United States District Court, N.D. Illinois, Eastern Division
June 3, 2005.
DENNIS DUCHAM, Plaintiff,
REEBIE ALLIED MOVING AND STORAGE, INC., Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Reebie Storage & Moving Company, Inc. ("Reebie," named in the
Complaint as "Reebie Allied Moving and Storage, Inc.") has filed
a timely Notice of Removal ("Notice"),*fn1 seeking to bring
this action from the Circuit Court of Cook County to this
District Court. Reebie has simultaneously tendered a Fed.R. Civ.
P. ("Rule") 12(b)(6) motion to dismiss the Complaint brought
against it by Dennis Ducham ("Ducham"), noticing up that motion
for proposed presentment on June 13. Because the removal was
improvident, and because a federal court's initial obligation is
to determine the existence or nonexistence of federal
jurisdiction (Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir.
1998)), this Court sua sponte remands the action to its place of
origin for lack of such jurisdiction.
Ducham's Complaint can be searched in vain for the statement of any claim that he has framed in federal terms. Instead the
three-count Complaint sounds alternatively in breach of contract
and intentional misrepresentation, coupled with a claim under the
Illinois Consumer Fraud Act, with all of those claims stemming
from Ducham's assertedly having been hornswoggled by Reebie after
he had hired it for the removal of his household goods from Park
Ridge, Illinois to Livermore, California.
In brief, Reebie had provided Ducham with a firm price quote
with a "guaranteed price pledge" not to be changed unless there
were "unknown additional services," and the parties reached an
agreement on that basis. But once Reebie took possession of the
household goods (thus eliminating the availability of any
alternatives or any bargaining power on Ducham's part) it
escalated the price from the stipulated $16,635.45 figure to
$21,652.77, then to $24,942.45 and ultimately to $25,564.67.
That course of conduct (which must be accepted as accurate for
purposes of removal and under Rule 12(b)(6)) certainly smacks of
duress and fraud even approaching highway robbery.*fn2 And
it would seem on the face of things to call into play Justice
Holmes' famous aphorism of more than nine decades ago in The
Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913):
Of course, the party who brings a suit is master to
decide what law he will rely upon, and therefore does
determine whether he will bring a "suit arising
under" the patent or other law of the United States
by his declaration or bill. That question cannot depend upon
the answer, and accordingly jurisdiction cannot be
conferred by the defense, even when anticipated and
replied to in the bill.
That doctrine remains alive and well and living in Washington
see, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386
, 392 n. 7
(1987), citing The Fair and other cases for the identical
proposition that "the plaintiff [is] the master of the claim; he
or she may avoid federal jurisdiction by exclusive reliance on
state law" (id. at 392).
Not so, says Reebie. Instead it urges that all of Ducham's
claims are instinct with federal questions under the Carmack
Amendment (Notice ¶ 6).*fn3 Indeed, Reebie's Rule 12 (b) (6)
motion goes even farther by asserting that all state law claims
are preempted by what was originally the Carmack Amendment and
has now been distributed among several sections of Title 49 by
the I.C.C. Termination Act of 1995.*fn4
There is however a fundamental flaw in Reebie's position, one
that cannot be papered over by the virtual blizzard of cases cited in the memorandum of law that it offers to support its Rule
12(b)(6) motion to dismiss. Although Reebie may well seek to meet
some of Ducham's claims by a preemption defense, that alone
cannot serve as the predicate for removal as Caterpillar,
42 U.S. at 393 (citing Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 12
(1983)) puts it succinctly:
Thus, it is now settled law that a case may not be
removed to federal court on the basis of a federal
defense, including the defense of preemption, even if
the defense is anticipated in the plaintiff's
complaint, and even if both parties concede that the
federal defense is the only question truly at issue.
There is a narrow exception to that fundamental principle the
"complete pre-emption" doctrine. As Caterpillar, id.
(footnote omitted) describes that exception:
On occasion, the Court has concluded that the
preemptive force of a statute is so "extraordinary"
that it "converts an ordinary state common-law
complaint into one stating a federal claim for
purposes of the well-pleaded complaint rule."
Metropolitan Life Insurance Co. [v. Taylor,
481 U.S. 58, 65 (1987)]. Once an area of state law has
been completely preempted, any claim purportedly
based on that pre-empted state law is considered,
from its inception, a federal claim, and therefore
arises under federal law. See Franchise Tax Board,
supra, at 24 ("[I]f a federal cause of action
completely pre-empts a state cause of action any
complaint that comes within the scope of the federal
cause of action necessarily `arises under' federal
As Reebie would have it, the provisions of the Carmack
Amendment fit that exception. But the host of cases that it cites
in attempted support of its position deal with the subjects of loss of or injury to the property or delays in delivery,
subjects as to which a plaintiff's recharacterization of his or
her claims as breach of contract or even fraud in the inducement
perhaps even triggering a punitive damage claim would not be
permitted to supplant the Carmack Amendment's coverage. By
contrast, if a household goods agent such as Reebie were to hold
up its consumer customer at gunpoint to exact an added $9,000,
nothing in the cases that Reebie cites (or, for that matter, in
common sense) would place the customer's claim under the rubric
of the Carmack Amendment. And the principle is no different where
the robbery at gunpoint is figurative rather than literal where
the added $9,000 has been extracted from Ducham "only under
duress" (Complaint ¶ 23).
That precise distinction has been recognized and applied by our
Court of Appeals in Gordon v. United Van Lines, Inc.,
130 F.3d 282, 288-89 (7th Cir. 1997). Gordon's discussion should be
read in its entirety for a full appreciation of the distinction,
but this excerpt suffices to illustrate it:
Like this court in [N. Am. Van Lines, Inc. v.
Pinkerton Sec. Sys., Inc., 89 F.3d 452 (7th Cir.
1996)], however, the First Circuit specifically noted
that not all state claims would be preempted. It held
that "liability arising from separate harms apart
from the loss or damage of goods is not preempted.
For example, if an employee of the carrier assaulted
and injured the shipper, state law remedies would not
be preempted. Similarly, 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." Rini [v. United Van Lines, Inc.],
104 F.3d , 506 [(1st Cir. 1997)]. Taking Hughes, Pinkerton, and Rini together, we
too conclude that the Carmack Amendment does not
preempt those state law claims that allege liability
on a ground that is separate and distinct from the
loss of, or the damage to, the goods that were
shipped in interstate commerce.
Just as both the First Circuit's Rini case and our Court of
Appeals' Gordon decision have held that state law claims of
intentional infliction of emotional distress were not preempted
by the Carmack Amendment, so too Ducham's claim of fraud not at
all in connection with the loss of or damage to his goods, but
rather in the extortion of a large added payment under duress
are not. Most importantly, that lack of preemption places
Reebie's other preemption claims into the category of federal
defenses, rather than in the "complete preemption" category. And
under Caterpillar and like cases, that is fatal to Reebie's
attempted removal here.
In sum, it is really an understatement to say that "it appears
that the district court lacks subject matter jurisdiction"
(28 U.S.C. § 1447(c)), so that the same subsection mandates that "the
case shall be remanded." As authorized by this District Court's
LR 81.2(b), the Clerk is directed to mail the certified copy of
the remand order forthwith.