United States District Court, E.D. Kentucky, Northern Division, Covington
NEXT F/X, INC. PLAINTIFF
DHL AVIATION AMERICAS, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Motion to Dismiss (Doc. # 10)
filed by Defendant Old Dominion Freight Line, Inc. The Motion
has been fully briefed, (Docs. # 11 and 12), and is now ripe
for the Court's review. For the reasons set forth herein,
the Motion to Dismiss is granted in part and
denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
21, 2018, Plaintiff Next F/X purchased 615 pieces of
“pyrotechnic articles” (“the goods”)
from Pirotecnia Ricardo Caballer, S.A. (“PRC”), a
Spanish supplier. (Doc. # 1 at ¶¶ 7-8). PRC
arranged for Defendant DHL Aviation Americas, Inc.
(“DHL”) to transport the goods from the airport
in Valencia, Spain (“VLC”) to the Cincinnati
Northern Kentucky International Airport
(“CVG”). Id. at ¶ 8. Two Master Air
Waybills were issued for the shipment (one
consisting of 259 pieces and another consisting of 356
pieces). Id. at ¶ 10. Once the goods arrived at
CVG, Coppersmith Global Logistics
(“Coppersmith”)- a freight broker- was to ensure
that the goods cleared customs. Id. at ¶ 9. The
goods arrived at CVG on May 29, 2018; at that point Defendant Old
Dominion Freight Lines (“Old Dominion”) was
contracted by Next F/X, through Coppersmith, to pick up the
goods and transport them to a Next F/X facility in Columbus,
Montana. Id. at ¶¶ 9, 11-12.
instructed, on June 8, 2018, an Old Dominion truck went to
the DHL warehouse near CVG to retrieve the goods for shipment
to Montana. Id. at ¶ 12-13. It is alleged that,
at some point and for unknown reasons, “DHL broke up
the original shipment as packaged by PRC and repackaged the
pieces of freight. After repackaging the shipment, DHL only
loaded 481 of the 615 pieces onto the [Old Dominion]
Truck.” Id. at ¶ 14. As a result, only
481 pieces were delivered to Next F/X. Id. at
¶ 15. Prior to the arrival of only a portion of the
goods, Next F/X had received no notification that some of the
goods had not been retrieved from the DHL warehouse near CVG.
F/X alleges that it and PRC reached out to DHL about the
missing goods, and “DHL failed to provide . . . any
clear details as to the location or status of the undelivered
pieces.” Id. at ¶ 16. Eventually, around
June 21, 2018, DHL indicated that when Old Dominion arrived
to pick up the goods, it did not have room on its truck for
the entire shipment; DHL said, however, that Old Dominion
picked up some of the shipment on June 8, 2018 and returned
for the remaining 134 pieces of the shipment on June 9, 2018.
See id. In reality, Old Dominion had not picked up
the rest of the shipment, which was still sitting in the DHL
warehouse. Id. at ¶ 17.
Next F/X became aware of the location of the remaining goods,
it attempted to have Old Dominion pick them up so they could
be delivered to Montana. Id. at ¶ 18. Next F/X
alleges that Old Dominion attempted to pick up the goods on
multiple occasions between July 5th and July 11th but Old
Dominion would not take the goods because “DHL refused
to provide the required [hazardous substance]
placards.” Id. at ¶ 19. Old Dominion
eventually secured the necessary placards and attempted to
retrieve the remaining goods, but “DHL then refused to
release the cargo . . . claiming that storage charges had
accrued against the cargo and those fees had to be paid
before DHL would release the cargo.” Id. at
¶ 20. Next F/X alleges that DHL is refusing to release
the goods until Next F/X pays the storage fees, which Next
F/X argues are “unreasonable, extortionate, and
constitute an unfair and deceptive trade practice”; DHL
claims these fees began accumulating on June 11, 2018.
Id. at ¶ 23-24. Coppersmith “offered to
pay a portion of the fees to secure the release of the cargo,
” but DHL refused to agree to such an arrangement.
Id. at ¶ 22.
light of these events, Next F/X filed suit against DHL and
Old Dominion. (Doc. # 1). Next F/X alleges five claims
against DHL: violation of the Montreal Convention, fraud,
negligence, conversion, and a claim for punitive
damages. Id. Against Old Dominion, Next
F/X brings three claims: violation of the Carmack Amendment,
negligence, and violation of Ky. Rev. Stat. § 355.7-301.
Id. at ¶¶ 25-68. In addition to its
request for statutory, exemplary, and punitive damages, Next
F/X requests that it be awarded attorneys' fees.
Id. at 11. Old Dominion responded to the Complaint
with a Motion to Dismiss, arguing that Next F/X failed to
state a claim under the Carmack Amendment upon which relief
could be granted, that the state-law claims brought against
it are preempted by the Carmack Amendment, and attorneys'
fees are not recoverable under the Carmack Amendment.
See (Doc. # 10). Briefing of the Motion is complete,
(Docs. # 11 and 12), and the Motion is ready for disposition.
Standard of Review
to the Federal Rules of Civil Procedure, pleadings which fail
to “state a claim upon which relief can be
granted” may be dismissed. See Fed. R. Civ. P.
12(b)(6). In order to survive a motion to dismiss, a pleading
must present “enough facts to state a claim for relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint need not include “detailed factual
allegations” but must offer more than “a
formulaic recitation of the elements of a cause of
action” or ‘“naked assertion[s]' devoid
of ‘further factual enhancement.”'
Id. (quoting Twombly, 550 U.S. at 555,
557). In other words, the “allegations must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
reviewing a motion to dismiss, a court must “construe
the complaint in the light most favorable to the plaintiff,
accept all well-pleaded factual allegations in the complaint
as true, and draw all reasonable inferences in favor of the
plaintiff.” Cahoo v. SAS Analytics, Inc., 912
F.3d 887, 897 (6th Cir. 2019) (quoting Courtright v. City
of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)).
The Carmack Amendment
Carmack Amendment is an amendment to the Interstate Commerce
Act that “created a national scheme of carrier
liability for loss or damages to goods transported in
interstate commerce.” Val's Auto Sales &
Repair, LLC v. Garcia, 367 F.Supp.3d 613, 619 (E.D. Ky.
2019) (quoting Exel, Inc. v. Transp., Inc., 807 F.3d
140, 148 (6th Cir. 2015)). “The Amendment restricts
carriers' ability to limit their liability for cargo
damage [and] [i]t makes a motor carrier fully liable for
damage to its cargo unless the shipper has agreed to some
limitation in writing.” Exel, Inc., 807 F.3d
at 148 (citations omitted). “Though it might not be
obvious from the text, ‘Carmack's original premise
is that the [initial] receiving carrier is liable for damage
caused by the other [subsequent] carriers in the delivery
chain.'” CNA Ins. Co., 747 F.3d at 353
(alteration in original) (quoting Kawasaki Kisen Kaisha
Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 100, 106
(2010)). The current version “makes the final, or
‘delivering,' carrier liable to the shipper as
well.” Id. “The Carmack Amendment only
applies to shipping contracts that begin in one state and
terminate in another. It does not apply to shipping contracts
where shipment begins and ends in the same state.”
Strong v. Passport Auto Logistics, LLC, No.
16-14169, 2018 WL 352891, at *4 (E.D. Mich. Jan. 10, 2018)
(citing CNA Ins. Co., 747 F.3d at 354).
Amendment specifically deals with liability for
“carrier[s] providing transportation or service,
” 49 U.S.C. § 14706, which includes coverage of
“a motor vehicle . . . warehouse . . . property,
facility, instrumentality, or equipment of any kind related
to the movement of passengers or property, or both” and
the “services related to that movement, including
arranging for, receipt, delivery . . . storage, handling,
packing, unpacking, and interchange of passengers and
property.” 49 U.S.C. § 13102(23) (defining
Dominion argues that the federal claim under the Carmack
Amendment must be dismissed because Next F/X has not alleged
facts which make out a prima-facie case under the Amendment.