United States District Court, S.D. Texas, Houston Division
Ross Biesemeyer, Leah Biesemeyer, and NRG Energy, Inc., Plaintiffs,
Plus Relocation Services, Inc., Defendant.
MEMORANDUM OPINION AND ORDER
before the court is defendant Plus Relocation Services,
Inc.'s (“Plus”) Rule 12(c) motion for
judgment on the pleadings. Dkt. 20. Plaintiffs Ross
Biesemeyer, Leah Biesemeyer, and NRG Energy, Inc.
(“NRG”) (collectively, “Plaintiffs”)
responded. Dkt. 21. Plus replied. Dkt. 22. Having considered
the motion, response, reply, amended complaint, and
applicable law, the court is of the opinion that Plus's
motion (Dkt. 20) should be GRANTED in part and DENIED in
point before Hurricane Harvey, Ross Biesemeyer, an employee
of NRG, and his wife, Leah Biesemeyer were relocated from
Mesa, Arizona to Houston, Texas. Dkt 18 at 3. NRG and
defendant Plus had a contractual agreement
(“Agreement”) wherein Plus made domestic moving
arrangements for NRG's employees. Id. at 6. Plus
selected Suddath Van Lines, Inc., Suddath Relocation Systems
of Arizona, LLC, and Suddath Relocation Systems of Houston,
Inc. (collectively, “Suddath”) to transport the
goods. Id. at 2-4. Plus also counseled the
Biesemeyers on executing their Bill of Lading with Suddath.
Id. at 3-4. The Biesemeyers, relying on Plus's
counsel, executed a Bill of Lading with a declared value of
$5.00/lb. Id. at 4. Suddath then transported the
Biesemeyers' belongings to Houston and stored them in
Suddath's warehouse facility. Id.
Hurricane Harvey hit. Id. During the storm, the
warehouse roof caved in. Id. The Biesemeyers'
property was damaged. Id. NRG paid the Biesemeyers
approximately $110, 000 to compensate them for the value of
the loss of their personal belongings. Id. The
Biesemeyers then assigned their rights for claims against
Suddath and Plus (collectively, “Defendants”) to
NRG. Id. at 5.
September 28, 2018, plaintiffs filed their complaint against
Defendants alleging that Defendants violated the Carmack
Amendment and that this court thus has federal question
jurisdiction. Dkt. 1. Plus filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) on November 30,
2018. Dkt. 8. Before any defendant answered, plaintiffs and
defendants reached a tentative settlement, and the court
conditionally dismissed the case on that basis. Dkt. 11.
However, the settlement agreement was never committed to
writing between plaintiffs and Plus. See Dkts.
15-17. Plaintiffs did effectuate the settlement with Suddath,
and the court dismissed all of the Suddath entities from the
case. Dkt. 15, 17. The court reinstated the claims against
Plus on April 22, 2019. Dkt. 17.
thereafter, on May 22, 2019, plaintiffs amended their
complaint and specified five causes of action against Plus.
See Dkt. 18. The causes of action are (1) a Carmack
Amendment claim, (2) breach of the Agreement for failing to
provide services in proper manner; (3) breach of the
Agreement by failing to indemnify; (4) breach of the
settlement agreement; and (5) for negligent services under
the Agreement. Dkt. 18 at 3-8. Plus answered the amended
complaint. Dkt. 19. Then, Plus made the present Fed.R.Civ.P.
12(c) motion for judgment on the pleadings and asked the
court to dismiss all five causes of action. Dkt. 20.
Plaintiffs responded. Dkt. 21. And Plus replied. Dkt. 22.
“evaluate a motion under Rule 12(c) for judgment on the
pleadings using the same standard as a motion to dismiss
under Rule 12(b)(6) for failure to state a claim.”
Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir.
2010). In considering a Rule 12(b)(6) motion, courts
generally must accept the factual allegations contained in
the complaint as true. Kaiser Aluminum & Chem. Sales,
Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050
(5th Cir. 1982). The court does not look beyond the face of
the pleadings in determining whether the plaintiff has stated
a claim under Rule 12(b)(6). Spivey v. Robertson,
197 F.3d 772, 774 (5th Cir. 1999).
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, [but] a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires 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 (citations omitted). The
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
The supporting facts must be plausible-enough to raise a
reasonable expectation that discovery will reveal further
supporting evidence. Id. at 556. “Ultimately,
the question for a court to decide is whether the complaint
states a valid claim when viewed in the light most favorable
to the plaintiff.” NuVasive, Inc. v. Renaissance
Surgical Ctr., 853 F.Supp.2d 654, 658 (S.D. Tex. 2012).
Carmack Amendment Claim
first argues that plaintiffs' Carmack Amendment claim
fails to state a claim upon which relief may be granted. Dkt.
20. The Carmack Amendment, enacted in 1906 as an amendment to
the Interstate Commerce Act of 1887, now codified in
pertinent part at 49 U.S.C. § 14706 et seq.,
governs the liability of carriers for goods lost or damaged
during the interstate shipment of property. See 49
U.S.C. § 14706(a) (addressing liability of motor
carriers). Under the Amendment, a shipper may recover for the
actual losses resulting from damage to property caused by any
of the interstate carriers involved in the shipment.
See 49 U.S.C. § 14706. As such, the Carmack
Amendment only provides a cause of action against carriers.
49 U.S.C. § 14706(d) (civil actions may be brought
against “carriers” or “delivering
carriers”). The term “carrier” means
“a motor carrier, a water carrier, and a freight
forwarder.” Id. at § 13102(3). A
“motor carrier” is a “a person providing
motor vehicle transportation for compensation.”
Id. at § 13102(14). A freight forwarder is a:
person holding itself out to the general public (other than
as a pipeline, rail, motor, or water carrier) to provide
transportation of property for compensation and in the
ordinary course of its business-
(A) assembles and consolidates, or provides for assembling
and consolidating, shipments and performs or provides for
break-bulk and ...