Dzingeleski v. Allied Van Lines, Inc. et al
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AS TO DEFENDANT JOHN FAYARD MOVING & WAREHOUSING, LLC AND GRANTING DEFENDANTS' MOTION TO DISMISS AS TO DEFENDANT ALLIED VAN LINES, INC. WITH LEAVE TO AMEND: Granting 3 M otion to Dismiss for failure to State a Claim as to defendant John Fayard Moving & Warehousing, LLC, and Granting with Leave to Amend as to defendant, Allied Van Lines, Inc. Plaintiff directed to file any amended complaint within 21 days; Clerk directed to enter Judgment pursuant to FRCP 58 as to def., John Fayard Moving & Warehousing. Signed by Senior Judge Frederick P. Stamp, Jr on 5/17/18. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:18CV2
ALLIED VAN LINES, INC.
and JOHN FAYARD MOVING
& WAREHOUSING, LLC,
JOHN DOE 1 and JOHN DOE 2,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS AS TO
DEFENDANT JOHN FAYARD MOVING & WAREHOUSING, LLC
AND GRANTING DEFENDANTS’ MOTION TO DISMISS AS TO
DEFENDANT ALLIED VAN LINES, INC. WITH LEAVE TO AMEND
The civil action arises out of a contract for the packing and
interstate transportation of the plaintiff’s household goods by the
defendants from Saraland, Alabama to Wheeling, West Virginia.
plaintiff, Elizabeth Dzingeleski, originally brought this civil
action in the Circuit Court of Ohio County, West Virginia, against
the defendants, Allied Van Lines, Inc. (“Allied”), John Fayard
Moving & Warehousing, LLC (“John Fayard”), John Doe 1, and John Doe
The complaint alleges that Allied’s employees, agents, and
representatives loaded the plaintiff’s personal property at her
Alabama residence on December 14 and 15, 2015, and that her
personal property was unpacked on or after December 21, 2015.
No. 1-1 at 2.
The complaint further alleges that the defendants
negligently caused breakage and other damages and losses to the
plaintiff’s personal property when they moved it off the truck and
into her West Virginia residence.
ECF No. 1-1 at 4.
annoyance, inconvenience, loss of use, and diminution of value.
ECF No. 1-1 at 3-6.
The named defendants, Allied and John Fayard, removed the
civil action to this Court on the basis of federal question
jurisdiction under 28 U.S.C. § 1331. The notice of removal asserts
that “all causes of action on the face of the [c]omplaint allege
loss or damage claims that arise out of the performance of a
contract for the interstate transportation of household goods.”
ECF No. 1 at 2.
Thus, the defendants contend that “[t]he subject
matter area, as a matter of law, is completely preempted and
therefore cognizable only as a federal claim arising under federal
ECF No. 1 at 2.
Specifically, the defendants contend that
the claims arise under 49 U.S.C. § 14706, the Carmack Amendment to
the Interstate Commerce Act (the “ICA”), as amended by the ICC
Termination Act of 1995 (the “ICCTA”), 49 U.S.C. § 10101 et seq.
ECF No. 1 at 2.
The named defendants have filed a motion to dismiss for
failure to state a claim.
ECF No. 3.
The defendants assert that
the allegations in the complaint relate to an interstate shipment
ECF No. 3 at 2.
Because defendant Allied is a household
goods motor carrier as defined by statute, the defendants argue
that the plaintiff’s claims are governed by the Carmack Amendment,
“which provides the exclusive remedy for property damage caused by
a motor carrier providing transportation or service under an
interstate bill of lading.” ECF No. 3 at 2 (emphasis in original).
The defendants argue that, under New York, Philadelphia, & Norfolk
Railroad Company v. Peninsula Produce Exchange, 240 U.S. 34 (1916),
the complaint is preempted by the Carmack Amendment.
ECF No. 3
Specifically, the defendants argue that the complaint “does
not state the prima facie elements under the [ICA], but merely
raises preempted state and/or common law causes of action.”
No. 3-1 at 3.
Additionally, the defendants note that the United
States Court of Appeals for the Fourth Circuit has held that “the
Carmack Amendment goes beyond the physical act of transportation to
include associated services.”
ECF No. 3-1 at 5 (quoting Rush
Indus. v. MWP Contractors, LLC, 593 F. App’x 91, 94 (4th Cir.
The defendants further contend that, as a matter of law,
defendant John Fayard “cannot be liable for any action for damages
arising out of a carrier’s performance of transportation under a
bill of lading.”
ECF No. 3 at 3.
ECF No. 4.
In her response, the plaintiff
acknowledges that the allegations in her complaint “may not exactly
align with the Carmack Amendment.”
ECF No. 4 at 5.
plaintiff argues that this Court should re-characterize her claim
dismissing the case for failure to state a claim.
ECF No. 4 at 5.
The plaintiff contends that her “recovery is contingent on her
Amendment’s burden-shifting framework.”
ECF No. 4 at 6.
The plaintiff does concede that defendant John Fayard may be
dismissed from the civil action.
ECF No. 4 at 7.
In the event
that this Court grants the motion to dismiss as to defendant
Allied, the plaintiff requests that the dismissal be without
ECF No. 4 at 7.
The defendants did not file a reply to the plaintiff’s
defendant John Fayard and granted with leave to amend as to
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
unreasonable conclusions, or arguments.”
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
The purpose of a motion under Rule 12(b)(6) is to test the
formal sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or the
merits of the case.
5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (3d ed. 1998).
12(b)(6) motion also must be distinguished from a motion for
summary judgment under Federal Rule of Civil Procedure 56, which
goes to the merits of the claim and is designed to test whether
there is a genuine issue of material fact.
For purposes of
the motion to dismiss, the complaint is construed in the light most
favorable to the party making the claim and essentially the court’s
statement of a claim under Federal Rule of Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
Under the ICA, an interstate carrier “is liable for damage to
goods transported by it.”
Missouri Pac. R.R. Co. v. Elmore &
Stahl, 377 U.S. 134, 137 (1964).
The Carmack Amendment was passed
to bring a degree of uniformity to interstate shipping.
Supreme Court noted that:
along with singleness of rate and continuity of carriage
in through shipments there had grown up the practice of
requiring specific stipulations limiting the liability of
each separate company to its own part of the through
route, and, as a result, the shipper could look to the
initial carrier for recompense only ‘for loss, damage, or
delay’ occurring on its own line.
situation’ was ‘the matter which Congress undertook to
regulate.’ And it was concluded that the requirement
that interstate carriers holding themselves out as
receiving packages for destinations beyond their own
terminal should be compelled ‘as a condition of
continuing in that traffic to obligate themselves to
carry to the point of destination, using the lines of
connecting carriers as their own agencies,’ was within
the power of Congress.
New York, P. & N. R. Co. v. Peninsula Produce Exch. of Md., 240
U.S. 34, 37 (1916) (quoting Atl. Coast Line R. Co. v. Riverside
Mills, 219 U.S. 186, 200, 203, (1911)).
In passing the Carmack
Amendment, “it is evident that Congress intended to adopt a uniform
rule and relieve such contracts from the diverse regulation to
which they had therefore been subject.”
Croninger, 226 U.S. 491, 506 (1913).
Adams Express Co. v.
Thus, this Court finds that
the plaintiff’s claims are preempted by the ICA.
Defendant John Fayard Moving & Warehousing, LLC
The plaintiff concedes that defendant John Fayard can be
dismissed from this civil action.
Under 49 U.S.C. § 13907(a),
carriers are responsible for all acts or omissions of its agents.
[n]ot only does the statutory language impose liability
on a motor carrier for the acts and omissions of the
carrier’s agent, but case law holds that the agent of a
disclosed principal cannot be held liable pursuant to a
duly issued bill of lading contract.
Werner v. Lawrence Transp. Sys., Inc., 52 F. Supp. 2d 567, 568
(E.D.N.C. 1998) (citation omitted); see also Olympian Worldwide
Moving & Storage Inc. v. Showalter, No. CV-13-00245-PHX-NVW, 2013
WL 3875299, at *4 (D. Ariz. July 26, 2013) (“Under the Carmack
As the plaintiff does not contest the defendants’
assertion that defendant John Fayard is an agent of defendant
defendant John Fayard.
Defendant Allied Van Lines, Inc.
The defendants argue that, because the complaint does not
state the prima facie elements necessary for a claim under the
Carmack Amendment, it must be dismissed because the state-based
claims are preempted by federal law.
ECF No. 3-1 at 3.
establish a prima facie case under the Carmack Amendment, the
plaintiff must establish (1) delivery of the goods to the carrier
in good condition, (2) arrival in damaged condition, and (3) amount
See Oak Hall Cap and Gown Co., Inc. v. Old Dominion
Freight Line, Inc., 899 F.2d 291, 294 (4th Cir. 1990) (citing Mo.
Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964)).
plaintiff establishes this prima facie case, the burden shifts to
the carrier to show that it was not negligent and that the damage
to the goods was caused by (1) an act of God, (2) the public enemy,
(3) the act of the shipper himself, (4) public authority, or (5)
the inherent vice or nature of the goods.
See Mo. Pac. R.R. Co.,
377 U.S. at 137.
The plaintiff argues that this Court should characterize the
claim as one under the Carmack Amendment because it demonstrates
sufficient allegations to establish a prima facie case.
ECF No. 4
Specifically, the plaintiff argues that, under Darcangelo
v. Verizon Communications, Inc., 292 F.3d 181, 195 (4th Cir. 2002),
“when a claim under state law is completely preempted . . . a
federal court should not dismiss the claim, but should instead re-
characterize it as a claim under applicable federal law.”
4 at 6.
The plaintiff points out the portions of her complaint
which allege that all of her belongings were in good condition and
repair prior to transporting and unloading; that her belongings
sustained breakage and other damages and losses as a result of the
move; and that the plaintiff substantially complied with all of the
pre-lawsuit proof of claim forms, which contained itemized amounts
of damages to the plaintiff’s belongings.
ECF No. 4 at 7.
This Court finds that the present case is distinguishable from
The Darcangelo court was specifically dealing with
claims that fall under § 502 of the Employee Retirement Income
Security Act of 1974.
That court held that, “when a claim under
state law is completely preempted and is removed to federal court
because it falls within the scope of § 502, the federal court
should not dismiss the claim as preempted, but should treat it as
a federal claim under § 502.”
Darcangelo, 292 F.3d at 195
In the present case, this Court believes the most prudent
course of action is to permit the plaintiff to clarify her request
See, e.g., Miracle of Life, LLC v. N. Am. Van Lines,
Inc., 368 F. Supp. 2d 494, 498 (D.S.C. 2005).
In Miracle, the
United States District Court for the District of South Carolina
noted that the “decision to grant leave rather than recharacterize
is based on the fact that the court remains unsure of the precise
scope of Plaintiffs’ claims and requests for relief pursuant to the
Id. at 499.
Similarly, although “[t]he facts
as alleged in Plaintiff’s Complaint are more than sufficient to
demonstrate a viable cause of action under the Carmack Amendment
. . . .
[I]t is well within the Court’s discretion to permit
Plaintiff to file an Amended Complaint, stating a proper cause of
action under federal law.” Midamerican Energy Co. v. Start Enter.,
Inc., 437 F. Supp. 2d 969, 973-74 (S.D. Iowa 2006).
the defendants’ motion to dismiss is granted as to defendant
Allied, but with leave for the plaintiff to amend her complaint to
set forth a prima facie case within twenty-one days from the date
of entry of this order.
For the reasons stated above, it is ORDERED as follows: The
defendants’ motion to dismiss for failure to state a claim (ECF
No. 3) is GRANTED as to defendant John Fayard Moving & Warehousing,
LLC and GRANTED WITH LEAVE TO AMEND as to defendant Allied Van
complaint within twenty-one (21) days from the date of entry of
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment as to
defendant John Fayard Moving & Warehousing, LLC.
May 17, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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