“The Carmack Amendment . . . permits a civil action to be brought against a ‘carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.’” (quoting 49 U.S.C. § 14706(d)(2))
How later courts described this case
- “The Carmack Amendment . . . permits a civil action to be brought against a ‘carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.’” (quoting 49 U.S.C. § 14706(d)(2))
- “Dismissals for improper venue are without prejudice.”
- “The law of the case [only] applies in subsequent proceedings as long as there has been no change in the facts on which the mandate was based.”
- “To summarize, dismissals for . . . improper venue . . . are not on the merits and should not contain the words ‘with prejudice.’”
Written by the judges who cited it.
The opinion
Third District Court of Appeal
State of Florida
Opinion filed September 4, 2024.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-2134
Lower Tribunal No. 2019-37303-CA-01
________________
Total Quality Logistics, LLC,
Appellant,
vs.
Trade Link Capital, Inc., and Taste Trackers, Inc.,
Appellees.
An Appeal from non-final orders from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Baker Donelson Bearman Caldwell & Berkowitz, PC, Eve A. Cann
(Fort Lauderdale), and Marisa R. Dorough (Orlando), for appellant.
Spector Rubin, P.A., and Marc A. Rubin, for appellees.
Before LINDSEY, GORDO and BOKOR, JJ.
GORDO, J.
Total Quality Logistics, LLC (“Total Quality”) appeals a non-final order
denying its motion to dismiss the verified second amended complaint filed
by Trade Link Capital, Inc. and Taste Trackers, Inc. (the “Shippers”). We
have jurisdiction. Fla. R. App. P. 9.130(a)(3)(A). For the reasons set forth
below, we affirm.
I.
Total Quality entered into written agreements with the Shippers to
arrange transportation of cargo as a “freight broker.” Each agreement
included a forum selection clause, providing that a dispute arising in
connection with any transaction between the parties be exclusively resolved
in Ohio state court. 1 The Shippers later filed a complaint against Total
Quality in Florida state court, alleging lost cargo. Total Quality filed a motion
to dismiss based on improper venue, which the trial court denied. In a prior
appeal to this Court, 2 Total Quality challenged the trial court’s order denying
its motion to dismiss for improper venue. We reversed and remanded “with
1
The forum selection clause provides “[t]he state courts located in Clermont
County, Ohio shall have exclusive and irrevocable jurisdiction and shall be
the exclusive venue with respect to any claim, counterclaim, or dispute
arising in connection with any transactions, loads, or other business between
Total Quality Logistics and [the Shippers].”
2
Total Quality Logistics, LLC v. Trade Link Capital, Inc., 358 So. 3d 458
(Fla. 3d DCA 2023).
2
directions to dismiss the amended complaint against [Total Quality] and for
further proceedings consistent with [our] opinion.” In doing so, we upheld
the forum selection clause as valid on its face, as the Shippers failed to
demonstrate that the forum selection clause was unjust, unreasonable or
that the action should be allowed under the Carmack Amendment.
The Shippers then filed a verified second amended complaint with
additional material facts not presented in the prior appeal: (1) Total Quality
operates as a “carrier” registered under motor carrier number MC00322572
with the Federal Motor Carrier Safety Administration; (2) Total Quality agreed
to assume full responsibility for safely transporting the Shippers' cargo; (3)
Total Quality does not disclose the identity of any party it utilizes to provide
transportation for the Shippers’ cargo; (4) the Shippers tendered their cargo
to Total Quality in Miami, Florida; and (5) the cargo was stolen while under
the care, custody and control of Total Quality in Miami, Florida. Total Quality
moved to dismiss and the trial court denied the motion. This appeal followed.
II.
“The standard of review of a trial court's denial of a motion to dismiss
is de novo.” Simpson v. State, 33 So. 3d 776, 778 (Fla. 4th DCA 2010).
On appeal, Total Quality argues our previous opinion bars the second
amended complaint. We disagree. Our prior opinion did not order the case
3
dismissed with prejudice or preclude further amendments. It is well-settled
that dismissals for improper venue are without prejudice. See Leatherwood
v. Cardservice Int’l, Inc., 929 So. 2d 616, 617 (Fla. 4th DCA 2006)
(“Dismissals for improper venue are without prejudice.”); Smith v. St. Vil, 714
So. 2d 603, 605 (Fla. 4th DCA 1998) (“To summarize, dismissals for . . .
improper venue . . . are not on the merits and should not contain the words
‘with prejudice.’”). Allowing further amendments is within the sound
discretion of the trial court and we find no abuse of discretion in allowing the
amendment here. See Impulsora de Productos Sustentables, S.A.P.I. de
C.V. v. Garcia, 347 So. 3d 470, 471 (Fla. 3d DCA 2022) (“Florida Rule of
Civil Procedure 1.190(a), provides leave to amend ‘shall be given freely
when justice so requires.’ Refusal to allow an amendment is an abuse of the
trial court's discretion unless it clearly appears that allowing the amendment
would prejudice the opposing party, the privilege to amend has been abused,
or amendment would be futile.”) (citations and quotations omitted);
Hemingway v. Bresney, 733 So. 2d 1135, 1136 (Fla. 4th DCA 1999)
(“[Plaintiff] merely attempted to amend her initial complaint. There was no
evidence indicating anyone would have been prejudiced by an amendment
to the complaint, and the amendment would not have been futile because
4
with proper factual allegations, it would have permitted [Plaintiff] to maintain
her causes of action in the venue she selected.”).
III.
Total Quality further argues our previous opinion, upholding the forum
selection clause as valid on its face, is law of the case and the Shippers have
failed to demonstrate any exception to its enforcement or the applicability of
the Carmack Amendment.
The Revised Interstate Commerce Act,3 known as the Carmack
Amendment, is a federal statutory scheme that governs interstate cargo
claims and provides special venue provisions allowing shippers to sue a
“carrier” for cargo loss or damage in the judicial district where the loss or
damage is alleged to have occurred. 4 See Mlinar v. United Parcel Serv.,
Inc., 186 So. 3d 997, 1000 (Fla. 2016) (“The Carmack Amendment . . .
permits a civil action to be brought against a ‘carrier alleged to have caused
the loss or damage, in the judicial district in which such loss or damage is
alleged to have occurred.’” (quoting 49 U.S.C. § 14706(d)(2))). The Carmack
Amendment, which governs cargo disputes between shippers and carriers,
3
49 U.S.C. § 14706.
4
“The Carmack Amendment governs carriers, not brokers.” Hewlett-
Packard Co. v. Brother's Trucking Enters., Inc., 373 F. Supp. 2d 1349, 1351
(S.D. Fla. 2005) (footnote omitted).
5
is designed to give shippers the right to sue carriers in a forum convenient to
shippers and to ensure that carriers cannot limit where shippers can file their
lawsuits. See Aaacon Auto Transp., Inc. v. State Farm Mut. Auto. Ins. Co.,
537 F.2d 648, 654-55 (2d Cir. 1976) (“In our view, in light of the legislative
history of the Carmack Amendment . . . the right of the shipper to sue the
carrier in a convenient forum of the shipper's choice is a right that Congress
intended to codify . . . the prohibitions added in the [Carmack Amendment]
against contracts, regulations and other devices by which carriers seek to
limit their ‘liability’ must be construed to apply not merely to their liability for
monetary damages but to the carrier's liability to suit in the forum of the
shipper's choice.”).
We start with the basic premise that presumptively valid forum
selection clauses should generally be enforced. We recognize, however,
that where the special venue provisions of the Carmack Amendment apply,
federal courts have found that such provisions preclude the enforcement of
a forum selection clause. 5 See Scotlynn USA Div., Inc. v. Singh, No. 2:15-
cv-381, 2016 WL 8679295, at *1 (M.D. Fla. Sept. 9, 2016) (“Starting with the
5
In analyzing whether the Carmack Amendment is applicable here, we rely
on federal courts for guidance. See O’Malley v. St. Thomas Univ., Inc., 599
So. 2d 999, 1000 (Fla. 3d DCA 1992) (“Florida courts have looked to the
federal courts for guidance in interpreting and applying [federal law].
Therefore, federal decisions should be accorded great weight.”).
6
assumption that the forum selection clause should be enforced, the Court
finds that the . . . Carmack Amendment has its own venue provisions that
may override any agreement to the contrary.”); Dabecca Nat. Foods, Inc. v.
RD Trucking, LLC, No. 14 C 6100, 2015 WL 2444505, at *6 (N.D. Ill. May
20, 2015) (“[Federal courts] have held that § 14706(d) is a special venue
provision that precludes enforcement of a forum selection clause.”); Stewart
v. Am. Van Lines, No. 4:12CV394, 2014 WL 243509, at *4 (E.D. Tex. Jan.
21, 2014) (“[T]he Carmack Amendment essentially prohibits enforcement of
forum-selection clauses and provides that suit may be brought against a
carrier in a forum convenient to the shipper.”).
We find Total Quality’s argument that law of the case applies
unpersuasive as the Shippers have presented sufficient additional material
facts in the verified second amended complaint to assert jurisdiction under
the Carmack Amendment.6 See Thornton v. State, 963 So. 2d 804, 809 (Fla.
6
Once the Shippers established a basis for venue, Total Quality did not
meet its burden to plead and prove it was improper, as it only filed an
unsworn motion to dismiss with its manager’s affidavit that did not rebut the
Shippers’ factual assertions. See Chrysler Credit Corp. v. Laliberty, 506 So.
2d 67, 68 (Fla. 1st DCA 1987) (“Once the plaintiff has selected venue, the
burden falls on the party challenging venue to demonstrate by affidavit or
sworn pleading that it is improper. Having failed to file an affidavit
[challenging venue] or sworn pleading, or to present any evidence to
establish that the cause of action did not arise in [the subject judicial district],
the defendant in this case has failed to sustain its burden of challenging the
plaintiff's venue.”).
7
3d DCA 2007) (“[A] trial court is not bound to follow the prior ruling if the facts
upon which the prior ruling was made are no longer the facts of the case . .
. .”); Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1266 (Fla. 2006) (“The law
of the case [only] applies in subsequent proceedings as long as there has
been no change in the facts on which the mandate was based.”). Because
the second amended complaint alleged the cargo was tendered to Total
Quality in Miami after it assumed full responsibility for transportation and was
stolen under Total Quality’s care in Miami, we find no error in the trial court’s
order allowing the action to proceed in Miami, the judicial district where the
loss is alleged to have occurred. 7 See Covenant Imaging, LLC v. Viking
Rigging & Logistics, Inc., No. 3:20-CV-00593, 2021 WL 973385, at *3 (D.
Conn. Mar. 16, 2021) (“Indeed, ‘if a party accepted responsibility for ensuring
delivery of the goods, regardless of who actually transported them, then the
party qualifies as a carrier.’” (quoting CGU Int’l Ins., PLC v. Keystone Lines
7
Importantly, federal courts have consistently held that distinguishing
between a “carrier” and a “broker” is often blurry and fact-intensive, making
it unsuitable for summary judgment, much less a motion to dismiss. See
Nat’l Union Fire Ins. Co. of Pittsburgh v. All Am. Freight, Inc., No. 14-CIV-
62262, 2016 WL 633710, at *7 (S.D. Fla. Feb. 17, 2016) (“‘Whether a
company is a broker or a carrier is not determined by what the company
labels itself, but by how it represents itself to the world and its relationship to
the shipper.’ ‘Because the difference between a carrier and a broker is often
blurry, the carrier/broker inquiry is inherently fact-intensive and not well-
suited to summary judgment.’”) (citations omitted).
8
Corp., No. C-02-3751 SC, 2004 WL 1047982, at *2 (N.D. Cal. May 5, 2004)));
Fed. Ins. Co. v. SF Express Corp., No. 21-CV-5539, 2021 WL 4555040, at
*2 (S.D.N.Y. Oct. 4, 2021) (“[Total Quality’s conduct] supports a reasonable
inference that [Total Quality] assumed legal responsibility for the delivery and
was thus a carrier for purposes of Carmack liability. This is sufficient to
survive a motion to dismiss.”) (footnote omitted); Dabecca Nat. Foods, Inc.,
2015 WL 2444505, at *5-6 (“With respect to venue, a civil action containing
a Carmack Amendment claim may be brought . . . against a carrier
responsible for loss ‘in the judicial district in which such loss or damage is
alleged to have occurred’ . . . Because the Carmack Amendment contains a
special venue provision, [Total Quality’s] extensive discussion . . . is
unhelpful . . . For these reasons, the court finds that the Carmack
Amendment's special venue provision, 49 U.S.C. § 14706(d), means that the
forum selection clause is not enforceable.”).
Affirmed.
9