May v. United Van Lines, LLC
REPORT AND RECOMMENDATIONS that the Court GRANT Defendant's 4 Motion to Dismiss for Failure to State a Claim. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
UNITED VAN LINES, LLC
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Defendant United Van Lines, LLC’s (“United”) Motion to Dismiss and
Memorandum in Support (Dkt. No. 4). The District Court referred the above-motion to the
undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b) and
Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
This case arises from events that occurred in the summer of 2013. On or after June 13, 2013,
Plaintiff April May (“May”) hired United to assist in moving her belongings from Austin, Texas, to
Nevada City, California. See Dkt. No. 1, Exh. 2 [hereinafter Petition]. May alleges that nearly one
year after the move, more than 84 boxes containing her belongings are still missing and have not
been delivered. Additionally, May states that of the materials that did make it to California, nearly
all arrived in damaged condition. Through the date of her original petition, May contends that
United has been unable to locate her missing belongings and has not repaired those belongings that
were damaged. Based on these events, May seeks damages under the following claims against
United: (1) breach of duty to act as a reasonably prudent carrier in packing, transporting, and
unpacking May’s belongings and (2) emotional distress. Id.
This case was originally filed in Travis County District Court on April 2, 2014, and removed
by United to this Court on May 12, 2014. On May 18, 2014, United filed the instant Motion to
Dismiss May’s Petition (Dkt. No. 4), arguing that May has failed to state claims upon which relief
may be granted because her state law causes of action are preempted by federal law. As of the date
of this Report and Recommendation, May still has not responded to United’s motion.1
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for
failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). In deciding a Rule
12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S.
1182 (2008). To survive the motion, a nonmovant must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The court’s
task is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not
to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial plausibility when the [nonmovant]
pleads factual content that allows the court to draw the reasonable inference that the [movant] is
Under Local Rule CV-7, parties are given fourteen days to respond to a dispositive motion,
which includes motions to dismiss. As noted, United filed the instant motion to dismiss on May 18,
2014. To timely respond to United’s motion, May needed to respond by Monday, June 2, 2014.
However, given that United’s motion is dispositive, the Court will not grant its motion simply
because it is unopposed, and will consider the merit of the issues raised therein.
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id.
In its motion, United argues that May’s state and common law claims must be dismissed
because they are preempted by federal law. Dkt. No. 4. More specifically, United contends that
based on the Interstate Commerce Act (“ICA”), 49 U.S.C. § 13101, et seq., the ICC Termination Act
of 1995 (“ICCTA”), and the Carmack Amendment, 49 U.S.C. § 14706, its potential liability and any
damages associated therewith are to be determined under federal law. Accordingly, United submits
that May cannot maintain claims or seek damages under state or common law. The Court agrees.
This case is controlled by several Fifth Circuit decisions, including Hoskins v. Bekins Van
Lines, 343 F.3d 769 (5th Cir. 2003), Morris v. Covan World Wide Moving, Inc., 144 F.3d 377 (5th
Cir. 1998), and Moffit v. Bekins Van Lines, Co., 6 F.3d 305 (5th Cir. 1993). The Fifth Circuit’s
reasoning is explained fully in those cases and need not be restated in detail here. To summarize,
these cases hold that (1) the Carmack Amendment provides “the exclusive cause of action for loss
or damages to goods arising from the interstate transportation of those goods by a common carrier”
and thus, a state -filed case is removable to federal court even when the plaintiff has only asserted
state law claims, Hoskins, 343 F.3d at 778, and (2) the Carmack Amendment preempts all state law
claims and federal common law remedies. As has been further stated by the Fifth Circuit, “Congress
intended by the Carmack Amendment to provide a uniform national remedy against carriers for
breach of the contract of carriage, including a liability for default in any common-law duty as a
common carrier.” Air Prod. and Chem., Inc. v. Ill. Cent. Gulf R. Co., 721 F.2d 483, 487 (5th Cir.
1983); see also Adams Express Co. v. Croninger, 226 U.S. 491, 505 (1913).
It is clear that May’s claims are preempted by the Carmack Amendment. May’s Original
Petition states that she is seeking damages for her damaged or lost property that allegedly occurred
in the course of United’s transportation of her belongings from Austin, Texas, to Nevada City,
California. Specifically, May contends that United breached its duty to act as a reasonably prudent
carrier in packing, transporting, and unpacking her belongings and that United’s actions have caused
her emotional distress. The fact scenario in this case is virtually identical to those presented in
Hoskins, Morris, and Moffit; in each of those cases, the plaintiff brought state or common law claims
against a carrier for losses or damages to goods arising from the interstate transportation of their
goods, and in each case the Fifth Circuit found the claims preempted by the Carmack Amendment.
Based on Supreme Court and Fifth Circuit precedent, May’s claims are preempted by the Carmack
Amendment. As such, May fails to state claim in her Original Petition, and pursuant to Rule
12(b)(6), her Original Petition must be dismissed.
In accordance with the preceding discussion, the undersigned RECOMMENDS that the
District Judge GRANT Defendant United Van Lines, LLC’s, Motion to Dismiss (Dkt. No. 4).
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this the 25th day of June, 2014.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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