Air Liquide Mexico S. de R.L. de C.V. v. Talleres Willie, Inc. et al.
Filing
38
MEMORANDUM AND ORDER Denying 8 MOTION to Remand (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 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.
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CIVIL ACTION NO. H-14-211
MEMORANDUM AND ORDER
Pending is Plaintiffs Air Liquide Mexico S. de R.L. de C.V.
and Air Liquide Process and Construction, Inc.'s Motion to Remand
(Document
response,
No.8).
reply,
After
carefully
considering
and the applicable law,
the
motion,
the Court concludes as
follows.
I.
Background
Plaintiffs Air Liquide Mexico S. de R.L. de C.V.
Mexico" )
and Air
Liquide
Process
("Air Liquide
and Construction,
Liquide Process," together with Air Liquide Mexico,
Inc.
("Air
"Plaintiffs")
,----- ---------"-,,---'
purchased a purification skid,
which is a
specialized piece of
refinery processing equipment, to be used in Air Liquide Mexico's
in Mexico. 1
facilities
The purification skid was over 60 feet
long, over 15 feet tall, over 15 feet wide, weighed approximately
63
tons,
and
was
valued
at
approximately
$1
million. 2
purification skid was shipped from India to Houston,
Plaintiffs
contracted with Defendant
Contractors
The
from whence
Cargo
Company
("Contractors Cargo") to transport it by tractor trailer overland
to Mexico. 3
Plaintiffs allege that Contractors Cargo constructed a 140
feet long custom-made 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. 4
On March 4, 2013, a train hit the trailer as it
was stopped across the tracks at a railroad crossing in Magnolia,
Texas, severely damaging the purification skid. 5
Plaintiffs brought suit in state court against Contractors
Cargo, Talleres Willie, and seven other Defendants involved in the
transportation
of
the
1
Document No. 1-3
2
Id.
~~
20-21.
4
Id.
~~
22-23.
5
Id.
~
~
Id.
3
purification
20
skid,
(Orig. Pet.).
29.
2
alleging
negligence,
negligence per se,
negligent
gross negligence,
Before
hiring.6
Contractors
Cargo
timely
any
negligent entrustment,
other
removed
Defendants
the
suit,
Plaintiff's claims are preempted by 49 U.S.C.
served,
alleging
formal consents to removal.
II.
Beneficial Nat. Bank v. Anderson,
1441(b).
The
filed
Legal Standard
federal court if the claim is one
§
and
Plaintiffs moved to remand. 8
"A civil action filed in a
U.S.C.
that
14501(c) (1)
All Defendants who since have been served have
14706. 7
28
§§
were
and
state court may be removed to
'arising under'
123 S.
Ct.
federal law."
2058,
removing party bears
2062
(2003);
the burden of
establishing that federal jurisdiction exists over the controversy.
Clayton v. ConocoPhillips Co., 722 F.3d 279, 290 (5th Cir. 2013).
To determine whether jurisdiction is present for removal, the court
considers the claims in the state court petition as they existed at
the time of removal.
Manguno v. Prudential Prop. & Cas. Ins. Co.,
276 F.3d 720, 723 (5th Cir. 2002).
Any doubt about the propriety
of the removal is to be resolved in favor of remand.
Flores, 543 F.3d 248, 251 (5th Cir. 2008)
6 Id.
~~
37-57.
7
Document No.1.
8
Document No.8.
3
Gutierrez v.
Generally, a plaintiff is the master of the complaint and may
avoid federal jurisdiction by relying exclusively on state law.
Caterpillar
Inc.
v.
Williams,
107
S.
Ct.
2425,
2429
(1987).
. when
However, "a state claim may be removed to federal court
a federal statute wholly displaces the state-law cause of action
through complete pre-emption./I
Beneficial,
123 S.
Ct.
at 2063.
"When the federal statute completely pre-empts the state-law cause
of action, a claim which comes within the scope of that cause of
action, even if pleaded in terms of state law, is in reality based
on
federal
law.
Complete
/I
preemption
exists
only when
Congress intends the statute to provide the "exclusive cause of
action for the particular claims asserted under state law./I
Elam
v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011)
i
see
also Beneficial, 123 S. Ct. at 2064.
III.
Analysis
The Fifth Circuit has recognized that Congress intended for
the Carmack Amendment to the Interstate Commerce Act 9 to "provide
the exclusive cause of action for loss or damages to goods arising
from
the interstate
carrier,
/I
and
that
transportation of those goods by a
the
applies to such claims.
778 (5th Cir. 2003)
9
49 U.S.C.
§
complete
preemption doctrine
common
therefore
Hoskins v. Bekins Van Lines, 343 F.3d 769,
(emphasis in original).
This suit arises out
14706.
4
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -..._---
of damage to Plaintiffs' property while it was being transported by
truck from Texas to Mexico, so their claims fall squarely within
the subject matter preempted by the Carmack Amendment.
Plaintiffs
concede this principle, but argue that the Carmack Amendment does
not apply to this case because (1)
the parties contracted out of
the Carmack Amendment, and (2) Contractors Cargo is a broker, not
a common carrier, and hence was not entitled to remove the case. 10
A.
Contract Carriage under 49 U.S.C. § 14101(b)
Plaintiffs
argue
that
Amendment
because
this
constitutes
§
case
14101(b)
11
the
they contracted out
specialized
"contract
type
carriage"
of
of
the
Carmack
transportation
under
to
49
in
U. S. C.
That provision authorizes a carrier to "enter into
a contract with a shipper . . . to provide specified services under
specified
rates
and
conditions,"
and
provides
that
"[i] f
the
shipper and carrier, in writing, expressly waive any or all rights
and remedies under this part for the transportation covered by the
contract,
the transportation provided under the contract shall
not be subject to the waived rights and remedies."
§
14101(b) (1).
49 U.S.C.
This provision "allows parties to contract around
the system of federal regulatory 'default rules' that the Carmack
10
Document No. 8
~~
26-39.
11 rd.
~~ 26-33.
The term 'contract carriage' is statutorily
defined as "service provided under an agreement entered into under
section 14101(b)." 49 U.S.C. § 13102(4) (B)
5
-----------_ _--....
Amendment
established."
Digital Electronics.
Knight
LLC,
Transp..
Inc.
3:07-CV-1210-D,
(N.D. Tex. Jan. 22, 2008)
(Fitzwater, J.)
v.
Westinghouse
2008 WL 194739,
at *1
(citations omitted).
Plaintiffs have not produced or referenced any writing or
contract in which the shipper and carrier "expressly waive any or
all
rights
and
transportation
§
remedies"
of
14101 (b) (1) .
the
under
the
equipment,
Instead,
Carmack Amendment
as
required
Plaintiffs
produce
by
for
49
excerpts
the
U.S.C.
from
a
Purchase Order evidently issued by Air Liquide Mexico to Hansa
Meyer Global Transportation for one
"Proj ect:
Ternium,
Managing
Freight Forwarder for Project 7964--Ternium," at a unit price of
$1,934,426.88.
On pages 2 and 3 of the Purchase Order,
certain
exceptions are listed to Air Liquide Mexico's "General Conditions
ALM Terms & Conditions 06/07/12," including at item 9 that "[t]he
laws of the
[United Mexican States]
shall govern the Agreement,"
and that "[a]ny dispute, controversy or claim between the Parties
derived from or related to the Agreement
. shall be resolved by
the
of
binding
arbitration
under
the
rules
the
International
Chamber of Commerce in [Bermuda]."
Plaintiffs in their Original
Petition
Global
defendant
do
not
in this
name
Hansa
case,
action based on this
Meyer
nor do
Plaintiffs
Purchase Order,
nor,
Plaintiffs even make reference to this
Original Petition.
Transportation
assert
for
as
a
any cause of
that matter,
do
Purchase Order in their
Moreover, whatever claims Plaintiffs may have
6
related to their Purchase Order issued to Hansa Meyer not only are
governed by Mexican law but also are subject to binding arbitration
in Bermuda.
Plaintiffs have cited no authority or legal rationale
as to why those terms lifted from that Purchase Order should be
construed against the carrier in this case, who was not a party to
the Purchase Order, as a "writing" that "expressly waivers] any or
all
rights and remedies"
u.S.C.
§ 14101(b) (1);
Enterprises,
Inc.,
under the Carmack Amendment.
Midamerican Energy Co. v.
see also,
437
F.
See
Supp.
2d
969,
973
(S.D.
49
Start
Iowa
2006)
(contract providing that "the law of the State of Iowa will be
given the interpretation,
validity and effect of this Contract
without regard to the place of execution or place of performance
thereof" not sufficiently explicit to express an intent to avoid
the rights and remedies of the Carmack Amendment)
The Purchase Order issued by Plaintiffs to non-party,
carrier Hansa Meyer,
non-
agreeing to Mexican law and arbitration in
Bermuda, constitutes no waiver by the carrier in this case of "any
or all rights and remedies" under the Carmack Amendment. 12
Absent
12 Plaintiffs make an additional argument, based on Ensco, Inc.
v. weicker Transfer & Storage Co., 689 F.2d 921, 926-27 (10th Cir.
1982), that the specialized nature of the transportation in this
case in and of itself is sufficient to exclude it from the Carmack
Amendment as 'contract carriage.'
Document No. 8 ~~ 29-31.
The
argument is without merit. Ensco predates Congress's enactment of
49 U.S.C. §§ 13102(4) and 14101(b) (1) on December 29, 1995, which
now define "contract carriage."
See 49 U.S.C. § 13102(4) ("The
term 'contract carriage' means-- (A) for transportation provided
before January 1, 1996, service provided pursuant to a permit
issued under section 10923, as in effect on December 31, 1995; and
7
any legal authority to the contrary,
the Court is constrained to
apply the statute as written, and the contract "expressly waiving"
the Carmack Amendment therefore must be in a writing between the
"shipper and carrier,"
u.S.C.
B.
§
See 49
and Plaintiffs have shown none.
14101(b) (1).
Exception for Brokers
Plaintiffs argue that remand is further required because the
Carmack Amendment does not encompass claims against brokers, and
Contractors Cargo, a broker, therefore had no basis to remove this
case to federal court.13
737 F. Supp. 2d 638,
not
carrier,
Amendment)
CIV.A.
2009)
i
and
641
thus
See Chatelaine, Inc. v. Twin Modal, Inc.,
(N.D. Tex. 2010)
there
was
no
Hunt ington Operating Corp.
H-08-781,
(Harmon,
2009 WL 2423860,
J.)
(defendant was broker,
preemption
v.
under
Carmack
Sybonney Exp.,
at *3 n.1
(S.D.
Tex.
Inc.,
Aug.
3,
("The Court notes in passing that the Carmack
Amendment, which precludes all other causes of action for carrier
liability, does not extend to transportation brokers. ") .
Plaintiffs allege that Contractors Cargo was a broker but they
also allege in their Original Petition that Talleres Willie was a
carrier, and that "Contractors Cargo (as "BROKER") contracted with
(B) for transportation provided after December 31, 1995, service
provided under an agreement entered into under section 14101 (b) . ") .
13
Document No. 8
~~
34-39.
8
Defendant Talleres Willie, Inc.
(as "CARRIER") . ,,14
It is the claim
against the carrier that is the removable claim, and Contractors
Cargo--which recognized such--was entitled to initiate the removal.
"That the federal claim was brought against a defendant other than
the one who initiated the removal is immaterial."
Smith v. Smart
Buy Homes, CIV-08-89-C, 2008 WL 5122840, at *1 (W.D. Okla. Dec. 4,
2008)
(finding that federal question was present on the face of the
state court petition even though the defendant against whom the
federal
claim was
alleged had not been served);
Cartwright v.
Thomas Jefferson University Hosp., 99 F. Supp.2d 550,553 (E.D. Pa.
2000)
(" [I] f
a
case
is
removable,
any
defendant,
including
a
defendant not named in any federal-law count, must be permitted to
file a notice of removal."); Solis v. Chase Bank USA, N.A., EP-05CA-453-DB,
2006 WL 487855
(W.D.
Tex.
Feb.
8,
2006)
(removal on
federal question jurisdiction proper by a defendant against whom
the federal question claim was not alleged)
.15
Therefore, although
Plaintiffs' claims against Contractors Cargo are not preempted by
the Carmack Amendment, Plaintiffs' claims against Talleres Willie
for negligence, negligence per se, gross negligence, and negligent
hiring are all claims "for loss or damages to goods arising from
14
Document No. 1-3
~
23.
15 As observed above, after having been served, Talleres Willie
consented to the removal to federal court, stating it was "the only
appropriate forum for Plaintiffs to litigate their claims against
Defendants."
(Document No. 24, at 2) .
9
the interstate transportation of those goods by a common carrier,"
to which complete preemption applies.
343 F.3d 769, 778 (5th Cir. 2003)
breach of contract,
Hoskins v. Bekins Van Lines,
(state law claims for negligence,
and violation of the Texas Deceptive Trade
Practices Act preempted by Carmack Amendment).
has
original
jurisdiction
because
The Court therefore
Plaintiffs'
claims
against
Talleres Willie arise under the Carmack Amendment and the matter in
controversy exceeds $10,000.
C.
See 28 U.S.C.
§
1337(a).
Supplemental Jurisdiction
A district court has supplemental jurisdiction over "all other
claims that are so related to claims in the action within
original
jurisdiction that they form part of
controversy."
28 U.S.C.
§
1367(a).
the
[its]
same case or
These claims must "derive from
a common nucleus of operative fact" such that the plaintiff "would
ordinarily be expected to try them all in one judicial proceeding."
United Mine Workers of Am. v. Gibbs, 86 S. Ct. 1130, 1138 (1966).
All of Plaintiffs' claims against all Defendants arise out of
damage to the purification skid when it was hit by a
March 4, 2013.
train on
Plaintiffs allege that
All Defendants were engaged in a concerted effort to
transport the [purification] skid for profit.
Each
Defendant had control over the others with regard to the
execution of the transport.
On information and belief,
all Defendants had an express or implied agreement to
complete
their
common
interest
to
transport
the
[purification] skid for profit, and each Defendant had an
10
equal right to a voice in the safe direction of the
enterprise (transporting the [purification] skid), which
gave each Defendant an equal right of control over the
transport. 16
Plaintiffs'
common
claims
nucleus
of
against
the
operative
other Defendants
fact"
with
their
thus
claims
share
"a
against
Talleres Willie, and the Court has supplemental jurisdiction over
all of Plaintiff's claims.
Removal of the case was proper, and
Plaintiffs' Motion to Remand is denied.
IV.
Order
Based on the foregoing, it is
ORDERED that Plaintiffs Air Liquide Mexico S. de R.L. de C.V.
and Air Liquide Process and Construction, Inc.'s Motion to Remand
(Document No.8) is DENIED.
The Clerk will enter this Order, providing a correct copy to
all counsel of record.
SIGNED at Houston, Texas, on this
Ji!!/:y
of June, 2014.
"
LEIN, JR.
DISTRICT JUDGE
16
Document No. 1-3
~
35.
11
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