Opinion
CASE NO. 03-60502-CIV-ALTONAGA/Bandstra
July 24, 2003
ORDER GRANTING DEFENDANT, FINE LINE CARRIERS, INC.'S. MOTION TO DISMISS COUNTS II AND III OF PLAINTIFFS' COMPLAINT
THIS CAUSE came before the Court on the Defendant, Fine Line Carriers, Inc.'s (hereinafter referred to as "Fine Line") Motion to Dismiss Counts II and III of Plaintiffs' Complaint ( D.E. 11) filed on May 21, 2003. The undersigned has carefully considered the Complaint, memoranda filed, and applicable law.
Allegations Contained in Counts II and III of Plaintiffs' Complaint
Plaintiff, Genesco, Inc. (hereinafter "Genesco"), is alleged to have contracted with Fine Line to transport ladies' shoes from Florida to Nashville, Tennessee. Fine Line is alleged to have contracted with Co-Defendant, ITSI Nationwide, Inc. (hereinaftter "ITSI"), to perform the services which Fine Line had agreed to perform for Genesco. Fine Line and Genesco are alleged to be "delivering parties" as the term is used in 49 U.S.C. § 14706, ITSI allegedly failed to properly secure Genesco's property and it was stolen while in transit. Pursuant to a policy of insurance Genesco had in effect with Plaintiff, St. Paul Fire and Marine Insurance Company (hereinafter "St. Paul"), payment for Genesco's damages was made, and St. Paul was subrogated to Genesco's rights and causes of action, to the extent of the payment made.
Count II, entitled "Negligence — Fine Line," alleges that "Fine Line owed Genesco a common law duty and/or a duty under the Carmack Amendment, 49 U.S.C. § 14706, to use reasonable care in shipping and transporting the property. . . ." (Compl. ¶ 22). It is alleged that Fine Line breached this duty by negligently failing to select a qualified transportation company to carry out the obligations which Fine Line had undertaken, by negligently failing to supervise or provide guidance to ITSI, by negligently failing to instruct ITSI, and negligently allowing ITSI to transport the property when Fine Line knew or should have known that ITSI was allowing property to remain unguarded in unsafe locations. (Compl. ¶ 23). Therefore, as a "direct and proximate result of Fine Line's negligence" Genesco has suffered a loss. (Compl. ¶ 24).
Count III, entitled "Breach of Contract/Bill of Lading — Fine Line," alleges that Genesco contracted with Fine Line to ship the property under a Straight Bill of Lading. According to the Complaint, the Straight Bill of Lading states: "The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof [sic] any damage thereto except as hereinafter provided. . . ." (Compl. ¶ 28). Count III alleges that Fine Line agreed to deliver Genesco's property in substantially the same good condition it was in when delivered to the shipper, and under common law and/or the Carmack Amendment, Fine Line was negligent as set out in Count II, as well as vicariously liable for ITSI's negligence. (Compl. ¶¶ 29 30). As a result of Fine Line's common law and/or statutory liability and breach of the Straight Bill of Lading, Genesco suffered damages. (Compl. ¶ 31).
The Motion to Dismiss
Fine Line argues that Plaintiffs fail to state a claim in Counts II and HI because these counts purport to state common law causes of action for negligence and breach of contract, respectively, and yet the Carmack Amendment preempts those theories of recovery. The Plaintiffs maintain that the two counts are pled in the alternative; the common law causes of action are alleged in the event that Fine Line is determined to have acted in the capacity of broker, rather than a common carrier, and the Carmack Amendment provides a statutory cause of action in the event Fine Line is determined to have been a carrier, and not a broker.
For purposes of a motion to dismiss, the court must accept the allegations of the complaint as true. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999) (en banc). Moreover, the complaint must be viewed in the light most favorable to the plaintiffs. St. Joseph's Hosp., Inc. v. Hosp. Corp. Of America, 795 F.2d 948, 953 (11th Cir. 1986). To warrant a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackston v. Alabama, 30 F.3d 117, 120(11th Cir. l994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). Nonetheless, to survive a motion to dismiss plaintiffs must do more than merely label their claims. B lumel v. Mylander, 9 19 F. Supp. 423, 425 (M.D. Fla. 1996). T hus, dismissal of a complaint or a portion thereof is appropriate when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
I. The Common Law Claims of Counts II and III are Preempted by the Carmack Amendment
Although Plaintiffs allude to the Carmack Amendment, 49 U.S.C. § 14706, in their Complaint, viewing Counts II and III in the light most favorable to the Plaintiffs, it is apparent that these counts state only common law causes of action, in the former for negligence, and in the latter for breach of contract. The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, governs a carrier's liability for loss or damage to goods shipped in interstate commerce. It provides shippers with the statutory right to recover the actual loss or injury to their property caused by any of the carriers involved in the shipment. See 49 U.S.C. § 14706(a)(1); Cleveland v. Beltman North American Co., Inc., 30 F.3d 373, 377 (2d Cir. 1994). Under the Amendment, a plaintiff is not required to prove negligence. The Plaintiff need only establish its prima facie case and then it is the defendant that must show that it is "free from negligence." See Classic Fashions, Inc. v. Navieras N.P.R., Inc., 71 F. Supp.2d 1241, 1243-1244 (citing Missouri Pacific R.R. Co. v. Elmore Stahl, 377 U.S. 134(1964)).
"The preemptive effect of the Carmack Amendment over state law governing damages for the loss of goods h as been reiterated by the supreme Court in many cases" and is now well established law. Riniv. United Van Lines, Inc., 104F.3d502, 504 (1st Cir. 1997). Indeed, Plaintiffs concede that the Carmack Amendment was meant to broadly preempt state law remedies against a common carrier. See, e.g., Smith v. United Parcel Service, 296 F.3d 1244, 1247 (11th Cir. 2002) (Carmack Amendment preemption embraces claims for fraud and negligence because it embraces "all losses resulting from any failure to discharge a carrier's duty as to any part of the agreed transportation."). Thus, to the extent that the allegations describe the actions of a carrier or freight forwarder, these state common law claims are clearly preempted by the Carmack Amendment.
II. Plaintiffs have Not Alleged Common Law Claims under Florida Law
Plaintiffs maintain, however, that they are able to state claims under Florida common law in Counts II and III because Fine Line may be deemed to be a broker. And Plaintiffs correctly point out that the Carmack Amendment applies only to common carriers and freight forwarders; it does not apply to brokers. See, e.g., Bormaster v. Express Shipping Ctr., Inc., 185 F.3d 865 (9th Cir. 1999). Under 49 U.S.C. § 13102, a broker is defined as a "person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation." Certainly, the general descriptions of Fine Line's role in the transactions, as stated in paragraphs 9 and 10 of the Complaint, may be construed to be the equivalent of an allegation that Fine Line was acting as a broker.
This argument by the Plaintiffs is unavailing, however. Under Florida law, a motor carrier assumes full responsibility for a shipment when it is delivered into the carrier's possession and control for immediate transportation. Golden Triad Carriers, Inc. v. Paco American Corp., 553 So.2d 247, 249 (Fla. 3d DCA 1989). If a broker does not have possession of the shipment and the loss occurs while the goods are in the possession of the motor carrier, the broker cannot be liable. See id. The allegations of the Complaint are that Fine Line was negligent in its selection of ITSI, and viewing the allegations in a light most favorable to Genesco, it does not appear that the goods were stolen while in the possession of Fine Line, or that the goods were ever in the possession of Fine Line. Thus, while Plaintiffs are correct that if Fine Line is a broker, common law causes of action may generally be asserted outside the preemptive effect of the Carmack Amendment, the allegations here fail to state a claim for broker liability because the goods were not alleged to have been in Fine Line's possession.
III. Plaintiff s' Complaint Does Not Comply with the Federal Rules of Civil Procedure
It is altogether unclear what purpose is served by referencing the Carmack Amendment in these two counts, except to perhaps plead a statutory cause of action in the alternative, which Plaintiffs suggest in their Response to the Motion, is what they are attempting to do. However, Counts II and III do not contain all the allegations necessary to support a claim under the Carmack Amendment. Thus, no construction of the factual allegations of Counts II and III would support Plaintiffs' cause of action.
Plaintiffs' inartful pleading strains the Court's ability to construe the pleadings liberally. For example, Count II cannot state a claim under the Carmack Amendment because the damages are not alleged to have been caused by Fine Line while it was acting as the delivery carrier. Plaintiff has only alleged that Fine Line was a delivery carrier and that Fine Line had a duty under 49 U.S.C. § 14706. By incorporating allegations 1 through 15 in Counts II and III, Plaintiffs have alleged only that the loss resulted while ITSI was transporting the property. Under 49 U.S.C. § 14706 a delivery carrier is defined as: "[T] carrier performing the line-haul transportation nearest the destination." Thus, by incorporating and realleging paragraphs 14 and 15, Plaintiffs have precluded their own claim against Fine Line as a delivery carrier.
The Court should not be required to stretch the allegations to save Genesco's claims. See Byrne v. Nezhat, 261 F.3d 1075, 1129 n. 104 (11th Cir. 2001) (noting that disjointed pleadings required Court to do "what the litigants have not done as required by Rules 8 and 10(b) of the Federal Rules of Civil Procedure"). Rule 10(b) of the Federal Rules of Civil Procedure places the impetus on the Plaintiff to state "[e]ach claim founded upon a separate transaction or occurrence" in a separate count. FED. R. CIV. P. 10(b) (emphasis added). If Plaintiffs wish to allege that Fine Line was a motor carrier or freight forwarder under the Carmack Amendment, and seek their loss for the goods, they should so clearly state such claim in one count, pleading only the statutory cause of action. A second claim alleging broker liability must be properly pled in a separate count. See Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001). See also Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 910 (11th Cir. 1996) (instructing district court to require plaintiffs to replead "muddled" counts of Complaint on remand).
For the foregoing reasons, it is ORDERED AND ADJUDGED that the Motion to Dismiss Counts II and III is GRANTED. Plaintiffs have ten (10) days from the date of this Order within which to file an amended pleading, and Defendants shall have twenty (20) days thereafter to respond.
DONE AND ORDERED in Chambers at Miami, Miami-Dade County, Florida this 24 day of July, 2003.