United States District Court, N.D. West Virginia
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
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
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. The 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 2. 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. ECF 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.
The complaint asserts causes of action for negligence,
property damages, annoyance, inconvenience, loss of use, and
diminution of value. ECF No. 1-1 at 3-6.
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 law.” 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.
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
over which the Secretary of Transportation and the Surface
Transportation Board have jurisdiction pursuant to 49 U.S.C.
§ 13501. 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 at 2.
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.” ECF 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 Fed.Appx.
91, 94 (4th Cir. 2013)). 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.
plaintiff filed a response in opposition to the
defendants' motion. 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. However, the plaintiff
argues that this Court should re-characterize her claim as a
federal claim under the Carmack Amendment rather than
dismissing the case for failure to state a claim. ECF No. 4
at 5. The plaintiff contends that her “recovery is
contingent on her ability to establish a prima facie
case under the Carmack Amendment's burden-shifting
framework.” ECF No. 4 at 6.
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
prejudice. ECF No. 4 at 7.
defendants did not file a reply to the plaintiff's
response in opposition. For the reasons stated below, the
defendants' motion to dismiss (ECF No. 3) is granted as
to defendant John Fayard and granted with leave to amend as
to defendant Allied.
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.” Id. (citing Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
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). The Rule 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. Id. 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 inquiry is directed to whether
the allegations constitute a statement of a claim under
Federal Rule of Civil Procedure 8(a). Id. §
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)). “Facial 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). Detailed factual allegations are not
required, but the facts alleged must be sufficient “to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
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