Opinion
Case No. A-06-CA-1008-SS.
March 12, 2007
ORDER
BE IT REMEMBERED on the 12th day of March 2007 the Court reviewed the file in the above-styled cause, specifically Defendant's Motion to Dismiss the Complaint [#8], Plaintiff's Response thereto [#10], Defendant's Reply [#13], Plaintiff's Motion to Amend the Complaint [#11], Defendant's Response Thereto [#14], and Plaintiff's Second Amended Complaint [#12].
Leave to amend is to be freely given, and Plaintiff's Motion to Amend the Complaint [#11] is therefore GRANTED. Accordingly, Defendant's Motion to Dismiss the Complaint [#8] is DISMISSED as MOOT. Defendant's Response to Plaintiff's Motion to Amend the Complaint [#14], however, is properly construed as a Motion to Dismiss the Second Amended Complaint. This motion is well-taken and the Second Amended Complaint is dismissed in part for the following reasons.
Background
Plaintiff Dana Neal contracted with Defendant Allied Van Lines to ship her household goods. The goods were damaged in transit but Defendant disallowed certain of Plaintiff's claims for damaged goods, allegedly in violation of the contract and in violation of the "supplemental insurance" contract Defendant sold Plaintiff. Plaintiff sued in state court for breach of contract and violation of the Texas Deceptive Trade Practices Act. Defendants removed to federal court and moved to dismiss Plaintiff's claims, arguing the Carmack Amendment completely preempts state law claims arising out of the shipment of goods by an interstate carrier. Plaintiff amended her complaint to add a cause of action under the Carmack Amendment but maintains that her causes of action for state law breach of contract and DTPA claims are viable because they arise out of the sale of insurance, not the shipment of goods.
Analysis
Motions to dismiss are disfavored and rarely granted. Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The Court liberally construes the complaint in the plaintiff's favor, and all pleaded facts are taken as true. Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986). Unless it appears beyond doubt that the plaintiff cannot prove any set of facts entitling it to relief, the complaint should not be dismissed. Conley v. Gibson, 355 U.S. 41, 45 (1957).
The Carmack Amendment to the Interstate Commerce Act allows for recovery for the actual loss or damage to property caused by an interstate carrier that shipped the goods. 49 U.S.C. § 14706; Ferrostaal, Inc. v. Seale, 170 F.Supp.2d 705,707 (E.D. Tex. 2001). The Fifth Circuit has held that the Carmack Amendment has sweeping preemptive force, stating that "Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier." Hoskins v. Bekins Van Lines, LLC, 343 F.3d 769, 778 (5th Cir. 2003) (emphasis in original). This preemption extends to claims based on an interstate carrier's sale of supplemental insurance. See, e.g. Hanlon v. UPS, 132 F. Supp. 2d 503, 504 (N.D. Tex. 2001) (holding Carmack Amendment preempts claims for "fraudulently collecting an insurance fee and operating as an insurance company without authorization, violation of article 21.21-2 of the Texas Insurance Code (Unfair Claim Settlement Practices Act), and violation of § 17.46 of the Texas Business and Commerce Code (Texas Deceptive Trade Practices Act)"); see also Moffit v. Bekins Van Lines Co., 6 F.3d 305, 306-07 (5th Cir. 1993) (finding that Carmack Amendment preempted state law claims for violation of the Texas Deceptive Trade Practices Act sections 17.46 and 17.50 (unfair trade practices and violations of the Texas Insurance Code), slander, misrepresentation, fraud, negligence, and gross negligence).
Because all of the state law claims asserted in Plaintiffs Original Petition arise out of the shipment of goods by an interstate carrier, the Court finds that they are preempted by the Carmack Amendment. Plaintiff, however, has stated a viable prima facie claim for violation of the Carmack Amendment. "A prima facie case of Carmack liability is made by allegations or proof of (a) delivery in good condition, (b) arrival in damaged condition, and (c) the amount of damages." Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 831-32 (N.D. Tex. 2003) (citing Accura Sys. v. Watkins Motor Lines, 98 F.3d 874, 877 (5th Cir. 1996)).
Conclusion
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Amend Complaint [#11] is GRANTED.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss [#8] is DISMISSED as MOOT.
IT IS FINALLY ORDERED that Plaintiff's Amended Complaint [#12] is DISMISSED in PART. Plaintiff's state law breach of contract and DTPA claims are DISMISSED with prejudice because the Carmack Amendment completely preempts state law claims and provides the sole cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier. Plaintiff has, however, stated a prima facie case under the Carmack Amendment, and that claim must be evaluated on a more complete evidentiary record.