Hoover v. Allied Van Lines, Inc.

• Decision Date: 31 May 2002
• Docket Number: Civil Action No. 02-2092-KHV.
• Citation: 205 F.Supp.2d 1232
• Parties: Stephen HOOVER and Diane Hoover, Plaintiffs, v. ALLIED VAN LINES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

205 F.Supp.2d 1232

Stephen HOOVER and Diane Hoover, Plaintiffs, v. ALLIED VAN LINES, INC., Defendant.

Civil Action No. 02-2092-KHV.

United States District Court, D. Kansas.

May 31, 2002.

COPYRIGHT MATERIAL OMITTED

Edward R. Spalty, Karrie J. Clinkinbeard, Armstrong Teasdale LLP, Kansas City, MO, for Stephen Hoover, Diane Hoover.

Brenda L. Head, Davis, Unrein, Hummer, McCallister, Biggs & Head, L.L.P., Topeka, KS, for Allied Van Lines Inc.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Stephen and Diane Hoover filed suit in state court against Allied Van Lines, Inc. ("Allied") for damage to their personal belongings and household goods during a residential move from Des Moines, Iowa to Shawnee, Kansas. Allied removed the case to federal court. This matter is before the Court on Plaintiffs' Motion To Remand (Doc. # 7) filed April 1, 2002. For reasons set forth below, plaintiffs' motion is sustained.

Standards For Remand Motions Based On Untimeliness Of Removal Notice

A notice of removal must be filed within 30 days after the receipt by defendant, through service or otherwise, of a copy of the state court petition setting forth the claim for relief upon which the action is based. See 28 U.S.C. § 1446(b). The 30 day time limit is mandatory and a failure to comply with the requirement is a defect in removal which justifies a remand of the case. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1077 (10th Cir.1999); see also Farm & City Ins. Co. v. Johnson, 190 F.Supp.2d 1232, 1236 (D.Kan.2002) (30 day time limit is mandatory but it is not jurisdictional); McCain v. Cahoj, 794 F.Supp. 1061, 1062 (D.Kan. 1992) (30 day time limit is mandatory and strictly construed). If the initial petition in state court is not removable, a defendant may file a notice of removal within 30 days after receipt of a copy of the amended petition "from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). "A defendant waiving removal on the initial petition does not regain the opportunity to remove the matter based on subsequent events." McHugh v. Physicians Health Plan of Greater St. Louis, Inc., 953 F.Supp. 296, 299 (E.D.Mo.1997); see O'Bryan v. Chandler, 496 F.2d 403, 409 (10th Cir.1974) ("there must be both an amended pleading or paper and a ground for asserting removability that exists for the first time") (emphasis added).

Factual And Procedural Background

In July 1999, plaintiffs contracted with Allied to move their personal belongings and household goods (including a grand piano) from their residence in Des Moines Iowa to a new residence in Shawnee, Kansas.

On August 11, 1999, an Allied moving crew loaded plaintiffs' belongings. While en route to Shawnee, Kansas, the Allied moving truck was involved in an accident. It arrived at plaintiffs' new residence on August 13, 1999. While unloading the grand piano, Allied crew members dropped the piano off the top of the moving truck ramp. The crew damaged 21 other items and lost 12 boxes of items.

On November 15, 2000, plaintiffs filed suit against Allied in the District Court of Johnson County, Kansas. Plaintiffs asserted claims for negligence and breach of contract, seeking recovery for damage to the grand piano and other goods, and for the complete loss of 12 boxes of items.

On August 17, 2001, plaintiffs sought leave to file an amended petition which added claims for fraud, violations of the Kansas Consumer Protection Act ("KCPA"), K.S.A. § 50-623 et seq., and damage claims for loss of use and loss of income. Defendant opposed plaintiffs' motion to amend, arguing that the original petition, as well as the proposed amended petition, were preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. The state court sustained plaintiffs' motion to amend.

On December 10, 2001, Allied filed a motion for summary judgment in state court, arguing that all claims were preempted by the Carmack Amendment. The state court ruled as follows:

[M]y ruling is that the plaintiffs' claims based on negligence and breach of contract are preempted by the Carmack Amendment. My ruling is further that plaintiffs' claims for misrepresentation, fraud, and violations of the Kansas Consumer Protection Act are not precluded by the Carmack Amendment. And I realize you disagree with that amendment, Ms. Head, but that's how I come down on it. My direction to you if you wish to pursue your claims for negligence and breach of contract is that you should amend your petition to properly plead a claim under the Carmack Amendment.

Transcript Of Summary Judgment Hearing Before the Honorable Janice Russell at 32, attached as exhibit 1 to Defendant's Response In Opposition To Plaintiffs' Motion To Remand (Doc. # 11) filed April 24, 2002 at 32. Plaintiffs immediately sought leave to amend their petition to specifically cite the Carmack Amendment under the negligence and breach of contract claims. Defendant did not object to the amendment. On January 30, 2002, plaintiffs filed their second amended petition, and on March 1, 2002, defendant filed a notice of removal.

Analysis

Plaintiffs argue that the notice of removal is untimely because defendant did not file it within 30 days of plaintiffs' original petition in state court. Defendant argues that its notice of removal is timely, based on plaintiffs' second amended petition, because plaintiffs' original petition did not state a federal claim and therefore was not removable.

Federal district courts have original federal question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331; see 28 U.S.C. § 1441(b). "The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Plaintiff is the "master of the claim" and "may avoid federal jurisdiction by exclusive reliance on state law." Id.; see Garley v. Sandia Corp., 236 F.3d 1200, 1207 (10th Cir.2001). But even though state law creates plaintiff's causes of action, the case might still "arise under" the laws of the United States if a well-pleaded complaint establishes that plaintiff's "right to relief under state law requires resolution of a substantial question of federal law." City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 118 S.Ct. 523, 529, 139 L.Ed.2d 525 (1997) (quoting Franchise Tax Bd. of State Of Cal. v. Constr. Laborers Vacation Trust For S. Cal., 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)) (case arises under federal law when federal law creates cause of action or plaintiff's right to relief necessarily depends on resolution of substantial question of federal law). In considering whether an action arises under federal law, a defense which implicates a federal question is not considered part of plaintiff's properly pleaded complaint. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Warner Bros. Records, Inc. v. R.A. Ridges Distrib. Co. Inc., 475 F.2d 262, 262 (10th Cir.1973). Accordingly, "a case may not be removed to federal court on the basis of a federal defense, . . . even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case."¹ Franchise Tax Board, 463 U.S. at 14, 103 S.Ct. 2841; see Garley, 236 F.3d at 1207.

The United States Supreme Court has acknowledged the "complete pre-emption doctrine" as an "independent corollary" to the well-pleaded complaint rule. Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (citations omitted). "[I]f a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841. The Supreme Court sets forth the doctrine as follows:

On occasion, . . . the pre-emptive force of a statute is so "extraordinary" that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well pleaded complaint rule." Metropolitan Life Insurance Co., [481 U.S.] at 65, 107 S.Ct. at 1547. Once an area of state law has been completely preempted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. See Franchise Tax Board, [] 463 U.S., at 24, 103 S.Ct., at 2854.

Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (footnote omitted).

Plaintiffs maintain that the Carmack Amendment completely preempts their breach of contract and negligence claims asserted in their original petition, and that those claims therefore arise under federal law and trigger the 30 day deadline for defendant to file its notice of removal.

The Carmack Amendment was enacted in 1906 as an amendment to the Interstate Commerce Act of 1887. It codified a carrier's liability for goods lost or damaged in shipment. The Amendment states that a carrier is liable "for the actual loss or injury to the property" it transports. 49 U.S.C. § 14706(a)(1). In Underwriters At Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112 (10th Cir.1989) (en banc), the Tenth Circuit held that "the Carmack Amendment preempts state common law remedies against common carriers for negligent loss or damage to goods shipped under a lawful bill of lading." Id. at 1121. In Lloyds of London, however, the Tenth Circuit did not address the pertinent issue in this action, i.e. whether the preemptive force of the Carmack Amendment is so extraordinary that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well pleaded complaint...