Geyer v. U.S. Van Lines

Decision Date04 January 2013
Docket NumberCivil Action No. 2:12-04678
PartiesMARTIN GEYER, d/b/a Wellworth Fastener Products, Plaintiff, v. UNITED STATES VAN LINES, and ALL COAST TRANSPORTERS, INC., Defendants.
CourtU.S. District Court — Southern District of West Virginia
MEMORANDUM OPINION AND ORDER

Pending before the court are numerous motions filed by both parties.

I. Factual and Procedural Background

The plaintiff, Martin Geyer, engaged defendant All Coast Transporters to convey personal and professional effects from Columbus, Ohio, to Rincon, Georgia. Compl. ¶ 4; Notice of Removal 14. The bill of lading indicates that the plaintiff surrendered his property to defendant All Coast Transporters on May 13, 2010. Notice of Removal 14. At an undetermined time, defendant United States Van Lines obtained possession of the cargo. See Compl. ¶ 7. On May 14, 2010, the United States Van Lines truck containing the plaintiff's belongings caught fire while travelling through Jackson County, West Virginia. Id. Presumably, the property within was either damagedor destroyed.

On May 1, 2012, the plaintiff filed suit in the Circuit Court of Jackson County, West Virginia. Notice of Removal 13. The complaint asserts claims for breach of contract and negligence under West Virginia law. Compl. ¶¶ 6-16.

On August 24, 2012, defendant All Coast Transporters removed.1 Removal of civil actions brought in state courts is permitted only if federal district courts are vested with original jurisdiction over the relevant subject matter. 28 U.S.C. § 1441(a). The district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. § 1331. In exceptional circumstances, causes of action created by state law are deemed to arise under federal law, thus conferring original jurisdiction upon federal district courts. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003).

State-law claims that are "completely preempted" by certain federal statutes, for example, allow federal courts to invoke original jurisdiction.2 Id. The Carmack Amendment to theInterstate Commerce Act of 1887 provides "the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier," completely preempting alternate claims. Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003) (finding breach-of-contract, negligence, and deceptive-trade-practices claims completely preempted). Therefore, causes of action grounded in state law, but predicated upon events generating carrier liability under the Carmack Amendment, arise under federal law. Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 687-89 (9th Cir. 2007); Hoskins, 343 F.3d at 778 (quoting Beneficial, 539 U.S. at 11). Accordingly, 28 U.S.C. § 1331 vests federal district courts with original jurisdiction over state-law claims against carriers alleging property loss or damage, rendering removal of those claims appropriate. See 28 U.S.C. § 1441(a). The claim need only exceed $10,000, excluding interest and costs. Id. § 1445(b).

Chapter 147 of the Carmack Amendment governs, in part, the liability of various classes of carriers under bills of lading. See 49 U.S.C. § 14706. Subject classes include motor carriers transporting property across state boundaries. Id. §§ 13501(1)(A),14706(a)(1). In this case, the plaintiff does not dispute that both defendants operate as "interstate carrier[s] for hire," and were engaged to convey the plaintiff's property from Ohio to Georgia, as evidenced by the bill of lading. Notice of Removal 1, 14. The plaintiff's breach-of-contract and negligence claims, seeking damages of $1.5 million from the defendant carriers for lost or destroyed property, thus fall within the scope of the Carmack Amendment. Given that the amount in controversy exceeds $10,000, this court may properly exercise jurisdiction over the removed claims, pursuant to 28 U.S.C. § 1331, § 1441(a), and § 1445(b).3

The plaintiff has filed two separate motions to remand, dated October 9, 2012 (ECF No. 15), and October 12, 2012 (ECF No. 19), respectively.4 The plaintiff also moved for the entry of defaultagainst defendant All Coast Transporters on October 12, 2012 (ECF No. 23). Finally, the plaintiff and defendant All Coast Transporters have filed several miscellaneous motions, also dealt with below.

II. Analysis
A. First Motion to Remand (ECF No. 15)

The plaintiff's first motion to remand is premised on the removing defendant's failure to file notice with the Circuit Court of Jackson County, West Virginia, as required by 28 U.S.C. § 1446(d). Pl.'s Objection to Notice of Removal 1, ECF No. 15. The plaintiff acknowledges, however, that defendant All Coast Transporters subsequently provided the state court with notice of removal on October 10, 2012. See Pl.'s Objection to Notice of Removal and Pl.'s Mot. to Remand ("Pl.'s Second Mot.") at 1, ECF No. 19. Thus, the plaintiff's first motion to remand (ECF No. 15) is denied as moot.

B. Second Motion to Remand (ECF No. 19)

On October 12, 2012, after the requisite notice was submitted to the Circuit Court of Jackson County, the plaintiff filed a second motion to remand. The plaintiff contends that defendant All Coast Transporters failed to file notice of removal in state courtpromptly, as mandated by 28 U.S.C. § 1446(d). Pl.'s Second Mot. 1. The plaintiff also asserts that valid removal requires the consent of all properly served defendants, which was not obtained. Pl.'s Reply to Def. All Coast Transporters, Inc.'s Resp. to Pl.'s Objection to Notice of Removal and Pl.'s Mot. to Remand ("Pl.'s Reply") at 2. Defendant All Coast Transporters responds that the plaintiff's objections are barred by 28 U.S.C. § 1447(c). Def. All Coast Transporters, Inc.'s Resp. to Pl.'s Objection to Notice of Removal and Pl.'s Mot. to Remand ("Def.'s Resp.") at 2.

28 U.S.C. § 1447(c) requires that motions to remand "on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c). Failure to obtain unanimous consent from all necessary defendants is a procedural defect that does not implicate subject-matter jurisdiction. Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003); Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 2002); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990) (citing Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 42 (5th Cir. 1989); Harris v. Edward Hyman Co., 664 F.2d 943, 945 (5th Cir. 1981)). Similarly, failure to promptly provide the state court notice of removal pursuant to 28 U.S.C. § 1446(d) is also deemed a procedural defect. See Peterson v. BMI Refractories, 124 F.3d 1386, 1395 (11th Cir. 1997) (holdingthat even the complete "failure of notice to the state court is a procedural defect that does not defeat federal jurisdiction"); see also Koerner v. Aetna U.S. Healthcare, Inc., 92 F. App'x 394, 396 (9th Cir. 2003) (citing Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212-13 (9th Cir. 1980)); Rashid v. Schenck Constr. Co., 843 F. Supp. 1081, 1085-86 (S.D. W. Va. 1993). Therefore, potential objections to removal based on lack of unanimous consent among defendants or imperfect compliance with § 1446(d) are deemed waived if not raised within 30 days of the notice of removal being filed in federal court. See 28 U.S.C. §§ 1446(a), 1447(c).

In this case, defendant All Coast Transporters filed a notice of removal in the U.S. District Court for the Southern District of West Virginia on August 24, 2012. The plaintiff's second motion to remand, asserting defective compliance with § 1446(d), and the plaintiff's subsequent reply brief, noting that defendant United States Van Lines had not consented to removal, were not filed until October 12, 2012, and October 17, 2012, respectively. Accordingly, because the plaintiff failed to raise his procedural objections within the 30-day period established by 28 U.S.C. § 1447(c), the plaintiff's motion to remand is denied.

In conclusion, this court properly assumed jurisdiction as of August 24, 2012. See Aqualon Co. v. MAC Equip., Inc., 149 F.3d 262, 264 (4th Cir. 1998) (citing Berberian v. Gibney, 514 F.2d 790,792 (1st Cir. 1975); Burroughs v. Palumbo, 871 F. Supp. 870, 872 (E.D. Va. 1994)) (stating that "[f]ederal jurisdiction attached as soon as . . . a Notice of Removal [was filed] in Federal Court"). The Circuit Court of Jackson County, West Virginia, however, maintained concurrent jurisdiction until October 10, 2012. See South Carolina v. Moore, 447 F.2d 1067, 1073 (4th Cir. 1971) (noting that state tribunals are not divested of jurisdiction under § 1446 until the proper documents are submitted to both the state and federal courts); accord Berberian, 514 F.2d at 792-93. Thus, the court must address any pending state-court motions filed during the intervening period of joint jurisdiction, see Holmes v. AC & S, Inc., 388 F. Supp. 2d 663, 667 (E.D. Va. 2004) (citing Burroughs v. Palumbo, 871 F. Supp. 870, 872 (E.D. Va. 1994)) ("Once the notice of removal has been effectively filed in both courts, the federal court takes the case in the posture in which it departed the state court, treating everything done in the state court as if it had been done in federal court."), as well as motions filed in federal court after August 24, 2012.

C. Entry of Default Against Defendant All Coast Transporters

On October 9, 2012, the plaintiff moved the Circuit Court of Jackson County, West Virginia to enter default against defendantAll Coast Transporters.5 See Pl.'s Mot. for an Entry of Default Against Def. All Coast Transporters, Inc. ("Pl.'s Mot. for Default") Ex. 3, at 1. The plaintiff has yet to provide a copy of the motion filed in state court. He has, however, filed a duplicate motion for entry of default against defendant All Coast Transporters with this court. See Pl.'s Mot. for Default, ECF...

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