Dzingeleski v. Allied Van Lines, Inc. et al
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART ALLIED VAN LINES, INC.'S 13 MOTION TO DISMISS AMENDED COMPLAINT. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/5/18. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:18CV2
ALLIED VAN LINES, INC.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
ALLIED VAN LINES, INC.’S
MOTION TO DISMISS AMENDED COMPLAINT
The defendant, Allied Van Lines Inc., removed this civil
action to this Court from the Circuit Court of Ohio County, West
ECF No. 1.
The plaintiff, Elizabeth Dzingeleski
(“Dzingeleski”) amended her complaint on June 8, 2018. ECF No. 12.
The plaintiff’s amended complaint alleges that defendant Allied Van
Lines, Inc. breached its duty to move, package, transport, unload,
breakage, and other damages or losses to plaintiff’s personal
property items after moving them from the truck into her home. ECF
No. 12 at 3.
The plaintiff demands judgment against Allied Van Lines Inc.,
in an amount in excess of the minimum jurisdictional limits as
compensatory damages, pre-judgment and post-judgment interest and
costs, and interest and costs incurred in and about the prosecution
of this action and for such other relief as a court or jury may
ECF No. 12 at 6.
Allied Van Lines, Inc. has filed a motion to dismiss the
plaintiffs’ amended complaint. ECF No. 14. Allied Van Lines, Inc.
argues that in the plaintiff’s amended complaint (ECF No. 12), the
plaintiff has “merely” restated claims that are preempted by
federal law, specifically, 49 U.S.C. § 14706(a)(1)(2007), commonly
referred to as the Carmack Amendment.
ECF No. 14 at 3.
The plaintiff has failed to file a response.
then filed a reply despite plaintiff’s failure to file a response.
ECF No. 17. Defendant asserts 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
service under an interstate bill of lading.
ECF No. 17 at 2.
complaint asserts the same claims that were already dismissed due
to preemption by this amendment.
Id. at 2.
Defendant now requests that this Court grant its motion to
dismiss for plaintiff’s failure to respond.
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.
As the defendant points out, this Court has already held that
the causes of action asserted in the plaintiff’s original complaint
(ECF No. 12) are preempted by applicable federal law.
ECF No. 14
at 7-8 (“Even if all the [p]laintiff’s allegations are accepted as
true, the causes of action of the [p]laintiff’s amended complaint
merely restate state and/or common law claims against a motor
carrier that this Court has already held to be preempted by the
Carmack Amendment and the I.C.C. Termination Act of 1995, and,
therefore, should be dismissed.”); see ECF No. 10 at 9-10.
This Court reiterates that the plaintiff’s original claims
based on state law and/or common law causes of action are preempted
by 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.
Id. at 2.
for the plaintiff to assert a valid claim against the defendant,
the plaintiff was directed to clarify her request for relief.
This Court has previously cited to Miracle of Life, LLC v.
N. Am. Van Lines, Inc., 368 F. Supp. 2d 494, 498 (D.S.C. 2005),
where 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 [p]laintiffs’ claims and requests for
relief pursuant to the Carmack Amendment.”
ECF No. 10 at 9-10.
Similarly, this Court noted that “it is well within the Court’s
discretion to permit [p]laintiff to file an amended complaint,
stating a proper cause of action under federal law.”
Id. at 10
(citing Midamerican Energy Co. v. Start Enter.,Inc., 437 F. Supp.
2d 969, 973-74 (S.D. Iowa 2006)).
Importantly, the sole remedy for damages are those that could
be collected under the Carmack Amendment.
Shao v. Link Cargo
(Taiwan) Ltd., 986 F.2d 700, 706-07 (“[The Court] . . . conclud[ed]
that the Carmack Amendment was intended by Congress to create a
national uniform policy regarding the liability of carriers under
a bill of lading for goods lost or damaged in shipment.
a shipper to bring common law breach of contract or negligence
claims against a carrier for such loss or damage conflicts with
Liability under the Carmack Amendment is the
“actual loss or injury to the property.”
Id. at 294; see also
Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84
S. Ct. 1142, 12 L.Ed.2 194 (1964).
This amount is “the difference
between the market value of the property in the condition it should
have arrived . . . and its market value in the condition it did
arrive.” Id. at 296 (citing Contempo Metal Furniture Co. of Calif.
v. East Texas Motor Freight Lines, Inc., 661 F.2d 761, 764 (9th
Cir. 1981); see also Gulf, Colorado & Santa Fe Railway v. Texas
Packing Co., 244 U.S. 31, 37, 37 S.Ct. 487, 489, 61 L.Ed. 970
This may not always be the best measure for calculating
damages, however. Id. (citing Brockway-Smith Co. v. Boston & Maine
Corp., 497 F. Supp. 814, 820 (D. Mass. 1980)).
Here, the plaintiff has amended her complaint to comport with
this Court’s previous order by citing to the Carmack Amendment, 49
U.S.C. § 14706, and relevant case law, specifically Oak Hall, 899
F.2d at 1142.
ECF No. 12 at 5.
However, because the only damages
that could potentially be collected are those that arise under the
Carmack Amendment, any remedies arising from the plaintiff’s common
law claims are preempted.
For the reasons set forth above, Allied Van Lines, Inc.’s
motion to dismiss the amended complaint (ECF No. 12) is GRANTED in
part to the extent that plaintiff’s common law claims have been
plaintiff may seek relief to the extent permitted under the Carmack
Amendment, as set forth above.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
September 5, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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