Opinion
Civil Action No. 98-T-665-N
July 31, 1998
Thomas J. Methvin, Andy D. Birchfield, Jr., Beasley, Allen, Crow, Methevin, Portis Miles, PC, Charles H. Volz, Jr., Volz, Prestwood Hanan, PC for Plaintiff.
Crawford S. McGivaren, Jr., John M. Graham, Cabaniss, Johnston, Gardner, Dumas O'Neil for Defendant.
ORDER
Plaintiff Wendy Simmer brought this lawsuit in state court seeking to recover from defendant North American Van Lines, Inc., based on a state-law breach-of-contract claim, alleging the North American failed to pick up and deliver goods in a timely manner as promised during shipment in interstate commerce. North American removed this lawsuit from state to federal court based upon federal-question jurisdiction, 28 U.S.C.A. §§ 1331, 1337, 1441, 1445(b), 1446. North American contends that removal is proper because there is "pre-emption" based the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. § 14706. This cause is now before the court on Simmer's motion to remand. For reasons that follow, the court will grant the motion and remand this cause pursuant to 28 U.S.C.A. § 1447(c).
Section 14706(a)(1) provides:
"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."
I.
North American contends that, although Simmer premised her complaint on state law, the facts in her complaint charge a violation of federal law — in particular, the Carmack Amendment. Whether a complaint "arises under" federal law — or, put another way, presents a "federal question" — must be determined from the face of the plaintiff's complaint. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-11, 103 S.Ct. 2841, 2846-47(1983). This requirement, which is known as the "well-pleaded complaint" rule, applies to a defendant's right to removal, with the determinative factor being whether the plaintiff's complaint, and not the removal petition, presents a federal question. Id. at 10 n. 9, 103 S.Ct. at 2847 n. 9. Moreover, the plaintiff "is master to decide what law she will rely upon," The Fair v. Kohler Die Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411(1913), and thus has the prerogative to rely on state law alone although both state and federal law may give her a cause of action. Caterpillar. Inc. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429(1987) (the plaintiff "may avoid federal jurisdiction by exclusive reliance on state law"). Therefore, the fact that a plaintiff has elected to pursue her claims under state law alone does not justify removal even if the plaintiff also has an unpursued claim under federal law.
North American argues that removal based on federal-question jurisdiction is proper because the Carmack Amendment has "pre-empted" Simmer's state-law claims. To be sure, there is an exception to the well-pleaded complaint rule. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. This exception, known as "complete pre-emption," is that "Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore rises under federal law." Id. (emphasis added). This exception rests on the notion that in certain rare instances "the pre-emptive force of the statute is so "extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Id. (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1547(1987)).
Mere pre-emption is not sufficient to support removal, however; rather, the pre-emption must be "complete." The mere fact that a defendant is entitled to assert a federal law defense, such as pre-emption, does not likewise entitle that defendant to remove the action to federal court and is not an exception to the well pleaded complaint rule. As the Supreme Court has explained,
"[I]t is now well settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the the federal defense is on the only question truly at issue."Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430.
The Supreme Court has found "complete pre-emption" of state-law claims, with the result that these claims are removable to federal court, in only a very few instances — for example, § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, commonly referred to as the LMRA, Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235(1968); and § 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. § 1132, commonly referred to as ERISA, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542(1987). In Avco and Taylor and in the Supreme Court and lower courts following them, the courts have identified three factors as critical to a finding of complete pre-emption.
First and perhaps most importantly, because "the touchstone of the federal district court's removal jurisdiction is . . . the intent of Congress," Taylor, 481 U.S. at 66, 107 S.Ct. at 1548, the courts have concluded that there should be evidence of a congressional intent to make the state claim falling within the scope of the relevant federal statute removable to federal court. In Taylor, the Supreme Court found a congressional intent to allow removal of ERISA cases in the legislative history's statement that "All such actions in Federal or State courts are to be regarded as arising under the laws of the United States." 481 U.S. at 65-66, 107 S.Ct. at 1547 (quoting H.R. Cons. Rep. 93-1280 at 327(1974)). See also Id. at 68, 107 S.Ct. at 1548 (Brennan, J., concurring) ("In future cases involving other statutes, the prudent course for a federal court that does not find a clear congressional intent to create removal jurisdiction will be to remand the case to state court") (emphasis in original); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 586 (6th Cir. 1990) (there must be evidence of clear congressional intent to permit removal despite plaintiff's exclusive reliance on state law); Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d 90, 93 (3rd Cir. 1989) (same); Aaron v. Nation's Union Fire Ins. Co. of Pittsburgh, 876 F.2d 1157, 1163 (5th Cir. 1989) (same), cert. denied, 483 U.S. 1074, 110 S.Ct. 1121(1990).
Second, it is not sufficient that the federal law pre-empt the state-law claim; the federal law must also "displace" the state-law claim with a cause of action. In Taylor, the Supreme Court found complete pre-emption because the "state common law claims are not only pre-empted by ERISA but also displaced by ERISA's civil enforcement provision. 481 U.S. at 60, 107 S.Ct. at 1544. See also Allstate Ins. Co. v. 65 Sec. Plan, 879 F.2d at 93 ("The doctrine of complete preemption applies only when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiff's cause of action seeks to vindicate"); Willy v. Costal Corp., 855 F.2d 1160, 1165 (5th Cir. 1988) ("a federal cause of action cannot be found to so completely displace state claims . . . unless there would have been a federal cause of action under the preempting federal law"), aff'd on other grounds, 503 U.S. 131, 112 S.Ct. 1076(1992).
Third and finally, the jurisdictional and enforcement provisions in the LMRA or ERISA must have a close parallel in the federal claim at issue. In Taylor, the Supreme Court emphasized that, even with ERISA's extensive civil enforcement provisions, it "would be reluctant to find that extraordinary pre-emptive power," 481 U.S. at 65, 107 S.Ct. at 1547, but for the fact that ERISA's civil enforcement provision paralleled those in the LMRA, a statute where the Court had previously found such power. Id.
Here, two federal appellate courts have expressly found that the Carmack Amendment does not "completely" pre-empt state law. In Beers v. North American Van Lines, Inc., 836 F.2d 910, 913(5th Cir. 1988), the Fifth Circuit Court of Appeals explained,
"In [Taylor], the Court cautioned: `[E]ven an "obvious" pre-emption defense does not, in most cases, create removal jurisdiction.' Further, the Court required a clearly manifested congressional intent to make state claims removable to federal court. Taylor, [481 U.S.] at [65-67], 107 S.Ct. at 1547-48, 95 L.Ed.2d at 64-65. The Beers's claim does not fall within the narrow exception of Avco and its progeny. We find no manifest congressional intent, of the type contemplated in Taylor, to make this state claim removable to federal court. See Taylor, [481 U.S.] at [67-68], 107 S.Ct. at 1548, 95 L.Ed.2d at 65 (Brennan, J. concurring) (exception to well-pleaded complaint rule is very narrow)."See also Hunter v. United Van Lines, 746 F.2d 635 (9th Cir. 1984).
See also Schaper Co. v. C.A.R. Transportation Brokerage Co., Inc., 1997 WL 852488 (N.D. Miss. Dec. 30, 1997).
North American refers to several cases, in which federal courts heard Carmack Amendment claims that were removed from state court. Either these courts simply did not address the complete pre-emption issue, See e.g., Moffit v. Bekins Van Lines Co., 6 F.3d 305 (5th Cir. 1993), or they predated such cases as Franchise Tax Board, Caterpillar, and Taylor, which reined in the concept of removal based on pre-emption see, e.g., North Am. Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229 (2nd Cir. 1978). North American also cites the case of Ash v. Artpack International, Inc., 1998 WL 132932 (S.D. N.Y. Mar. 23, 1998), which held the Carmack Amendment does provide for complete pre-emption. This court disagrees with Ash.
These two appellate holdings are reenforced by a reading of 28 U.S.C.A. § 1337(a). Section 1337(a) provides for original jurisdiction of Carmack Amendment claims only if the amount involved exceeds $10,000. This statutory expression, which reflects that there is an area of interstate shipments over which federal courts lack even original jurisdiction, undermines greatly the presence of three of the factors deemed critical to a finding of complete pre-emption. In light of § 1337(a), it is apparent first, that the Carmack Amendment does not completely "displace" state law and, second, that the Amendment is not fully parallel to the jurisdictional and enforcement provisions in the LMRA and ERISA.
Section 1337(a) provides:
"The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies: Provided, however, That the district courts shall have original jurisdiction of an action brought under section 11706 or 14706 of title 49, only if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs."
Finally, this court is mindful of Justice Brennan's cautionary observation in Taylor. There, joined by Justice Marshall, he embraced the opinion of the Court but wrote separately to emphasize that the relevant congressional intent was not an intent that the statute should displace state law, but rather an intent that claims purportedly based on state law be removable: "While I join the Court's opinion, I note that our decision should not be interpreted as adopting a broad rule that any defense premised on congressional intent to preempt state law is sufficient to establish removal jurisdiction. The Court holds only that removal jurisdiction exists when, as here, `Congress has clearly manifested an intent to make causes of action . . . removable to federal court.' Ibid. (emphasis added). In future cases involving other statutes, the prudent course for a federal court that does not find aclear congressional intent to create removal jurisdiction will be to remand the case to state court." 481 U.S. at 67-68, 107 S.Ct. at 1548 (Brennan, J., concurring) (emphasis in original).
Set against this background, this court concludes that while North American may be correct that the Carmack Amendment "pre-empts" the state-law claim at issue here, North American has failed to establish that the Carmack Amendment provides for "complete pre-emption."
Moreover, even if the Carmack Amendment did provide for complete pre-emption, there would still be an open question here as to whether removal jurisdiction would lie. As stated, § 1337(a) provides for original jurisdiction of Carmack Amendment claims only if the amount involved exceeds $10,000. And, of course, 28 U.S.C.A. § 1441 provides for removal to federal district court only of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." There is no question that the amount Simmer could recover under the Carmack Amendment is limited to "the actual loss or injury to the property." 49 U.S.C.A. § 14706(a)(1). See supra note 1. Therefore, while the total amount sought by Simmer is over $10,000, this amount reflects what she seeks on her state-law claim; it is unclear what damages she might be limited to recovering under the Carmack Amendment.
In any event, because the court concludes that there is not complete pre-emption, it need not reach whether it would have removal jurisdiction when and if the amount recoverable under the Carmack Amendment is below the jurisdictional amount required for original jurisdiction.
II.
With this conclusion, however, this court has not held that Simmer's state-law claims are not "pre-empted" by the Carmack Amendment. This court has merely held that there is not such "complete pre-emption" as would support removal to federal court. After remand, the state court may still independently conclude that the Carmack Amendment pre-empts Simmer's state-law claim. Glasser v. Amalgamated Workers Union Local 88, 806 F.2d 1539, 1540 (11th Cir. 1986) (per curiam); Soley v. First National Bank of Commerce, 923 F.2d 406, 408-09 (5th Cir. 1991); see also Franchise Tax, 463 U.S. at 12-14 n. 12, 103 S.Ct. at 2848 n. 12 (where federal court lacks removal jurisdiction, state court should determine whether pre-emption defense has merit).Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court that plaintiff Wendy Simmer's motion to remand, filed on July 8, 1998, is granted and that, pursuant to 28 U.S.C.A. § 1447(c), this cause is remanded to the Circuit Court of Montgomery County, Alabama, for want of subject-matter jurisdiction.
The clerk of the court is DIRECTED to take appropriate steps to effect the remand.
DONE, this the 31st day of July, 1998.