Petition for Writ of Certiorari — Smith v. United Parcel Service, Inc.

0)

0, Supreme Court, U.S.

FILED

No. O2 8810cT9 - 27

a

IN THE

Supreme Court of the United States

FRANK H. SMITH AND HARRIETT C. SMITH,

Petitioners

Vv.

UNITED PARCEL SERVICE, INC.

On Petition for Writ of Certiorari

To The United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

John A. Owens

Attorney for Petitioner

Owens & Almond, LLP

PO Box 2487

Tuscaloosa, AL 35403

Phone: (205) 750-0750

Questions Presented for Review

What are the limits of federalism and preemption as

they relate to the Carmack Amendment to the Interstate

Commerce Act? Specifically, does the surviving legislative

form of the Carmack Amendment pre-empt all state causes

of action even remotely related to a contract of carriage of

goods, or does it preempt only those causes of action related

to core activities having to do with a contract of carriage of

goods and damage to those goods?

Page -i-

Parties and Corporate Disclosure Statement

Parties:

Pamela Burnette Marlow (Defendant)

Frank H. Smith (Plaintiff)

Harriet Smith (Plaintiff)

United Parcel Service, Inc. (Ohio) (Defendant)

Corporate Disclosure:

2855-8278 Quebec, Inc.

724352 Ontario Limited

Air Compak International

Allison, Vance

American Customs Brokers, Inc.

Associated Customs Brokers, Inc.

Atexco (1991) Limited

Atlasair Limited

Avenair Corporation

Big Apple, LLC

Border Brokerage Company, Inc.

BT Property, LLC

BT Realty Holdings II, Inc.

BT Realty Holdings, Inc.

BT Realty II, Inc.

BT Realty, Inc.

BT-Newyo, LLC

BT-OH, LLC

Buckeye Management Service, LLC

C.C. & E. Holding, Inc.

C.C. & E.I, LLC

Carryfast Holdings Limited

Carryfast Limited

CLS Group Pty Ltd.

CLS (HK) Limited

CLS Pacific Rim Pte Ltd.

Computer Logistics Solutions Pty. Ltd.

Page -ii-

Condel, LLC

ConectShip, Inc.

Diversified Trimodal, Inc.

El Paso Distribution Center, Inc. (One)

El Paso Distribution Center, Inc. (Two)

Elsil Corporation

Evind Corporation

FEX Corp.

First International Bankcorp, Inc.

First International Bank

First International Capital Corp. of New Jersey

FIB Business Loans Holdings, Inc.

FIB Funding Corp.

FIB Holdings, Inc.

FNBNE Business Loans Holdings, Inc.

FNBNE Funding Corp.

FNBNE SBA Holdings, Inc.

FNC International, Inc.

Fritz Air Freight, Inc.

Fritz Companies, Inc. (d/b/a Fritz, a UPS Company)

Fritz Domestic Services

Fritz Export Packing, Inc.

Fritz Government Services, Inc.

Fritz International Insurance Brokers

Fritz Transportation International

Frontier Freight Forwarders, Inc.

Gator Management Services, Limited Liability Company

Glenlake Financial Corp.

Glenlake Insurance Agency, Inc. of Alabama

Glenlake Insurance Agency, Inc. of California

Glenlake Insurance Agency, Inc. of Kentucky

Glenlake Insurance Agency, Iric. of Massachusetts

Glenlake Insurance Agency, Inc. of Nevada

Glenlake Managing General Agency, Inc. of Texas

Global Mail Boxes Express, Inc.

Global Management Service L.L.C.

Page -iii-

Great Plains Management Services, Limited Liability

Company

H.A. & J.L. Wood, Inc.

Haulfast, Limited

Herman Miles Trucking, Inc.

High Sierra Management Services, Inc.

iShip, Inc.

Lacalos Corporation

Livingston Healthcare Services, Inc.

Logistics Service (U.S.A.) Co., Inc. (Parent company is

Logistics Holding Ltd., a Hong Kong Corporation)

Lone Star Management Services, LLC

Mail2000, Inc.

Mail Boxes Etc., Inc.

Merchants Parcel Delivery

Miles & Joffroy, Inc.

Miles Group, Inc.

Nevair Corporation

New Neon Co., Inc.

Nubee, Inc.

Oasis Wholesale Supply Corporation

Parkprop, Inc. :

Pax Logistics International, Ltd.

PPS Polkurier Sp. Z. 00 (to be changed to UPS Polska Sp. Z.

00)

Prost-Transports S.A. Speditionsgessellschaft MbH

PT UPS Cardig International

RealAmerica Co.

RMX:

Roadnet Technologies, Inc.

Rudolph Miles & Sons Incorporated

Salt Lake Management Services, Limited Liability Company

Saskan Corporation

Shannon MRO Ltd.

Solacel Company

T.G. International Inc.

Page -iv-

The UPS Foundation, Inc.

Trade Management Services

Trailer Conditioners, Inc.

Trans-Border Customs Services, Inc.

Tri-State Distribution, Inc. (One)

Tri-State Distribution, Inc. (Two)

Tri-State Distribution, Inc. (Three)

Tri-State Distribution, Inc. (Four)

Tri-State Distribution, Inc. (Five)

Ukrainian Parcel Service

ULA, LLC

United Parcel Service Pte Ltd

United Parcel Service

United Parcel Service (Bahrain) WLL

United Parcel Service Belgium N.V.

United Parcel Service (Bermuda) Ltd.

United Parcel Service Canada Ltd.

United Parcel Service Cayman Islands Limited

United Parcel Service Co.

United Parcel Service Co., Japan Branch

United Parcel Service Co., Singapore Branch

United Parcel Service CSTC Ireland Limited

United Parcel Service Czech Republic S.R.O.

United Parcel Service de Chile, Ltda.

United Parcel Service de Mexico, S.A. De C.V.

United Parcel Service Deutschland Inc.

United Parcel Service Deutschland Inc. & Co. OHG

United Parcel Service Espana Ltd.

United Parcel Service Espana Ltd. y Compania S.R.C.

United Parcel Service Finland OY

United Parcel Service France S.N.C.

United Parcel Service General Services Co.

United Parcel Service, Inc., a Delaware corporation owning

100% of the outstanding common stock of United Parcel

Service of America, Inc. United Parcel Service, Inc. is the

only UPS-related entity that has outstanding common stock

Page -v-

issued in a public offering.

United Parcel Service, Inc (New York)

United Parcel Service, Inc. (Ohio)

United Parcel Service Italia, S.R.L.

United Parcel Service Japan Y.K.

United Parcel Service Jersey Limited

United Parcel Service (Malaysia) Sdn. Bhd.

United Parcel Service Nederland B.V.

United Parcel Service Nigeria Ltd.

United Parcel Service Oasis Supply Corporation

United Parcel Service of America

United Parcel Service of America (UK)

United Parcel Service of America, Inc. (“UPS”). UPS is

wholly owned by United Parcel Service, Inc. UPS has

outstanding debt securities that were issued in public

offerings.

United Parcel Service of Ireland Limited

United Parcel Service PTY, Ltd.

United Parcel Service (Rus.) 0.0.0.

United Parcel Service Singapore Pte, Ltd.

United Parcel Service Speditongesellenschaft m.b.H.

United Parcel Service Sweden AB

United Parcel Service (Switzerland)

United Parcel Service (Transport) Sdn. BHD.

United Parcel Service (UAE) LLC

Unlimited National, Inc.

UPICO Corporation

UPS Air Cargo Service GmbH

UPS Air Couriers of America Limited |

UPS Air Leasing, Inc.

UPS Autologistics, Inc. |

UPS Aviation Services, Inc. ' |

UPS Aviation Technologies, Inc. |

UPS Business Communications Services, Inc.

UPS Capital Corporation

UPS Capital Global Trade Finance Corporation

ee)

Page -vi-

UPS Capital Global Trade Finance (HK) Limited

UPS Capital Global Trade Finance (U.K.) Ltd.

UPS Capital Technical Logistics, LLC

UPS Cayman Limited

UPS Consulting, Inc.

UPS Customhouse Brokerage, Inc.

UPS de Argentina, S.A.

UPS de San Jose, S.A.

UPS Delbros International Express Ltd., Inc.

UPS-Delbros International Express, Inc.

UPS Denmark A/S

UPS Deutschland Management LLC

UPS do Brasil & CIA

UPS Dominicana, S.A.

UPS e-Logistics, Inc.

UPS Europe N.V./SA.

UPS e-Ventures, Inc.

UPS-Fliway (NZ) Ltd.

UPS Full Service Brokerage, Inc.

UPS Grundstuecksverwaltung S GmbH

UPS Holding GmbH

UPS Hungary kft

UPS India PVT, Ltd.

UPS International, Inc.

UPS International Forwarding, Inc.

UPS International General Services, Inc.

UPS International, Inc. Taiwan Branch

UPS Internet Services, Inc.

UPS Japan Limited

UPS Jetair Express Pvt. Ltd.

UPS Jetair Logistics Pte. Ltd.

UPS-Korea Express Co., Ltd.

UPS (KZ)

UPS Latin America, Inc.

UPS Limited

UPS Logistics Canada, Ltd.

Page -vii-

UPS Logistics Group Americas, Inc.

UPS Logistics Group Argentina S.R.L.

UPS Logistics Group Asia Pte, Ltd.

UPS Logistics Group (Barbados) SRL

UPS Logistics Group BV

UPS Logistics Group Bolivia Limitada

UPS Logistics Group Brazil Ltda.

UPS Logistics Group Canada Ltd.

UPS Logistics Group Columbia Ltda.

UPS Logistics Group Costa Rica, Ltda.

UPS Logistics Group El Salvador, Limitada

UPS Logistics Group GmbH

UPS Logistics Group Guatemala, Limitada

UPS Logistics Group Honduras S. de R.L.

UPS Logistics Group, Inc.

UPS Logistics Group International Chile Limitada

UPS Logistics Group International, Inc.

UPS Logistics Group Investments, Inc.

UPS Logistics Group Jamaica Limited

UPS Logistics Group Japan Branch

UPS Logistics Group Ltd.

UPS Logistics Group Nicaragua, S.A.

UPS Logistics Group Panama, S.A.

UPS Logistics Group Paraguay, S.R.L.

UPS Logistics Group Peru, S.R.L.

UPS Logistics Group Pty Ltd.

UPS Logistics Group Puerto Rico, Inc.

UPS Logistics Group S.A.

UPS Logistics Group S.R.L.

UPS Logistics Group Trinidad & Tobago, Unltd.

UPS Logistics Group (UK) Limited

UPS Logistics Group Uruguay S.R.L.

UPS Logistics Group USVI, LLC

UPS Logistics Group Venezuela, Compania En Comandita

por Acciones

UPS Logistics Services Americas, Inc.

Page -viii-

UPS Logistics Services, S. de R.L. de C.V.

UPS Logistics Technologies, Inc.

UPS Mail Services

UPS Messaging, Inc.

UPS of America Limited

UPS of Bermuda, Inc.

UPS of China, Inc.

UPS of Greece, Inc.

UPS of Greece, Inc. Athens Branch

UPS of Norway, Inc.

UPS of Portugal-Transportes Internacionals de Mercadorias

LDA

UPS of Portugal, Inc.

UPS of Portugal, Inc. Lisbon Brance

UPS Parcel Delivery Service Limited

UPS Parcel Delivery Service Limited (Thailand)

UPS Procurement Services Corporation

UPS Professional Services Inc.

UPS Properties, Inc.

UPS PTY, Ltd.

UPS Re Ltd.

UPS Sinotrans Beikong International Express Co. Ltd.

UPS Sovtransavto

UPS Spain, S.L.

UPS Supply Chain Management, Inc.

UPS Telecommunications, Inc.

UPS Transport GmbH

UPS Transport GmbH II

UPS (UK) Limited

UPS Worldwide Forwarding, Inc.

UPS Worldwide Logistics Asia Pte, Ltd.

UPS Worldwide Logistics Asia Pte, Ltd., Taiwan Branch

UPS Worldwide Logistics de Mexico

UPS Worldwide Logistics GmbH

UPS Worldwide Logistics (India)

UPS Worldwide Logistics SARL

Page -ix-

a Ss ae

UPSWWL Management Services Limited

UPS Yamato Co., Ltd.

UPS Yamato Express Co., Ltd.

Vista Distribution Center, Inc. (One)

Vista Distribution Center, Inc. (Two)

Vista Distribution Center, Inc. (Three)

Vista Distribution Center, Inc. (Four)

Vista Distribution Center, Inc. (Five)

Wall Shipping Co., Inc.

William F. Joffroy, Inc.

Worldwide Dedicated Services, Inc.

Worldwide Logistics de Mexico, S.A. de C.V.

W.Y. Moberly, Inc.

Yamato UPS International Air Cargo Co., Ltd.

Zanas Group LLC

Page -x-

Table of Contents

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Citations of Reports of the Opinions and Orders Entered . 2

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Statutes Involved In the Case ...............cccceeeees 4

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Page -xi-

Table of Cited Authorities

New York, New Haven & Hartford Railroad Co. v. Nothnagle,

SORTED. THAIN oi isccvnccsveceesctresscsbneannenie 7

Citations of Reports of the Opinions and Orders Entered

The opinion of the Eleventh Circuit is reported at Smith v.

Marlow, 296 F.3d 1244 (11 Cir., 2002); the opinion of the

court below is not reported. (App.)

Basis for Jurisdiction

The United States Court of Appeals for the Eleventh

Circuit entered its opinion below on July 11, 2002. This

Court has jurisdiction under 28 U.S.C. §1254(1).

Statutes Involved in the Case

49 U.S.C. §14706 (Set forth in Appendix)

Statement of the Case

All facts are taken directly from recitals in Plaintiffs’

complaint. (R-1)

On or about October 21, 1998, Plaintiff Frank Smith

(“Frank”), who is legally blind, expected to take delivery

from UPS of a Gateway computer which had been shipped

to him. The computer held specializec software for people

with his disability. Frank asked his son (“Matthew” —not a

party) to come by that day and set up the computer for him.

UPS did not deliver the package, but instead left a

note saying that it had attempted delivery. Plaintiffs, who

had been home the entire time, called UPS and demanded

- delivery that same day.

When the UPS truck arrived, Plaintiff Harriett Smith

(“Harriett”) asked Frank and Matthew to assist the driver,

Defendant Pamela Burnette Marlow (“Marlow”) with

bringing in the boxes. When Frank and Matthew walked to

the truck, Marlow spoke harshly to them. Matthew

reciprocated by calling Marlow an unflattering and

derogatory name.

Marlow responded by asserting that she would not

deliver the computer, and thereupon pulled down the door

of the truck. Matthew stopped the door on its descent and

injured his arm. Marlow became hysterical and screamed

for help, asserting repeatedly that “these are terrible

people.” Marlow then closed the door of her truck, drove

down the street and parked from some period of time, and

then departed. She also reported the incident to the police,

who investigated but made no arrest.

Later that same evening the local manager of the

UPS office personally delivered the computer.

Since that date, through the filing of the Complaint,

UPS has failed to make deliveries to Plaintiffs’ home.

Instead, UPS mails notices to Plaintiffs’ home stating “we

are unable to complete delivery because: correct street

number needed, not delivered.” When the packages are

5-

picked up from UPS offices, they are all properly addressed,

however. Some packages are returned to their sender by

UPS because Frank, who is legally blind, is not able to read

the notices or pick up the packages if his wife is out of town.

UPS repeatedly promised Plaintiffs that their packages

would be delivered, and then continued its same course of

conduct. In fact, UPS told third parties that it would not

make deliveries to Plaintiffs.

Defendants removed this case to the United

States District Court for the Northern District of Alabama,

Western Division where it remained over Plaintiffs’ Motion

to Remand. The court refused to remand because it found

federal question jurisdiction for several of the counts alleged

by Plaintiffs.

Argument

Congress passed the Carmack Amendment

in 1906. This Court last visited the Amendment to examine

preemption issues in 1953. During the first decade of the

Amendment, some unfortunately broad dicta in this Court's

decisions entrenched itself in the lower courts and resulted

in almost near-unanimity that the Carmack Amendment

granted wide sweeping and nearly complete protections to

the shipping industry. Some appellate courts have chiseled _

out limited exceptions involving outrage or other such |

causes of action. Others have decried the unjust results they

felt constrained to endorse, but opined that their hands were

tied.

Plaintiffs’ analysis of the relevant decisions of

this Court leads them to the opinion that the lower courts

have misinterpreted this Court's decisions as being more

broad than intended. These misinterpretations have been

perpetuated so that precedent built on precedent at the trial

and appellate level, but this Court has been silent since 1953.

To be succinct, the Carmack Amendment

fixed liability on the first carrier to accept goods into

fs interstate commerce, even if other carriers had custody and

control when the damage occurred. In return, carriers were

granted the ability to limit their liability to a stated value for

the goods, unless the shipper chose to pay a higher freight

charge and, in effect, purchase insurance.

This Court has always interpreted the

Carmack Amendment in terms of the contract of carriage

between carrier and shipper. The most recent such decision |

was in 1953, with New York, New Haven & Hartford Railroad

Co. v. Nothnagle, 346 U.S. 128 (1953), when it found that,

because Mrs. Nothnagle had not been given an opportunity

to pay a higher rate and obtain better coverage in the event

of loss, the Carmack Amendment never came into play and

plaintiff was not limited in her remedies.

Since 1953, this Court has been silent, despite

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-7-

a wide variety of trial and appellate court decisions holding

that Carmack was an almost complete shield for the carrier

industry for any harm which had anything to do with a

package entrusted to the carrier. This cannot have been the

intent of this Court, and it is now time to correct the lower

courts in this regard.

Appendix

Sec. 14706. - Liability of carriers under receipts and

bills of lading

(a) General Liability. -

(1) Motor carriers and freight forwarders. -

A carrier providing transportation or service subject

to jurisdiction under subchapter I or III of chapter 135 shall

issue a receipt or bill of lading for property it receives for

transportation under this part. That carrier and any other

carrier that delivers the property and is providing

transportation or service subject to jurisdiction under

subchapter I or III of chapter 135 or chapter 105 are liable to

the person entitled to recover under the receipt or bill of

lading. The liability imposed under this paragraph is for the

actual loss or injury to the property caused by

(A)

the receiving carrier,

(B)

the delivering carrier, or

(C)

another carrier over whose line or route the property

is transported in the United States or from a place in the

United States to a place in an adjacent foreign country when

transported under a through bill of lading and, except in the

case of a freight forwarder, applies to property reconsigned

or diverted under a tariff under section 13702. Failure to

issue a receipt or bill of lading does not affect the liability of

a carrier. A delivering carrier is deemed to be the carrier

performing the line-haul transportation nearest the

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destination but does not include a carrier providing only a

switching service at the destination.

(2) Freight forwarder. -

A freight forwarder is both the receiving and

delivering carrier. When a freight forwarder provides

service and uses a motor carrier providing transportation

subject to jurisdiction under subchapter I of chapter 135 to

receive property from a consignor, the motor carrier may

execute the bill of lading or shipping receipt for the freight

forwarder with its consent. With the consent of the freight

forwarder, a motor carrier may deliver property for a freight

forwarder on the freight forwarder's bill of lading, freight

bill, or shipping receipt to the consignee named in it, and

receipt for the property may be made on the freight

forwarder's delivery receipt.

(b) Apportionment. -

The carrier issuing the receipt or bill of lading under

subsection (a) of this section or delivering the property for

which the receipt or bill of lading was issued is entitled to

recover from the carrier over whose line or route the loss or

injury occurred the amount required to be paid to the

owners of the property, as evidenced by a receipt,

judgment, or transcript, and the amount of its expenses

reasonably incurred in defending a civil action brought by

that person.

(c) Special Rules. -

(1) Motor carriers. -

(A) Shipper waiver. -

Subject to the provisions of subparagraph (B), a

carrier providing transportation or service subject to

-10-

jurisdiction under subchapter I or III of chapter 135 may,

subject to the provisions of this chapter (including with

respect to a motor carrier, the requirements of section

13710(a)), establish rates for the transportation of property

(other than household goods described in section

13102(10)(A)) under which the liability of the carrier for such

property is limited to a value established by written or

electronic declaration of the shipper or by written agreement

between the carrier and shipper if that value would be

reasonable under the circumstances surrounding the

transportation.

(B) Carrier notification. -

If the motor carrier is not required to file its tariff

with the Board, it shall provide under section 13710(a)(1) to

the shipper, on request of the shipper, a written or electronic

copy of the rate, classification, rules, and practices upon

which any rate applicable to a shipment, or agreed to

between the shipper and the carrier, is based. The copy

provided bv the carrier shall clearly state the dates of

applicability of the rate, classification, rules, or practices.

(C) Prohibition against collective establishment. -

No discussion, consideration, or approval as to rules

to limit liability under this subsection may be undertaken by

carriers acting under an agreement approved pursuant to

section 13703.

(2) Water carriers. -

If loss or injury to property occurs while it is in the

custody of a water carrier, the liability of that carrier is

determined by its bill of lading and the law applicable to

water transportation. The liability of the initial or delivering

carrier is the same as the liability of the water carrier.

x5

(d) Civil Actions. -

(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.

(3) Jurisdiction of courts. -

A civil action under this section may be brought in a

United States district court or in a State court.

(4) Judicial district defined. -

In this section, "judicial district" means -

(A)

in the case of a United States district court, a judicial

district of the United States; and

(B)

in the case of a State court, the applicable geographic

area over which such court exercises jurisdiction.

(e) Minimum Period for Filing Claims. -

-12-

iia iaaaaaaiaaiiall

(1) In general. -

A carrier may not provide by rule, contract, or

otherwise, a period of less than 9 months for filing a claim

against it under this section and a period of less than 2 years

for bringing a civil action against it under this section. The

period for bringing a civil action is computed from the date

the carrier gives a person written notice that the carrier has

disallowed any part of the claim specified in the notice.

(2) Special rules. -

For the purposes of this subsection -

(A) °

an offer of compromise shall not constitute a

disallowance of any part of the claim unless the carrier, in

writing, informs the claimant that such part of the claim is

disallowed and provides reasons for such disallowance; and

(B)

communications received from a carrier's insurer

shall not constitute a disallowance of any part of the claim

unless the insurer, in writing, informs the claimant that such

part of the claim is disallowed, provides reason for such

disallowance, and informs the claimant that the insurer is

acting on behalf of the carrier.

(f) Limiting Liability of Household Goods Carriers to

Declared Value. -

A carrier or group of carriers subject to jurisdiction -

under subchapter I or III of chapter 135 may petition the

Board to modify, eliminate, or establish rates for the

transportation of household goods under which the liability

-13-

of the carrier for that property is limited to a value

established by written declaration of the shipper or by a

written agreement.

(g) Modifications and Reforms. -

(1) Study. -

The Secretary shall conduct a study to determine

whether any modifications or reforms should be made to

the loss and damage provisions of this section, including

those related to limitation of liability by carriers.

(2) Factors to consider. -

In conducting the study, the Secretary, at a

minimum, shall consider -

(A)

the efficient delivery of transportation services;

(B)

international and intermodal harmony;

(C)

the public interest; and

4D) :

the interest of carriers and shippers.

(3) Report. -

Not later than 12 months after January 1, 1996, the

Secretary shall submit to Congress a report on the results of

the study, together with any recommendations of the

Secretary (including legislative recommendations) for

-14-

implementing modifications or reforms identified by the

Secretary as being appropriate.

SMITH v. UPS, No. CV-01-N-00306-W (N.D. Ala. Jul.

3, 2001).

FRANK H. SMITH AND HARRIETT C. SMITH,

Plaintiff(s), vs. UNITED PARCEL SERVICE, et al.,

Defendant(s).

CV-01-N-00306-W

United States District Court, Northern District of

Alabama, Western Division

Decided July 3, 2001.

John A. Owens, Owens & Almond, LLP, Tuscaloosa,

AL, for Plaintiffs.

John E. Goodman, Rusha Smith, Bradley, Arant,

Rose & White. LLP, Birmingham, AL, Ruth N. Borenstein,

Paul T. Friedn.an, Gregory B. Koltun, Morrison & Foerster,

LLP, San Francisco, CA, J. Mark White, White, Dunn,

Booker, Birmingham, AL, for Defendants.

Order

I. Introduction

The Court has for consideration defendants UPS and

Marlow’s Motion for Judgment on the Pleadings based on

preemption Grounds [Doc. 6], Motion to Dismiss by New

Defendants added in the Amended Complaint [Doc. 6], and

plaintiffs’ Motion to Remand, or in the alternative, for Leave

to Amend [Doc. 13]. The motions have been briefed and are

ripe for decision. Upon due consideration, the motion for

judgment on the pleadings is DENIED, the motion to

dismiss is GRANTED, and the motion to remand, or in the

alternative, leave to amend, is DENIED. In accord with the

Court’s May 17, 2001 order [Doc. 27], plaintiffs are allowed

10 days after the Court rules on the pending motions to add

-16-

causes of action or parties. Any amendments must be in

accord with the direction in this memorandum.

II. Factual Allegations in the Complaint

Plaintiff Frank Smith (“Mr. Smith”) ordered a

computer which was to be delivered via UPS. On the day

the computer was to arrive, Mr. Smith found a note on his

door from UPS, stating that delivery was attempted but no

one was home. It is inferred in the Complaint that Mr. Smith

and his son waited for the delivery of the computer at Mr.

Smith’s home, and they were actually at home when UPS

attempted delivery. At any rate, plaintiff Harriet Smith

(“Mrs. Smith”) called UPS and insisted they deliver the

computer that day.

Some time later that same day, defendant Pamela

Marlow (Marlow), a UPS employee, arrived at the plaintiff's

home in a UPS truck. Mr. Smith and his son went to the

truck to assist Marlow, who “was obviously angered at

having to make the return trip and had some harsh words

to say to [Mr. Smith and his son].” (Compl. at 2.) Mr.

Smith’s son became angered by Marlow’s statements and

called her “an unflattering and derogatory name.” (Compl.

at 3.) Marlow then said she would not deliver the computer

and pulled the truck’s door down. Mr. Smith’s son raised

his arm to stop the door from being pulled down, and

Marlow became hysterical and started screaming. She did

not deliver the computer and drove away. Another UPS

employee delivered the computer that evening.

Ever since the incident, UPS has refused to deliver to

the Smith house. Additionally, UPS mails notices to the

home stating “we are unable to complete delivery because:

correct street number needed, not delivered.” Yet, when the

plaintiffs pick up their packages at the UPS office, the

packages are property addressed. Further, goods have been

returned to sender because Mr. Smith, who is blind, cannot

-17-

read the mail when Mrs. Smith is out of town. The plaintiffs

then pay shipping costs twice.

Plaintiffs’ Complaint and the Amendment to the

Complaint include only state law claims: Count I:

Discrimination in overcharging; Count II: Fraud; Count III:

Negligence, Wantonness, or Wilifulness; Count IV: Outrage;

Count V: Suppression; Count VI: Conspiracy; Count VII:

Injunctive relief; Count VIII: Negligent, wanton or willful

conduct or misconduct in the failure to provide proper and

appropriate policies and procedures and failure to provide

appropriate training and supervision to employees of UPS;

and Count IX: Claim for statutory penalties. [fn1]

III. Discussion

The same issue is presented in the three motions

before the Court: whether the plaintiffs’ claims are

preempted by the Federal Aviation Administration

Authorization Act (“FAAAA”)[fn2] and/or the Carmack

Amendment to the Interstate Commerce Act. Additionally,

defendants contend the plaintiffs’ negligent supervision

count fails to state a claim upon which relief can be granted.

Plaintiffs also request that the Court provide them leave to

amend their Complaint if their motion to remand is denied.

A. Preemption by the Carmack Amendment

Both parties are aware of this Court's decision in

Construction Services, Inc. v. Watkins Motor Lines, Inc., No.

CV-98-0628-NE, 1998 U. S. Dist. LEXIS 22818 (N.D. Ala.

May 5, 1998). As this Court found in that case, “[mJost

courts; including this one, have held that claims not asserted

under the Carmack Amendment are preempted if they seek

to recover damage or loss to goods during shipment, for

misdelivery or untimely delivery of good, for failure to the

carrier to fulfill duties closely related to its duty of delivery,

or for charging an improper rate for transporting goods.” Id.

at *9. All of the plaintiffs’ claims fall into this category. Each

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count is based on UPS’ failure to deliver or misdelivery of

goods to the Smiths. Count I, discrimination in

overcharging, is based on the failure of UPS to deliver goods

to the Smiths. The basis for Count II, fraud, is UPS’

acceptance of items for delivery to the Smiths with no

intention to deliver the product. Moreover, UPS told the

Smiths it would deliver to them, but has failed to do so.

Count III, negligence, wantonness, or willfulness, is

described as UPS’ failure to carry out its duty to deliver

packages to the Smiths. The substance of Count IV, outrage,

is” [t]he actions of the Defendants to deny deliveries.”

(Compl. { 20.) Count V, suppression, is based on UPS’

failure to disclose the reason for the stoppage in deliveries

to the Smiths. The conspiracy allegations, Count VI,

describe a conspiracy to undertake all of the above listed

counts. In Count VII, the plaintiffs request injunctive relief

to stop defendants from failing and refusing to make a

reasonable, good faith effort to deliver packages to the

plaintiffs’ home. Count VIII is based on the failure of UPS

employees to properly train other employees to avoid the

conduct which led to this case. In Count IX, plaintiffs

request statutory penalties.

B. Leave to Amend Complaint

In alternative to the Court remanding the case,

plaintiffs moved the Court to provide them leave to amend

their complaint. They desire to add two causes of action:

Count XI, Cause of Action based Upon U.S.C. § 10741, and

Count XII, Violation of RICO Act, 18 U.S.C. § 1961, et seq.

1. Count XI

In Count XI, plaintiffs seek to add a course of action

entitled “Prohibitions against discrimination by rail

carriers,” which they claim applies to motor carriers.

(a)(1) A rail carrier providing transportation

or service subject to the jurisdiction of the

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Board under this part [49 USCS § 10101 et

seq.] may not subject a person, place, port, or

type of traffic to unreasonable discrimination.

(2) For purposes of this section, a rail carrier

engages in unreasonable discrimination when

it charges or receives from a person a

different compensation for a service

rendered, or to be rendered, in transportation

the rail carrier may perform under this part

[49 USCS § 10101 et seq.] than it charges or

receives from another person for performing

a like and contemporaneous service in the

transportation of a like kind of traffic under

substantially similar circumstances.

(b) This section shall not apply to-

(1) contracts described in section 10709 of this

title;

(2) rail rates applicable to different routes; or

(3) discrimination against the traffic of

another carrier providing the transportation

by any mode.

(c) Differences between rates, classifications,

rules, and practices of rail carriers do not

constitute a violation of this section if such

differences result from different services

provided by rail carriers.

49 U.S.C. § 10741. Additionally, as part of Count XI,

plaintiff includes a repealed statute dealing with motor

carriers, 49 U.S.C. § 316(d). According to the Revised Title

Table currently located at 49 U.S.C. § 316, the rail carrier

statute cited by plaintiffs, 49 U.S.C. § 10741, includes

portions of the repealed statue. It appears plaintiffs’ belief

that the rail carrier statue includes motor carriers stems

from the partial inclusion of the repealed motor carrier

-20-

statue in the current rail carrier statue. However, the rail

carrier statue does not mention motor carriers; it mentions

only rail carriers. Therefore, it would be futile for plaintiffs

to include a cause of action in their Complaint that does not

apply to defendants.

2. Count XII

The RICO statute, 10 U.S.C. § 1962 (2001), prohibits

four activities:

(a) It shall be unlawful for any person who

has received any income derived, directly or

indirectly, from a pattern of racketeering

activity or through collection of an unlawful

debt in which such person has participated as

a principal within the meaning of section 2,

title 18, United States Code, to use or invest,

directly or indirectly, any part of such

income, or the proceeds of such income, in

acquisition of any interest in, or the

establishment or operation of, any enterprise

which is engaged in, or the activities of which

affect, interstate or foreign commerce. A

purchase of securities on the open market for

purposes of investment, and without the

intention of controlling or participating in the

control of the issuer, or of assisting another to

do so, shall not be unlawful under this

subsection if the securities of the issuer held

by the purchaser, the members of his

immediate family, and his or their

accomplices in any pattern or racketeering

activity or the collection of an unlawful debt

after such purchase do not amount in the

aggregate to one percent of the outstanding

securities of any one class, and do not confer,

either in law or in fact, the power to elect one

-91.

or more directors of the issuer.

(b) It shall be unlawful for any person

through a pattern of racketeering activity or

through collection of an unlawful debt to

acquire or maintain, directly or indirectly,

any interest in or control of any enterprise

which is engaged in, or the activities of which

affect, interstate or foreign commerce.

(c) It shall be unlawful for any person

employed by or associated with any

enterprise engaged in, or the activities of

which affect, interstate or foreign commerce,

to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering

activity or collection of unlawful debt.

(d) It shall be unlawful for any person to

conspire to violate any of the provisions of

subsection (a), (b), or (c) of this section.

The plaintiffs allege UPS violated RICO by

repeatedly sending through the United States mail

postcards to the plaintiffs, fraudulently stating that

packages could not be delivered to the plaintiffs because

their address was incorrectly listed on their packages.

Plaintiffs further allege UPS undertook this action

intentionally and their actions constitute mail fraud.

RICO claims are held to a heightened pleading

requirement. Bill Buck Chevrolet, Inc., v. GTE Florida, Inc., 54

F. Supp. 2d 1127 (M.D. Fla. 1999), aff'd without opinion, 216

F.3d 1092 (11th Cir. 2000). Additionally, the plaintiffs must

plead fraud with particularity. Rule 9(b) of the Federal Rules

provides “[i]n all averments of fraud or mistake, the

circumstances constituting fraud or mistake shall be stated

with particularity. Malice, intent, knowledge, and other

-22-

condition of the mind of a person may be averred

generally.” Fed. R. Civ. P. 9(b). The Eleventh Circuit has

observed that Rule 9(b) “serves an important purpose in

fraud actions by alerting defendants to the ‘precise

misconduct with which they are charged’ and protecting

defendants ‘against spurious charges of immoral and

fraudulent behavior.” Durham v. Business Management

Associates, 847 F.2d 1505, 1511 (11th Cir. 1988) (quoting

Seville Indus. Machinery Corp. v. Southmost Machinery Corp.,

742 F.2d 786, 791 (3d Cir. 1984), cert. denied, 469 U.S. 1211,

106 S. Ct. 1179, 84 L. Ed. 2d 327 (1985); see also Friedlander v.

Nims, 755 F.2d 810, 813 n.3 (11th Cir. 1985) (providing that

the “clear intent” of Rule 9(b) “is to eliminate fraud actions

in which all the facts are learned through discovery after the

complaint is filed”). However “Rule 9(b) must be read in

conjunction with Rule 8(a) [of the Federal Rules of Civil

Procedure], which requires a plaintiff to plead only a short,

plain statement of the grounds upon which he is entitled to

relief.” Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116

F.3d 1364, 1371 (11th Cir. 1997) (quoting O’Brien v. National

Property Analysts Partners, 719 F. Supp 222, 225 (S.D.N.Y.

1989)). According to Brooks, a complaint satisfies Rule 9(b) if

it sets forth:

(1) precisely what statements were made in

what documents or oral representations or

what omissions were made, and

(2) the time and place of each such statement

and the person responsible for making (or, in

the case of omissions, not making) same, and

(3) the content of such statements and the

manner in which they misled the plaintiff,

and

(4) what the defendants “obtained as a

consequence of the fraud.”

-23-

Brooks, 116 F.3d at 1371 (quoting Fitch v. Radnor

Indus., Ltd., No. 90-2084, 1990 WL 150110, at *2 (E.D. Pa.

Sept 27, 1990)); see also Cooper v. Blue Cross & Blue Shield, 19

F.3d 562 (11th Cir. 1994) (“[a fraud pleading] must include

facts as to time, place, and substance of the defendant's

alleged fraud”).

The plaintiffs, as provided in the Court’s May 17,

2001 order [Doc. 27], are allowed 10 days after the Court

rules on the pending motions to add causes of action or

parties. Because the plaintiffs’ RICO claim does not meet the

above described pleading requirements, the plaintiffs shall

replead their RICO claim, if they still desire to state such a

claim, within that period in accord with the below listed

requirement. The claim shall include the facts plaintiffs rely

upon to initiate this RICO cause of action as a result of the

“reasonable inquiry” required by Rule 11, Federal Rules of

Civil Procedure. The claim shall be in a form which uses the

numbers and letters set forth below and shall reasonably

follow the organization set out below. The Amended

Complaint shall state in detail and with specificity the

following information:

1. State whether the alleged unlawful conduct is

in violation of 18 U.S.C. §§ 1962 (a), (b), (c),

and/or (d).

2. List each defendant and state the alleged

misconduct and basis of liability of each

defendant.

3. List the alleged wrongdoers, other than the

defendants listed above, and state the alleged

misconduct of each wrongdoer.

4. List the alleged victims and state how each

victim was allegedly injured.

5. Describe in detail the pattern of racketeering

activity or collection of unlawful debts

-24-

alleged for each RICO claim. A description of

the pattern of racketeering shall include the

following information:

a.

List the alleged predicate acts and the

specified statues which were allegedly

violated;

Provide the dates of the predicate acts,

the participants in the predicate acts,

and a description of the facts

surrounding the predicate acts;

If the RICO claim is based upon the

predicate offenses of wire fraud, mail

fraud, fraud in the sale of securities,

or fraud in connection with a case

under U.S.C. Title 11, the

“circumstances constituting fraud or

mistake shall be stated with

particularity, “ Fed.R.Civ.P. 9(b).

Identify the time, place and contents

of the alleged misrepresentation or

omissions, and the identity of persons

to whom and by whom the alleged

misrepresentations or omissions were

made;

State whether there has been a

criminal conviction for violation of the

predicate acts;

State whether civil litigation has

resulted in a judgment in regard to

the predicate acts;

Describe how the predicate acts form

a “pattern of racketeering activity;”

and

g. State whether the alleged predicate

acts relate to each other as part of a

common plan. If so, describe in detail.

6. Describe in detail the alleged enterprise for

each RICO claim. A description of the

enterprise shall include the following

information:

a. State the names of the individuals,

partnerships, corporations,

associations, or other legal entities,

which allegedly constitute the

enterprise;

b. Describe the structure, purpose,

function and course of conduct of the

enterprise;

C. State whether any defendants are

employees, officers or directors of the

alleged enterprise;

d. State whether any defendants are

associated with the alleged enterprise,

and if so, how;

e. State whether you are alleging that

the defendants are individuals or

entities separate from the alleged

enterprise, or that the defendants are

the enterprise itself, or members of the

enterprise; and

f. If any defendants are alleged to be the

enterprise itself, or members of the

enterprise, explain whether such

defendants are perpetrators, passive

instruments, or victims of the alleged

racketeering activity.

-26-

7. State and describe in detail whether you are

alleging that the pattern of racketeering

activity and the enterprise are separate or

have merged into one entity.

8. Describe the alleged relationship between the

activities of the enterprise and the pattern of

racketeering activity. Discuss how the

racketeering activity differs from the usual

and daily activities of the enterprise, if at all.

9. Describe what benefits, if any, the alleged

enterprise receives from the alleged pattern

of racketeering.

10. Describe the effects of the activities of the

enterprise or interstate of foreign commerce.

11. _—sIf the complaint alleges a violation of 18

US.C. § 1962(a), provide the following

information:

a. State who received the income

derived from the pattern of

racketeering activity or through the

i collection of an unlawful debt; and

b. Describe the use or investment of

such income.

12. ‘If the complaint alleges a violation of 18

U.S.C. § 1962(b), describe in detail the

acquisition or maintenance of any interest in

or control of the alleged enterprise.

13. «If the complaint alleges a violation of 18

U.S.C. § 1962(c), provide the following

information:

a. State who is employed by or .

associated with the enterprise.

| -27-

14.

15.

16.

17.

18.

19.

20.

b. State whether the same entity is both

the liable “person” and the

“enterprise” under § 1962(c).

If the complaint alleges a violation of 18

U.S.C. § 1962(d), describe in detail the alleged

conspiracy.

Describe the alleged injury to business or

property.

Describe the direct causal relationship

between the alleged injury and the violation

of the RICO statute.

List the damages sustained by reason of the

violation of § 1962, indicating the amount for

which each defendant is allegedly liable.

List all other federal causes of action, if any,

and provide the relevant statute numbers.

List all pendent state claims, if any.

Provide any additional information that you

feel would be helpful to the Court in

connection with the RICO claim.

Done, this 3rd of July, 2001.

s/Edwin L. Nelson

United States District Judge

[fn1] Count X was dismissed at the request of the

plaintiffs. [fn2] The Court finds the FAAAA does not apply

to this case because it does not apply to “household goods.”

UPS’ contracts says it cannot deliver “household goods” as

defined by the FAAAA “for shippers who elect Daily

Pickup Service,” “3 Day Select Service,” “Expedited

Service,” or service through a “Customer Counter,” etc. UPS

-28-

facility. (Rqst for Judicial Notice [Doc. 18]). The Court does

not know if the items at issue in this case fall into those

categories. However, plaintiffs state that they waive any

claims which do not pertain to the delivery of household

goods, therefore only stating claims for the

misdelivery / failure to deliver household goods and

precluding the preemptive effect of the FAAAA.

-29-

SMITH v. UPS, No. CV-01-N-00306-W (N.D. Ala. Jul.

25, 2001)

FRANK H. SMITH AND HARRIETT C. SMITH,

Plaintiff(s), vs. UNITED PARCEL SERVICE, et al.,

Defendant(s).

CV-01-N-00306-W

United States District Court, Northern District of

Alabama, Western Division

Decided July 25, 2001.

John A. Owens, Owens & Almond, LLP, Tuscaloosa,

AL, for Plaintiffs.

John E. Goodman, Rusha Smith, Bradley, Arant,

Rose & White, LLP, Birmingham, AL, Ruth N. Borenstein,

Paul T. Friedman, Gregory B. Koltun, Morrison & Foerster,

LLP, San Francisco, CA, J. Mark White, White, Dunn

Booker, Birmingham, AL, for Defendants.

Order

In an order entered on July 3, 2001, the Court

dismissed plaintiffs’ claims and provided them an

opportunity to file an amended complaint. Plaintiffs did not

respond to the order. Therefore, this case is DISMISSED

WITH PREJUDICE as there are no claims remaining.

Done, this 25th of July, 2001.

s/Edwin L. Nelson

United States District Judge.

SMITH v. UPS, 296 F.3d 1244 (11th Cir. 2002)

FRANK H. SMITH, HARRIETT C. SMITH,

Plaintiffs-Appellants v. UNITED

PARCEL SERVICE, (UPS), Defendant, PAMELA

BURNETTE MARLOW, UNITED PARCEL

SERVICE, INC., (OHIO), et al.,

Defendants-Appellees.

No. 01-14463.

United States Court of Appeals, Eleventh Circuit.

Decided July 11, 2002.

John A Owens, Owens & Almond, LLP, Denise L.

Evans, Tuscaloosa, AL,

for Plaintiffs-Appellants.

Rusha C. Smith, John E. Goodman, Bradley, Arant,

Rose & White, LLP, Birmingham, AL, Ruth N. Borenstein,

Paul T. Friedman, Morrison & Foerster, LLP, San Francisco,

CA, J. Mark White, White, Dunn & Booker, Birmingham,

AL,

for Detendants-Appellees.

Appeal from the United States District Court for the

Northern District of

Alabama. D.C. Docket No. 01-00306 CV-N-W.

Before: ANDERSON, DUBINA and BLACK, Circuit

Judges.

-31-

DUBINA, Circuit Judge:

Frank and Harriett Smith (the "Smiths")

appeal the district court's dismissal of their claims for fraud,

negligence, wantonness, or willfulness, and outrage against

the United Parcel Service ("UPS") and Pamela Burnett

Marlow ("Marlow"), a UPS delivery person. The district

court dismissed the Smiths' claims as preempted by

the Carmack Amendment, 49 U.S.C. § 14706 (1994). We

agree with the district court and hold that the Carmack

Amendment preempts all of the Smiths' claims

because the claims arise from conduct involving

UPS's transportation and delivery services. Accordingly, we

affirm the district court's dismissal of the Smiths' claims.

I. BACKGROUND

A. Facts

October 21, 1998, marked the beginning of an

acrimonious relationship between the Smiths and UPS. On

that date, Frank Smith, who is legally blind, and his son

waited for UPS to deliver a computer to the Smiths' home.

UPS failed to deliver the computer, and instead left a note at

the Smiths' house explaining that it had attempted delivery.

The Smiths called the UPS office and demanded that UPS

deliver the computer that day.

UPS made two additional trips to the Smiths'

home to deliver the computer. On the first attempted

delivery, Harriett Smith asked her husband and son to assist

the driver, Marlow, with the boxes. While at the truck, the

parties exchanged harsh words, and the Smiths' son called

Marlow an unflattering and derogatory name. Marlow

responded by attempting to pull down the truck door and

not delivering the computer. Frank Smith blocked the door

on its descent. Marlow screamed for help, asserted

repeatedly that "these are terrible people," closed the door of

-32-

her truck, and drove down the street where she parked for a

period of time before leaving the area. Marlow promptly

reported this altercation to the police, who investigated but

arrested no one. Later that same evening, the local manager

of the UPS office personally delivered the computer to the

Smiths' residence.

Since the date of the altercation, UPS refuses

to make regular deliveries to the Smiths' home. The Smiths

allege that UPS continually promises to make deliveries to

their home, but fails to keep those promises. Rather than

regularly delivering packages to the Smiths' residence, UPS

mails notices to the Smiths' home stating, "we are unable to

complete delivery because: correct street number needed,

not delivered." [R. Vol. 1 Tab 1.] UPS then places the Smiths'

packages on "will call" at the local UPS office. Occasionally,

if available, a driver other than Marlow, will deliver

packages to the Smiths' house. The Smiths claim that all of

the packages that they have picked up at the UPS office

have been addressed correctly. Because Frank Smith is

legally blind, he is unable to read the UPS notices or drive

to the UPS office to retrieve packages if his wife is

out-of-town. As a result, UPS has returned some packages

to the senders.

B. Procedural History

On April 27, 2000, the Smiths filed suit

against UPS and Marlow in the Circuit Court of Tuscaloosa

County, Alabama, for monetary damages and injunctive

relief alleging claims for fraud, negligence, wantonness, or

willfulness, and outrage. The Smiths also alleged claims of

discrimination in violation of Ala. Code § 27-2-1, and claims

for suppression and conspiracy. Both UPS and Marlow

asserted a preemption defense under the Carmack

Amendment to all of the Smiths' state law tort claims. On

January 3, 2001, the Smiths amended their complaint,

adding new defendants and new claims. UPS and Marlow

-33-

removed the action in February of 2001land subsequently

filed a motion to dismiss, which the district court granted.

The district court found that the Carmack Amendment

preempted the Smiths' claims and dismissed the case with

prejudice. The Smiths then perfected this appeal.[fn1]

II. ISSUE

Whether the Carmack Amendment, 49 U.S.C.

§ 14706 (1994), preempts the Smiths' state law claims for

fraud, negligence, wantonness, or willfulness, and outrage

based upon UPS's allegedly wrongful acts.

Ill. STANDARD OF REVIEW

This court reviews the dismissal of a

complaint under Federal Rule of Civil Procedure 12(b)(6) de

novo, applying the same standard as the district court.

Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999). This

court must accept the allegations set forth in the complaint

as true for the purposes of a motion to dismiss. United

States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th

Cir. 1999) (en banc).

IV. DISCUSSION

The Carmack Amendment creates a uniform

rule for carrier liability when goods are shipped in

interstate commerce. New York, New Haven, & Hartford

R.R. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S.Ct. 986, 988, 97

L.Ed. 1500 (1953); Adams Express Co. v. Croninger, 226

US. 491, 506, 33 S.Ct. 148, 152, 57 L.Ed. 314 (1913). To

accomplish the goal of uniformity, the Carmack

Amendment preempts state law claims arising from failures

in the transportation and delivery of goods. Adams

Express, 226 U.S. at 505-06, 33 S.Ct. at 152 ("Almost every

detail of the subject is covered so completely that there can

be no rational doubt but that Congress intended to take

possession of the subject, and supersede all state regulation

with reference to it."); see North Am. Van Lines, Inc. v.

-34-

Pinkerton Sec. Sys., Inc., 89 F.3d 452, 456 (7th Cir. 1996)

(explaining that the Carmack Amendment "preempts all

state or common law remedies available to a shipper

against a carrier for loss or damage to interstate

shipments").

The Smiths argue that their claims are

separate and distinct from UPS's contract of carriage to

deliver goods so that the Carmack Amendment's savings

clause[fn2] excludes their claims from its preemptive effect.

The savings clause of the Carmack Amendment preserves

rights and remedies "not inconsistent with the rules and

regulations prescribed by the provisions of this act." Adams

Express, 226 U.S. at 507, 33 S.Ct. at 152. However, the

Smiths' fraud and negligence, wantonness, or willfulness

claims clearly relate to the delivery of goods.

The complaint alleges that UPS committed

fraud by accepting shipments for delivery to the Smiths'

home "knowing that they had no intention of fulfilling or

attempting to deliver." [R. Vol. 1 Tab 1.] As for the

negligence, wantonness, or willfulness claims, the Smiths

allege that UPS "undertook a duty to deliver packages to

[them]" and breached that duty "in failing and refusing to

make deliveries to [them]." [R. Vol. 1 Tab 1.] Carmack

Amendment preemption embraces all of these claims

because it embraces “all losses resulting from any failure to

discharge a carrier's duty as to any part of the agreed

transportation... ." Georgia, Fla. & Ala. Ry. Co. v. Blish

Milling Co., 241 U.S. 190, 196, 36 S.Ct. 541, 544, 60 L.Ed. 948

(1916); see also Southeastern Express Co. v. Pastime

Amusement Co., 299 U.S. 28, 57 S.Ct. 73, 74 81 L.Ed. 20

(1936) (applying Carmack Amendment preemption to a

negligence claim for failure to deliver a film in a timely

manner); New York, Philadelphia & Norfold R.R. Co. v.

Peninsula Produce Exch. of Md., 240 U.S. 34, 38, 36 S.Ct.

230, 232, 60 L.Ed. 511 (1916) (explaining that Carmack

-35-

Amendment preemption is "comprehensive enough to

embrace all damages resulting from any failure to discharge

a carrier's duty with respect to any part of the

transportation to the agreed destination"); Moffit v. Bekins

Van Lines Co., 6 F.3d 305 (5th Cir. 1993) (upholding

Carmack Amendment preemption of various state law

claims, including fraud, intentional infliction of emotional

distress, and negligence, when a moving company failed to

deliver household goods to a new home in time for

Christmas); Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700,

706 (4th Cir. 1993) (concluding that because "the Carmack

Amendment was intended by Congress to create a national

uniform policy regarding the liability of carriers under a bill

of lading for goods lost or damaged in shipment. . . .

[a]llowing a shipper to bring common law breach of

contract or negligence claims against a carrier for such loss

or damage conflicts with this policy"); Underwriters at

Lloyds of London v. North Am. Van. Lines, 890 F.2d 1112,

1121 (10th Cir. 1989) (holding that the Carmack Amendment

preempted state and common law remedies against

common carriers); Hughes v. United Van Lines, Inc., 829

F.2d 1407, 1412 n. 5, 1415 (7th Cir. 1987) (holding that the

Carmack Amendment preempted a plaintiff's claims for

negligence, breach of contract, conversion, intentional

misrepresentation, negligent misrepresentation, and

negligent infliction of emotional distress, where his goods

were destroyed by a fire while in transit); Bear MGC Cutlery

Co. v. Estes Express Lines, Inc., 132 F. Supp.2d 937, 947-48

(N.D.Ala. 2001) (finding Carmack Amendment preemption

of alleged claims for negligence, wantonness, and outrage

for failing to properly deliver goods).

The Smiths contend that UPS's

misrepresentations that it would take different steps to

insure delivery created a new relationship apart from the

contract of carriage so that the Carr-ack Amendment

-36-

preemption does not apply. However, this contention does

not alter the fact that the Smiths base their fraud and

negligence, wantonness, or willfulness claims on UPS's

failure to provide them with particular transportation and

delivery services. Therefore, the Smiths’ claims fall squarely

within the preemption coverage of the Carmack

Amendment. See, e.g., Pietro Culotta Grapes, Ltd. v.

Southern Pac. Transp. Co., 917 F. Supp. 713, 715-16

(E.D.Cal. 1996) (finding the Carmack Amendment

preempted tort and contract claims arising from alleged

pre-shipment misrepresentations concerning delivery

deadlines); United Van Lines, Inc. v. Shooster, 860 F. Supp.

826, 828-29 (S.D.Fla. 1992) (finding that the Carmack

Amendment preempted a claim based on an alleged

fraudulent estimate made to induce a contract).

Likewise, the Smiths' outrage claim falls

squarely within the preemption coverage of the Carmack

Amendment because it too is based on the same conduct —

UPS's failure to deliver packages to the Smiths' home. The

Smiths argue that the Carmack Amendment does not

preempt their outrage claim, but rather the savings clause

protects this claim, because a claim for outrage remedies an

injury to their person rather than to their goods. This court

has not determined whether the savings clause of the

Carmack Amendment protects some claims because they

remedy damage to a person, rather than goods. Among the

circuits to visit this issue, the Fifth and Seventh Circuits

have reached contrary conclusions.

In Moffit v. Bekins Van Lines Co., the Fifth

Circuit held that the Carmack Amendment preempted all

state law claims, including ones for intentional infliction of

emotional distress and negligent infliction of emotional

distress, when a moving company failed to deliver a

family's belongings in time for Christmas. 6 F.3d 305, 307

(5th Cir. 1993). The Fifth Circuit reasoned that to hold

-37~

otherwise would defeat the Carmack Amendment's goal of

uniformity. Id. The Seventh Circuit, on the other hand, held

that the Carmack Amendment did not preempt a claim for

intentional infliction of emotional distress. Gordon v. United

Van Lines, Inc., 130 F.3d 282, 286 (7th Cir. 1997).

In Gordon, the plaintiff sued her carrier after

it failed to deliver, and ultimately destroyed, several

heirlooms during her relocation. 130 F.3d at 284. The

plaintiff asserted several grounds of relief for the

destruction of her property, including fraud, breach of

contract, and willful and wanton conduct. Id. The Seventh

Circuit held that the Carmack Amendment preempted all

of those claims because those claims were essentially based

on "the contract of carriage, in which the harm arises out of

the loss of or damage to goods." Id. at 284, 289 (citing

Hughes, 829 F.2d at 1407. However, the Seventh Circuit

held that the plaintiff's claim for intentional infliction of

emotional distress survived Carmack Amendment

preemption. Id. at 289; But see Hughes, 829 F.2d at 1410,

1412 n.5 (holding that the Carmack Amendment

preempted state common law remedies, including

negligent infliction of emotional distress). The Seventh

Circuit, relying heavily on dicta from a First Circuit

-decision,[fn3] reasoned that "a number of situations" may

exist "in which a carrier might remain liable to a shipper for

certain kinds of separate and independently actionable

harms that are distinct from the loss of, or the damage to

the goods." Id. at 289 (citing Pinkerton, 89 F.3d at 458).

While we agree that situations may exist in

which the Carmack Amendment does not preempt all state

and common law claims, including ones for outrage, only

claims based on conduct separate and distinct from the

delivery, loss of, or damage to goods escape preemption.

See Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377,

383 (5th Cir. 1998) (acknowledging that the Carmack

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Amendment would not preempt claims "separate and apart

from those resulting directly from the loss of shipped

property," but holding that the Carmack Amendment

preempted claims seeking damages for intentional infliction

of emotional distress as well as punitive damages as a

result of egregious conduct by a carrier in the course of

discharging its duties); see also Gooch v. Oregon Short Line

R.R. Co., 258 U.S. 22, 42 S.Ct. 192, 66 L.Ed. 443 (1922)

(explaining that the Carmack Amendment did not preempt

an action involving a physical injury to a caretaker

accompanying an interstate shipment of cattle); Chicage,

Rock Island & Pac. Ry. Co. v. Maucher, 248 U.S. 359, 39

S.Ct. 108, 63 L.Ed. 294 (1919) (holding that the Carmack

Amendment did not preempt a claim by a plaintiff who

was physically injured); Reeves v. Mayflower Transit, Inc.,

87 F. Supp.2d 1251, 1252, 1254 (M.D.Ala. 1999) (finding that

the Carmack Amendment preempted an intentional

infliction of emotional distress claim arising from the

alleged failure of a carrier to perform the service of packing,

shipping, and delivering goods as contracted). In other

words, separate and distinct conduct rather than injury

must exist for a claim to fall outside the preemptive scope of

the Carmack Amendment.

The Smiths allege outrage in that the "actions

of [UPS] to deny deliveries to [them] have been intentional

and have been designed to inflict emotional distress." [R.

Vol. 1 Tab 1.] Although the Smiths seek a remedy for an

injury to their person, the claim results solely from the loss

of and misdelivery of their goods. Therefore, the Smiths'

outrage claim is embraced by the preemptive effect of the

Carmack Amendment.

The Smiths argue that while the controversy

involves packages, no doubt exists that if a UPS driver

intentionally assaulted and injured them, the Carmack

Amendment would not preempt their cause of action. We

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agree. However, the Smiths argue further that their claims

under these facts are indistinguishable. To the contrary, we

conch:2e uiat their claims are vastly different. Their claims

of fraud, negligence, wantonness, or willfulness, and

outrage all arise from UPS's failure to deliver their

packages. The Smiths allege no conduct separate and

distinct from UPS's failure to transport and deliver

packages. Therefore, the Carmack Amendment preempts

the Smiths' state law tort claims.

V. CONCLUSION

The Supreme Court of the United States has

described the preemptive effect of the Carmack

Amendment very broadly. Blish Milling Co., 241 U.S. at

196, 36 S.Ct. at 544. The Carmack Amendment embraces "all

losses resulting from any failure to discharge a carrier's

duty as to any part of the agreed transportation." Id.

Because the Smiths base all of their claims on allegations

concerning UPS's failure to provide them with

transportation and delivery services, the Carmack

Amendment preempts their claims. Accordingly, we affirm

the district court's judgment of dismissal.

AFFIRMED.

[fn1] The Smiths appeal only the district court's

dismissal of their fraud, negligence, wantonness, or

willfulness, and outrage claims. We thus consider the other

claims abandoned. Baker v. Montgomery, 811 F.2d 557, 558

n. 1 (11th Cir. 1987). [fn2] The savings clause states:

"Except as otherwise provided in this part, the remedies

provided under this part are in addition to the remedies

existing under another law or common law." 49 U.S.C. §

15103 (1996). [fn3] The Seventh Circuit decision in Gordon

v. United Van Lines, Inc. relies in part on Rini v. United

Van Lines, Inc., 104 F.3d 502, 506 (1st Cir. 1997), in which

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the First Circuit indicated in dicta that "a claim for

intentional infliction of emotional distress alleges a harm to

the shipper that is independent from the loss or damage to

goods and, as such, would not be preempted." 104 F.3d at

506. The First Circuit further stated that if a plaintiff, who

had several items disappear during a move, had proven her

claim for intentional infliction of emotional distress at trial

that the Carmack Amendment would not have preempted

that claim. Id. Page 1250

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