The opinion of the court was delivered by: (Chief Judge Yvette Kane)
Pending before the Court is Defendant Maverick Transportation's motion to dismiss Counts I and III of Plaintiff Daily Express's amended complaint as preempted under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. (See Doc. No. 8.) Because preemption is not warranted based on the allegations in the complaint, the Court will deny the motion.
Plaintiff Daily Express, Inc. ("Daily") is a corporation with its principal place of business in Carlisle, Pennsylvania. (Doc. No. 6 ¶ 1.) Daily is "engaged in the business of common carriage by motor vehicle in interstate commerce." (Id. ¶ 19.) Defendant Maverick Transportation, LLC ("Maverick") is a corporation with its principal place of business in Little Rock, Arkansas. (Id. ¶ 2.) Maverick avers that it is an interstate motor carrier and third-party logistics and freight forwarding company (Doc. No. 8 ¶ 3), however there are no allegations in the complaint that Maverick was acting in either capacity during the transaction at issue.
Daily had an agreement with PPG Industries ("PPG"), a non-party to
this action, in which PPG hired Daily for the transportation of glass
from Pennsylvania to Massachussetts. (Doc. No. 6 ¶¶ 3-4, 10.) The
glass was to be transported pursuant to a bill of lading that
designated PPG as the shipper and Daily as the carrier.*fn2
(Id. ¶ 5.)
On May 7, 2009, Maverick's agents or employees loaded, strapped, secured and tarped the subject glass at the PPG plant in Cumberland County, Pennsylvania, onto a truck owned and operated by Daily. (Id. ¶¶ 8-9.) Daily then began transport of the glass to Massachusetts. (Id. ¶ 10.) During transport, the glass fell and broke. (Id. ¶ 11.) As a result, Daily paid $11,803.08 to PPG for the damaged glass and also incurred other cleanup expenses. (Id. ¶¶ 12-13, 16.)
Daily filed a complaint in the Cumberland County Court of Common Pleas on May 6, 2010, naming Maverick as defendant and seeking damages for the alleged negligent loading of the glass. (Doc. No. 1, Ex. A.) On June 1, 2010, Maverick filed a timely notice of removal. (See Doc. No. 1.) On August 12, 2010, Maverick filed its motion to dismiss Daily's amended complaint which is currently pending before the Court. (See Doc. No. 8.)
In their amended complaint, Daily alleges three separate counts against Maverick. The first count alleges negligence on the part of Maverick in loading and securing the glass, thereby causing the glass to break during transport. (Doc. No. 6 ¶ 15.) The second count alternatively asks for damages or apportionment under the Carmack Amendment.*fn3 (Id. ¶¶ 22-23.) The third count is a claim for indemnification against Maverick. (Id. ¶ 24.)
Maverick filed a motion to dismiss Counts I and III of Daily's amended complaint pursuant to Rule 12(b)(6). (Doc. No. 8 at 1.) Maverick argues that Counts I and III "are preempted and governed exclusively by the Carmack Amendment." (Doc. No. 8-3 at 1.) Maverick asserts that it is "an interstate motor carrier and third-party logistics and freight forwarding company," and that there was an agreement between non-party PPG and Maverick providing for the transportation of the glass at issue. (Doc. No. 8 ¶¶ 3-4.) Maverick contends that it hired Daily to transport the glass on behalf of PPG, and therefore the Carmack Amendment preempts any state law causes of action by Daily against Maverick. (See id. ¶ 5.) However, Daily alleges that it was Daily that had an agreement with PPG to transport glass. (Doc. No. 6 ¶ 3.) Daily specifically avers that "Maverick did not hire Daily to transport the load of glass at issue . . . in this action." (Id. ¶ 6.)
Taking the factual averments in Daily's amended complaint as true, the issue before the Court is whether the negligence and indemnification claims against Maverick are preempted by the Carmack Amendment. More specifically, at the motion to dismiss stage, because Maverick is only alleged to have participated in the loading of the cargo, the question is whether such activity, by itself, warrants preemption under the statute. The Court finds that it does not.
A. The Carmack Amendment's Broad, Preemptive Sweep Covers a Carrier's Act of Loading Cargo
"The Carmack Amendment . . . provides the exclusive cause of action for interstate shipping contract claims, and it completely preempts state law claims alleging delay, loss, failure to deliver and damage to property." White v. Mayflower Transit, L.L.C., 543 F.3d 581, 584 (9th Cir. 2008). "The preemptive sweep of the Carmack Amendment extends to state causes of action against carriers 'where goods are damages or lost in interstate commerce.'" REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697-98 (7th Cir. 2008) (citation omitted). The Carmack Amendment provides that "[a] carrier . . . . [is] liable . . . . for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported." 49 U.S.C. § 14706(a)(1). The Amendment also provides for a right of apportionment, whereby the "carrier issuing the receipt or bill of lading . . . or delivering the property for which the receipt or bill of lading was issued is entitled to recover from the carrier over whose line or route the loss or injury occurred the amount required to be paid to the owners of the property." Id. § 14706(b). The Carmack Amendment only applies to actions against carriers or freight forwarders,*fn4 it does not preempt causes of action against the shipper or other non-carrier.
The dispositive question to Maverick's motion to dismiss is whether Maverick was acting as a carrier based on the allegations in the complaint. For purposes of the Carmack Amendment, the term "carrier" is defined as "a motor carrier, a water carrier, and a freight forwarder." 49 U.S.C. § 13102(3). A "motor carrier" is defined as a "person providing motor vehicle transportation for compensation." Id. § 13102(14). The term "transportation" includes: (1) "a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property," and (2) "services related to that movement, including arranging for, receipt, ...