Thompson Tractor Co Inc v. Daily Express Inc

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

THOMPSON TRACTOR CO. INC., )

)

Plaintiff, )

)

v. ) Case No. 2:20-cv-02210

)

DAILY EXPRESS INC., )

)

Defendant. )

ORDER & OPINION

This matter is before the Court on a Motion to Dismiss under Federal Rules of

Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6) and, alternatively, to transfer venue

under 28 U.S.C. § 1404(a) filed by Defendant Daily Express, Inc. (Docs. 6, 7). Plaintiff

Thompson Tractor Co., Inc., has responded (docs. 12, 13), so the Motion is ripe for

review. For the following reasons, the Motion is denied.

BACKGROUND1

In May 2019, Plaintiff, an Alabama corporation, agreed to deliver an

industrial-grade generator manufactured by Caterpillar to a purchaser and solicited

Defendant, a Pennsylvania corporation, to transport the generator from Caterpillar’s

facility in East Peoria, Illinois, to the purchaser’s jobsite in Huntsville, Alabama.

(Doc. 1 at 2; Doc. 3). On May 20, 2019, one of Defendant’s employees received the

generator at the Caterpillar facility in good working order and condition, but when

1 The facts in this section are derived from the Complaint and the attached exhibit

and taken as true at this stage of the proceedings.

the generator arrived at the Alabama jobsite, it was damaged to the tune of

$202,631.66. (Doc. 1 at 2). Plaintiff therefore filed the instant Complaint, alleging a

violation of the Carmack Amendment, 49 U.S.C. § 14706, breach of bailment, and

breach of contract. (Doc. 1 at 2–3).

DISCUSSION

Defendant makes many challenges to the Complaint under Rule 12, including

challenges to jurisdiction, venue, and factual sufficiency. In the alternative,

Defendant seeks a change in venue, invoking 28 U.S.C. § 1404(a). The Court will

address each argument in turn.

I. Jurisdiction

First and foremost, the Court must ensure jurisdiction lies.

A. General Jurisdiction

Defendant’s argument about general jurisdiction is puzzling because it is

unclear what exactly it is challenging. To the extent it challenges the Court’s subject

matter jurisdiction, the Complaint states subject matter jurisdiction lies under 28

U.S.C. § 1331 (“[D]istrict courts shall have original jurisdiction of all civil actions

arising under the . . . laws . . . of the United States.”). (Doc. 1 at 1). Section 1331

confers federal question jurisdiction, and Count I of the Complaint alleges a violation

of federal law: the Carmack Amendment, 49 U.S.C. § 14706. In addition, 28 U.S.C. §

1337 confers subject matter jurisdiction “of an action brought under section . . . 14706

of title 49 . . . if the matter in controversy for each receipt or bill of lading exceeds

$10,000, exclusive of interest and costs.” As stated, Count I is brought under § 14706,

and the amount in controversy exceeds $10,000 (see doc. 1 at 3). Finally, the Carmack

Amendment itself states: “A civil action under this section may be brought in a United

States district court or in a State court.” § 14706(d)(3). In sum, the Court’s subject

matter jurisdiction is sound.2

To the extent Defendant’s argument challenges this Court as a proper forum

(see doc. 7 at 3 (discussing the Carmack Amendment’s special venue provisions in §

14706(d))), such an argument goes to the question of venue, not jurisdiction. See

Arthur R. Miller, 14D Fed. Prac. & Proc. Juris. § 3801 (4th ed. 2019) (“[S]ubject

matter jurisdiction addresses whether a dispute may be heard by a federal court at

all. If so, venue then determines which federal court—usually meaning which federal

district—should hear the case.”).

B. Personal Jurisdiction

Next, Defendant cursorily challenges personal jurisdiction. (Doc. 7 at 4).

Defendant acknowledges the shipment at issue originated in this judicial district but

contends that is insufficient to establish “ ‘regular and systematic contacts’ with the

State of Illinois.” (Doc. 7 at 4).

1. Legal Standard

Once a defendant challenges personal jurisdiction, the plaintiff bears the

burden of demonstrating personal jurisdiction lies. Curry v. Revolution Labs., LLC,

949 F.3d 385, 392 (7th Cir. 2020). “The precise nature of the plaintiff’s burden

depends upon whether an evidentiary hearing has been held.” Id. (quoting Purdue

2 For the reasons discussed in Part III(C), infra, subject matter jurisdiction as to

Plaintiff’s state-law breach of bailment and breach of contract claims need not be

addressed.

Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003)).

Where, as here, the district court declines to hold an evidentiary hearing on the issue

of personal jurisdiction, “the plaintiff bears only the burden of making a prima facie

case for personal jurisdiction.” Id. (quoting uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d

421, 423 (7th Cir. 2010)). Further, the plaintiff’s allegations are taken as true and

factual disputes are resolved in the plaintiff’s favor. uBID, 623 F.3d at 423–24.

“In a case involving federal question jurisdiction, a federal court has personal

jurisdiction over the defendant if either federal law or the law of the state in which

the court sits authorizes service of process to that defendant.” Curry, 949 F.3d at 393

(internal quotation marks omitted). As the Carmack Amendment does not itself

authorize service of process, the Court “may exercise jurisdiction over [the defendant]

in this case only if authorized both by Illinois law and by the United States

Constitution.” Id. (quoting be2 LLC v. Ivanov, 642 F.3d 555, 558 (7th Cir. 2011)). The

Illinois long-arm statute, 735 ILCS 5/2-209(c), “permits the exercise of jurisdiction to

the full extent permitted by the Fourteenth Amendment’s Due Process Clause.” Id.

(internal quotation marks omitted). So, the instant question is “whether the exercise

of personal jurisdiction over [Defendant] comports with the limits imposed by federal

due process.” Id. (internal quotation marks omitted).

“Due process requires that a defendant be haled into court in a forum State

based on his own affiliation with the State, not based on the random, fortuitous, or

attenuated contacts he makes by interacting with other persons affiliated with the

State.” Walden v. Fiore, 571 U.S. 277, 286 (2014) (internal quotation marks omitted);

see also Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement,

326 U.S. 310, 316 (1945). Since its seminal decision in International Shoe, the

Supreme Court has “recognized two types of personal jurisdiction: ‘general’

(sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-

linked’) jurisdiction.” Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty.,

137 S. Ct. 1773, 1779–80 (2017). Plaintiff argues specific personal jurisdiction lies in

this case (doc. 13 at 4–5), and as Plaintiff notes, Defendant’s argument fails to account

for the possibility of specific jurisdiction (see doc. 7 at 4).

To invoke specific personal jurisdiction, “there must be ‘an affiliation between

the forum and the underlying controversy, principally, [an] activity or an occurrence

that takes place in the forum State and is therefore subject to the State’s

regulation.’ ” Id. (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011)) (alterations in original). Supreme Court precedent has established

three “essential requirements” to exercise specific personal jurisdiction:

First, the defendant’s contacts with the forum state must show that it

“purposefully availed [itself] of the privilege of conducting business in

the forum state or purposefully directed [its] activities at the state.

Second, the plaintiff’s alleged injury must have arisen out of the

defendant’s forum-related activities. And finally, any exercise of

personal jurisdiction must comport with traditional notions of fair play

and substantial justice.

Curry, 949 F.3d at 398 (quoting Lexington Ins. Co. v. Hotai Ins. Co., Ltd., 938 F.3d

874, 878 (7th Cir. 2019)) (alterations in original).

2. Specific Personal Jurisdiction Lies

This case involves a straightforward application of the rules for specific

personal jurisdiction. Defendant—whose advertisements state it serves the freight

regions of Illinois, Iowa, Southeast Missouri and Southwest Indiana—agreed to

transport a generator located in East Peoria, Illinois. (Docs. 1 at 2; 13 at 5–6). It then

dispatched an employee (seemingly from Kentucky (see doc. 13 at 9)) to receive and

load the generator in East Peoria and then transport it from East Peoria to

Huntsville, Alabama. (Docs. 1 at 2; 3). These contacts demonstrate Defendant

directed its activities at this state and purposefully availed itself of the privilege of

conducting business within this judicial district.3 Schwarz v. Nat’l Van Lines, Inc.,

317 F. Supp. 2d 829, 835 (N.D. Ill. 2004) (finding sufficient contacts with the forum

where the defendants “accepted the business of transporting [the plaintiff’s]

belongings out of the forum” and then “entered the [forum] to pick up [the plaintiff’s]

belongings”); Walden v. Fiore, 571 U.S. 277, 285 (2014) (“[A]lthough physical presence

in the forum is not a prerequisite to jurisdiction, physical entry into the State—either

by the defendant in person or through an agent, goods, mail, or some other means—

is certainly a relevant contact.” (internal citation omitted)). Indeed, having physically

entered this judicial district to transport goods from this state, Defendant cannot

reasonably expect not to be subject to regulations here.

3 Defendant cites Starr Indemnity & Liability Co. v. Luckey Logistics, Inc., No. 1:16-

CV-01377, 2017 WL 2466505, at *2 (C.D. Ill. June 7, 2017), for the proposition that a

general allegation the defendant corporation operates in the forum is insufficient to

establish personal jurisdiction. (Doc. 7 at 4). However, where, as here, the plaintiff

identifies specific contacts with the forum which demonstrate the defendant

corporation has directed its activities at the forum and purposefully availed itself of

the privilege of conducting business in the forum, personal jurisdiction may lie. See

Curry, 949 F.3d at 398. The plaintiff in Starr failed to make any such allegations.

2017 WL 2466505, at *2 (“However, Plaintiff has not alleged that Defendant Affton

operates in the Central District of Illinois.”).

Furthermore, Plaintiff’s injury, as alleged, clearly arose from Defendant’s

forum-related activities, namely its receipt and transport of the generator in and from

East Peoria. That it is unclear where exactly the generator was damaged is of no

moment; had Defendant not agreed to transport the generator from East Peoria, the

generator could not have been damaged while in its care.

Finally, exercising personal jurisdiction over Defendant “does not offend

traditional notions of fair play and substantial justice,” International Shoe, 326 U.S.

at 316. “[A]s long as the plaintiff has made a threshold showing of minimum contacts,

that showing is generally defeated only where the defendant presents a compelling

case that the presence of some other considerations would render jurisdiction

unreasonable.” Curry, 949 F.3d at 402. Defendant has not made this showing. Though

not headquartered in Illinois, Defendant holds itself out as conducting its

transportation business in Illinois, a business which requires physical presence in

Illinois every time it accepts a contract transporting cargo originating in Illinois. And

its actual, physical presence here in connection with the shipment at issue justifiably

exposes it to, at the very least, specific personal jurisdiction. Burnham v. Superior

Court of Cal., Cty. of Marin, 495 U.S. 604, 619 (1990) (“The short of the matter is that

jurisdiction based on physical presence alone constitutes due process because it is one

of the continuing traditions of our legal system that define the due process standard

of traditional notions of fair play and substantial justice.” (internal quotation marks

omitted)). As in Curry, 949 F.3d at 402, and Illinois v. Hemi Group LLC, 622 F.3d

754, 760 (7th Cir. 2010), Defendant “wants to have its cake and eat it, too: it wants

the benefit of a [regional] business model with none of the exposure.” Personal

jurisdiction lies.

II. Motion to Dismiss under Rule 12(b)(3) – Venue

Defendant next argues venue is not proper in this district. (Doc. 7 at 4–8).

Elsewhere in its Motion, Defendant argues the court lacks jurisdiction based on the

Carmack Amendment’s special venue provisions (doc. 7 at 2–4), which the Court also

interprets as a venue challenge. Plaintiff argues venue is proper under both the

Carmack Amendment and the general venue statute, 28 U.S.C. § 1391. (Doc. 13 at 6–

8).

A. Carmack Amendment Venue Provisions

The Carmack Amendment contains certain special venue provisions:

(1) Against delivering carrier. A civil action under this section may be

brought against a delivering carrier in a district court of the United

States or in a State court. Trial, if the action is brought in a district court

of the United States is in a judicial district, and if in a State court, is in

a State through which the defendant carrier operates.

(2) Against carrier responsible for loss. A civil action under this section

may be brought against the carrier alleged to have caused the loss or

damage, in the judicial district in which such loss or damage is alleged

to have occurred.

49 U.S.C. § 14706(d)(1)–(2). “The basic thrust of these provisions is that the

operations of the carrier or the locus of the injury, not the residence or place of

business of the plaintiff, determines where a plaintiff may sue.” Winona Foods, Inc.

v. Timothy J. Kennedy, Inc., No. 07-C-1003, 2008 WL 2570600, at *4 (E.D. Wis. June

26, 2008).

According to Defendant, the Complaint is deficient because it does not specify

whether it is being sued as a delivering carrier or a carrier responsible for loss. (Doc.

7 at 2–4). The Complaint alleges Defendant was contracted to transport a generator

from East Peoria, Illinois, to its destination in Huntsville, Alabama, and that it is

responsible for damage the generator allegedly incurred along the way. (Doc. 1 at 2).

The Court does not read the absence of a specific allegation as to whether there were

other carriers involved as an oversight; rather, the absence, when taken with the

remainder of the Complaint, simply indicates no other carrier was involved. Indeed,

the Complaint alleges: “Defendant failed to deliver the Generator in the same good

order and condition in which it was received by Defendant.” (Doc. 1 at 2 (emphasis

added)). Moreover, the bill of lading, attached as an exhibit to the Complaint,

indicates the same person, Dan Gladu, onloaded and offloaded the generator. (Doc.

3). These allegations clearly indicate Defendant was the delivering carrier. See S.C.

Johnson & Son, Inc. v. Louisville & Nashville R. Co., 695 F.2d 253, 256 (7th Cir. 1982)

(noting the delivering carrier is the “carrier delivering the goods to the final

destination”).

As Defendant was undoubtedly the delivering carrier, the Carmack

Amendment permits venue in any judicial district “through which the defendant

carrier operates.” § 14706(d)(1). Defendant clearly operated within this judicial

district when it entered this district, loaded and received the generator, and then

transported it through and out of this district. See Ponce De Leon Hosp. Corp. v.

Avalon Logistics, Inc. 117 F. Supp. 3d 124, 130 (D.P.R. 2015) (finding venue proper

under § 14706(d)(1) when the carrier transported the goods at issue through the

district); Donaldson Tech. Grp. LLC. v. Landstar Ranger, Inc., 347 F. Supp. 2d 525,

527 (S.D. Ohio 2004) (stating venue would be proper under § 14706(d)(1) in a district

though which the carrier passed while delivering the goods at issue). Thus, venue is

proper under § 14706(d)(1).

B. General Venue Provisions

Plaintiff further argues venue is proper under 28 U.S.C. § 1391, the general

venue statute. The undersigned previously held the Carmack Amendment’s special

venue provisions are permissive, not restrictive, meaning the Carmack Amendment’s

special venue provisions merely supplement our general venue statute. Starr, 2017

WL 2466505, at *3–*4. A plaintiff may therefore establish venue under § 1391

regardless of whether the forum is permissible under the Carmack Amendment. Id.

Section 1391(b)(1) permits venue in “a judicial district in which any defendant

resides, if all defendants are residents of the State in which the district is located[.]”

For purposes of venue under this chapter, in a State which has more

than one judicial district and in which a defendant that is a corporation

is subject to personal jurisdiction at the time an action is commenced,

such corporation shall be deemed to reside in any district in that State

within which its contacts would be sufficient to subject it to personal

jurisdiction if that district were a separate State[.]

§ 1391(d). As there is one Defendant in this action and as the State of Illinois contains

three judicial districts, venue is proper in this district if Defendant’s “contacts would

be sufficient to subject it to personal jurisdiction if [the Central District of Illinois]

were a separate State.” Id. The Court has concluded personal jurisdiction lies, and all

contacts with the State of Illinois used to make that determination were contacts

within this judicial district. See Part I(b)(2) infra. Accordingly, venue is also proper

under § 1391(b)(1).

III. Motion to Transfer Venue under 28 U.S.C. § 1404(a)

Alternative to its motion to dismiss for improper venue, Defendant asks the

Court to transfer venue to the Middle District of Pennsylvania. (Doc. 7 at 8–13).

Congress partially codified the common law forum non conveniens doctrine in

§ 1404(a), which states: “For the convenience of parties and witnesses, in the interest

of justice, a district court may transfer any civil action to any other district or division

where it might have been brought or to any district or division to which all parties

have consented.” See also Mueller v. Apple Leisure Corp., 880 F.3d 890, 894 (7th Cir.

2018) (“[Section] 1404(a) is merely a codification of the doctrine of forum non

conveniens for the subset of cases in which the transferee forum is within the federal

court system; in such cases, Congress has replaced the traditional remedy of outright

dismissal with transfer.” (internal quotation marks omitted)). Faced with a motion to

transfer venue under § 1404(a), a district court “must evaluate both the convenience

of the parties and various public-interest considerations.” In re Ryze Claims Sols.,

LLC, 968 F.3d 701, 708 (7th Cir. 2020) (quoting Atl. Marine Const. Co. v. U.S. Dist.

Court for W. Dist. of Texas, 571 U.S. 49, 62 (2013)).

A. Propriety of Venue in Transferee Court

Defendant asks the Court to transfer this case to the Middle District of

Pennsylvania, the district within which it is headquartered.4 As the location where

Defendant is organized and headquartered, the Middle District of Pennsylvania

would be a proper venue under §§ 1391(b)(1), (d).5 Plaintiff does not appear to dispute

this fact. (See doc. 13 at 7–10).

B. Convenience of the Parties and Witnesses

“With respect to the convenience evaluation, courts generally consider the

availability of and access to witnesses[ ] and each party’s access to and distance from

resources in each forum[; o]ther related factors include the location of material events

and the relative ease of access to sources of proof.” Research Automation, Inc. v.

Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (citations omitted).

Additionally, a plaintiff’s choice of forum is typically entitled to great weight. Deb v.

SIRVA, Inc., 832 F.3d 800, 806 (7th Cir. 2016) (quoting Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 508 (1947) (“[U]nless the balance is strongly in favor of the defendant, the

plaintiff’s choice of forum should rarely be disturbed.”)). “When a plaintiff’s choice is

not his home forum, however, the presumption in the plaintiff’s favor ‘applies with

less force,’ for the assumption that the chosen forum is appropriate is in such cases

4 Defendant also identifies the Northern District of Alabama as a potential transferee

court but makes no argument this case ought to be transferred there. (Doc. 7 at 8–

13).

5 Defendant’s choice of venue is noteworthy given its insistence this Court lacks

“general jurisdiction,” read: is an improper venue, under the Carmack Amendment.

(Doc. 7 at 3). Were the Court to accept Defendant’s flawed analyses, the Middle

District of Pennsylvania would likewise not be a proper venue because the loss could

not possibly have occurred there.

‘less reasonable.’ ” Id. (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 U.S. 422, 430 (2007)). This assumption is due to the “risk that the chosen forum

really has little connection to the litigation.” Id. (internal quotation marks omitted).

This district is not Plaintiff’s home forum, as Plaintiff is headquartered in

Alabama. However, this district has significant connections to the controversy at

hand. Not only did the shipment at issue originate here, but when the damage to the

generator was discovered by the purchaser, it was shipped back to this district to be

inspected, repaired, and reshipped to the purchaser. (Doc. 13 at 9). A “substantial

amount” of Plaintiff’s witnesses work or reside in this district. (Id.). Accordingly, the

reasons to mitigate the weight afforded to Plaintiff’s choice of a forum other than its

home forum do not apply to this case, and the Court therefore affords great weight to

Plaintiff’s choice, which also happens to be the most convenient forum for many, if

not most, of its witnesses.

Similarly, this forum appears to be more convenient to Defendant’s arguably

most important witness: the individual responsible for loading, transporting, and

delivering the generator. This individual allegedly resides not in Pennsylvania but in

Caneyville, Kentucky, which is significantly closer to this district than the Middle

District of Pennsylvania. (Doc. 13 at 9).

While the Court is sympathetic to the fact this district may not be the most

convenient forum for all witnesses—specifically, Plaintiff’s and Defendant’s expected

corporate witnesses who are located in Alabama and Pennsylvania, respectively—the

Court does not find the distance unduly burdensome. See Bd. of Trustees, Sheet Metal

Workers’ Nat. Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1037 (7th Cir. 2000)

(“Easy air transportation, the rapid transmission of documents, and the abundance

of law firms with nationwide practices, make it easy these days for cases to be

litigated with little extra burden in any of the major metropolitan areas.”). While

Peoria is by no means a major metropolitan area, Defendant acknowledges there is

air service between Harrisburg, Pennsylvania,6 and Peoria. Further, it appears much

of the evidence will be documentary, so the sources of proof can easily be exchanged

via mail and/or electronic methods. And, as Plaintiff notes, it is possible to conduct

depositions in locations more convenient to the witnesses.

Though the burden lies with Defendant, Plaintiff has demonstrated its choice

of forum, already entitled to significant weight, is the most convenient forum for it

with regard to this case; to transfer this case to the Middle District of Pennsylvania

would be to “merely transform[ ] an inconvenience for one party into an inconvenience

for the other party,” Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995),

which Defendant recognizes is improper (see doc. 7 at 12). The privilege of conducting

business in multiple states carries with it the risk of being haled into court outside

one’s home forum.

C. Interests of Justice

The “interests of justice prong” requires consideration of several factors,

including “docket congestion and likely speed to trial in the transferor and potential

transferee forums, each court’s relative familiarity with the relevant law, the

6 According to Google Maps, Harrisburg is an approximately 30-minute drive from

Defendant’s headquarters in Carlisle, Pennsylvania.

respective desirability of resolving controversies in each locale, and the relationship

of each community to the controversy.” Ryze, 968 F.3d at 708 (internal quotation

marks omitted).

Based on Defendant’s submission (doc. 7 at 12–14), considerations of docket

congestion, speed to trial in the transferor and potential transferee forums, and each

court’s relative familiarity with the relevant law do not tip the scales in favor of either

venue. The average amount of time between filing to disposition is nearly the same

for both the Central District of Illinois and the Middle District of Pennsylvania;

similarly, the districts appear to be equally familiar with the relevant law.

As discussed above, this district has significant ties to the controversy, whereas

the only tie the Middle District of Pennsylvania has to this controversy is Defendant’s

residency there. While documents related to the shipment are undoubtedly housed at

Defendant’s headquarters, no actual event related to Plaintiff’s claim occurred there,

rendering this district’s relationship to the controversy stronger. As this district has

a stronger relationship to the controversy, it makes more sense to resolve the case in

this forum than in the Middle District of Pennsylvania.

D. Summation

The relevant considerations overwhelmingly favor this forum over the Middle

District of Pennsylvania. Consequently, Plaintiff’s request to transfer venue

pursuant to § 1404(a) must be denied.

IV. Motion to Dismiss under Rule 12(b)(6)

Lastly, Defendant argues Plaintiff has failed to state a claim upon which relief

can be granted.

A. Legal Standard

To survive dismissal pursuant to Rule 12(b)(6), the complaint must contain a

short and plain statement of the plaintiff’s claim sufficient to plausibly demonstrate

entitlement to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–57 (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). A

plaintiff is not required to anticipate defenses or plead extensive facts or legal

theories; rather, the complaint must merely contain enough facts to present a story

that holds together. Twombly, 550 U.S. at 570; Swanson v. Citibank, N.A., 614 F.3d

400, 404 (7th Cir. 2010). The Seventh Circuit has consistently noted the essential

function of Rule 8(a)(2) is to put the defendant on notice. Divane v. Nw. Univ., 953

F.3d 980, 987 (7th Cir. 2020) (“A complaint must give the defendant fair notice of

what . . . the claim is and the grounds upon which it rests.” (internal quotation marks

omitted)).

On review of a Rule 12(b)(6) motion, the Court construes the complaint in the

light most favorable to the plaintiff. United States ex rel. Berkowitz v. Automation

Aids, Inc., 896 F.3d 834, 839 (7th Cir. 2018). This means the Courts accepts all well-

pleaded factual allegations as true and draws all reasonable inferences from those

facts in favor of the plaintiff. Id. Allegations that are, in reality, legal conclusions are

not taken as true and cannot survive a Rule 12(b)(6) challenge. McReynolds v. Merrill

Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012).

B. Carmack Amendment Claim

Count I of Plaintiff’s Complaint alleges a claim under the Carmack

Amendment. Defendant argues this claim is deficient because the Complaint does not

contain allegations evincing a written claim regarding the alleged damage prior to

the initiation of the instant lawsuit; according to Defendant, such a claim is a

condition precedent to a lawsuit. (Doc. 7 at 15–16).

The Carmack Amendment was enacted to cure “a number of maladies that had

afflicted the market for the interstate shipment of goods.” REI Transp., Inc. v. C.H.

Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008). It “created a nationally

uniform rule of carrier liability concerning interstate shipments. Since its enactment,

a carrier of an interstate shipment is liable to the person entitled to recover under

the receipt or bill of lading, plain and simple.” Id. (internal quotation marks omitted).

To prevail on a claim under the Carmack Amendment, a plaintiff must ultimately

prove “(1) delivery in good condition; (2) arrival in damaged condition; and (3) the

amount of damages” before “the burden shifts to defendant to show both that it was

free from negligence and that the damage to the cargo was due to one of the excepted

causes relieving the carrier of liability.” Id. at 699 (internal quotation marks omitted).

Plaintiff’s Complaint contains factual allegations supporting each of these elements

(doc. 1 at 2), and when taken as true, plausibly demonstrate it can carry its burden

to obtain relief under the Carmack Amendment.

The written-claim issue is less straightforward. As the Seventh Circuit has

concluded the regulation mandating a written claim and its form, 49 C.F.R. §

1005.2(a), (b), does not apply to contested claims, Wisconsin Packing Co. v. Indiana

Refrigerator Lines, Inc., 618 F.2d 441, 445 (7th Cir. 1980), it is unclear whether a

written claim of the type described by Defendant was required in this case. See also

Ace Motors, Inc. v. Total Transp., Inc., No. 08-C-1552, 2009 WL 2031780, at *2 (N.D.

Ill. July 10, 2009) (“The Carmack Amendment, itself, neither requires written claims

nor imposes any other restrictions on the form of notice. . . . [S]uch a deadline or notice

requirement should be set out in the bill of lading or some other contract in order to

bind the shipper.” (internal quotation marks omitted)). Contra e.g., Siemens Power

Transmission & Distribution, Inc. v. Norfolk S. Ry. Co., 420 F.3d 1243, 1250 (11th

Cir. 2005) (gathering cases and holding the regulation mandating a written claim and

its form applies to both contested and voluntarily resolved claims).

Moreover, most cases turning on the written-claim requirement involved a bill

of lading containing a provision requiring a shipper to file a written claim with the

carrier as a condition precedent to recovery under the Carmack Amendment, which

courts enforce under contract principles. See, e.g., id. at 1246 n.2; S & H Hardware &

Supply Co. v. Yellow Transp., Inc., No. 02-CV-9055, 2004 WL 1551730, at *2 (E.D.

Pa. July 8, 2004), aff'd, 432 F.3d 550 (3d Cir. 2005). The bill of lading here contains

a different requirement; it states: “All damage MUST be noted on BOL prior to truck

leaving – include detailed information including location/description/pictures/videos.

Damage not noted on BOL is assumed to have happened after delivery and will not

be the responsibility of Caterpillar or the transportation company.” (Doc. 3 (emphasis

in original)). Absent from this language is a requirement the shipper file a written

claim for damages with the carrier; rather, this language places the onus on the

recipient/purchaser.

Given the lack of clarity whether Plaintiff was under any obligation to file a

written claim with Defendant prior to seeking relief under the Carmack Amendment

in court, allegations of such need not appear in the Complaint. See Ace Motors, 2009

WL 2031780, at *2 (denying a motion to dismiss for failure to comply with a written-

claim requirement). At this stage in the proceedings, Plaintiff need only present a

short and plain statement which plausibly demonstrates entitlement to relief;

Plaintiff need not plead extensive theories or anticipate defenses,7 Twombly, 550 U.S.

at 555–57, 570, nor must it plead facts to match every element of a legal theory,

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510–15 (2002). As stated, the Complaint,

taken as true, puts Defendant on notice of Plaintiff’s claim and the grounds therefor.

Accordingly, the Court finds the Carmack Amendment claim comports with Rule 8(a)

and survives Defendant’s challenge under Rule 12(b)(6).

C. State-Law Claims

Finally, Defendant argues Plaintiff’s state-law claims for breach of bailment

(Count II) and breach of contract (Count III) are preempted by the Carmack

Amendment. (Doc. 7 at 16–18). Plaintiff responds by seeking leave to dismiss Counts

II and III. (Doc. 13 at 11). Federal Rule of Civil Procedure 41(a)(1)(A)(i) permits a

Plaintiff to dismiss a cause of action without a court order by filing “a notice of

7 Notably, the Sixth Circuit has determined satisfaction of a written-claim

requirement is an element to a plaintiff’s claim rather than an affirmative defense.

Ford Motor Co. v. Transp. Indem. Co., 795 F.2d 538, 547 (6th Cir. 1986).

dismissal before the opposing party serves either an answer or a motion for summary

judgment.” As Defendant has filed neither an answer nor a motion for summary

judgment, the Court construes the relevant portion of Plaintiff’s Response as a notice

under Rule 41(a)(1)(A)(i), the filing of which effectively dismissed Counts II and III

without prejudice, see Rule 41(a)(2).

CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s Motion for dismissal under

Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6) and, alternatively, to

transfer venue under 28 U.S.C. § 1404(a) (doc. 6) is DENIED; pursuant to Rule

41(a)(1)(A)(i), Counts II and III are DISMISSED WITHOUT PREJUDICE.

SO ORDERED.

Entered this 16th day of October 2020.

s/ Joe B. McDade

JOE BILLY McDADE

United States Senior District Judge