Hall v. Aloha International Moving Services, Inc.

Full title: Nancy Hall, Plaintiff, v. Aloha International Moving Services, Inc.…

Court: United States District Court, D. Minnesota

Date published: Aug 6, 2002

Civil File No. 98-1217 (MJD/JGL) (D. Minn. Aug. 6, 2002)

Opinion

Civil File No. 98-1217 (MJD/JGL)

August 6, 2002

MEMORANDUM AND ORDER

MICHAEL J. DAVIS, United States District Court Judge

This matter is before the Court on the parties' cross motions for summary judgment. Plaintiff has withdrawn her claim for bailment in Count V of the Amended Complaint. For the reasons that follow, the parties' motions are granted in part and denied in part.

BACKGROUND

On May 20, 1997, Plaintiff Nancy Hall ("Hall") hired Defendant Aloha International Moving Services ("Aloha") to move her belongings from Hawaii to Minnesota. Hall initially contacted Aloha based on a Honolulu Yellow Pages Advertisement for "Allied Van Lines" with the Allied Van Lines logo. That ad read "Trust Allied" and indicated that Aloha was Allied's "only authorized agent" in Hawaii. The accompanying alphabetical entry listed a joint telephone number for Allied and Aloha. Relying on that ad and believing that Aloha was an authorized agent of Allied Van Lines, Hall chose transportation services from Aloha over the other movers advertised in the Yellow Pages.

When Aloha's sales representative Alex Martin ("Martin") met with Hall, the original estimated cost for shipping Hall's belongings was $1.10 per pound for 1,000 pounds of personalty. Of that amount, $937.50 was due when the items were picked up, and the remainder was due upon delivery. The shipment was to move from Hawaii, across the ocean to Los Angeles, CA, and then to Minnesota. Hall also agreed to purchase excess insurance for her most valuable belongings, estimated at a total of $4,000, for an additional $90. A few days after this meeting, Hall decided to ship additional items, including a king-sized bed, armoire, and night stand. Hall contacted Martin, who estimated that the additional pieces would cost another $500.

Hall also discussed with Martin the scheduled time for delivery. Hall indicated that she needed a guaranteed delivery schedule because her employer required a minimum 45 days notice for time off and that her work was project-based, requiring extensive travel over long periods of time. Accordingly, Hall confirmed a 5-week delivery schedule with the departure of her belongings on May 20, 1997. Hall's belongings were packed in crates on May 20, 1997. It was Hall's understanding that her belongings would be shipped in crates. Hall paid the movers $937.50. Hall also completed and mailed the form to purchase excess insurance, enclosing the additional check for $90. The next day, Hall learned that her shipment weighed more than double the original estimate. Aloha demanded an additional $840 before the goods would leave Hawaii. When Hall protested this disparity with the estimate, Aloha agreed to reduce its rate to $1.03 per pound. On June 10, 1997, Hall sent Aloha the additional $840.

During these conversations, Hall repeatedly requested documentation to reflect the agreements and rates. Aside from her initial written estimate and inventory, she received no other written documentation from Aloha. Additionally, Hall asserts that she did not receive any information concerning what, if any, limitation of liability applied to her shipment. When Hall contacted the Department of Transportation and Motor Carrier's Office for information, she learned that she should have received a bill of lading, tariff rates, insurance documents, an order for service, and a booklet entitled "Your Rights and Responsibilities When You Move." When she called Aloha for these documents, Aloha promised to call her back but never did. Hall asserts that when she spoke to Martin's supervisor, Arlin Solidum, he laughed at her and said, "What are you going to do about it. You're so far away." Aloha also told Hall that it operated under international law and that federal guidelines did not apply to its operations.

When Hall attempted to inquire about the status of her shipment, she also met with frustration. At some point, John Root ("Root") of Defendant VIP Transport ("VIP") told her that her shipment had been rerouted to Portland, Oregon due to a strike with Matson Navigation Company. After Hall's inquiries, Aloha confirmed that there was a strike. Hall then telephoned Matson's corporate office and spoke with Operations Manager Tim Painter ("Painter"), who told her that there was only one shipment from Hawaii to Los Angeles scheduled within the time frame of her shipment and that there were no strikes. When Hall then related this information to Root and Aloha, they told her that the rerouting of her shipment was due to a strike by the Los Angeles longshoreman's union. Hall then telephoned the President of the Longshoreman's Union in Los Angeles, who indicated that there were no strikes by union employees or nonunion employees that would impede delivery of any household goods shipment.

In late June, Hall received a memorandum from Aloha that her belongings had been assigned to VIP, that she had no insurance, and that she was to have a cashier's check or money order available in the amount of $1,126.50, or 2,640 pounds at $1.10 per pound for delivery. On June 24, 1997, VIP left a message that her shipment had arrived and was at a Baltimore, M.D. warehouse. When Hall telephoned the VIP Baltimore warehouse manager, she learned that her items (1) were in the back of a truck, (2) were not in crates but were in a container with other families' household belongings, and (3) were damaged. Hall tracked the route of her belongings through the shipment's registration number and learned that, contrary to the information she had been given before, her belongings were transported by Matson Navigation Service from Hawaii to Los Angeles, carried by rail to Baltimore, and then trucked to the VIP's warehouse where they were unloaded. Hall's belongings arrived at the warehouse on July 18, 1997, nearly a week before she had been notified.

When VIP notified Hall that her belongings would be delivered immediately, Hall was scheduled to be out of town for work. VIP charged her a $158 storage in transit ("SIT") fee. Hall then told VIP that she would take immediate delivery of the belongings, and she canceled out of the work project. Hall also asked for a copy of the SIT tariff, but VIP refused to give it to her. Then, on August 5, 1997, VIP faxed an Aloha bill of lading. The bill of lading is dated "5/20/97," the date of the move. The bill of lading shows the shipment weight of 2,640 pounds and an amount due of $1,190. It shows a signature for "Nancy L. Hall," limiting the carrier's liability for loss and damage to $.30 per pound. Hall asserts that she never saw this document before it was faxed to her, and she certainly never signed that document. Additionally, VIP's fax cover indicated that the breakdown of the $1,190 charges included an SIT fee of $158, which Hall clearly had not incurred on May 20, 1997, the date of the move.

According to Hall, after VIP had changed the delivery date several times, the shipment finally arrived on August 15, 1997. Hall's belongings were delivered in an orange van that advertised "Allied" in large, bold letters. Hall was required to tender $1,190 in a cashier's check before she was permitted to receive her belongings. Hall asserts that she had tendered her belongings to Aloha in good condition, and they arrived damaged. The driver, Mark Yeary ("Yeary"), presented Hall with a receipt, on which Hall signed and noted "extensive damage." Yeary indicated that on his own inspection, he had noted at least five boxes missing. Thereafter, on September 16, 1997, Yeary sent Hall a letter describing various problems with Hall's shipment. Hall's belongings were in untagged cartons, had no original inventory sheets, and no original bills of lading. The boxes were crushed and items were missing when her shipment had arrived at the warehouse in Maryland. Yeary indicated that brown paper covered some of the furniture, but that the paper was in perfect condition. Underneath, however, the furniture was water damaged, stained, and had grease marks. Yeary suggested that her furniture had been wrapped "after the fact" or had been "re-wrapped." Hall asserts that someone, perhaps VIP, had improper motives for wrapping over the damaged furniture.

Yeary had also brought a copy of a household goods inventory form with him. See Hall Aff., Ex. R. Hall did not realize until later that the form had been altered. For example, Hall's original copy which she received from the movers on May 20, 1997, indicated with ditto marks that Item Number "[40]5" was a plastic container. See Hall Aff., Ex. S. On the altered sheet, this line indicates "2 X Vases-ER." The plastic container that was apparently missing contained personal goods such as irreplaceable family items, pictures, and collectibles from world travels. Another item that Yeary delivered was a king-size bed that was not tagged. After unpacking, Hall discovered that it was not hers. The bed was infested with vermin, and had cockroaches and spiders crawling from it.

On September 6, 1997, Hall sent a notice of claim to Aloha, VIP, Allied, and IRIS, the excess insurance company. Hall again requested an order for service, bill of lading, and tariffs. Hall asserts that she did not receive any of these documents except for the forged bill of lading. On October 15, 1997, Hall filed another claim with Aloha, VIP, Allied, and IRIS. Allied denied any responsibility for the move. VIP claimed that it did not lose or damage any items but that it would forward her claim to Allied. Aloha said that it would settle at $.30 per pound as indicated on its bill of lading, after payment by IRIS. Hall settled her claim with IRIS for $3,275.

Several months after her belongings arrived, Aloha sent Hall's former attorney another bill of lading also dated "5/20/97" showing an amount due of $1,126.50. See Hall Aff., Ex. V. Hall asserts that she had never before seen that document or signed it. After Hall filed the underlying lawsuit, VIP produced another document that Hall had never signed and that had been altered. See id., Ex. W.

Hall asserts that as a result of Defendants' actions, she was forced to cancel work projects throughout June, July, and August in order to receive the often delayed shipment of her belongings, which resulted in lost income. Additionally, Hall asserts that as a result of the sum total of Defendants' actions, beyond damage to her belongings, she suffered a nervous breakdown, severe emotional distress, and depression. Hall attended sessions with a therapist, and then was referred to a medical doctor. Ultimately, she was placed on medical leave from August to October, missing additional work. Hall asserts that she also incurred other monetary damages and attorneys' fees. Hall received a refund check in the amount of $123.60, which she did not cash.

Defendants assert that Hall suffered damages of $8,505.14 to her goods due to loss, damage, or delay. Defendants assert that Hall voluntarily changed the anticipated shipping date by changing the contents of her shipment, failing to obtain the funds required for shipment, and then later, when the goods finally arrive, refusing immediate delivery. Defendants dispute the remaining facts alleged by Plaintiff in that the "claims are preempted as a matter of law."

Plaintiff commenced the underlying lawsuit, alleging in her Amended Complaint claims for (1) violation of 49 U.S.C. § 13901-13906 and 13702; (2) violation of 49 U.S.C. § 14706 for loss, damage, and delay; (3) intentional infliction of emotional distress; (4) forgery and fraud; (5) bailment; and (6) Hawaii Revised Statutes § 480 et seq. for unfair or deceptive trade practices. By this Court's Order of June 30, 1999, this matter was referred to the Surface Transportation Board ("STB") for a determination of three issues: (1) what, if any, tariff applies to the transportation at issue; (2) what rate applies to the shipment; and (3) whether the applicable rate, if any, is reasonable. In a decision dated March 9, 2001, the STB determined that although freight forwarders of household goods such as Aloha are required to maintain tariffs and reasonable rates, Aloha did not have a tariff applicable to Hall's shipment and therefore no legally applicable rate. See Decision at 6. The Board nevertheless concluded that Hall failed to show that Aloha's rates were unreasonably high. Id. at 7. The Board did note that because Aloha had no published tariff applicable to the transportation of Hall's goods, Aloha could not enforce any ancillary loss and damage limitations or any other tariff limitations. Id. The parties have filed cross motions for summary judgment.

Defendants seek summary judgment on Plaintiff's claims for intentional infliction of emotional distress, fraud, bailment, and deceptive trade practices. Defendants also seek summary judgment on the issue of attorney's fees and lost wages. Plaintiff seeks summary judgment on the registration issue, lost wages and incidental expenses, deceptive trade practices, and attorney's fees.

DISCUSSION A. Standard

Summary judgment is proper if no disputed issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Unigroup, Inc. v. O'Rourke Storage Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir. 1992).

The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. See Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957. The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996).

B. Damage to Household Goods

The Carmack Amendment, pursuant to 49 U.S.C. § 14706, makes carriers liable for actual loss or injury to property caused by the receiving carrier, delivering carrier or other carrier. A carrier is liable for damage to goods transported by it unless it can show that the damage was caused by (a) an act of God; (b) the public enemy; (c) an act of the shipper; (d) public authority; or (e) the inherent vice or nature of the goods. Missouri Pac. R. Co. v. Elmore and Stahl, 377 U.S. 134, 137 (1964). The shipper may establish her prima facie case by showing delivery in good condition, arrival in damaged condition, and the amount of damages. Id. at 138.

Plaintiff asserts that she delivered her shipment in good condition and that certain goods were missing or damaged upon arrival. Plaintiff asserts that her loss for damage to her goods totals $8,505.14. Defendants do not dispute this claim. Additionally, there appears to be no dispute that Plaintiff is entitled to reasonable attorney's fees under 49 U.S.C. § 14708(d) relating to this claim. Accordingly, Plaintiff's motion for summary judgment with respect to this issue is granted.

C. Preemption Under Carmack Amendment

Defendants argue that Plaintiff's state law claims stem from the loss, damage, and delay of her goods. Defendants argue that the Carmack Amendment, 49 U.S.C. § 14706, governs carrier liability for claims of loss, damage, and completely preempts Plaintiff's state law claims for intentional infliction of emotional distress, forgery and fraud, lost wages, and deceptive trade practices. Plaintiff opposes the motion, and in turn, moves for summary judgment on the issue of deceptive trade practices. Plaintiff argues that her state law claims are independent from the loss of her household goods.

The Carmack Amendment provides for liability of carriers under receipts and bills of lading:

(a) General liability. —

(1) Motor carriers and freight forwarders. — A carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 or chapter 105 are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is 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 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 and, except in the case of a freight forwarder, applies to property reconsigned or diverted under a tariff under section 13702. Failure to issue a receipt or bill of lading does not affect the liability of a carrier. A delivering carrier is deemed to be the carrier performing the line-haul transportation nearest the destination but does not include a carrier providing only a switching service at the destination.

49 U.S.C. § 14706.

In determining the scope of Carmack preemption, courts look to Congressional intent and the purpose of the Amendment. Rini v. United Van Lines, 104 F.3d 502, 504 (1st Cir. 1997). Unfortunately, the Carmack Amendment was adopted without discussion or debate. Id. Nevertheless, it is now accepted that the principal purpose of the Carmack Amendment was to achieve national uniformity in the liability assigned to carriers. In Adams Express Co. v. Croninger, the Supreme Court observed that Congress enacted the Carmack Amendment in 1906 to "take possession of the subject [of interstate carriers' liability for lost or damaged property], and supersede all state regulation with reference to [liability for lost or damaged property]. . . ." 226 U.S. 491, 505-06 (1913); see also New York, N.H. Hartford R.R. Co. v. Nothnagle, 346 U.S. 128, 131 (1953). In considering the preemptive scope of the Carmack Amendment, the Supreme Court concluded:

[t]hat the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it.

Adams Express, 226 U.S. at 505-06. The Court reasoned further that to allow state regulations to affect the liability of carriers "would be to revert to the uncertainties and diversities of rulings which led to the amendment." Id. at 506. Accordingly, a state law cause of action is preempted by the Carmack Amendment if the cause of action involves loss of goods or damage to goods caused by the interstate shipment of those goods by a common carrier. Id. at 505-06; See also Hughes v. United Van Lines, 829 F.2d 1407 (7th Cir. 1987).

Courts that have examined the scope of Carmack Amendment preemption have consistently held that the Carmack Amendment preempts state law under almost all circumstances. For example, in Rini, the First Circuit found that:

all state laws that impose liability on carriers based on the loss or damage of shipped goods are preempted. A state law "enlarges the responsibility of the carrier for loss or at all affects the ground of recovery, or the measure of recovery . . . where, in the absence of an injury separate and apart from the loss or damage of goods, it increases the liability of the carrier. Preempted state law claims, therefore, include all liability stemming from damage or loss of goods, liability stemming from the claims process, and liability related to the payment of claims."

104 F.3d at 506 (citing Charleston Western Carolina Ry. Co. v. Varnille Furniture Co., 237 U.S. 597, 603 (1915)).

1. Fraud and Forgery

In Count IV of the Amended Complaint, Plaintiff alleges that Aloha falsely represented that she had insurance and could add excess insurance for her most valuable possessions. Plaintiff alleges that Aloha never provided her with an order for service, bill of lading, or other required documents, and that she was forced to rely on the representations of Aloha's agents. Plaintiff alleges that Aloha falsely represented the dates of the shipment and delivery of her belongings, the reason for her shipment's delay, and forged her name on various documents, including a document that limited Aloha's liability to $.30 per pound and the inventory list. Plaintiff alleges that Aloha refused to provide her with the required documents and denied that it was even subject to federal regulation. Plaintiff alleges that as a result of Aloha's fraud and forgery, she sustained damages, including but not limited to the damage to her personal property, lost wages, and emotional distress. Defendants argue that the fraud and forgery claims are completely preempted by the Carmack Amendment.

Several circuit court cases provide guidance on this issue. In Hughes, the Seventh Circuit concluded that the Carmack Amendment preempted the plaintiffs' state claims, including an intentional misrepresentation claim, that were inconsistent with the Interstate Commerce Act. 829 F.2d at 1415. The Seventh Circuit reasoned:

The purpose of this statute is to establish uniform federal guidelines designed in part to remove the uncertainty surrounding a carrier's liability when damage occurs to a shipper's interstate shipment. To permit a shipper to choose among various types of remedies would cause confusion and insurmountable problems and defeat the Act's purpose of eliminating uncertainty as to a carrier's liability by injecting uncertainty back into this area of transportation Congress has sought to regulate.

Id. at 1414. In Rini, the First Circuit concluded that the Carmack Amendment preempted the plaintiff's state law claims, which included misrepresentation and unfair and deceptive acts, "where, in the absence of an injury separate and apart from the loss or damage of goods, it increases the liability of the carrier." 104 F.3d at 503, 506. Finally, in Moffit v. Bekins Van Lines, the Fifth Circuit concluded that the plaintiff's state law claims for deceptive trade practices, slander, misrepresentation, and fraud were preempted by the Carmack Amendment in light of its underlying purpose. 6 F.3d 305, 307 (5th Cir. 1993). The Fifth Circuit reasoned that to hold otherwise "could only lead to the morass that existed before the Carmack Amendment." Id.

In this case, to the extent that Plaintiff's claimed injury arises from the loss, damage, and delay of her household goods, her claims for fraud and forgery arising out of her contract and dealings with Defendants are preempted by the Carmack Amendment.

2. Intentional Infliction of Emotional Distress

In Count III of the Amended Complaint, Plaintiff alleges that Aloha's communications and actions caused her to miss work and suffer severe emotional distress, which required medical attention. Defendants argue that Plaintiff's claim for intentional infliction of emotional distress is preempted by the Carmack Amendment because it stems solely from the loss, damage, or delay of her shipment. Defendants also argue that Plaintiff's allegations fail to rise to the level required for sustaining an emotional distress claim.

Circuit courts analyzing whether a claim of intentional infliction of emotional distress is preempted by the Carmack Amendment have reached different conclusions. The Fifth Circuit in Moffit applied its reasoning, discussed above, and concluded that plaintiff's claim for intentional infliction of emotional distress was preempted by the Carmack Amendment in light of its underlying purpose. 6 F.3d at 307. However, the First Circuit in Rini reasoned differently:

[L]iability arising from separate harms — apart from the loss or damage of goods — is not preempted. For example, if an employee of the carrier assaulted and injured the shipper, state law remedies would not be preempted. Similarly, a claim for intentional infliction of emotional distress alleges a harm to the shipper that is independent from the loss or damage to goods and, as such, would not be preempted.

104 F.3d at 506. The Seventh Circuit, persuaded by the reasoning in Rini and its own decision in N. Am. Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452 (7th Cir. 1996), also concluded that a state law claim for intentional infliction of emotional distress was not preempted. Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir. 1997). The Seventh Circuit noted that in Pinkerton, "the court recognized a number of situations in which a carrier might remain liable to a shipper for certain kinds of separate and independently actionable harms that are distinct from the loss of, or the damage to, the goods." Id. In this case, the Court is persuaded by the reasoning of the First and Seventh Circuits. As the First Circuit recognized, "a claim for intentional infliction of emotional distress alleges a harm to the shipper that is independent from the loss or damage to goods." 104 F.3d at 506. Accordingly, Plaintiff's claim for intentional infliction of emotional distress is not be preempted.

Next, Defendants argue that even if Plaintiff may assert a claim for intentional infliction of emotional distress, Plaintiff has not asserted facts sufficient to meet the threshold for such a cause of action. Under Minnesota law, to assert a claim for intentional infliction of emotional distress, Plaintiff must show that (1) the conduct was so extreme and outrageous as to pass the boundaries of decency and utterly intolerable to the civilized community; (2) the conduct was intentional or reckless; (3) that conduct was the cause of Plaintiff's emotional distress; and (4) that distress was so severe that no reasonable person could be expected to endure it. Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn. 1987). In this case, Defendants argue that it has not been shown that its conduct was outrageous, intentional, or the cause of Plaintiff's emotional distress. Defendants argue that Plaintiff was financially strapped, advised by Aloha that the change in her shipment would result in a rate change, and that Plaintiff's problems resulted from her inability to pay for the shipping. Defendants also argue that Plaintiff has not established that her emotional distress was caused by Defendants. Defendants argue that Plaintiff admitted being a victim of a theft and had also been in a fragile emotional state for many years prior to her move. Taking the facts in the light most favorable to Plaintiff, the Court concludes that Plaintiff has offered sufficient evidence to present her case to a jury on intentional infliction of emotional distress.

3. Unfair and Deceptive Trade Practices

The parties each move for summary judgment on Plaintiff's claim in Count VI of the Amended Complaint for unfair and deceptive trade practices. Hawaii Revised Statutes ("HRS") § 480-2 provides that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful." Pursuant to HRS § 481A-3,

[a] person engages in a deceptive trade practice when, in the course of the person's business . . . the person: (1) Passes off goods or services as those of another; (2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another; . . . (5) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have . . .

A consumer may commence a lawsuit for unfair or deceptive acts or practices. HRS § 480-2(d). A person likely to be injured by a deceptive trade practice may be granted an injunction against it. HRS § 481A-4(a). A prevailing party may be entitled to costs and, under certain circumstances, attorney's fees. Id. at (b). This relief is in addition to remedies available under state common law or statutes. Id. at (c). Additionally, any consumer who is injured by any unfair or deceptive act or practice may sue for damages sustained by the consumer. HRS § 480-13(b)(1).

Plaintiff alleges that Aloha and Allied Van Lines advertised to the public in a Honolulu Yellow Pages ad that Aloha was Allied Van Line's only authorized agent in Hawaii. The telephone listing also listed Aloha and Allied Van Lines jointly with the same telephone number. According to Sharon Parks ("Parks"), managing director for Aloha, Aloha has no relationship with Allied Van Lines. Parks Dep. at 164. Aloha is the agent for Allied International in dealing with foreign countries, which do not include the mainland. Id. at 162-63. Aloha did not have an agency contract with Allied Van Lines, but was authorized to use its trademark in advertising. Allied Van Lines denies that Aloha provided transportation services to Hall as its agent. Accordingly, Plaintiff argues that the Yellow Pages ad and the telephone listing on which she relied to book her services were false and misleading. Plaintiff argues that during the course of her move, her property was damages and she was injured. In one memorandum, Plaintiff also argues that it is clear that this claim is independent because she could have brought the claim as a consumer for false advertising without ever having engaged Defendants' services or suffering damage to her goods. In response, Defendant argues that Plaintiff's claim is preempted by the Carmack Amendment and that courts have consistently recognized preemption with regard to unfair or deceptive trade practices claims.

The Court is aware of the case law holding that unfair and deceptive trade practices claims are preempted by the Carmack Amendment. See e.g, Rini, 104 F.3d at 506. Plaintiff's argument that her claim can be distinguished from these cases because the claim would exist independent of the delay, loss, and damage to her goods, is compelling. In this case, however, Plaintiff seeks damages for Defendants' alleged unfair and deceptive trade practices, asserting that her property was injured during the move. Accordingly, Plaintiff's theory of damage on this claim is not separate and apart from the loss or damage of goods, and therefore, is preempted. For these reasons, summary judgment is appropriate on this claim.

4. Lost Wages

Plaintiff seeks $14,850 for lost wages and additional money for out-of-pocket expenses. Defendants argue that Plaintiff's claim for lost wages are preempted. See Morris v. Covan World Wide Moving Inc., 144 F.3d 377, 383 (5th Cir. 1998). Defendants argue that even if it is not preempted, Plaintiff has not met the test to recover for lost wages. Defendants argue that Plaintiff has presented insufficient evidence that Defendants were aware of or informed that Plaintiff would take 88 days of work, or almost one-fourth of the year, in order to receive her shipment.

The Court concludes that Plaintiff has presented sufficient evidence to survive summary judgment on a portion of this issue. Some of Plaintiff's lost wages and out-of-pocket expenses may be classified as actual damages stemming from the delay, loss, and damage of her household goods. Indeed, in this case, such loss was the "natural and probable consequence of the damage[,]" loss, or delay. Caspe v. Aaacon Auto Transport, Inc., 658 F.2d 613, 617 (8th Cir. 1981). However, some of the lost wages and expenses Plaintiff seeks stem from her emotional distress. These damages would be classified as "special damages," as they were not foreseeable as a natural consequence of the delay, damage, or loss. Special damages are not recoverable unless the carrier has actual notice at the time the contract was made of special circumstances that its inability to deliver would result in special damages. Id., at 617-18; Contempo Metal Furniture Co. v. East Texas Motor Freight Lines, 661 F.2d 761, 765 (9th Cir. 1981); Main Road Bakery v. Consol. Feightways, Inc., 799 F. Supp. 26 (D.N.J. 1992). The Court simply cannot conclude that Defendants had notice that its actions would result in lost wages and expenses due to Plaintiff's mental suffering, and therefore, this portion of Plaintiff's damages claim is not recoverable as special damages.

E. Attorney's Fees under 49 U.S.C. § 14707 for Violation of the Registration Requirement

Notwithstanding the Court's determination on damages and attorney's fees under § 14704, Plaintiff may still be entitled to attorney's fees under § 14707 for violation of the registration requirement. In Count I of the Complaint, Plaintiff asserts that Aloha and VIP provided transportation in interstate commerce and were required to be registered with the Secretary of State as a motor carrier, freight forwarder, or broker, but were in fact not registered. Plaintiff seeks summary judgment on the issue of Aloha's violation of the registration requirement pursuant to 49 U.S.C. § 13901, which provides that:

[a] person may provide transportation or service subject to jurisdiction under subchapter I or III of chapter 135 or be a broker for transportation subject to jurisdiction under subchapter I of that chapter, only if the person is registered under this chapter to provide the transportation or service.

Motor carriers (§ 13902), freight forwarders (§ 13903), and brokers (§ 13904) are required to adhere to registration requirements.

Plaintiff argues that the STB's decision clearly indicates that Aloha was in violation of the registration requirement as a freight forwarder. According to the STB:

At the time of petitioner's shipment, Aloha was authorized by the Hawaii Public Utilities Commission . . . to transport household goods on the islands of Oahu, Kauai, and Hawaii. Aloha was not authorized to conduct any interstate operations at that time. It subsequently obtained a freight forwarder permit . . . from the Federal Highway Administration (FHWA) in July 1998.

STB at 1 n. 2.

The STB further noted that:

[w]e do not address the registration issue here, as the responsibility for the licensing (registration) of motor carriers, brokers, and freight forwarders was transferred from the ICC to the Secretary of Transportation by the ICC Termination Act of 1995 (ICCTA). See 49 U.S.C. § 13901-08. We note, however, that respondents admit that Aloha did not have interstate authority to operate either as a motor carrier or as a freight forwarder.

Id. at 5 n. 8.

The STB stated:

[i]t is apparent . . . that Aloha performed the services of a freight forwarder of household goods rather than those of a motor carrier here. Aloha issued a through bill of lading, undertook all arrangements for transportation from origin to destination, and, in turn, dealt with the underlying carriers as a shipper. Thus, the statute and regulations applicable to household goods freight forwarders are controlling here.

Id. at 5.

The STB concluded that "freight forwarders of household goods, such as Aloha, are required to maintain tariffs and reasonable rates." Id. at 6. The STB further found that "[b]ecause Aloha had no published tariff applicable to the transportation of petitioner's goods, it may not enforce any ancillary loss-and-damage limitations or any other tariff limitations it is seeking to apply to petitioner's shipment." Id. at 7.

First, Defendants argue that Plaintiff is expanding the scope of the STB decision. Defendants argue that the STB refused to find that Aloha violated the registration provisions of the Act, and that Plaintiff's insistence that a violation can be found on the basis that it provided service without a license is erroneous. Defendants argue that it must first be determined that a license is required. Defendants argue that this hinges on a factual determination that the operations of the entity meet the definitional requirements under the Act. 49 U.S.C. § 13102(8) and (11). Defendants then argue that a determination must be made whether such operations are subject to the ICC Termination Act or the Hawaii Public Utilities Commission. Defendants claim that this requires a determination of where Aloha's part of the shipment was taken.

Although the STB did not address the registration issue, the STB addressed whether Aloha was in violation of the tariff provision. In so doing, the STB addressed and concluded that Aloha was a freight forwarder. Upon review, the Court is satisfied that Aloha meets the definition of freight forwarder. The STB specifically noted that, "[i]t is apparent . . . that Aloha performed the services of a freight forwarder of household goods. . . . Aloha issued a through bill of lading, undertook all arrangements for transportation from origin to destination, and, in turn, dealt with the underlying carriers as a shipper. Thus, the statute and regulations applicable to household goods freight forwarders are controlling here." Decision at 5. The STB further concluded:

At the time of petitioner's shipment, Aloha was authorized by the Hawaii Public Utilities Commission . . . to transport household goods on the islands of Oahu, Kauai, and Hawaii. Aloha was not authorized to conduct any interstate operations at that time. It subsequently obtained a freight forwarder permit . . . from the Federal Highway Administration (FHWA) in July 1998.

Decision at 1 n. 2. The facts of record support this analysis. Aloha's operations also meet the definitional requirements of 49 U.S.C. § 13102(8) and (11) for "freight forwarder" and "household goods freight forwarder."

Next, Defendants assert that consideration must be given to whether its operation qualifies for any exemptions from the registration requirements under 49 U.S.C. § 13503, 13504, 13506, 13541. It does not appear that the STB considered these exemptions. The Court will consider each exemption in turn. The exemption of 49 U.S.C. § 13504 does not apply in this case because it relates to freight forwarders in the State of Hawaii who do not transport household goods. Likewise, the facts do not suggest that any exemption in 49 U.S.C. § 13506 applies. For example, § 13506 exempts transporters of school children, teachers, hotel patrons, farm products, wood chips, rock, and glass, among other things.

This exemption also applies to certain taxicabs. In this case, Aloha is a shipper of household goods and arranged to have Plaintiff's household goods shipped from Hawaii to Minnesota. With respect to 49 U.S.C. § 13541, the Secretary or the Board may exempt a party from the application of a provision of this section upon finding that it is (1) not necessary to carry out the transportation policy of section 13101; (2) not needed to protect shippers from the abuse of market power or that the transaction or service is of limited scope; and (3) in the public interest. Indeed, the Secretary or Board may initiate its own proceeding to make such a determination, or an interested party seeking an exemption can make an application. 49 U.S.C. § 13541(b). In this case, there is no evidence that the Secretary or Board has granted such an exemption or that a party has made such an application. Even so, the facts of record do not suggest that such an exemption would be in the public interest.

Finally, 49 U.S.C. § 13503 applies when, among other things, the transportation provided in a terminal area is (a) a transfer, collection, or delivery; (b) provided by a rail carrier, water carrier, or freight forwarder; and (3) incidental to transportation or service provided by the carrier or freight forwarder that is subject to jurisdiction under chapter 105 of this title or under subchapter II or III of this chapter. 49 U.S.C. § 13503(a)(1). The record does not contain sufficient facts to make a determination on this provision, and therefore, summary judgment on this issue is not appropriate.

Third, Defendants argue that Plaintiff must identify damage resulting from the alleged illegal operation. Defendants argue that Plaintiff must then request the Court for injunctive relief. Defendants argue that unless Plaintiff can establish these elements, she is not entitled to attorneys fees on the registration issue. Defendants also argue that any trial on the matter would be in the district for Hawaii. 49 U.S.C. § 14707 provides that:

[i]f a person provides transportation by motor vehicle or service in clear violation of section 13901-13904 or 13906, a person injured by the transportation or service may bring a civil action to enforce any such section. In a civil action under this subsection, trial is in the judicial district in which the person who violated that section operates.

With respect to injury, § 14707 requires only that a person be "injured" by the transportation or service.

The Court has reviewed the Amended Complaint and the memoranda and supporting evidence of the present motions. Plaintiff has identified various forms of injury sufficient to comply with this broadly-worded requirement of the statute.

Next, the Court does not read the plain language of the statute to require that any trial on this issue be held in the district of Hawaii. This provision of the statute merely requires that the trial be held in the judicial district in which "the person who violated that section operates." The shipping records of Plaintiff and others who contracted with Aloha for delivery to Minnesota clearly demonstrates that Aloha International Moving Services operated in Minnesota. See Park Dep., Ex. 22-23, 25-28. That Aloha might be subject to lawsuit in Minnesota, therefore, should be of no surprise. Furthermore, Plaintiff commenced her action as an enforcement action. Plaintiff specifically requested that "Aloha and VIP be enjoined from operating until registered . . ." Am. Compl. ¶ 50 and p. 23.

Finally, Defendants seek summary judgment on this issue, arguing that Plaintiff is not a "prevailing party" under the statute and therefore, would not be entitled to attorney's fees. Defendants argue that to the extent that violation of the registration requirement ever existed, it has been cured by its subsequent registration in July 1998, and therefore, Plaintiff would not be entitled to relief now. Accordingly, Defendants argue, Plaintiff is not a "prevailing party" entitled to attorney's fees.

Pursuant to 49 U.S.C. § 14707(c), "[i]n a civil action under subsection (a), the court may determine the amount of and award a reasonable attorney's fee to the prevailing party. That fee is in addition to costs allowable under the Federal Rules of Civil Procedure." As one court observed:

The allowance of any attorney's fee [under this provision] is discretionary. Obviously by granting statutory authority to district courts to award reasonable attorneys' fees Congress had in mind that if successful plaintiffs routinely had to bear their own attorneys' fees and, as here, were unable to obtain any money damages through lack of adequate legal remedy it would be inequitable and would discourage some aggrieved parties from bringing appropriate self-help actions. Thus, the allowance of attorneys' fees is discretionary and they should be allowed where, as here, the equities disclose they are merited.

Tri-State Motor Transit Co. v. Leonard Bros. Trucking Co., 347 F. Supp. 872, 878-79 (W.D.Mo. 1972) (citing Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968). Plaintiff argues that the circumstances of this case warrant attorney's fees on the issue of registration. Plaintiff compares this case to § 1988 civil rights cases in the Eighth Circuit. Indeed, according to the Eighth Circuit:

[w]here a defendant voluntarily complies with a plaintiff's request relief, thereby rendering the plaintiff's lawsuit moot, the plaintiff is a "prevailing party" under section 1988 if his suit is a catalyst for the defendant's voluntary compliance and the defendant's compliance was not gratuitous, meaning the plaintiff's suit was neither "frivolous, unreasonable, [n]or groundless."

Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 17 F.3d 260, 262 (8th Cir. 1994) (citation omitted). Plaintiff argues that in this case, it was successful on the registration issue because after filing the underlying lawsuit, part of which sought enforcement of the registration requirement, Aloha registered in compliance with the statute. Plaintiff argues that its lawsuit was the catalyst for Aloha's registration, which benefitted other shippers and competitors. The Court is inclined to merit this argument and conclude that if Plaintiff is ultimately able to establish that Aloha was subject to and violated the registration requirement, she would be entitled to attorney's fees as a prevailing party. However, because the facts of record are not sufficient to make a determination of whether Aloha qualified for an exemption under 49 U.S.C. § 13503, summary judgment in favor of Plaintiff not warranted at this time.

D. Damages under 49 U.S.C. § 14704

Defendants next argue that Plaintiff is not entitled to damages and attorney's fees under 49 U.S.C. § 14704 for a violation of the tariff and registration provisions. Section 14704 provides in pertinent part:

(a) In general. —

* * *

(2) Damages for violations. — A carrier or broker providing transportation or service subject to jurisdiction under chapter 135 is liable for damages sustained by a person as a result of an act or omission of that carrier or broker in violation of this part.

(b) Liability and damages for exceeding tariff rate. — A carrier providing transportation or service subject to jurisdiction under Chapter 135 is liable to a person for amounts charged that exceed the applicable rate for transportation or service contained in a tariff in effect under section 13702.

* * *

(e) Attorney's fees. — The district court shall award a reasonable attorney's fee under this section. The district court shall tax and collect that fee as part of the costs of the action.

Discussing the Eighth Circuit's decision in O.O.I.D.A. v. New Prime, Inc., 192 F.3d 778 (8th Cir. 1999), the parties dispute whether § 14704 permits a private action for damages for violations of the tariff and registration provisions. However, the Court need not decide this issue. Even assuming that § 14704 applies, Plaintiff's claim for damages are not sufficient to meet the requirement of the statute. It is not enough that Plaintiff sustained damages. To recover under § 14704(a)(2), the damages she sustained must be "as a result of an act or omission of that carrier or broker in violation of this part" (emphasis added).

Here, Plaintiff has failed to demonstrate that the damages she alleges are the result of the failure to register or maintain applicable tariffs. Rather, the evidence shows that Plaintiff's damages are related to the delay, loss, and damage to her household goods, and possibly, to intentional infliction of emotional distress. Moreover, with respect to the tariff issue, the STB specifically concluded that Plaintiff failed to show that the rates she paid were unreasonably high. Decision at 7. Accordingly, summary judgment on this issue is appropriate.

CONCLUSION

Based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART;

2. Plaintiff's Motion for Summary Judgment is GRANTED with respect to the claim for damage to household goods and attorney's fees related to the damage to household goods;

3. Plaintiff's Motion for Summary Judgment is DENIED:

a. for attorney's fees under 49 U.S.C. § 14707 for violation of the registration requirement, and

b. on the claim for unfair trade practices;

4. Defendant's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART;

5. Defendant's Motion for Summary Judgment is GRANTED with respect to Plaintiff's claim for a. bailment,

b. fraud and forgery,

c. deceptive trade practices, and

d. damages and attorney's fees under 49 U.S.C. § 14704 for violation of the tariff and registration requirements;

6. Defendant's Motion for Summary Judgment is DENIED with respect to Plaintiff's claims for

a. intentional infliction of emotional distress;

b. lost wages and expenses, to the extent that they relate only to the delay, loss, and damage to her household goods, and

c. attorney's fees under 49 U.S.C. § 14707 for violation of the registration requirement.