United States District Court, N.D. Illinois, Eastern Division
October 3, 2005.
JOAN A. WOLFENSBERGER, Plaintiff,
IN AND OUT MOVING & STORAGE, INC., Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
In and Out Moving & Storage, Inc. ("In and Out"), having
removed this action from the Circuit Court of Cook County on
asserted preemption grounds, has now served notice of its
proposed October 11, 2005 presentment of a motion to dismiss the
Complaint brought by Joan Wolfensberger ("Wolfensberger") on the
same ground. But there is no need to await presentment of the
motion: For the reasons stated in this sua sponte opinion, it is
denied, and In and Out is ordered to answer Wolfensberger's
Complaint on or before October 11.
It is not that In and Out is wrong as to its contention of the
complete preemption of Wolfensberger's damage claims by what was
originally known as the Carmack Amendment and has now been
distributed among several sections of Title 49 by the I.C.C.
Termination Act of 1995 on that score, see this Court's recent
opinion in Ducham v. Reebie Allied Moving & Storage, Inc.,
372 F.Supp.2d 1076 (N.D. Ill. 2005). In and Out's problem is rather
that the existence of the complete preemption doctrine on which it relies does not call for dismissal of Wolfensberger's action.
It is well established that the test for survival of a federal
complaint (see Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)) does not hinge upon plaintiff's identification of a legal
theory that will justify relief indeed, even the assertion of
the wrong legal theory does not call for tossing a party out of
court (in both of those respects, see such cases as Bartholet v.
Reishauer A.G. (Zürich), 953 F.2d 1073, 1078 (7th Cir. 1992)
and NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292
(7th Cir. 1992)).
Accordingly In and Out's motion to dismiss is denied. It is
ordered to answer the Complaint, which is to be viewed as
asserting a Carmack-Amendment-based claim, on or before October
11. And because the need for the earlier-scheduled status hearing
at 9 a.m. on that same date remains, the parties are expected to
appear in court at that time.
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