United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
GREN SCHOLER, UNITED STATES DISTRICT JUDGE
Order addresses the Second Motion to Dismiss filed by
Defendants North American Van Lines, Inc. ("NAVL"),
and Burgess North American ("Burgess")
(collectively, "Defendants") [ECF No. 11], For the
following reasons, the Motion is granted in part and denied
about June 4, 2015, Defendants provided Plaintiff Benny
Barton ("Plaintiff) with an Estimate and Order for
Service form ("Estimate") for the shipment of more
than eighty antique items and home furnishings
("Goods"). Am. Compl. ¶ 11. Defendants
estimated that it would cost $53, 882.61 to ship the Goods
from Indian Wells, California, to Dallas, Texas. Id.
The Estimate included maximum value protection of the Goods
at $800, 000 and stated, "You will select the liability
level later, on the bill of lading (contract) for your
about June 5, 2015, Defendants moved the Goods to their local
storage facility in or around Indian Wells. Id.
¶ 12. On January 22, 2016, a Burgess representative told
Plaintiff that it would ship the Goods to All Points
Pioneer in Grand Prairie, Texas. Id.
¶ 13. On March 1, 2016, Defendants sent Plaintiff an
invoice requesting payments for transportation services,
insurance, packing services, crating services, and storage
services. Id. ¶ 14. Plaintiff allegedly did not
receive a bill of lading at this time, Id. ¶
15, On or about March 2, 2016, the Goods were shipped and
temporarily stored at All Points Pioneer's warehouse in
Grand Prairie. Id. ¶ 16. According to
Plaintiff, the Goods were kept in storage as
"storage-in-transit or temporary storage."
Id. ¶ 17.
about July 3, 2017, the Goods were shipped from the warehouse
to Plaintiffs showroom in Farmers Branch, Texas, Id.
¶ 18. When Plaintiff took delivery of the Goods,
Plaintiff allegedly discovered that they were damaged.
Id. ¶ 19. Plaintiff took inventory and
identified those damages that were readily ascertainable.
Id. On August 22, 2017, All Points Pioneer informed
Plaintiff that he had ninety days from the date of delivery
to submit a claim via the company's claim form,
Id. ¶ 20. On or about September 11, 2017, East
Fork Enterprises, Inc., gave Plaintiff a quote to repair the
Goods for $84, 168, 75. Id. ¶ 22, On September
20, 2017, Plaintiff submitted his claims for the damage.
Id. ¶ 23. On September 21, 2017, All Points
Pioneer confirmed receipt of the claims. Id. ¶
24. About a month later, All Points Pioneer informed
Plaintiff that its policy is to forward claims to NAVL for
its portion related to the move and storage. Id.
¶ 25. On October 27, 2017, All Points Pioneer forwarded
Plaintiffs claims to NAVL, Id.
January 25, 2018, Plaintiff inquired into the status of his
claims with All Points Pioneer and NAVL. Id. ¶
26. On February 2, 2018, Plaintiff received a letter from
NAVL stating that the Goods had been converted to
"permanent storage." Id. ¶ 27. The
letter was postmarked January 29, 2018. Id. NAVL
then denied Plaintiffs claims, asserting that Plaintiff
failed to make a claim within nine months of the date the
Goods were converted to permanent storage. Id.
brought suit in state court, alleging various state-law
claims. On November 19, 2018, former defendant Burgess North
American Palm Springs Corporation removed the case to this
Court. See ECF No. 1. On November 29, 2018, Burgess
and NAVL moved to dismiss the claims against them.
See ECF No. 4. On December 20, 2018, Plaintiff filed
the Amended Complaint, dropping the state-law claims and
instead alleging violations of the Carmack Amendment to the
Interstate Commerce Act, 49 U.S.C. § 14706. On January
2, 2019, Defendants filed the Second Motion to Dismiss.
defeat a motion to dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6), a plaintiff must plead "enough
facts to state a claim to relief that is plausible on its
face." Bell Ail. Corp. v. Twombly, 550 U.S.
544, 570 (2007); Reliable Consultants, Inc. v.
Earle, 517 F.3d 738, 742 (5th Cir. 2008). To meet this
"facial plausibility" standard, a plaintiff must
"plead 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). Plausibility does not require
probability, but a plaintiff must establish "more than a
sheer possibility that a defendant has acted
unlawfully." Id. The court must accept
well-pleaded facts as true and view them in the light most
favorable to the plaintiff. Sonnier v. State Farm Mut.
Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007).
However, the court does not accept as true "conclusory
allegations, unwarranted factual inferences, or legal
conclusions." Ferrer v. Chevron Corp., 484 F.3d
776, 780 (5th Cir. 2007) (citation omitted), A plaintiff must
provide "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555
(internal citations omitted). "Factual allegations must
be enough to raise a right to relief above the speculative
level ... on the assumption that all the allegations in the
complaint are true (even if doubtful in fact)."
Id. (internal citations omitted).
ultimate question is whether the complaint states a valid
claim when viewed in the light most favorable to the
plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002). At
the motion to dismiss stage, the court does not evaluate the
plaintiffs likelihood of success. It only determines whether
the plaintiff has stated a claim upon which relief can be
granted. Mann v. Adams Realty Co., 556 F.2d 288, 293
(5th Cir. 1977).
property transported by common carriers is damaged, claims
arising out of such damage are controlled by the Carmack
Amendment and Interstate Commerce Commission regulations.
Landess v. N. Am. Van Lines, Inc.,977 F.Supp. 1274,
1278 (E.D. Tex. 1997) (citing, among other things, 49 U.S.C.
§ 11707; 49 C.F.R. §§ 1005.1-.7).
"Carriers may contractually limit the time for filing
claims; however, this limit cannot be less than nine
months." Salzstein v. Bekins Van Lines Inc.,
993 F.2d 1187, 1189 (5th Cir. 1993) (citing 49 U.S.C. §
11707(e)). This time limit is not a statute of limitations.
Landess, 977 F.Supp. at 1278 (citing State Farm
Fire & Cas. v. United Van Lines,825 F.Supp. 896,
901 (N.D. Cal. 1993)). However, "[s]trict compliance
with claim filing provisions is a 'mandatory condition
precedent to recovery on a ...