Hilgers v. VIP Moving & Storage Inc.

Decision Date02 December 2020
Docket NumberCIVIL ACTION NO. 3:19-CV-1472-S
PartiesLEANN HILGERS v. VIP MOVING & STORAGE INC. and DY DREAM VANLINES INC.
CourtU.S. District Court — Northern District of Texas
MEMORANDUM OPINION AND ORDER

This Memorandum Opinion and Order addresses Defendant VIP Moving & Storage, Inc.'s Partial Motion to Dismiss ("VIP Motion to Dismiss") [ECF No. 28], and Defendant DY Dream VanLines, Inc.'s 12(b)(6) Motion to Dismiss Plaintiff's State Law Claims ("DY Motion to Dismiss;" and together with the VIP Motion to Dismiss, the "Motions to Dismiss") [ECF No. 31]. For the following reasons, the Motions to Dismiss are GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This case involves a dispute over the alleged overcharges related to Plaintiff LeAnn Hilgers' interstate move and the loss of or damage to Hilgers' property while in transit. On or about January 10, 2017, Hilgers contacted Budget Van Lines ("Budget"),1 a moving broker, to arrange her move from California to Texas. Second Am. Compl. ("Compl.") ¶¶ 1, 6. Budget provided Hilgers with a cost estimate and connected her with Defendant VIP Moving & Storage, Inc. ("VIP"), a California moving company that Hilgers understood would perform the move. Id. ¶¶ 3, 7-8; Resp. 1. VIP subsequently sent Hilgers an Order for Service containing a price estimate, which she signed. Compl. ¶ 8. Because she had not yet secured a place to live in Texas, Hilgersneeded to place her belongings in storage after vacating her California apartment. Id. Hilgers claims that VIP assured her that her belongings would be safe in their secured storage facility. Id.

On January 19, 2017, VIP came to Hilgers' California apartment to load her belongings. Id. For reasons that are not clearly explained in the Complaint, the move was delayed. Id. VIP returned the next day and loaded Hilgers' belongings onto their truck. Id. After all of her items were loaded, Hilgers claims VIP told her the cost of the move would be twice the original estimate. Id. If she did not sign documents agreeing to the higher price, VIP allegedly told Hilgers they would unload her belongings in the parking lot, but she would still have to pay for their time and loading fees. Id. Hilgers was shocked and alleges she was forced to sign documents without being given an opportunity to read them or ask questions, including an Interstate Bill of Lading Contract and Order for Service ("Bill of Lading"). Id.; Pl.'s Ex. 3. Before leaving, VIP allegedly told Hilgers that VIP would "take revenge" on her for changing the loading date. Compl. ¶ 8. After the pick up, Hilgers contacted VIP and Budget multiple times about the price increase, but claims she was unable to obtain assistance. Id. ¶ 9.

Additional problems ensued. When Hilgers was ready for her items to be delivered to her new residence in Irving, Texas, Hilgers claims VIP raised the price again. Id. ¶ 11. According to Hilgers, VIP advised that she had to pay thousands of additional dollars for "truck and access fees" because she lived up one flight of stairs, even though she had previously been told that one flight of stairs would be included in her original price estimate. Id. ¶¶ 11-12. Hilgers also claims VIP told her she had to pay her balance by cash or postal money order and sign various documents before they would deliver her items. Id. ¶¶ 13, 16. When the movers arrived, Hilgers claims they told her they would drive away if she did not sign the documents, even though she had not been given an opportunity to inspect her belongings. Id. ¶ 16. Hilgers was not given a copy of thedocuments she signed at the time of delivery, but recalls that they referred to VIP as the mover. Id. Hilgers now believes that VIP had subcontracted with DY Dream VanLines, Inc. ("DY") to move Hilgers' property from storage in California to her new residence in Texas, which the parties do not dispute. Id. ¶ 20.

After delivery, Hilgers discovered that many of her belongings were damaged, missing, or used. Specifically, Hilgers states that there were stains on her couch and other items, her television was broken, electronics and furniture were missing, and she was pricked by sewing needles in her couch cushions, indicating that someone else had used the couch as Hilgers doesn't sew. Id. ¶ 18. Hilgers states that neither VIP nor DY inspected her property during any stage of the move and, therefore, she does not know where the damage occurred. See id. ¶ 28. Based on the foregoing allegations, Hilgers alleges damages of at least $60,000 and brings claims pursuant to the Carmack Amendment and Texas state and common law. Id. ¶¶ 21-30. These claims include: (1) breach of contract; (2) violation of the Texas Deceptive Trade Practices Act; (3) fraud; (4) negligence; (5) conversion; (6) overcharges; (7) exemplary damages; and (8) attorney's fees. Id. ¶¶ 22-30; Resp. 3.

VIP and DY move to dismiss Hilgers' state and common law claims principally on the grounds that such claims are preempted by the Carmack Amendment. VIP Mot. to Dismiss 2; DY Mot. to Dismiss 2.

II. LEGAL STANDARD

To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008). To meet this "facial plausibility" standard, a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for themisconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility does not require probability, but a plaintiff must establish "more than a sheer possibility that a defendant has acted unlawfully." Id. The court must accept well-pleaded facts as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007). However, the court does not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted). A plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations omitted).

The ultimate question is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002). At the motion to dismiss stage, the court does not evaluate the plaintiff's likelihood of success. It only determines whether the plaintiff has stated a claim upon which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).

III. ANALYSIS
A. Choice of Law

Plaintiff brings her claims pursuant to the Carmack Amendment and Texas law, and the parties cite primarily to case law from this Circuit. The parties have not raised choice of law issues. For this reason, the Court declines to analyze choice of law issues sua sponte and the parties are deemed to have acquiesced to the law of this forum. Tobin v. AMR Corp., 637 F. Supp. 2d 406, 412 (N.D. Tex. 2009) ("The court need not sua sponte analyze choice of law issues unless raised by the parties."); Nova Consulting Grp., Inc. v. Eng'g Consulting Servs., Ltd., No. Civ.SA03CA305FB, 2005 WL 2708811, *6 (W.D. Tex. June 3, 2005) ("The parties have the obligation to call the applicability of another forum's law to the court's attention. Where the parties fail to raise the issue of choice of law, the Court need not raise the issue sua sponte, and the parties are deemed to have acquiesced in the application of the law of the forum.") (internal quotation marks, alterations, and citations omitted).

B. Applicability of Carmack Amendment to Intrastate Leg of Transit

It is undisputed that Hilgers' property was moved from California to Texas in two legs. On the first leg, Hilgers believes that VIP moved her property from her California apartment to VIP's storage facility in California. Compl. ¶ 20. On the second leg, Hilgers believes DY moved her property from the storage facility in California to her residence in Texas, which VIP and DY do not dispute. Id. Although the Complaint is not entirely clear on this point, Hilgers appears to argue that the Carmack Amendment does not apply to VIP because VIP moved her property solely between two locations in California.2 See id. ¶ 22 ("Plaintiff would also show that the Carmack Amendment does not apply to intrastate shipping of property. VIP did not ship Plaintiff's property interstate, only from one part of California to another.").

This theory, however, is not supported by case law. Although it is well-settled that the Carmack Amendment does not apply to transport that is wholly intrastate, Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 826 (N.D. Tex. 2003) (citing 49 U.S.C. § 13504), the Fifth Circuit has found that a carrier is engaged in interstate commerce when carrying goods that are ultimately bound out-of-state, Merchants Fast Motor Lines, Inc. v. I.C.C., 528 F.2d 1042, 1044 (5th Cir. 1976). If the intended final destination is interstate, the Carmack Amendment applies to each leg of the journey, including intrastate legs. Id.; see also Project Hope v. M/V IBN SINA, 250F.3d 67, 75 (2d. Cir. 2001) (noting that if the intended final destination is in another state, the Carmack Amendment applies throughout the shipment). This analysis does not change when multiple carriers are involved, even if a particular carrier moves goods solely intrastate. Vesta Forsikring AS v. Mediterranean Shipping Co., SA, No. Civ. A. H-00-1938, ...

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