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Biesemeyer v. Plus Relocation Services, Inc.

United States District Court, S.D. Texas, Houston Division

October 8, 2019

Ross Biesemeyer, Leah Biesemeyer, and NRG Energy, Inc., Plaintiffs,
Plus Relocation Services, Inc., Defendant.


         Pending 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 part.

         I. Background

         At some 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.

         Then 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.

         On 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.

         Shortly 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.

         II. Legal Standard

         Courts “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).

         “[A] 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).

         III. Analysis

         A. Carmack Amendment Claim

         Plus 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.[1] 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 ...

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