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holding that the "complaint, charitably read, also allege[d] that the County's policy was unconstitutional as applied" where it asserted that the plaintiff had "merely discussed religion with the minor" and thus the "as-applied challenge [was] entitled to proceed past the pleading stage"
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Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 10, 1999.
Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, District Judge, Presiding.
Before O'SCANNLAIN, WARDLAW, and W. FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
The parties are familiar with the facts and we will not repeat them here except as necessary to explain our holding.
Plaintiff Bormaster sues Express Shipping Centers (ESC) and United Parcel Service (UPS) for damage to porcelain shipped interstate. Bormaster purchased insurance of $900 and $2400 for the shipments in question, in addition to the $100 provided automatically with the contract for shipment. ESC and UPS have both refused to pay Bormaster's claim for the insurance proceeds.
The district court dismissed Bormaster's state-law claims for fraud, breach of contract, and breach of the covenant of good faith and fair dealing on the ground that they were preempted by the Carmack Amendment, 49 U.S.C. § 14706, and subsequently dismissed amended claims under the Carmack Amendment. We reverse as to ESC and affirm as to UPS.
The Carmack Amendment applies only to common carriers and freight forwarders. See 49 U.S.C. § 11707(a)(1) (1992), now codified at 49 U.S.C. § 14706. If ESC is a broker, the Carmack Amendment does not apply. See Ensco, Inc. v. Weicker Transfer and Storage Co., 689 F.2d 921, 925 (10th Cir.1982); PNH Corp. v. Hullquist Corp., 843 F.2d 586, 590-91 (1st Cir.1988). Under the Interstate Commerce Act, a broker is "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 transportation." 49 U.S.C. § 10102(1) (1992), now codified at 49 U.S.C. § 13102. A common carrier, on the other hand, is "a person holding itself out to the general public to provide motor vehicle transportation for compensation...." 49 U.S.C. § 10102(14) (1992).
Based on the record below, ESC appears to be a broker. Under the plain language of the statute and by its own admission ESC does not appear to be a carrier. It advertises itself as "an independent shipping service provider that coordinates with retailers and leading package delivery companies to offer customers the opportunity to ship packages at convenient locations and hours." On the reverse of Bormaster's receipt, ESC states: "The Shipping Center is not a provider of transportation services. The Shipping Center shall act as the Sender's agent only for the receipt and forwarding of parcels to the carrier." Neither is ESC a freight forwarder. See 49 U.S.C. § 10102(9) (1992), now 49 U.S.C. § 13102(8); Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1362 (7th Cir.1997); Transportation Revenue Management Inc., v. First NH Inv. Servs. Corp., 886 F.Supp. 884, 886-87 (D.D.C.1995).
Plaintiff did not argue in the district court that ESC is a broker and therefore not covered by the Carmack Amendment, but this court has discretion to review issues of law not raised below where the question "presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed." Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.1998) (quoting Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985)), cert. denied, Cult Awareness Network v. Scott, 119 S.Ct. 1285, 143 L.Ed.2d 378, 1999 U.S. LEXIS 2138, 67 U.S.L.W. 3587 (U.S.1999).
We remand the claims against ESC because we believe, on this record, that ESC is likely a broker. See 28 U.S.C. § 2106 (1999). The district court's denial of leave to amend to state a fraud claim was based on the assumption that ESC was covered by the Carmack Amendment. If ESC is covered by the Carmack Amendment, the district court was of course correct in dismissing Bormaster's claims. But, if ESC is, as we believe, a broker, Bormaster should be allowed to amend his complaint.
UPS was acting as a carrier when it delivered Bormaster's goods, see 49 U.S.C. § 10102(14) (1992), and the Carmack Amendment applies to Bormaster's claim against UPS.
The Carmack Amendment completely preempts state law claims against interstate carriers based on loss or damage to shipped goods. Adams Express Co. v. Croninger, 226 U.S. 491, 505-06 (1913). See also Rini v. United Van Lines, Inc., 104 F.3d 502, 505 (1st Cir.1997); Cleveland v. Beltman North Am. Co., Inc., 30 F.3d 373, 378 (2d Cir.1994); Moffit v. Bekins Van Lines Co., 6 F.3d 305, 307 (5th Cir.1993). State law fraud claims are preempted by the Carmack Amendment. "[F]ederal law preempts any state common law action against North American acting solely as a common carrier. It is clear that the Carmack Amendment established a uniform national liability policy for interstate carriers." Hughes Aircraft Co. v. North American Van Lines, 970 F.2d 609, 613 (9th Cir.1992). See also Gordon v. United Van Lines, Inc., 130 F.3d 282, 289-90 (7th Cir.1997); Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1412 n.5 (7th Cir.1987), cert. denied, 485 U.S. 913 (1988); Moffit, 6 F.3d at 307; Cleveland, 30 F.3d at 381.
Bormaster's state law fraud claim against UPS is thus preempted by the Carmack Amendment. Bormaster's failure to state a Carmack Amendment claim, after two opportunities to do so, is fatal to his suit against UPS.
The district court did not abuse its discretion in denying Bormaster leave to amend to state RICO claims. Denial of leave to amend is not an abuse of discretion where the party has "presented no new facts but only new theories and provided no satisfactory explanation for his failure to fully develop his contentions originally." Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.1990) (quoting Vincent v. Trend Western Technical Corp., 828 F.2d 563, 570-71 (9th Cir.1987)) (quotation omitted).
The issue of whether attorney's fees are available under the Carmack Amendment is moot because Bormaster has failed to assert a successful Carmack claim against either defendant.
ESC's motion for costs and fees for a frivolous appeal is denied. See Smith v. Ricks, 31 F.3d 1478, 1489 (9th Cir.1994).
AFFIRMED in part, REMANDED in part. Motion for costs and fees DENIED. Each party shall bear its own costs.