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PIERRE v. UPS

October 10, 1991

ULWYN PIERRE, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Defendant UPS's motion to dismiss is granted without prejudice. Plaintiff is given leave to refile her complaint in conformity with the Carmack Amendment, 49 U.S.C. ยง 11707. The plaintiff's motion to remand is denied since this suit is governed by federal law.

 In early September of 1987, Plaintiff, Ulwyn Pierre, entered into an agreement with United Parcel Service, Inc. ("UPS") to deliver 40 boxes of books, records, research papers and other personal property from 509 West 121st Street, Apt. 102, New York, New York to 10841 Longwood Drive, Chicago, Illinois.

 Plaintiff was told by UPS that she would be given the opportunity the next day to increase the amount of the declared value of her shipment. In reliance upon this representation, she delivered to UPS, forty boxes which were in good condition at that time. The following day, during regular business hours, however, the plaintiff was not allowed to increase the declared value of her shipment.

 UPS delivered the boxes to Chicago, but in the course of that delivery, several of the boxes were lost, the shipment was left unattended in an open garage at the wrong address, and the plaintiff was not informed that her boxes had been left at the wrong address.

 On January 25, 1991, Plaintiff filed a three count complaint in Illinois state court against UPS alleging state common law theories of negligence in bailment, negligence and breach of contract. UPS removed this action to federal court and filed a motion to dismiss on the grounds that the state common law actions are preempted by federal law because the Interstate Commerce Commission has exclusive jurisdiction over interstate carriers.

 In her reply to defendant's motion to dismiss, plaintiff argues that the facts as set out in the complaint also state a claim under the Illinois Bailment Insurance Act (Ill. Rev. Stat., ch. 73, para. 1092 et seq.) and the Illinois Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat., ch. 121 1/2, para. 261 et seq.). The plaintiff also filed a motion to remand, asking this court to send the suit back to state court.

 II. DISCUSSION

 A. Preemption

 Although this court is limited to the factual allegations found in the complaint, Westland v. Sero of New Haven, Inc., 601 F. Supp. 163, 166 (N.D. Ill. 1985), it is not so bound by the legal theories set forth in the complaint. International Administrators, Inc. v. Life Insurance Company of North America, 553 F. Supp. 82 (N.D. Ill 1982); See also Craft v. Board of Trustees of the University of Illinois, 516 F. Supp. 1317, 1323 (N.D. Ill. 1981). Thus, this court must consider whether the plaintiff's claims under the Illinois Bailment Insurance Act and the Illinois Consumer Fraud and Deceptive Business Practices Act are preempted as well as considering whether her common law claims are preempted.

 It is well-settled that the remedy provision of the Carmack Amendment to the Interstate Commerce Act preempts all state and common law remedies inconsistent with the Interstate Commerce Act. Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987), cert. denied, 485 U.S. 913, 108 S. Ct. 1068, 99 L. Ed. 2d 248 (1988); Wirth Ltd. v. Silvretta, 575 F. Supp. 1274 (N.D. Ill. 1984).

 The Supreme Court first held that the Carmack Amendment preempted inconsistent state law in Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S. Ct. 148, 152, 57 L. Ed. 314 (1913). It reconsidered its position after the passage of the First Cummins Amendment and found that the preemptive effect of the Carmack Amendment was not effected by its passage. ...


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