
and that lawsuit is pending in Montgomery County, Texas.
Plaintiffs had no contract with any of the Defendants in the
instant lawsuit.”).
3
the purification skid.7
Contractors Cargo constructed a 140 foot
long custom-made lowboy trailer for the purification skid and then,
acting as a broker, contracted with Defendant Talleres Willie, Inc.
(“Talleres Willie”) to transport the trailer and the purification
skid to Mexico.8
Talleres Willie supplied the tractor, driver
(Defendant Felix Nino Leija (“Leija”)), and other crew members
(including Defendant Bernardo Ainslie (“Ainslie”)) to transport the
purification
skid.9
Contractors
Cargo
also
contracted
with
Defendant Wheeling Equipment Company, Inc. (“Wheeling”) to provide
a bucket truck driver, Defendant George Ortiz (“Ortiz”), and
with
Defendant Trailblazer Pilot Car Services, LLC (“Trailblazer”),
which in turn selected and hired pilot car escorts--Defendants Van
Kirk and Kimmel--for the transportation of the purification skid.10
On March 4, 2013, a train hit the trailer, which was stalled
across the tracks at a railroad crossing in Magnolia, Texas,
severely damaging the purification skid.11
Plaintiffs allege that
Defendants improperly attempted to cross the railroad crossing at
7
Document No. 79 ¶ 13.
8
Id. ¶¶ 14-15. A lowboy trailer is designed to carry tall
loads and stay within certain height limits. See Document No. 11518 at 2 of 4 to 4 of 4 (photographs of trailer).
9
Id. ¶¶ 15, 17. Plaintiffs have been unable to serve Leija
and believe he may be in Mexico. Id. ¶ 5.
10
Id. ¶ 18; Document No. 56 at 2.
11
Document No. 79 ¶ 20.
4
an angle from the left side of the street, and then abandoned the
trailer when it became stuck.12 Plaintiffs further allege that this
accident was the result of a host of careless acts by Defendants,
including most significantly their failure to inform the railroad
of their crossing.13
Plaintiffs brought suit in state court and Contractors Cargo14
timely removed the suit.15 The Court on February 18, 2015 held that
Plaintiffs’ state law claims against Talleres Willie, Ainslie, Van
Kirk, Kimmel, Trailblazer, and Contractors Cargo were completely
preempted by the Carmack Amendment to the Interstate Commerce Act,
49 U.S.C. § 14706, and accordingly dismissed those claims with
prejudice, but granted Plaintiffs leave to amend their pleading to
allege against Ainslie, Leija, Kimmel, and Van Kirk claims under
the Carmack Amendment.16 Plaintiffs then filed their Second Amended
Complaint, alleging a single claim for violation of the Carmack
Amendment against Ainslie, Leija, Kimmel, Van Kirk, Wheeling, and
12
Id. ¶¶ 20, 28.
13
Id. ¶¶ 21-30.
14
Contractors Cargo and Trailblazer were both Defendants in
this suit until the Court dismissed Plaintiffs’ claims against them
on February 18, 2015. See Document No. 75.
15
remand.
16
Document No. 1.
The Court denied Plaintiffs’ motion to
Document No. 38.
Document No. 75.
5
Ortiz.17
Plaintiffs also move for reconsideration of the Court’s
dismissal of Plaintiffs’ claims against Trailblazer, seeking leave
to file a Third Amended Complaint adding claims against Trailblazer
based on new evidence.18 Contractors Cargo and Trailblazer move for
entry
of
final
judgment
based
on
Plaintiffs’ claims against them.19
the
Court’s
dismissal
of
Van Kirk and Kimmel move to
dismiss the case under Rule 12(b)(1), and Wheeling, Ortiz, Van
Kirk, and Kimmel move to dismiss the claims against them under Rule
12(b)(6).20
Plaintiffs and Van Kirk and Kimmel have filed cross-
motions for summary judgment regarding the applicability of a
limitation
of
liability
provision
Contractors Cargo and Hansa Meyer.21
in
the
contract
between
Finally, Plaintiffs move to
strike various motions and evidence, and seek Rule 11 sanctions
against Van Kirk and Kimmel.22
17
Document No. 79. Although Wheeling and Ortiz--unlike the
other Defendants--had not filed a motion to dismiss Plaintiffs’
prior pleading, Plaintiffs concluded that “because Plaintiffs’
claims against Defendants Wheeling and Ortiz are similar to
Plaintiffs’ claims against the other Defendants, Plaintiffs believe
the Court would view such claims as Carmack Amendment claims,“ and
repled those claims accordingly. Id. at 3 n.2.
18
Document No. 85.
19
Document Nos. 86, 87.
20
Document Nos. 91, 96, 109, 126.
21
Document Nos. 93, 113.
22
Document Nos. 116-118.
6
II. Motion for Reconsideration
Plaintiffs move under Rule 59(e) for reconsideration of the
Court’s dismissal of their state law claims against Trailblazer
based on “additional evidence previously unknown to Plaintiffs
showing that Trailblazer was far more involved with the transport
than
Plaintiffs
knew
when
they
filed
their
First
Amended
Complaint,” and seek leave to file a Third Amended Complaint to
assert claims against Trailblazer.23
“A FRCP 59(e) motion to reconsider should not be granted
unless there is: (1) an intervening change in controlling law;
(2) the availability of new evidence not previously available; [or]
(3) the need to correct a clear error of law or fact or to prevent
a manifest injustice.” Brown v. Mississippi Co-op Extension Serv.,
89 F. App’x 437, 439 (5th Cir. 2004) (citations omitted).
Where,
as here, the motion to reconsider is based on an alleged discovery
of new evidence, it should be granted only if (1) the facts
discovered are of such a nature that they would probably change the
outcome, (2) the facts alleged are actually newly discovered and
could not have been discovered earlier by proper diligence, and (3)
the facts are not merely cumulative or impeaching.
Johnson v.
Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010)
(citation omitted).
23
Document No. 85 at 2.
7
The “newly discovered evidence” on which Plaintiffs rely
consists of testimony of Jake Kimmel (the cousin of Defendant
Claude Joseph Kimmel) given at his deposition on November 24,
2014.24
The Court’s Memorandum and Order dismissing Plaintiffs’
claims against Trailblazer was not entered until February 18, 2015,
almost three months later.25
Thus, the evidence was not newly
discovered after entry of the Court’s Order, and is not a proper
basis for reconsideration under Rule 59(e).26
See Pejouhesh v.
Capital One Bank, No. CIV.A. H-14-2060, 2015 WL 539549, at *2 (S.D.
Tex. Feb. 9, 2015) (Rosenthal, J.) (“A Rule 59(e) motion may not be
used to relitigate old matters or to raise arguments or present
evidence that could have been raised before the entry of the
judgment or order.”) (citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 863 (5th Cir. 2003)).
24
Document No. 85 at 2, 4.
25
Document No. 75.
26
Plaintiffs argue that they “could not have previously
brought this evidence to the Court’s attention in their briefing
because the new evidence was not discovered until . . . after
Plaintiffs’ briefing deadline,” and “because of the voluminous
briefing pending before the Court [including four motions to
dismiss] it would have been inappropriate for Plaintiffs to seek
leave to amend their complaint while all of these filings were
pending before the Court.”
Document No. 97 at 4-6.
These
considerations do not excuse Plaintiffs’ lack of diligence to seek
leave either to file supplemental briefing or to amend their
complaint in light of what Plaintiffs believe was newly discovered
evidence. Instead, Plaintiffs waited until the Court’s adverse
ruling and then moved to reconsider.
8
In the alternative, Plaintiffs seek leave to file a new
Carmack Amendment claim based on the “newly discovered evidence,”
which purportedly shows “that Trailblazer supplied equipment and
services for this transport thereby making Trailblazer a ‘carrier’
under the Carmack Amendment.”27
Plaintiffs’ proposed Carmack Claim
alleges that:
Defendant Trailblazer supplied its transportation
services in the form of instructions and advice to its
pilot car drivers during the transport of the APU skid.
Defendant Trailblazer also supplied equipment such as a
cell phone, orange flags, and ‘oversized’ signs to
Defendant Claude Kimmel.
Therefore, to the extent
Defendant Trailblazer can be considered a ‘carrier,’
Plaintiffs alternatively assert a Carmack Amendment claim
against Defendant Trailblazer.28
Assuming that the advice and supplies provided by Trailblazer were
used by persons engaged in the carriage of the purification skid,
which Trailblazer questions,29 Plaintiffs cite to no authority
holding that such a de minimis contribution as the provision of
advice, a cell phone, flags, and signs is sufficient to establish
liability as a “carrier” under the Carmack Amendment.30
27
Document No. 85 at 8.
28
Document No. 85-2 ¶ 45.
29
See Foman
See Document No. 95 at 18.
30
The Interstate Commerce Act’s definition of a carrier
includes “a person providing motor vehicle transportation for
compensation,” and “transportation” includes:
(A) a motor vehicle, vessel, warehouse, wharf, pier,
9
v.
Davis,
83
S.
Ct.
227,
230
(1962)
(listing
amendment” as a reason to deny leave to amend).
“futility
of
Because such an
amendment would be futile, and because Plaintiffs base their motion
on evidence that was known to Plaintiffs before the Court dismissed
their claims against Trailblazer, Plaintiffs’ motion to reconsider
and for leave to file a Third Amended Complaint is denied.
III. Motion for Entry of Final Judgment
Contractors Cargo moves under Rule 54(b) for entry for final
judgment in its favor, which motion Trailblazer adopts and joins.31
Although Plaintiffs have filed no response to the motion, Rule
54(b) motions are disfavored and should be granted only “when there
exists some danger of hardship or injustice through delay which
dock, yard, property, facility, instrumentality, or
equipment of any kind related to the movement of
passengers or property, or both, regardless of ownership
or an agreement concerning use; and
(B) services related to that movement, including
arranging for, receipt, delivery, elevation, transfer in
transit, refrigeration, icing, ventilation, storage,
handling, packing, unpacking, and interchange of
passengers and property.
49 U.S.C. § 13102(3), (14), (16), (23). Under the ejusdem generis
cannon of construction, the specific statutory examples preceding
the general language of “equipment of any kind related to the
movement of passengers or property,” preclude a finding that
vendors of common items such as cell phones, flags, and signs used
by actual carriers thereby themselves become “person[s] providing
motor vehicle transportation for compensation” within the meaning
of the Carmack Amendment.
31
Document Nos. 86, 87.
10
would be alleviated by immediate appeal.”
PYCA Indus., Inc. v.
Harrison Cnty. Waste Mgmt., 81 F.3d 1412, 1421 (5th Cir. 1996).
Neither Contractors Cargo nor Trailblazer has shown any danger of
hardship or injustice through delay that would be alleviated by
an immediate appeal.
Accordingly, and consistent with the Fifth
Circuit’s disfavor of piecemeal appeals, Contractors Cargo’s Motion
for Entry of Final Judgment under Rule 54(b) is denied.
IV. Rule 12(b)(1) Motion to Dismiss
A.
Legal Standard
“When a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the merits.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Under
Rule 12(b)(1), a party can seek dismissal of an action for lack of
subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). The question
of subject matter jurisdiction is for the court to decide even
if the question hinges on legal or factual determinations.
Ramming, 281 F.3d at 161.
See
The Fifth Circuit distinguishes between
“facial” and “factual” attacks to subject matter jurisdiction.
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
A
facial attack consists of a Rule 12(b)(1) motion unaccompanied by
supporting evidence, challenging the court’s jurisdiction based
solely on the pleadings, the allegations in which must be accepted
11
as true.
See id.
When a party submits evidence along with its
motion to dismiss, it has made a factual attack on the court’s
jurisdiction.
Id.
In a factual attack, “a plaintiff is also
required to submit facts through some evidentiary method and has
the burden of proving by a preponderance of the evidence that the
trial court does have subject matter jurisdiction.”
B.
Id.
Analysis
In their Motion to Dismiss, Van Kirk and Kimmel argue under
Rule 12(b)(6) that Plaintiffs have not alleged facts showing their
standing as owners or shippers of the damaged cargo, and on the
last page of this motion add an assertion under Rule 12(b)(1) that
Plaintiffs lack standing to bring this suit.
Their conclusory
“argument” consists of two sentences:
As discussed above, while Plaintiffs have alleged that
they are entitled to damages, Defendants challenge their
standing and state that they do not have standing to
bring suit. Plaintiffs cannot establish the elements of
standing: injury in fact, causation and redressability.32
Two months later, long after the dispositive motions deadline, Van
Kirk and Kimmel filed a “Supplement” to this motion, arguing that
Plaintiffs
lack
standing
because
they
have
received
almost
$2 million from their insurers for the loss to the purification
32
Document No. 96 at 8.
12
skid, and the insurers now own the rights to the claim for loss.33
Van Kirk and Kimmel attach some excerpts of deposition testimony to
their “Supplement,” and Plaintiffs have responded with evidence
pertaining to both motions, which are therefore construed as
factual attacks.
Although Plaintiffs in their Second Amended Complaint allege
that they “procured a very specialized piece of equipment called a
purification skid” for use in Mexico, Van Kirk and Kimmel argue
that Plaintiffs have not adequately alleged ownership of the
purification skid.34
This surprising assertion is totally at odds
with Van Kirk’s and Kimmel’s prior filings in which they themselves
acknowledged and stated that Plaintiffs owned the purification
skid.35
This
uncontroverted
is
not
evidence
a
matter
is
that
of
genuine
Plaintiffs
dispute:
purchased
the
the
purification skid and arranged for its transportation to Mexico.36
33
Document No. 126.
34
Document No. 96 at 4.
35
See Document No. 25 at 2 (“The transport truck was hauling
a 63-ton [purification skid] owned by Plaintiffs and bound for
Pesqueria, Mexico.”) (emphasis added); Document No. 51 at 2 (“As
the Court has stated, this suit arises out of damage to Plaintiffs’
property--an APU Skid--while it was being transported by truck from
Texas to Mexico.”) (emphasis added).
36
See, e.g., Document No. 107-15 (invoice for purification
skid made out to Air Liquide Process and showing final destination
as “TERNIUM / AIR LIQUIDE MEXICO S DE RL DE CV.”); Document No.
107-19 (Transportation Entry and Manifest of Goods Subject to CPB
Inspection and Permit for purification skid showing Air Liquide
Process as importer and Air Liquide Mexico as consignee).
13
Van Kirk’s and Kimmel’s Supplement, moreover, implicitly
acknowledges that Plaintiffs owned the skid, for now they contend
that Plaintiffs lack standing because their insurers already have
compensated them for their loss and the insurers were subrogated
into
Plaintiffs’
rights.37
Van
Kirk
and
Kimmel
exhibit
a
January 14, 2014 Subrogation Form in which Air Liquide Process on
behalf of Air Liquide Mexico acknowledged receipt of a total of
$1,806,396 from five insurance companies “[f]or covered physical
damage to property,” namely, “1 APU SKID hit by a train in
Magnolia, Texas on March 04th 2013.”38 The Subrogation Form further
provides
that
“the
above
mentioned
insurance
companies
are
subrogated into all rights, actions and recoveries arising against
all liable parties (carriers and/or others) for the above mentioned
loss and damage.”39
Van Kirk’s and Kimmel’s standing argument based on subrogation
rights fails for several reasons.
First, Plaintiffs produce a
written assignment in which the five insurers identified by Van
Kirk and Kimmel assigned and transferred their subrogation rights
back to Plaintiff Air Liquide Process.40
37
See Document No. 126.
38
Document No. 126-2.
39
Second, the collateral
Id.
40
Document No. 128-9 at 2 of 3 to 3 of 3.
Moreover, the
original subrogation did not involve all of Plaintiffs’ claims, but
only those “[f]or covered physical damage” to the purification
14
source rule applies.
As Plaintiffs correctly argue, under the
collateral source rule, a wrongdoer cannot benefit from insurance
independently procured by the injured party and to which the
wrongdoer was not privy.
See Davis v. Odeco, Inc., 18 F.3d 1237,
1243 (5th Cir. 1994) (“The collateral source rule is a substantive
rule of law that bars a tortfeasor from reducing the quantum of
damages owed to a plaintiff by the amount of recovery the plaintiff
receives from other sources of compensation that are independent of
(or collateral to) the tortfeasor.”); Brown v. Am. Transfer &
Storage Co., 601 S.W.2d 931, 934 (Tex. 1980) (“The theory behind
the collateral source rule is that a wrongdoer should not have the
benefit of insurance independently procured by the injured party,
and to which the wrongdoer was not privy.”) (trucker not entitled
to benefit of third party insurance payment for damaged goods); see
also Custom Rubber Corp. v. ATS Specialized, Inc., 633 F. Supp. 2d
495, 515 (N.D. Ohio 2009) (collateral source rule applies to
Carmack Amendment claims).
Thus, Plaintiffs’ receipt of insurance
payments from insurance independently procured by them and covering
part of their loss has no bearing on Plaintiffs’ standing to
skid. Plaintiffs seek recovery not only of the replacement cost of
the skid but also of numerous other costs directly arising from its
destruction, which claims total almost $7.7 million. See Document
No. 128-10 at 2 of 5 (itemized list of damages claimed). Thus, the
$1.8 million in insurance benefits Plaintiffs received would not
preclude their recovery of their remaining damages even in the
absence of the collateral source rule, discussed next.
15
recover from Van Kirk and Kimmel.
Van Kirk’s and Kimmel’s motion
to dismiss for lack of subject matter jurisdiction is denied.
C.
Plaintiffs’ Request for Sanctions
In their responses to each of Van Kirk’s and Kimmel’s Rule
12(b)(1)
motions,
Plaintiffs
“ask
the
Court
to
exercise
its
discretion under Rule 11 and award them their attorneys’ fees and
costs for having to respond” to each motion because Van Kirk’s and
Kimmel’s arguments are entirely lacking in merit.41
Given this
record, Plaintiffs’ motion would deserve serious consideration if
Plaintiffs themselves had complied with Rule 11.
“A motion for
sanctions must be made separately from any other motion and must
describe the specific conduct that allegedly violates Rule 11(b),”
which Plaintiffs have not done.
FED. R. CIV. P. 11(c)(2) (emphasis
added). The requests for attorney fees and costs as a sanction for
violations of Rule 11(b) is therefore denied.
V. Rule 12(b)(6) Motions to Dismiss
A.
Legal Standard
Rule 12(b)(6) provides for dismissal of an action for “failure
to state a claim upon which relief can be granted.”
P. 12(b)(6).
41
FED. R. CIV.
When a district court reviews the sufficiency of a
Document No. 107 at 17; Document No. 128 at 13.
16
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.
See Scheuer v.
Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982).
The issue is not
whether the plaintiff ultimately will prevail, but whether the
plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.
See Lowrey v. Tex. A&M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997).
To survive dismissal, a
complaint must plead “enough facts to state a claim to relief that
is plausible on its face.”
1955, 1974 (2007).
Bell Atl. Corp. v. Twombly, 127 S. Ct.
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
(2009).
While
a
that
the
defendant
is
liable
for
the
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
complaint
“does
not
need
detailed
factual
allegations . . . [the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact).”
Twombly, 127 S. Ct. at 1964-65 (citations and internal
footnote omitted).
17
B.
Van Kirk’s and Kimmel’s Motion to Dismiss
Van Kirk and Kimmel argue in their Rule 12(b)(6) motion that
Plaintiffs have not pled facts “to support claims for special
damages under Carmack.”42
“The Carmack Amendment allows a shipper
to recover damages from a carrier for ‘actual loss or injury to the
property’ resulting from the transportation of cargo in interstate
commerce.”
Nat’l Hispanic Circus, Inc. v. Rex Trucking, Inc., 414
F.3d 546, 549 (5th Cir. 2005) (citing 49 U.S.C. § 14706(a)(1)). “A
carrier’s
liability
under
the
Carmack
Amendment
includes
all
reasonably foreseeable damages resulting from the breach of its
contract of carriage, ‘including those resulting from nondelivery
of the shipped goods as provided by the bill of lading.’”
Id.
(citing Air Prods. & Chems., Inc. v. Ill. Cent. Gulf R.R. Co., 721
F.2d 483, 485 (5th Cir. 1983)); see also Camar Corp. v. Preston
Trucking Co., 221 F.3d 271, 277 (1st Cir. 2000) (“The Carmack
Amendment
incorporates
common
law
principles
of
damages,
and
permits recovery of lost profits unless they are speculative.”)
(citations omitted). The Fifth Circuit has explained that
Both general and special damages may be recovered under
the Carmack Amendment. General damages are those that
are foreseeable at the time of contracting.
Special
damages are those that result from a party’s breach of
42
Document No. 96 at 5. Van Kirk and Kimmel also argue that
Plaintiffs have failed to allege facts showing that they are owners
or shippers of the purification skid. As discussed above, this
argument is without merit.
18
contract but are not reasonably foreseeable.
Special
damages generally are not recoverable in a breach of
contract action absent actual notice to the defendant of
special circumstances from which such damages might
arise.
Nat’l Hispanic Circus, 414 F.3d at 549 (citations omitted).
Van
Kirk and Kimmel cite no authority establishing that special damages
must be pled with particularity in Carmack Amendment cases.43
Cf.
New Process Steel Corp. v. Union Pac. R. Co., 91 F. App’x 895, 899900 (5th Cir. 2003) (reversing summary judgment where district
court had held that claim under railroad provision of Carmack
Amendment
failed
because
plaintiff
did
not
plead
that
its
consequential damages were specifically foreseeable) (“Under our
Circuit’s precedent, . . . a Carmack Amendment plaintiff is not
required to show that its consequential damages were specifically
foreseeable”).
Plaintiffs’ Second Amended Complaint employs the statutory
language (“actual loss or injury to the property,”) in praying for
recovery of “actual damages,” including the following:
inspection
assessment of the damage to the purification skid; assessment of a
replacement skid; storage fees; costs associated with locating,
dismantling, transporting, revamping and installing the replacement
43
Van Kirk and Kimmel cite numerous cases involving either the
adequacy of evidence of special damages at summary judgment and
trial, or the requirement to allege special damages in business
disparagement and libel cases, for which special damages are an
essential element. Document No. 96 at 5-8.
19
skid; costs and penalties incurred for delay; additional site
running
costs,
including
labor,
expenses,
management
and
supervision; replacement value of the skid in mitigation of repair
costs;
loss
of
use
of
the
skid,
including
customer
claims;
increased costs; out of pocket damages; lost profits; and loss of
goodwill.44
Although Plaintiffs do not list their general damages
separately from their special damages, it would appear that most
are general damages foreseeable at the time of contracting--for
example, allegations for the recovery of damages for the inspection
assessment of damages done to the skid and the costs for purchase
of its replacement and shipment.
losses
would
appear
to
be
Nonetheless, some of the claimed
special
damages
not
generally
recoverable. There is no requirement in the statute and none known
to the Court in case law that Plaintiffs in a Carmack Amendment
case
carve
out
from
Plaintiffs’
actual
damages
and
identify
separately at the pleading stage which of Plaintiffs’ actual
damages are special damages requiring Plaintiffs to prove at trial
that Defendants had actual notice of special circumstances that
would subject them to liability for special damages.
Plaintiffs’ pleading that the purification skid was “a very
specialized piece of equipment” and “a sophisticated component of
refinery processing equipment” that Defendants knew was being
“transported to Air Liquide’s plant in Pesqueria, Mexico” on a
44
Document No. 79 at 15.
20
“custom-made, specialized lowboy trailer over 140 feet long and
10 feet wide,” combined with their claim for both general and
special damages, is sufficient notice alleging that Defendants were
on notice of circumstances that would subject them to liability for
special damages.
At least at this pleading stage, the allegations
are sufficient to state a plausible cause of action for special
damages under Rule 12(b)(6).
Accordingly, Van Kirk’s and Kimmel’s
Rule 12(b)(6) motion is denied.
C.
Wheeling’s and Ortiz’s Motion to Dismiss
Wheeling and Ortiz move to dismiss Plaintiffs’ claims against
them, arguing that the Carmack Amendment provides a cause of action
against only a receiving or delivering carrier, and that because
they were neither, Plaintiffs have failed to state a claim against
them.45
Plaintiffs respond that (1) based on the Court’s reasoning
in its prior ruling, Plaintiffs’ claims against Wheeling and Ortiz
arise under the Carmack Amendment, (2) Wheeling and Ortiz were
receiving or delivering carriers, and (3) even if Wheeling and
Ortiz were intermediary carriers, the Carmack Amendment allows
Plaintiffs to recover from them.46
45
Document No. 91. Van Kirk and Kimmel join in Wheeling and
Ortiz’s motion. Document No. 109.
46
Document No. 98.
21
In the Memorandum and Order dated February 18, 2015, it was
determined that Plaintiffs had alleged facts establishing that
Ainslie, Van Kirk, and Kimmel were carriers under the broad
definitions in the Carmack Amendment and the Interstate Commerce
Act based on their participation as part of the transportation crew
for carriage of the purification skid.47 Plaintiffs correctly argue
that by the same logic, Wheeling and Ortiz, as the bucket truck
supplier and operator, and integral components of the carriage
team, are also carriers under the Carmack Amendment.48
The parties
did not argue in the earlier motions whether any Defendants were
receiving or delivering carriers. The fact that Plaintiffs’ claims
are preempted by the Carmack Amendment does not necessarily allow
them to bring Carmack claims against all Defendants who are
carriers.
See
Tech
Data
Corp.
v.
Mainfreight,
Inc.,
No.
8:14-CV-1809-T-23MAP, 2015 WL 1546639, at *1 (M.D. Fla. Apr. 7,
2015) (“Tech Data’s argument ignores the distinction between an
inapplicable statute and an applicable statute that creates no
cause of action.
The Carmack Amendment governs this action (even
if Central Transport is a connecting carrier), but the Carmack
Amendment creates no claim for a cargo owner to allege against a
connecting carrier.
Instead, under the Carmack Amendment, a cargo
owner may sue the receiving or delivering carrier for the fault of
47
Document No. 75 at 9, 12.
48
Document No. 98 at 4-5.
22
a connecting carrier.”) (citing CNA Ins. Co. v. Hyundai Merch.
Marine Co., 747 F.3d 339, 353 (6th Cir. 2014)).
The case law is generally consistent in holding that the
Carmack Amendment gives the holder of a bill of lading a right to
recover only against the receiving carrier--i.e., the carrier that
issued
the
bill
of
lading
and
received
the
cargo
for
transportation--and the delivering carrier, defined at 49 U.S.C.
§
14706(a)(1)
as
“the
carrier
performing
the
line-haul
transportation nearest the destination.” See Arnold J. Rodin, Inc.
v. Atchison, T. & S. F. Ry. Co., 477 F.2d 682, 688 (5th Cir. 1973)
(“Under the Carmack Amendment the holder of the bill of lading is
given a cause of action only against the receiving or delivering
carrier.”); 5K Logistics, Inc. v. Daily Exp., Inc., 659 F.3d 331,
335 (4th Cir. 2011) (“[Section 14706] allows shippers to bring suit
against either the initial carrier (the issuer of the bill of
lading)
or
the
delivering
carrier,
removing
‘the
burden
of
searching out a particular negligent carrier from among the often
numerous carriers handling an interstate shipment.’”) (citing
Reider v. Thompson, 70 S. Ct. 499, 502 (1950)); Strickland Transp.
Co. v. Johnston, 238 S.W.2d 717, 719 (Tex. Civ. App.-Amarillo 1951)
(“[T]here is no provision of the Carmack Amendment which places
liability on the intermediate carrier.”); Tokio Marine & Fire Ins.
Co. v. Amato Motors, Inc., No. 90 C 4823, 1995 WL 493434, at *4
(N.D. Ill. Aug. 15, 1995) (“Unlike ‘initial’ and ‘delivering’
23
carriers, those carriers whose work is performed after the original
shipment
but
before
the
journey’s
final
leg--the
so-called
‘intermediate connecting carriers’--are not amenable to suit under
the Carmack Amendment.”), aff’d sub nom. Tokio Marine & Fire Ins.
Co. v. Chicago & Nw. Transp. Co., 129 F.3d 960 (7th Cir. 1997)
(citations omitted).49
Plaintiffs argue that most of the cases upon which Wheeling
and Ortiz rely were governed by an older version of the Carmack
Amendment, and that the current version provides for recovery from
the carrier responsible for the loss.50
Section 14706 does provide
for recovery from “the carrier over whose line or route the loss or
injury occurred,” but only by a receiving or delivering carrier
seeking to recover the amount paid to the cargo owners.51
In
contrast, only the receiving carrier and “any other carrier that
delivers the property and is providing transportation or service
49
Although many of these cases involve the section of the
Carmack Amendment governing rail carriers, the liability provision
therein is not materially different from that of Section 14706
governing motor carriers. Compare 49 U.S.C. § 11706(a), with id.
§ 14706(a).
50
Document No. 98 at 7-10.
51
See 49 U.S.C. § 14706(b) (“The carrier issuing the receipt
or bill of lading under subsection (a) of this section or
delivering the property for which the receipt or bill of lading was
issued is entitled to recover from the carrier over whose line or
route the loss or injury occurred the amount required to be paid to
the owners of the property, as evidenced by a receipt, judgment, or
transcript, and the amount of its expenses reasonably incurred in
defending a civil action brought by that person.”).
24
subject to jurisdiction . . . are liable to the person entitled to
recover
under
the
receipt
or
bill
of
lading.”
49
U.S.C.
§ 14706(a)(1).52
Plaintiffs argue that Wheeling and Ortiz acted as receiving
and/or delivering carriers, and not as intermediary carriers.53 The
receiving carrier liable under Section 14706 is the carrier that
“issue[s] a receipt or bill of lading for property it receives
for transportation,” 49 U.S.C. § 14706(a)(1), and there is no
allegation that either Wheeling or Ortiz issued a bill of lading
for the purification skid.
“A delivering carrier is deemed to be
the carrier performing the line-haul transportation nearest the
destination but does not include a carrier providing only a
switching service at the destination.”
Id.
Plaintiffs argue that
“the pertinent definitions . . . as well as the Court’s analysis in
its [ February 18, 2015] Memorandum and Order, show that there can
be more than one . . . delivering carrier,”
and that Wheeling and
Ortiz “were a necessary and integral part of the transportation
team for receiving and delivering the skid.”54
52
The Carmack Amendment’s venue provision provides that “[a]
civil action under this section may be brought against the carrier
alleged to have caused the loss or damage, in the judicial district
in which such loss or damage is alleged to have occurred.” 49
U.S.C. § 14706(d)(2). This provision evidently refers to claims
brought by receiving or delivering carriers under Section 14706(b).
53
Document No. 98 at 5-7.
54
Id. at 6-7.
25
None of the case law upon which Wheeling and Ortiz rely
establishes that there can be only one delivering carrier. Indeed,
such a limitation would not advance the overriding purpose of the
Carmack Amendment, which completely preempts this field, especially
in a case such as this where there is involved the overland
carriage of a massive unit of freight requiring a transportation
team concurrently composed of multiple motor vehicles and persons
providing specialized services all acting in concert as a unit to
perform the “line-haul transportation nearest the destination,” 49
U.S.C. § 14706(a).
In contrast, most of the case law applying the
Carmack
has
Amendment
arisen
in
conventional
settings
where
typically there are series of consecutive carriers and, to be sure,
a principal purpose of the Amendment was to resolve the frequent
problem of cargo arriving damaged with no way of knowing where
amongst a series of carriers the damage occurred.
See Rodin, 477
F.2d at 688 (“The purpose of the Carmack Amendment was to make the
initial and delivering carriers responsible so that the lawful
holder of a bill of lading does not have to search out a particular
negligent carrier from among the often numerous carriers handling
an interstate shipment of goods. The initial or delivering carrier
could then recover damages from the connecting carrier on whose
line the loss or damage to the property was sustained.”); see also
Tokio
Marine,
1995
WL
493434,
at
*4
(defining
intermediate
connecting carriers not subject to liability as “those carriers
26
whose work is performed after the original shipment but before the
journey’s final leg”). Wheeling and Ortiz argue that they were not
a receiving or delivering carrier. Plainly, however, they were not
intermediate connecting carriers performing their work after the
original shipment but before the final leg of the transport, which
is the only other category of carrier contemplated in the Carmack
Amendment and the case law.
The allegations are that Wheeling and
Ortiz provided bucket truck services as part of the line-haul
transportation from Houston, Texas until the cargo’s destruction in
Magnolia, Texas, and, at this pleading stage, Plaintiffs have
plausibly
pled
that
Wheeling
and
Ortiz
were
part
of
a
team
operating together as delivering carriers subject to liability
under the Carmack Amendment.
Accordingly, Wheeling’s and Ortiz’s
motion to dismiss is denied.
VI. Motions for Summary Judgment
Plaintiffs move for a partial summary judgment ruling that
their damages are not limited to $100,000 by a limitation of
liability
provision
in
the
contract
between
Hansa
Meyer
and
Contractors Cargo (the “Hansa Meyer/Contractors Cargo Contract”).55
Talleres Willie and Ainslie filed a response in opposition, and Van
55
Document No. 93.
27
Kirk and Kimmel filed a response and “counter-motion for summary
judgment” arguing that their liability is limited to $100,000.56
A.
Motion to Strike
Plaintiffs’ objections (Document No. 117) to a series of
unauthenticated documents produced by Van Kirk and Kimmel at
Document No. 113-4 in opposition to Plaintiffs’ motion for summary
judgment
and
in
support
of
their
counter-motion
for
summary
judgment are SUSTAINED, and the unauthenticated documents are
STRICKEN.
Plaintiffs’ objection (Document No. 117) to certain portions
of the deposition testimony of Frank Scheibner, Hansa Meyer’s
President and Chief Executive Officer, is SUSTAINED IN PART,
namely, as to Scheibner’s hearsay and/or speculative testimony that
Air Liquide had notice or actual knowledge of the limitation of
liability provision contained in the Hansa Meyer/Contractors Cargo
Contract, and the objection is otherwise OVERRULED.
56
Document Nos. 106, 113. Van Kirk’s and Kimmel’s response
and counter-motion compose a single document, which was filed twice
at Document Nos. 108 and 113. For ease of reference, the Court
refers only to the latter filing.
Plaintiffs’ Motion to Strike Counter-Motion for Summary
Judgment as Untimely (Document No. 116) is denied. Plaintiffs have
presented no evidence of any prejudice caused by Van Kirk’s and
Kimmel’s late filing of their counter-motion for summary judgment,
which was combined with their response to Plaintiffs’ motion and
addressed the same issues. Plaintiffs’ response to Van Kirk’s and
Kimmel’s counter-motion was combined with and indistinguishable
from their reply in support of their own motion.
28
B.
Fact Issues Preclude Summary Judgment
It is uncontroverted that the Hansa Meyer/Contractors Cargo
Contract
includes
within
its
terms
a
separate
limitation
of
liability provision, not a mere incorporation by reference of a
very similar clause in Contractors Cargo’s tariff, which tariff
Plaintiffs contend is inapplicable to carriage from the United
States to Mexico. The Limited Liability clause in the Hansa Meyer/
Contractors Cargo Contract states:
Limited Liability:
Carrier’s liability for loss of or damage to freight,
including recovery of damaged freight, in Carrier’s
possession shall be subject to release value of $2.50 per
pound to a maximum of $100,000 per load as provided in
Tariff ICC-CCC 400, unless a greater amount is declared
and accepted, in writing, by Carrier and Customer has
paid the cost of excess valuation.57
After carefully reviewing the submissions and summary judgment
evidence, it appears that genuine issues of material fact have been
raised on (1) whether Plaintiffs had notice of the limitation of
liability provision in the Hansa Meyer/Contractors Cargo Contract
or authorized Hansa Meyer as their agent to agree to such a
limitation, and (2) whether Plaintiffs or their agent had a
reasonable opportunity to choose between two or more levels of
liability. Accordingly, neither Plaintiffs nor Van Kirk and Kimmel
57
Document No. 93-1 at 1.
29
are entitled to summary judgment on the limitation of liability’s
applicability.
VIII. Order
For the foregoing reasons, it is
ORDERED that Plaintiffs’ Motion for Reconsideration Regarding
Trailblazer Pilot Car Services, LLC, and Motion for Leave to File
Third Amended Complaint (Document No. 85), Motion for Summary
Judgment Regarding Limitation of Liability (Document No. 93), and
Motion to Strike Counter-Motion for Summary Judgment as Untimely
(Document No. 116) are all DENIED, and Plaintiffs’ Motion to Strike
and Response to Pilot Car Defendants’ Motion for New Docket Control
Order and Status Conference (Document No. 118) is DENIED AS MOOT;
and it is further
ORDERED that Defendant Contractors Cargo Company’s Motion for
Entry of Final Judgment (Document No. 86), in which Defendant
Trailblazer Pilot Car Services, LLC joins, is DENIED; and it is
further
ORDERED that Defendants Wheeling Equipment Company, Inc.’s and
George Ortiz’s Joint Motion to Dismiss the Second Amended Complaint
(Document No. 91), in which Defendants Charles Van Kirk d/b/a
Slingshot Pilot Car Services and Claude Joseph Kimmel d/b/a Freedom
Pilot Car join, is DENIED; and it is further
30
ORDERED that Defendants Charles Van Kirk d/b/a Slingshot Pilot
Car Services’s and Claude Joseph Kimmel d/b/a Freedom Pilot Car’s
Third Motion to Dismiss (Document No. 96), Motion for New Docket
Control Order and Status Conference (Document No. 112), CounterMotion for Summary Judgment (Document No. 113), and Supplement to
Third Motion to Dismiss (Document No. 126) are all DENIED; and it
is further
ORDERED that Defendant Talleres Willie, Inc.’s and Bernardo
Ainslie’s Motion to Extend Time to Respond to Plaintiffs’ Motion
for Summary Judgment (Document No. 100) is GRANTED.
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED at Houston, Texas, on this 31st day of July, 2015.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
31
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