United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
brings a claim against Defendant Allied Van Lines, Inc. for
negligence. Defendant moves to dismiss Plaintiff's claim
with prejudice. Plaintiff has failed to timely respond to
Defendant's motion. As discussed below, Defendant's
Motion to Dismiss (ECF NO. 7) is GRANTED.
about September 25, 2017, Defendant agreed pursuant to a
contract with Plaintiff to ship furniture and other household
goods from Plaintiff's former residence in Connecticut to
Plaintiff's current residence in Oregon. Pl.'s Compl.
¶ 2, ECF No. 1, Attach. 1. Due to Defendant's
alleged negligence, parts of a showcase, treadmill, and
elliptical trainer were lost, and a trampoline failed to
arrive. Pl.'s Compl. ¶ 3.
12, 2018, Plaintiff filed a Complaint in the Circuit Court of
the State of Oregon for Lane County. Defendant was served on
July 24, 2018 and timely filed a Notice of Removal with this
Court on August 22, 2018. Defendant then filed a Motion to
Dismiss on September 28, 2018. Plaintiff has failed to timely
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000). However, the court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. If the
complaint is dismissed, leave to amend should be granted
unless “the pleading could not possibly be cured by the
allegation of other facts.” Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995).
moves to dismiss Plaintiff's claim with prejudice,
arguing that Plaintiff fails to state a claim upon which
relief may be granted. Def.'s Mot. Dismiss 1, ECF No. 7.
Defendant argues that Plaintiff's claim is preempted by
49 U.S.C. § 14706. Id. at 2-3. This Court
Complaint arises out of his contract with Defendant for the
packing and interstate transportation of household goods from
Connecticut to Oregon. See Pl.'s Compl. ¶
2; see also Def.'s Mot. Dismiss 2. As a result,
the Secretary of Transportation and the Surface
Transportation Board have jurisdiction over the contract
pursuant to 49 U.S.C. § 13501(1)(A), which states that
“the Secretary and the Board have jurisdiction . . .
over transportation by motor carrier . . . to the extent that
passengers, property, or both, are transported by motor
carrier . . . between a place in . . . a State and a place in
another State.” Defendant is a “household goods
motor carrier” as defined by 49 U.S.C. §
13102(12). Therefore, Plaintiff's claim falls under 49
U.S.C. § 14706, also known as the “Carmack
Amendment” to the Interstate Commerce Act.
United States Supreme Court ruled that the Carmack Amendment
covers “the subject of the liability of the carrier
under a bill of lading . . . 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 Co. v.
Croninger, 226 U.S. 491, 505-06 (1913). Accordingly,
“[i]t is well-settled that the Carmack Amendment is the
exclusive cause of action for interstate-shipping contract
claims alleging loss or damage to property.” Hall
v. N. Am. Van Lines, Inc., 476 F.3d 683, 687 (9th Cir.
2007). The Ninth Circuit has held that claims for
“general negligence” are also barred, even if
they are not completely preempted by the Carmack Amendment.
See White v. Mayflower Transit, LLC, 543 F.3d 581,
584-85 (9th Cir. 2008) (citing Hall, 476 F.3d at
Plaintiff brings a claim for damages “based on tort or
contract.” Pl.'s Compl. 1. Based on the facts
alleged in the Complaint, any potential tort action would be
one for general negligence. See Pl.'s Compl.
¶¶ 2-4. Whether Plaintiff couches his claim under
tort law or contract law, the Carmack Amendment clearly bars
Plaintiff's claim against Defendant. Therefore, Plaintiff
has failed to state a claim upon which relief may be granted.
argues that dismissal with prejudice is appropriate.
Def.'s Mot. Dismiss 1. However, it may be possible for
Plaintiff to amend the Complaint to properly allege facts
sufficient to state a claim under the Carmack Amendment.
Therefore, Plaintiff is granted 14 days to file an amended
complaint. That said, this Court notes that Plaintiff faces
an uphill battle. In order to properly amend the claim to
fall under the Carmack Amendment, Plaintiff must allege not