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WHALING v. ATLAS VAN LINES

February 26, 1996

GEOFFREY WHALING and TRISHA ANNE HESSINGER
v.
ATLAS VAN LINES, INC., HARVEY WORLDWIDE MOVING & STORAGE and SCANNELL MOVING AND STORAGE



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 26, 1996

 This Memorandum and Order addresses the Motion of Defendants, Atlas Van Lines, Inc., Harvey Worldwide Moving & Storage and Scannell Moving and Storage, for a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Both parties, however, rely both on documents not attached to and facts not alleged in the Amended Complaint. For that reason, this Motion to Dismiss is converted to one for summary judgment under Rule 56. Fed. R. Civ. P. 12(b).

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 The facts involved are largely undisputed. We will note where there are differences. It is uncontested that in January 1994, Plaintiffs, Geoffrey Whaling and Trisha Anne Hessinger, stored many of their personal possessions in a storage warehouse owned by Scannell in Ontario, Canada. Scannell is an agent of Atlas. In August, 1994, Harvey, another Atlas agency, went to Scannell's warehouse to transport the property to Plaintiffs' new home in Allentown, Pennsylvania. The Harvey representative identified areas of damage and prepared a "Rider to Inventory" detailing the damage. A Scannell representative signed the Rider. The property was subsequently transported and delivered to Plaintiffs in Pennsylvania by Harvey and Atlas. Upon delivery, Plaintiffs discovered the damage. At least some of the property was allegedly damaged on route from Canada. Plaintiffs allegedly asked the movers how to make a claim and were advised to file a proof of loss form. They requested such a form and returned it on September 6, 1994, allegedly immediately upon receipt.

 Plaintiffs' Complaint bases jurisdiction for this action on the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707 (1995). That Amendment provides federal question jurisdiction over:

 
the actual loss or injury to the property caused by (1) the receiving carrier, (2) the delivery carrier, or (3) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading.

 Id. Here, there is no dispute that a through bill of lading was involved.

 Defendants' argument in favor of dismissal is that although the Complaint alleges damage to Plaintiffs' property under a through bill of lading, the property was transported from an adjacent foreign country into the United States. Because the Carmack Amendment is limited to property passing from the United States into the foreign country, by its terms, the Amendment does not apply to this action. Kenny's Auto Parts, Inc. v. Baker, 478 F. Supp. 461, 464 (E.D. Pa. 1979) ("The cases interpreting the Carmack Amendment have uniformly held that the Carmack Amendment has no application to goods received for shipment at a point outside the United States"); Condakes v. Smith, 281 F. Supp. 1014, 1015 (D. Ma. 1968) (same).

 Plaintiffs object to this argument by pointing to the Atlas Bill of Lading. This document provides that the Defendants agree to be bound by the Carmack Amendment. Because of this, Plaintiffs argue, this Court has jurisdiction. This argument, however, fails to take into account the jurisdictional law doctrine that parties cannot, by consent or agreement, create jurisdiction in federal court. Beers v. North American Van Lines, 836 F.2d 910, 912 (3d Cir. 1988); McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir. 1985).

 It is apparent here that the very terms of the Carmack Amendment do not cover the instant through bill of lading. For this reason, Count One must be dismissed. In addition, because this is the only federal question raised by the Complaint, we find there is ...


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