Navigators Insurance Company v. Freight Tec Management Group Inc et al
Filing
29
ORDER setting telephone Scheduling Conference for 11/15/2011 09:30 AM (CST) before Judge Rudolph T Randa. Denying 16 MOTION to Dismiss Second Cause of Action in Complaint for Breach of Bailment filed by Freight Tec Management Group Inc. Signed by Judge Rudolph T Randa on 09/19/2011. (cc: all counsel)(Koll, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NAVIGATORS INSURANCE COMPANY as
subrogee of AERO LOGISTICS, Inc.,
Plaintiffs,
-vs-
Case No. 11-C-7
FREIGHT TEC MANAGEMENT GROUP, Inc.,
and KRIST ENGER d/b/a ENGER ENTERPRISES,
Defendant.
DECISION AND ORDER
Aero Logistics, Inc. contracted with Freight Tec Management Group for the
transportation of certain mining equipment from Milwaukee to Green Valley, Arizona.
According to the complaint, the driver deviated from the designated route, causing the cargo
to collide with a highway overpass. The cargo was severely damaged and ultimately
declared a total loss. Count one of the complaint alleges a claim under the Carmack
Amendment, 49 U.S.C. § 14706, et seq. Count two alleges that Freight Tec breached its
bailment obligations under state law. Freight Tec moves to dismiss count two.
Freight Tec argues that count two is preempted by the Carmack Amendment. The
Carmack Amendment generally preempts separate state-law causes of action that a shipper
might pursue against a carrier for lost or damaged goods. REI Transport, Inc. v. C.H.
Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008); Hughes v. United Van Lines,
Inc., 829 F.2d 1407, 1414 (7th Cir. 1987). The complaint alleges that Freight Tec is a
“common and/or contract carrier[] of goods for hire and as such owed a statutory duty to the
shippers and consignees for whom they agreed to carry cargo.” Complaint, ¶ 22. Freight
Tec argues for preemption because the Court must accept as true the allegation that Freight
Tec is a “carrier” under the Carmack Amendment. 49 U.S.C. §§ 13102(3), (4) (defining
carrier and contract carrier).
If a plaintiff “chooses to ‘plead particulars, and they show he has no claim, then he
is out of luck – he has pleaded himself out of court.’” Jefferson v. Ambroz, 90 F.3d 1291,
1296 (7th Cir. 1996) (quoting Thomas v. Farley, 31 F.3d 557, 558-59 (7th Cir. 1994)). On
the other hand, plaintiffs are allowed to plead alternative, inconsistent legal theories. Fed.
R. Civ. P. 8(d)(2); Harley Marine Serv., Inc. v. Manitowac Marine Group, LLC, 759 F. Supp.
2d 1059, 1060-61 (E.D. Wis. 2010). More to the point, the allegation that Freight Tec is a
carrier does not necessarily mean that it was acting as a carrier for purposes of the transaction
at issue. “A transportation entity may have authority to operate as both a broker and a
carrier. The focus of the court’s inquiry must be on . . . the specific transaction . . . and the
nature of the relationship.” Schramm v. Foster, 341 F. Supp. 2d 536, 549 (D. Md. 2004).
As an affirmative defense, Freight Tec alleges that it was acting as a broker, not a carrier.
If so, count two is not preempted by the Carmack Amendment. Comm’l Union Ins. Co. v.
Forward Air, Inc., 50 F. Supp. 2d 255, 259 (S.D.N.Y. 1999) (“broker liability survives the
enactment of the Carmack Amendment”); Custom Cartage, Inc. v. Motorola, Inc., No. 98 C
5182, 1999 WL 89563, at *3 (N.D. Ill. Feb. 16, 1999).
-2-
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.
Freight Tec’s motion to dismiss [D. 16] is DENIED;
2.
Pursuant to Federal Rule of Civil Procedure 16(b), a telephonic scheduling
conference is scheduled for November 15, 2011 at 9:30 a.m. (Central Time). Please be
available at that time. The Court will initiate the call.
3.
The purpose of the conference call is to establish a scheduling order which will
limit the time to join other parties and to amend the pleadings; to file motions; and to
complete discovery.
4.
The scheduling order may also: modify the timing for disclosure under Rules
26(a) and 26(e)(1) and of the extent of discovery to be permitted; provide for the disclosure
or discovery of electronically stored information; include any agreements the parties reach
for asserting claims of privilege or protection as trial preparation material after information
is produced; the date or dates for conferences before trial, a final pretrial conference, and
trial; and any other matters appropriate in the circumstances of the case.
5.
The time limitations set forth in the scheduling order may only be modified for
good cause and with the Court’s consent. Fed. R. Civ. P. 16(b)(4).
6.
The parties should be prepared to discuss the matters listed in Civil Local Rule
16(a)(1). Please refer to Attachment A. Special attention should also be given to Rule
26(f)(1), which requires the parties to conduct a settlement/discovery conference at least
twenty-one (21) days prior to the initial scheduling conference described above. The Rule
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26(f) conference may be conducted by telephone. Rules 26(f)(2) and (3) mandate that the
parties, within fourteen (14) days of their conference: (1) file a written report outlining the
proposed discovery plan they have developed at their Rule 26(f) conference; and (2) make
the required initial disclosures under Rule 26(a) regarding witnesses and documents. In
addition to the matters specified in Rules 26(f)(2) and (3), the Court requests that the
proposed discovery plan submitted by the parties include one or two sentences stating the
nature of the case.
7.
The written report must include the telephone numbers where the parties can
be reached for this call.
8.
In addition, Judge Randa is participating in the Seventh Circuit Electronic
Discovery Pilot Program and has adopted the Principles Relating to the Discovery of
Electronically Stored Information. Counsel should be fully prepared to discuss methods and
techniques to accomplish cooperative fact-finding in their case at the initial status
conference. Before the initial status conference, counsel must also meet and discuss the
Principles Relating to the Discovery of Electronically Stored Information. At the initial
status conference, counsel must be prepared to discuss what agreements they have reached
regarding discovery of Electronically Stored Information (“ESI”) and what area of
disagreement they have with regard to discovery of ESI. After discussing the matter with
counsel, the Court will determine whether to enter the Standing Order Relating to the
Discovery of Electronically Stored Information in their particular case. (Please refer to
Attachments B & C).
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Dated at Milwaukee, Wisconsin, this 19th day of September, 2011.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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