Opinion
CASE NO. 22-23943-CV-WILLIAMS
2023-09-14
MOBILE TRADERS, INC., et al., Plaintiffs, v. FEDEX FREIGHT, INC., Defendant.
Julie Negovan, Coral Springs, FL, for Plaintiffs. Jessica Adele Cappock, Mathis Law Group, Fort Lauderdale, FL, Kimble Clark Bouchillon, Saunders Law Group, Bartow, FL, C. Fredric Marcinak, III, Pro Hac Vice, Daniel Lesesne Phillips, Pro Hac Vice, Moseley Marcinak Law Group LLP, Greenville, SC, for Defendant.
Julie Negovan, Coral Springs, FL, for Plaintiffs. Jessica Adele Cappock, Mathis Law Group, Fort Lauderdale, FL, Kimble Clark Bouchillon, Saunders Law Group, Bartow, FL, C. Fredric Marcinak, III, Pro Hac Vice, Daniel Lesesne Phillips, Pro Hac Vice, Moseley Marcinak Law Group LLP, Greenville, SC, for Defendant. ORDER KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the Motion to Dismiss Plaintiffs' First Amended Complaint (DE 15) (" Motion ") filed by Defendant FedEx Freight, Inc. (" FedEx ") to which Plaintiffs Mobile Traders, Inc. (" Mobile Traders ") and Ysr Wireless, Inc. (" Ysr ") (collectively, " Plaintiffs ") filed a response (DE 20) and Defendant filed a reply (DE 22). For the reasons set forth below, Defendant's Motion to Dismiss is GRANTED.
I. BACKGROUND
On December 3, 2021, Assurant/Broadtech LLC (" Assurant ") initiated a shipment of used cellular devices to be delivered to Mobile Traders on behalf of Ysr. (DE 8 at 2.) Before shipping the cellular devices, Assurant secured each device with packaging and placed them into individual boxes. (Id.) Assurant labelled the exterior of each box with a brief description of the packaged cellular devices and stacked all the boxes together on a pallet before shrink-wrapping the shipment in black plastic so that the content of the boxes could not be seen. (Id. at 2-3.)
After preparing the cellular devices for shipment, Assurant entered into an agreement with FedEx to provide the shipping and delivery services for the shipment. (Id.) Pursuant to the bill of lading, FedEx agreed to handle transporting the shipment from Lewisville, Texas to Miami, Florida, assigning the shipment the tracking number 9271096833. (Id. at 3.) Once the shipment arrived in Miami, Florida, it was delivered to Mobile Traders on December 7, 2021. However, upon its arrival, Mobile Traders discovered boxes had been cut open and approximately half of the cellular devices had been removed. (Id. at 2-3.) Realizing that cellular devices were missing, Mobile Traders reported the incident to the Miami-Dade Police Department on December 7, 2021, and subsequently submitted a claim with FedEx on December 8, 2021, for lost or damaged goods. (Id. at 3.)
Approximately one year later, on December 2, 2022, Mobile Traders and Ysr filed this civil action against FedEx. (DE 1.) One month after filing their original Complaint, on January 16, 2023, Plaintiffs filed their First Amended Complaint (DE 8), alleging two causes of action for breach of contract pursuant to 49 U.S.C. § 14706 (the " Carmack Amendment ") (" Count I ") and civil theft pursuant to the Florida Statutes Section 772.11 (" Count II "). (DE 8 at 3-6.) In response, FedEx filed the instant Motion, arguing that the Carmack Amendment preempts Plaintiffs' state law claim of civil theft and, as such, Count II should be dismissed as a matter of law pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure ("Rule 12(b)(6)"). (DE 15.)
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead sufficient facts to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although a complaint "does not need detailed factual allegations," it must provide "more than labels, and conclusions." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ("[A] formulaic recitation of the elements of a cause of action will not do.") (internal citations omitted). Rule 12(b)(6) does not allow dismissal of a claim because a court anticipates "actual proof of those facts is impossible," but the "[f]actual allegations must be enough to raise a right of relief above the speculative level." Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 545, 127 S.Ct. 1955).
In ruling on a 12(b)(6) motion, the court must accept the factual allegations in the complaint as true and draw reasonable inferences in plaintiff's favor. See Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). Although the court resolves all doubts or inferences in the plaintiff's favor, the plaintiff bears the burden to frame the complaint with sufficient facts to suggest that she is entitled to relief. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. Plaintiffs make a facially plausible claim when they plead factual content from which the court can reasonably infer that the defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a 'probability requirement' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In determining whether a complaint states a plausible claim for relief, the court draws on its judicial experience and common sense. Dismissal pursuant to a Rule 12(b)(6) motion is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).
A complaint is subject to dismissal under Rule 12(b)(6) when its allegations—on their face—show that an affirmative defense bars recovery on the claim. Marsh v. Butler Cnty. Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc), abrogated on other grounds by Twombly, 550 U.S. at 561-63, 127 S.Ct. 1955. Ordinary preemption is a substantive defense to a state law action on the basis of federal law and may be invoked in federal court as an affirmative defense to the allegations in a plaintiff's complaint. Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352 (11th Cir. 2003). While the existence of an affirmative defense does not generally support a motion to dismiss, a complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an affirmative defense so long as the affirmative defense is clear from looking at the face of the complaint. Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984).
III. DISCUSSION
The Carmack Amendment is a federal statute that regulates interstate freight carriers. 49 U.S.C. § 14706. For goods shipped in interstate commerce, the Carmack Amendment creates a uniform rule for carrier liability, which includes preemption of state law claims arising from failures in transportation and delivery of goods. Smith v. United Parcel Serv., 296 F.3d 1244, 1246 (11th Cir. 2002) (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913)). In the Eleventh Circuit, "only claims based on conduct separate and distinct from the delivery, loss of, or damage to goods [shall] escape preemption." Smith, 296 F.3d at 1248-49. Here, Plaintiffs' civil theft claim is squarely premised on allegations involving the transportation of goods in interstate commerce, and is therefore preempted.
In the First Amended Complaint, Plaintiffs state that they have been deprived of their property and damaged by FedEx's civil theft. (DE 8 at 6.) Invoking the remedies set forth in the Florida Statutes Section 772.11, Plaintiffs specifically allege that FedEx deprived them of their right to property by permitting the shipment to be infiltrated and the cellular devices removed. (Id. at 5.) According to Plaintiffs, FedEx utilized the information on the packaging and selectively routed the cellular devices "to sell and or distribute the items" to undiscovered individuals or entities, and as such, "directly benefited from the infiltration" of the shipment. (Id.)
Despite these allegations, Plaintiffs acknowledge state law claims against freight carriers for goods shipped in interstate commerce are generally preempted by the Carmack Amendment. (DE 20 at 3 (citing Mlinar v. United Parcel Serv., Inc., 186 So.3d 997, 1004 (Fla. 2016)).) However, contending that this action is "directly analogous" to the case Mlinar v. United Postal Service, Inc., Plaintiffs argue their civil theft claim is not preempted because they sufficiently alleged conduct or harm that is separate and distinct from the loss of or damage to the cellular devices transported by FedEx. Mlinar, 186 So.3d at 1004 (holding that plaintiff's state law causes of action are not preempted by the Carmack Amendment). In Mlinar, the Florida Supreme Court addressed circumstances in which a freight carrier discreetly removed the shipper's paintings from their shipping containers and sold them. In its decision, the Florida Supreme Court explained that plaintiff's allegations "illustrate a course of criminal conduct by [the carrier] and its cohorts that bears, at best, only a tangential relationship to the interstate shipment process and, more specifically, a carrier's contractual obligation to transport goods." Id.
Here, Plaintiffs' arguments and reliance on Mlinar are unavailing. Like the instant case, other courts in this District have applied the standard in Smith to determine that a plaintiff's civil theft claim is preempted by the Carmack Amendment when the freight carrier's alleged civil theft arises from a failure to provide particular transportation and delivery services. See, e.g., Mtelehealth, LLC v. United Parcel Serv., Inc., 441 F.Supp.3d 1312, 1319 (S.D. Fla. 2019). Despite the fact that Plaintiffs cannot point to one federal case in the Eleventh Circuit that supports their position, the Court will examine the allegations in the First Amended Complaint to determine whether Plaintiffs alleged "conduct separate and distinct from the delivery, loss of, or damage to goods." Smith, 296 F.3d at 1248-49.
See, e.g., Shah v. Am. Van Lines, Inc., 2019 WL 13280357, *2 (S.D. Fla. Jan. 29, 2019) (dismissing plaintiff's state law claim for breach of contract as a result of the Carmack Amendment preemption); Grier v. Griffin Moving & Storage, Inc., 452 F. Supp. 3d 1325, 1332 (S.D. Fla. 2017) (holding that plaintiffs' state law claims are preempted by the Carmack Amendment).
In the First Amended Complaint, Plaintiffs allege that the shipment was physically damaged and approximately half of the cellular devices were missing upon delivery to Mobile Traders. Although Assurant prepared the shipment to be "in good condition and properly packaged," when the shipment ultimately was delivered to Mobile Traders it had been "infiltrated" and boxes had been emptied or cut opened. (DE 8 at 4-5.) Mobile Traders promptly submitted a Claim Form to FedEx, citing the aforementioned damage to the shipment's packaging and the loss of approximately half of the cellular devices. (DE 8-2.) Accordingly, Plaintiffs' allegations demonstrate common violations in shipping contracts that result from "failures in the transportation and delivery of goods." Shah, 2019 WL 13280357, at *2 (citing Smith 296 F.3d at 1246).
Even if this Court were to consider the Florida Supreme Court's ruling in Mlinar as somehow contrary to the language in Smith, Plaintiffs have not alleged similar facts sufficient to demonstrate conduct separate and distinct from the delivery, loss of, or damage to goods. Though Plaintiffs allege that FedEx:
In Mlinar, the Florida Supreme Court followed a substantially similar standard to the Smith standard and therefore, Mlinar does not provide any new legal principle for the Court to consider. Mlinar, 186 So. 3d at 1003 ("We instead hold that a state law or common law claim against an interstate carrier of goods is generally preempted by the [Carmack Amendment] unless the claim alleges conduct or harm that is separate and distinct from the loss of or damage to the goods transported.")
selectively located the contents based upon their nature and probable worth . . . then routed the goods through FedEx locations where as yet undiscovered individuals or entities considered whether the goods were valuable enough to steal . . . [and subsequently] utilized the information on the packaging to sell and or distribute the items to as yet undiscovered individuals or entities(DE 8 at 5), these allegations fall short of alleging "larcenous misconduct by the carrier" that demonstrates that FedEx itself "has adopted or ratified the unscrupulous practices at issue." Mlinar, 186 So.3d at 1004 (explaining that plaintiff alleged the common carrier appropriated the goods "by falsely impersonating and/or representing themselves as part of a shipping enterprise" and identified "policies, acts, and practices" sanctioned by the common carrier that resulted in payment to the carrier under false pretenses and misleading billing practices).
Consequently, the First Amended Complaint fails to establish with particularized statements of fact whether FedEx as opposed to a rogue FedEx employee, agent or affiliate, intently deprived Plaintiffs and profited from a sale of the missing cellular devices. Id. (distinguishing circumstances when goods are stolen by rogue employees or trespassers). However, even if FedEx on its own accord repurposed property for its own use or gain, the Carmack Amendment would provide Plaintiffs with an appropriate remedy separate and distinct from any state law claim of civil theft.
Mtelehealth 441 F.Supp.3d at 1317-18 (explaining that the conversion exception applies and vitiates the Carmack Amendment's limitation of liability for freight carriers when a carrier has converted property for its own use or gain) (citing Glickfeld v. Howard Van Lines, 213 F.2d 723, 727 (9th Cir. 1954)).
In sum, Plaintiffs' state law claim does not contemplate conduct separate and distinct from FedEx's delivery of the cellular devices. Smith, 296 F.3d at 1248-49. Moreover, the facts alleged here do not sufficiently resemble the level of misconduct by a freight carrier that was at issue in Milnar. Accordingly, the Carmack Amendment preempts Count II of Plaintiffs' First Amended Complaint (DE 8).
IV. CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Defendant FedEx Freight, Inc.'s Motion to Dismiss Plaintiffs' First Amended Complaint (DE 15) is GRANTED.
2. Count II of Plaintiffs' First Amended Complaint (DE 8) is DISMISSED.
DONE AND ORDERED in Chambers in Miami, Florida on this 14th day of September, 2023.