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Ace Motors, Inc. v. Total Transport

July 10, 2009

ACE MOTORS, INC., PLAINTIFF,
v.
TOTAL TRANSPORT, INC., ERIC R. DUGHETTI, HANI ELAYYAN, AND YOUSEF M. ABUALROB, DEFENDANTS.



The opinion of the court was delivered by: George M. Marovich United States District Judge

Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Intervenor Ermek Abdildaev ("Abdildaev") filed a four-count complaint against plaintiff Ace Motors, Inc. ("Ace Motors") and defendants Total Transport, Inc. ("Total Transport"), Eric R. Dughetti ("Dughetti"), Hani Elayyan ("Elayyan") and Yousef M. Abualrob ("Abualrob"). Before the Court are two motions to dismiss intervenor's complaint. One motion was filed by plaintiff Ace Motors, and the other motion was filed by defendants Total Transport, Dughetti, Elayyan and Abualrob. For the reasons set forth below, the Court grants in part and denies in part the motions to dismiss.

I. Background

For purposes of this motion to dismiss, the Court takes as true the allegations in Intervenor's complaint. The Court also considers the documents Intervenor attached to his complaint. See Fed.R.Civ.P. 10(c).

Intervenor Abdildaev decided to ship three vehicles he owned to Krygyzstan, where they were to be sold. He hired plaintiff Ace Motors*fn1 to ship the 2006 Lexus, the 2000 Toyota Landcruiser and the 1996 Mercedes. Intervenor paid Ace Motors $1,100.00 and received an invoice. Intervenor did not receive a bill of lading from Ace Motors.

Ace Motors, in turn, hired Total Transport to ship Abdildaev's three vehicles and six others overseas. Intervenor alleges that Ace Motors did not receive a bill of lading from Total Transport. Total Transport took possession of the vehicles, and before the truck carrying the vehicles had left the State of Illinois, the truck was involved in an accident. Approximately two days after the accident, Ace Motors' president telephoned Abdildaev to tell him that two of his three vehicles were destroyed in the accident. Abdildaev had paid $61,000.00 for the destroyed vehicles.

II. Standard on a Motion to Dismiss

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Bell Atlantic, 127 S.Ct. at 1964-1965. A complaint must include enough factual allegations to "raise a right to relief above a speculative level." Bell Atlantic, 127 S.Ct. at 1965. "After Bell Atlantic, it is no longer sufficient for a complaint 'to avoid foreclosing possible bases for relief; it must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting Equal Employment Opportunity Comm'n v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)).

III. Discussion

A. Intervenor's Carmack Amendment Claim

In Count I, intervenor asserts a claim against plaintiff and defendants under the Carmack Amendment.

The Carmack Amendment governs "liability of a common carrier to a shipper for loss of, or damage to, interstate shipment." North American Van Lines, Inc. v. Pinkerton Security Systems, Inc., 89 F.3d 452, 455 (7th Cir. 1996). Prior to the passage of the Carmack Amendment, common carriers faced a patchwork of state regulation. The Carmack Amendment "created a nationally uniform rule of carrier liability concerning interstate shipments." REI Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008) (quoting North American Van Lines, 89 F.3d at 454).

Plaintiff Ace Motors and defendants move to dismiss Intervenor's Count I for the same reason. They argue that intervenor failed to comply with a notice requirement set out in ยง 14706(e) of the Carmack ...


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