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Daily Express, Inc v. Maverick Transportation

October 19, 2011

DAILY EXPRESS, INC.,
PLAINTIFF
v.
MAVERICK TRANSPORTATION, LLC, DEFENDANT



The opinion of the court was delivered by: Chief Judge Yvette Kane

MEMORANDUM

Pending before the Court are Defendant Maverick Transportation's motion for summary judgment (Doc. No. 19), and Plaintiff Daily Express's motion to remand for lack of subject matter jurisdiction and in the alterative for summary judgment to dismiss Defendant's Carmack Amendment defense (Doc. No. 20). For the reasons that follow, the Court will remand the case.

I. BACKGROUND

This case arises out of damages to a load of glass ("the load"), which was secured by Defendant Maverick Transportation ("Maverick"), and transported by Plaintiff Daily Express ("Daily"). 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 Massachusetts. (Doc. No. 20-6 ¶ 2; Doc. No. 19-3 ¶ 13.) The bill of lading for the load was issued by PPG and designated Daily as the carrier. (Doc. No. 20-4 at 30.)

On May 7, 2009, the load was delivered to a Daily trailer by PPG employees, using a mechanical crane. (Doc. No. 19-3 ¶ 14.) Jeff Nash, a Maverick employee, secured the load onto the Daily trailer pursuant to the terms of a Spotting/Securement Agreement between Maverick and PPG. (Id. ¶ 13.) The securement process involved several steps, including the use of Styrofoam, aluminum stress angles, plastic wrap, vee-boards, and straps. (Id. ¶¶ 23-26.) After Nash secured the load, Jay Confer, an owner-operator leased to Daily, arrived at the PPG plant to pick up the trailer, and conducted an inspection of the load. (Id. ¶¶ 28-44.)

Confer then departed the PPG facility and headed towards the load's destination in Massachusetts. As Confer traveled on the ramp from eastbound Interstate 78 to northbound Interstate 287, the sheets of glass on the right side of the trailer fell and broke. (Id. ¶ 49.) As a result, Daily paid $11,803.08 to PPG for the damaged glass and paid other expenses related to the cleanup of the glass and incidental expenses. (Id. ¶ 51.)

Daily filed a complaint in the Court of Common Pleas of Cumberland County, Pennsylvania on May 6, 2010, naming Maverick as defendant and seeking damages for the alleged negligent loading of the glass. (Doc. No. 1-4.) On June 1, 2010, Maverick filed a timely notice of removal. (Doc. No. 1.) Removal was based the applicability of the Carmack Amendment, 49 U.S.C. § 14706, which governs the liability of carriers in interstate shipping contract claims. Thereafter, Daily filed an amended complaint, pleading three separate counts against Maverick: Count I, alleging negligence on the part of Maverick in loading and securing the glass, thereby causing the glass to break during transport; Count II, in the alternative, seeking damages or apportionment under the Carmack Amendment, without admitting the truth of Maverick's assertion that the Carmack Amendment applies; and Count III, seeking indemnification against Maverick. (Doc. No. 6.) On August 12, 2010, Maverick filed a motion to dismiss Counts I and III of Daily's amended complaint, arguing that the state claims are preempted by the Carmack Amendment. (Doc. No. 8.) The Court held that, on the pleadings, the Carmack Amendment does not preempt Counts I and III of the amended complaint, and thus denied the motion to dismiss. (Doc. No. 16 at 7.)

On July 14, 2011, Maverick filed a motion for summary judgment (Doc. No. 19), and Daily filed a motion to remand for lack of subject matter jurisdiction, and in the alternative, a motion for summary judgment on Maverick's Carmack Amendment defense (Doc. No. 20). Because the Court will grant the motion to remand, the Court will not address Maverick's motion for summary judgment.

II. DISCUSSION

In its motion to remand, Daily argues that "[t]he sole basis for federal subject matter jurisdiction in this matter is the Carmack Amendment," and that the facts prove that "the Carmack Amendment does not apply to this action and Plaintiff's state claims are not preempted." (Doc. No. 21 at 7.) In response, Maverick argues that Daily "is estopped from seeking [remand], since it has filed and perfected its claim under the Carmack Amendment," and that Daily does not have standing to argue that the Court lacks subject matter jurisdiction. (Doc. No. 26 at 9.) Maverick argues that Daily's motion to remand is barred by the doctrine of judicial estoppel, or the doctrine against the assertion of inconsistent positions. (Id.) The Court will first address Maverick's judicial estoppel argument, then the Court will address jurisdiction and the Carmack Amendment.

A. Judicial Estoppel

The United States Court of Appeals for the Third Circuit has explained that "[a] plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention." Scarano v. Cent. R. Co. of N. J., 203 F.2d 510, 513 (3d Cir. 1953). This doctrine of "judicial estoppel" is in place to prevent a litigant from playing "fast and loose with the courts." Id.

Here, Daily has brought a claim against Maverick under the Carmack Amendment. When Maverick removed this matter to federal court based on the Carmack Amendment, Daily amended its complaint to add a count under the Carmack Amendment. Daily framed its Carmack Amendment cause of action as an alternative to its negligence cause of action, stating: "Without admitting the truth of Defendants averments [as to the applicability of the Carmack Amendment], if said averments are true, then Defendant is liable to Plaintiff pursuant to the Carmack Amendment, 49 U.S.C. § 14706." (Doc. No. 6 ¶ 22.) This alternative pleading is not inconsistent with Daily's ...


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