Cerbone v. Allied Van Lines, Inc.

• Decision Date: 12 April 2021
• Docket Number: CIVIL ACTION NO. 20-6276
• Parties: ANTHONY CERBONE, et al., Plaintiffs, v. ALLIED VAN LINES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

ANTHONY CERBONE, et al., Plaintiffs, v. ALLIED VAN LINES, INC., et al., Defendants.

CIVIL ACTION NO. 20-6276

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

April 12, 2021

PAPPERT, J.

MEMORANDUM

Anthony Cerbone and his wife Carmella sued Allied Van Lines, Inc., SIRVA, Inc., Simonik Moving & Storage, Inc. and Simonik Transportation & Warehousing, LLC after Anthony was injured while helping load his motorcycle onto a mover's truck. They also seek compensation for damage to other property incurred during their move from Pennsylvania to Florida. Defendants move to partially dismiss the Amended Complaint. The Court grants the Motion in part and denies it in part for the reasons that follow.

I

A

The Cerbones moved from Pennsylvania to Florida in 2019. (Am. Compl. ¶¶ 1-2, 23, 35.) Before doing so, they contacted Allied about its moving and storage services. (Id. at ¶ 16.) Allied provided them several names of certified contractors, and Anthony ultimately contracted with one of them, Simonik Moving. (Id. at ¶¶ 17, 20.) The Cerbones believe Simonik Moving contracted separately with Simonik Transportation to "actually perform" the move. (Id. at ¶ 21.)

Anthony's motorcycle was among the items to going to Florida. (Id. at ¶ 18.) The Cerbones made Simonik Moving aware the motorcycle "must be included" in their move "[i]n the months and weeks leading up to" it, including by listing it in their contract as part of the inventory to be moved. (Id. at ¶¶ 18, 20); (Am. Compl. Ex. A 5, ECF 7-3.)

The Simonik Transportation movers came to the Cerbones on September 9, 2019 to load the Cerbones' belongings in a moving truck. The moving crew foreman saw that Anthony's motorcycle "was in excellent condition" and "did not note any pre-existing marks or scratches." (Am. Compl. ¶¶ 22-24.) But on three occasions he "refused to receive [it] for transport and delivery," explaining it was too heavy to push into the moving truck. See (id. at ¶¶ 25-27). Each time, he suggested that Anthony drive the motorcycle up a ramp placed by the movers to get it into the truck himself. (Id.) Anthony rejected this idea twice, but eventually agreed to do so after all other items had been loaded onto the truck. (Id.)

Movers "directed" Anthony to drive the motorcycle up the ramp, which they placed leading into the truck's right corner. (Id. at ¶ 28.) He drove approximately halfway up the ramp and then realized the motorcycle's right handlebar was not going to clear the truck's right side. (Id. at ¶ 29.) While on the ramp, he applied the brakes and tried putting his feet down, but the ramp's width and orientation left no space for him to ground his right foot. (Id.) He fell approximately five feet off the ramp and the motorcycle landed on top of him, causing him "serious and permanent personal injuries," and "significantly damag[ing]" the motorcycle. (Id. at ¶¶ 30-31.)

Anthony was taken to the hospital and movers loaded the motorcycle onto the truck themselves, transported the Cerbones' belongings to storage and delivered them in Florida on December 16, 2019. (Id. at ¶¶ 33, 35.)¹ Some items were "delivered with substantial damage caused by storage and delivery" and the Cerbones submitted a Statement of Claim for those damages. (Id. at ¶ 39.) The Statement excluded a claim for damage to the motorcycle. See (id. at ¶¶ 37, 40); see generally (Am. Compl. Ex. B, ECF 7-4). The movers noted in a Motorcycle Condition Report that the motorcycle was damaged "before loading." (Am. Compl. ¶ 32); see also (Mot. to Dismiss Ex B, ECF 9-3). The Cerbones believe they did this "so that Simonik would not be responsible for the damage to the motorcycle because the damage happened before Simonik took possession and control of the motorcycle." (Am. Compl. ¶ 32). The Cerbones excluded the motorcycle from their Statement of Claim to show it was damaged before the movers "received [it] for loading, transportation and delivery." (Id. at ¶ 40.)

Carmella executed on Allied letterhead a Bill of Lading dated September 4, 2019 listing Allied next to the word "Corporate" and Simonik Moving next to the words "Booking" and "Origin" under the heading "Carrier/Agent Contacts." See (Am. Compl. Ex. A 11).

B

The Cerbones filed an Amended Complaint on January 8, 2021 asserting negligence against SIRVA (Count II), Allied (Count III), Simonik Moving (Count IV) and Simonik Transportation (V) as well as loss of consortium (Count VI) and negligent infliction of emotional distress (Count VII) against all Defendants for injuries related tothe motorcycle accident. See (Am. Compl. ¶¶ 59-105). The Amended Complaint also brings Carmack Amendment claims against SIRVA (Count I) and Allied, Simonik Moving and Simonik Transportation (Count VIII) for damages to other property during the move. See (id. at ¶¶ 47-58, 106-113).

Defendants move to dismiss Counts II-VII entirely and Count VIII in part. They argue Counts II-VII are preempted by the Carmack Amendment. See generally (Mot. to Dismiss 17-22, ECF 9-2). They further contend Simonik Moving and Simonik Transportation must be dismissed from Count VIII because they acted as Allied's agents and that agents for a disclosed principal cannot be held liable for Carmack claims. See generally (id. at 22-25).

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When a complaint includes well-pleaded factual allegations, a court "should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)(quoting Iqbal, 556 U.S. at 679). However, this "presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face." Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id. This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (quoting Connelly, 809 F.3d at 786-87).

While "courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record" in deciding a motion to dismiss, Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), "an exception to the general rule is that a 'document integral to or explicitly relied upon in the complaint' may be considered 'without converting the motion into one for summary judgment.'" In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original) (citation omitted). "[W]hat is critical is whether the claims in the complaint are 'based' on an extrinsic document and not merely whether the extrinsic document was explicitly cited." Id.

District Courts in the Third Circuit "may grant a Rule 12(b)(6) motion on the basis of an affirmative defense 'if the predicate establishing the defense is apparent from the face of the complaint.'" Brody v. Hankin, 145 F. App'x 768, 771 (3d Cir. 2005) (quoting Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 n.10 (3d Cir. 1978) (emphasis in original)); cf. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir. 2003) ("[W]ith some exceptions, affirmative defenses should be raised in responsive pleadings, not in pre-answer motions brought under Rule 12(b)" because "[t]he factsnecessary to establish an affirmative defense must generally come from matters outside of the complaint."). "Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract." Jones v. Bock, 549 U.S. 199, 215 (2007). A defendant bears the burdens of production and persuasion for affirmative defenses. See Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003). "Under Federal Rule of Civil Procedure 8, a complaint need not anticipate or overcome affirmative defenses; thus, a complaint does not fail to state a claim simply because it omits facts that would defeat" an affirmative defense. Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).

III

A

The Carmack Amendment limits interstate carrier liability for damage to or loss of goods:

A carrier providing transportation or service . . . shall issue a receipt or bill of lading for property it receives for transportation . . . . That carrier and any other carrier that delivers the property and is providing transportation or service . . . are liable to the person entitled to recover under the receipt or bill of lading . . . . 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 . . . .

49 U.S.C. § 14706(a)(1) (emphasis added).

Carmack "embrace[s] 'all losses resulting from any failure to discharge a carrier's duty as to any part of the agreed transportation'" and has "exceedingly broad" preemptive force. Certain Underwriters at Interest at Lloyd's of London v. ...