Watson et al v Moger et al

Filing 36

ORDER ON MOTION TO AMEND COMPLAINT, granting in part and denying in part 28 Motion to Amend. Counsel is directed to e-file their Amended Complaint by 2/5/2021. Signed by Judge Robert J. Bryan.(JL)

Case 3:20-cv-05344-RJB-TLF Document 36 Filed 01/25/21 Page 1 of 5

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10
11

ERIC A. WATSON and SARAH M.
WATSON, and their marital community,

12
13
14
15
16
17
18
19
20
21
22
23

Plaintiff,

CASE NO. 20-5344 RJB
ORDER ON MOTION TO AMEND
COMPLAINT

v.
WARREN MOGER, and JANE DOE
MOGER, and their marital community
d/b/a MOGER YACHT TRANSPORT,
WARREN MOGER, and JANE DOE
MOGER, and their marital community
d/b/a MOGER YACHT TRANSPORT,
Defendants.
This matter comes before the Court on the Plaintiffs’ Motion for Leave to Amend
Complaint (Dkt. 28) and the Plaintiffs’ motion to strike (Dkt. 32). The Plaintiffs attached a relined proposed second amended complaint to their motion. Dkt. 29-1. The Court has
considered the pleadings filed in support of and in opposition to the motions and the file herein.
This case arises from damage sustained to a boat which was transported over land for the
Plaintiffs by the Defendants from California to Oregon. Dkt. 1. The Plaintiffs now move to

24

ORDER ON MOTION TO AMEND COMPLAINT - 1

Case 3:20-cv-05344-RJB-TLF Document 36 Filed 01/25/21 Page 2 of 5

1

amend their Amended Complaint to add a claim pursuant to the Carmack Amendment, 49 U.S.C.

2

§ 14706(a)(1) and to clarify their claims for damages. Dkt. 28.

3
4

FACTS IN PROPOSED SECOND AMENDED COMPLAINT
In the proposed second amended complaint, the Plaintiffs allege that on March 27, 2019,

5

they hired the Defendants to transport a boat from Oxnard, California to Washington state, but

6

later agreed that it could be taken to Portland, Oregon. Dkt. 29-1, at 3-4. The boat was to be

7

driven up on a trailer. Id. The proposed second amended complaint alleges that in April of that

8

year, as the Defendants were preparing the boat for transport, Plaintiff Eric Watson complained

9

that the pads the Defendants were using “were to small and a portion of the trailer could go

10

through the hull.” Id., at 4. It alleges that Defendant Moger, Jr. “said that the boat would be fine

11

and that Moger Yacht Transport had insurance that would cover harm to the boat.” Id.

12

According to the proposed second amended complaint, on April 10, 2019, Plaintiff Eric

13

Watson received a call from the boat yard where Defendant Moger Jr. brought the boat early

14

because he traveled faster than expected. Dkt. 29-1, at 5. Plaintiffs maintain that the boat yard

15

told Plaintiff Eric Watson that they could not launch the boat because it had “holes in the bottom

16

and would sink.” Id. Plaintiffs allege that after arriving at the yard and inquiring what

17

happened, Defendant Warren Moger Jr. told Plaintiff Eric Watson that “he went over a bridge

18

hump that caused the boat to lift and drop on the pedestals” and that “he went under a bridge a

19

cable was cut from the top of the boat.” Id. The boat yard would not take the boat, so Plaintiffs

20

had the Defendants take the boat to Dike Marine Storage & Service. Id., at 6. The proposed

21

second amended complaint alleges that once the boat arrived, and “[p]rior to the boat being fully

22

lowered, Defendant Warren Moger Junior sped off and the boat slammed down into the pedestals

23

further damaging the boat.” Id. The proposed second amended complaint makes claims

24

ORDER ON MOTION TO AMEND COMPLAINT - 2

Case 3:20-cv-05344-RJB-TLF Document 36 Filed 01/25/21 Page 3 of 5

1

pursuant to the Carmack Amendment, 49 U.S.C. § 14706(a)(1), for breach of contract, and for

2

negligence. Id., at 6-9. It seeks “actual and compensatory” damages, attorneys’ fees and costs.

3

Id., at 9.

4

The Plaintiffs now move for leave to file the second amended complaint. Dkt. 28. The

5

Defendants oppose the motion arguing that the motion to amend is unduly late and to the extent

6

it maintains common law claims for breach of contract and negligence, it is futile because the

7

Carmack Amendment preempts such claims. Dkt. 31. The Plaintiffs move to strike the

8

Defendants’ response because it was filed one day late. Dkt. 32.
DISCUSSION

9
10

A. MOTION TO STRIKE

11

The Plaintiff’s motion to strike the Defendants’ response to the motion to amend (Dkt.

12

32) should be denied. The response was filed 12 hours late. It should be considered.

13

B. MOTION TO AMEND AMENDED COMPLAINT

14

Under Fed. R. Civ. P. 15 (a)(2), “a party may amend its pleading only with the opposing

15

party’s written consent or the court's leave. The court should freely give leave when justice so

16

requires.” A motion to amend under Rule 15 (a)(2), “generally shall be denied only upon

17

showing of bad faith, undue delay, futility, or undue prejudice to the opposing party.” Chudacoff

18

v. University Medical Center of Southern Nevada, 649 F.3d 1143 (9th Cir. 2011).

19

The motion to amend the Amended Complaint (Dkt. 28) should be granted to the extent that

20

it adds a claim pursuant the Carmack Amendment and denied as futile to the extent it seeks to

21

continue with the Plaintiffs’ claims for breach of contract and negligence.

22
23

There is no showing here of bad faith or undue prejudice. The Defendants fail to show
that the proposed amendments are unduly delayed or that they are unduly prejudiced as a result.

24

ORDER ON MOTION TO AMEND COMPLAINT - 3

Case 3:20-cv-05344-RJB-TLF Document 36 Filed 01/25/21 Page 4 of 5

1

There is no showing that amending the Amended Complaint to add a claim under the Carmack

2

Amendment would be futile. The Plaintiffs should be granted leave to file a second amended

3

complaint that adds a claim under the Carmack Amendment and clarifies their damages

4

permitted under the Carmack Amendment.
To the extent that the Plaintiffs seek to retain their claims for breach of contract and

5
6

negligence, the motion to amend should be denied as futile. “The Carmack Amendment is a

7

federal statute that provides the exclusive cause of action for interstate shipping contract claims,

8

and it completely preempts state law claims alleging delay, loss, failure to deliver and damage to

9

property.” White v. Mayflower Transit, L.L.C., 543 F.3d 581, 584 (9th Cir. 2008). The

10

Plaintiffs’ proposed second amended complaint’s claims for breach of contract and negligence

11

claims are claims alleging “loss . . . and damage to property” moved between two states. These

12

claims “arise from the same conduct” as the Carmack Amendment claims and so are preempted

13

by the Carmack Amendment. Id.
By February 5, 2021, the Plaintiffs should be ordered to file a clean version of their

14
15

second amended complaint, removing the redlines and their breach of contract and negligence

16

claims.
ORDER

17
18

Therefore, it is hereby ORDERED that:

19



The Plaintiffs’ motion to strike (Dkt. 32) IS DENIED; and

20



The Plaintiffs’ Motion for Leave to Amend Complaint (Dkt. 28) IS GRANTED

21

to the extent it to seeks to add a claim under Carmack Amendment and seeks

22

damages under the Carmack Amendment and DENIED to the extent it seeks to

23
24

ORDER ON MOTION TO AMEND COMPLAINT - 4

Case 3:20-cv-05344-RJB-TLF Document 36 Filed 01/25/21 Page 5 of 5

1

retain claims for negligence and breach of contract and damages flowing those

2

claims; and

3



By February 5, 2021, the Plaintiffs SHALL file a clean version of their second

4

amended complaint, removing the redlines and their claims for breach of contract

5

and negligence claims.

6
7
8
9
10
11

The Clerk is directed to send uncertified copies of this Order to all counsel of record and
to any party appearing pro se at said party’s last known address.
Dated this 25th day of January, 2021.

A
ROBERT J. BRYAN
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24

ORDER ON MOTION TO AMEND COMPLAINT - 5