Air Liquide Mexico S. de R.L. de C.V. v. Talleres Willie, Inc. et al., No. 4:2014cv00211 - Document 38 (S.D. Tex. 2014)
Court Description: MEMORANDUM AND ORDER Denying 8 MOTION to Remand (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
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Air Liquide Mexico S. de R.L. de C.V. v. Talleres Willie, Inc. et al. Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION AIR LIQUIDE MEXICO S. de R.L. de C.V. and AIR LIQUIDE PROCESS AND CONSTRUCTION, INC., Plaintiffs, v. TALLERES WILLIE, INC., BERNARDO AINSLIE, FELIX NINO LEIJA, TRAILBLAZER PILOT CAR SERVICES, LLC, CLAUDE JOSEPH KIMMEL d/b/a FREEDOM PILOT CAR SERVICES, CHARLES VAN KIRK d/b/a SLINGSHOT PILOT ESCORT SERVICES, WHEELING EQUIPMENT COMPANY, INC., GEORGE ORTIZ, and CONTRACTORS CARGO COMPANY, Defendants. § § § § § § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-14-211 MEMORANDUM AND ORDER Pending is Plaintiffs Air Liquide Mexico S. de R.L. de C.V. and Air Liquide Process and Construction, Inc.'s Motion to Remand (Document response, No.8). reply, After carefully considering and the applicable law, the motion, the Court concludes as follows. I. Background Plaintiffs Air Liquide Mexico S. de R.L. de C.V. Mexico" ) and Air Liquide Process ("Air Liquide and Construction, Liquide Process," together with Air Liquide Mexico, Inc. ("Air "Plaintiffs") Dockets.Justia.com ,----- ---------"-,,---' purchased a purification skid, which is a specialized piece of refinery processing equipment, to be used in Air Liquide Mexico's in Mexico. 1 facilities The purification skid was over 60 feet long, over 15 feet tall, over 15 feet wide, weighed approximately 63 tons, and was valued at approximately $1 million. 2 purification skid was shipped from India to Houston, Plaintiffs contracted with Defendant Contractors The from whence Cargo Company ("Contractors Cargo") to transport it by tractor trailer overland to Mexico. 3 Plaintiffs allege that Contractors Cargo constructed a 140 feet long custom-made trailer for the purification skid and then, acting as a broker, contracted with Defendant Talleres Willie, Inc. ("Talleres Willie") to transport the trailer and the purification skid to Mexico. 4 On March 4, 2013, a train hit the trailer as it was stopped across the tracks at a railroad crossing in Magnolia, Texas, severely damaging the purification skid. 5 Plaintiffs brought suit in state court against Contractors Cargo, Talleres Willie, and seven other Defendants involved in the transportation of the 1 Document No. 1-3 2 Id. ~~ 20-21. 4 Id. ~~ 22-23. 5 Id. ~ ~ Id. 3 purification 20 skid, (Orig. Pet.). 29. 2 alleging negligence, negligence per se, negligent gross negligence, Before hiring.6 Contractors Cargo timely any negligent entrustment, other removed Defendants the suit, Plaintiff's claims are preempted by 49 U.S.C. served, alleging formal consents to removal. II. Beneficial Nat. Bank v. Anderson, 1441(b). The filed Legal Standard federal court if the claim is one § and Plaintiffs moved to remand. 8 "A civil action filed in a U.S.C. that 14501(c) (1) All Defendants who since have been served have 14706. 7 28 §§ were and state court may be removed to 'arising under' 123 S. Ct. federal law." 2058, removing party bears 2062 (2003); the burden of establishing that federal jurisdiction exists over the controversy. Clayton v. ConocoPhillips Co., 722 F.3d 279, 290 (5th Cir. 2013). To determine whether jurisdiction is present for removal, the court considers the claims in the state court petition as they existed at the time of removal. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Any doubt about the propriety of the removal is to be resolved in favor of remand. Flores, 543 F.3d 248, 251 (5th Cir. 2008) 6 Id. ~~ 37-57. 7 Document No.1. 8 Document No.8. 3 Gutierrez v. Generally, a plaintiff is the master of the complaint and may avoid federal jurisdiction by relying exclusively on state law. Caterpillar Inc. v. Williams, 107 S. Ct. 2425, 2429 (1987). . when However, "a state claim may be removed to federal court a federal statute wholly displaces the state-law cause of action through complete pre-emption./I Beneficial, 123 S. Ct. at 2063. "When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. Complete /I preemption exists only when Congress intends the statute to provide the "exclusive cause of action for the particular claims asserted under state law./I Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011) i see also Beneficial, 123 S. Ct. at 2064. III. Analysis The Fifth Circuit has recognized that Congress intended for the Carmack Amendment to the Interstate Commerce Act 9 to "provide the exclusive cause of action for loss or damages to goods arising from the interstate carrier, /I and that transportation of those goods by a the applies to such claims. 778 (5th Cir. 2003) 9 49 U.S.C. § complete preemption doctrine common therefore Hoskins v. Bekins Van Lines, 343 F.3d 769, (emphasis in original). This suit arises out 14706. 4 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -..._--- of damage to Plaintiffs' property while it was being transported by truck from Texas to Mexico, so their claims fall squarely within the subject matter preempted by the Carmack Amendment. Plaintiffs concede this principle, but argue that the Carmack Amendment does not apply to this case because (1) the parties contracted out of the Carmack Amendment, and (2) Contractors Cargo is a broker, not a common carrier, and hence was not entitled to remove the case. 10 A. Contract Carriage under 49 U.S.C. § 14101(b) Plaintiffs argue that Amendment because this constitutes § case 14101(b) 11 the they contracted out specialized "contract type carriage" of of the Carmack transportation under to 49 in U. S. C. That provision authorizes a carrier to "enter into a contract with a shipper . . . to provide specified services under specified rates and conditions," and provides that "[i] f the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract, the transportation provided under the contract shall not be subject to the waived rights and remedies." § 14101(b) (1). 49 U.S.C. This provision "allows parties to contract around the system of federal regulatory 'default rules' that the Carmack 10 Document No. 8 ~~ 26-39. 11 rd. ~~ 26-33. The term 'contract carriage' is statutorily defined as "service provided under an agreement entered into under section 14101(b)." 49 U.S.C. § 13102(4) (B) 5 -----------_ _--.... Amendment established." Digital Electronics. Knight LLC, Transp.. Inc. 3:07-CV-1210-D, (N.D. Tex. Jan. 22, 2008) (Fitzwater, J.) v. Westinghouse 2008 WL 194739, at *1 (citations omitted). Plaintiffs have not produced or referenced any writing or contract in which the shipper and carrier "expressly waive any or all rights and transportation § remedies" of 14101 (b) (1) . the under the equipment, Instead, Carmack Amendment as required Plaintiffs produce by for 49 excerpts the U.S.C. from a Purchase Order evidently issued by Air Liquide Mexico to Hansa Meyer Global Transportation for one "Proj ect: Ternium, Managing Freight Forwarder for Project 7964--Ternium," at a unit price of $1,934,426.88. On pages 2 and 3 of the Purchase Order, certain exceptions are listed to Air Liquide Mexico's "General Conditions ALM Terms & Conditions 06/07/12," including at item 9 that "[t]he laws of the [United Mexican States] shall govern the Agreement," and that "[a]ny dispute, controversy or claim between the Parties derived from or related to the Agreement . shall be resolved by the of binding arbitration under the rules the International Chamber of Commerce in [Bermuda]." Plaintiffs in their Original Petition Global defendant do not in this name Hansa case, action based on this Meyer nor do Plaintiffs Purchase Order, nor, Plaintiffs even make reference to this Original Petition. Transportation assert for as a any cause of that matter, do Purchase Order in their Moreover, whatever claims Plaintiffs may have 6 related to their Purchase Order issued to Hansa Meyer not only are governed by Mexican law but also are subject to binding arbitration in Bermuda. Plaintiffs have cited no authority or legal rationale as to why those terms lifted from that Purchase Order should be construed against the carrier in this case, who was not a party to the Purchase Order, as a "writing" that "expressly waivers] any or all rights and remedies" u.S.C. § 14101(b) (1); Enterprises, Inc., under the Carmack Amendment. Midamerican Energy Co. v. see also, 437 F. See Supp. 2d 969, 973 (S.D. 49 Start Iowa 2006) (contract providing that "the law of the State of Iowa will be given the interpretation, validity and effect of this Contract without regard to the place of execution or place of performance thereof" not sufficiently explicit to express an intent to avoid the rights and remedies of the Carmack Amendment) The Purchase Order issued by Plaintiffs to non-party, carrier Hansa Meyer, non- agreeing to Mexican law and arbitration in Bermuda, constitutes no waiver by the carrier in this case of "any or all rights and remedies" under the Carmack Amendment. 12 Absent 12 Plaintiffs make an additional argument, based on Ensco, Inc. v. weicker Transfer & Storage Co., 689 F.2d 921, 926-27 (10th Cir. 1982), that the specialized nature of the transportation in this case in and of itself is sufficient to exclude it from the Carmack Amendment as 'contract carriage.' Document No. 8 ~~ 29-31. The argument is without merit. Ensco predates Congress's enactment of 49 U.S.C. §§ 13102(4) and 14101(b) (1) on December 29, 1995, which now define "contract carriage." See 49 U.S.C. § 13102(4) ("The term 'contract carriage' means-- (A) for transportation provided before January 1, 1996, service provided pursuant to a permit issued under section 10923, as in effect on December 31, 1995; and 7 any legal authority to the contrary, the Court is constrained to apply the statute as written, and the contract "expressly waiving" the Carmack Amendment therefore must be in a writing between the "shipper and carrier," u.S.C. B. § See 49 and Plaintiffs have shown none. 14101(b) (1). Exception for Brokers Plaintiffs argue that remand is further required because the Carmack Amendment does not encompass claims against brokers, and Contractors Cargo, a broker, therefore had no basis to remove this case to federal court.13 737 F. Supp. 2d 638, not carrier, Amendment) CIV.A. 2009) i and 641 thus See Chatelaine, Inc. v. Twin Modal, Inc., (N.D. Tex. 2010) there was no Hunt ington Operating Corp. H-08-781, (Harmon, 2009 WL 2423860, J.) (defendant was broker, preemption v. under Carmack Sybonney Exp., at *3 n.1 (S.D. Tex. Inc., Aug. 3, ("The Court notes in passing that the Carmack Amendment, which precludes all other causes of action for carrier liability, does not extend to transportation brokers. ") . Plaintiffs allege that Contractors Cargo was a broker but they also allege in their Original Petition that Talleres Willie was a carrier, and that "Contractors Cargo (as "BROKER") contracted with (B) for transportation provided after December 31, 1995, service provided under an agreement entered into under section 14101 (b) . ") . 13 Document No. 8 ~~ 34-39. 8 Defendant Talleres Willie, Inc. (as "CARRIER") . ,,14 It is the claim against the carrier that is the removable claim, and Contractors Cargo--which recognized such--was entitled to initiate the removal. "That the federal claim was brought against a defendant other than the one who initiated the removal is immaterial." Smith v. Smart Buy Homes, CIV-08-89-C, 2008 WL 5122840, at *1 (W.D. Okla. Dec. 4, 2008) (finding that federal question was present on the face of the state court petition even though the defendant against whom the federal claim was alleged had not been served); Cartwright v. Thomas Jefferson University Hosp., 99 F. Supp.2d 550,553 (E.D. Pa. 2000) (" [I] f a case is removable, any defendant, including a defendant not named in any federal-law count, must be permitted to file a notice of removal."); Solis v. Chase Bank USA, N.A., EP-05CA-453-DB, 2006 WL 487855 (W.D. Tex. Feb. 8, 2006) (removal on federal question jurisdiction proper by a defendant against whom the federal question claim was not alleged) .15 Therefore, although Plaintiffs' claims against Contractors Cargo are not preempted by the Carmack Amendment, Plaintiffs' claims against Talleres Willie for negligence, negligence per se, gross negligence, and negligent hiring are all claims "for loss or damages to goods arising from 14 Document No. 1-3 ~ 23. 15 As observed above, after having been served, Talleres Willie consented to the removal to federal court, stating it was "the only appropriate forum for Plaintiffs to litigate their claims against Defendants." (Document No. 24, at 2) . 9 the interstate transportation of those goods by a common carrier," to which complete preemption applies. 343 F.3d 769, 778 (5th Cir. 2003) breach of contract, Hoskins v. Bekins Van Lines, (state law claims for negligence, and violation of the Texas Deceptive Trade Practices Act preempted by Carmack Amendment). has original jurisdiction because The Court therefore Plaintiffs' claims against Talleres Willie arise under the Carmack Amendment and the matter in controversy exceeds $10,000. C. See 28 U.S.C. § 1337(a). Supplemental Jurisdiction A district court has supplemental jurisdiction over "all other claims that are so related to claims in the action within original jurisdiction that they form part of controversy." 28 U.S.C. § 1367(a). the [its] same case or These claims must "derive from a common nucleus of operative fact" such that the plaintiff "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers of Am. v. Gibbs, 86 S. Ct. 1130, 1138 (1966). All of Plaintiffs' claims against all Defendants arise out of damage to the purification skid when it was hit by a March 4, 2013. train on Plaintiffs allege that All Defendants were engaged in a concerted effort to transport the [purification] skid for profit. Each Defendant had control over the others with regard to the execution of the transport. On information and belief, all Defendants had an express or implied agreement to complete their common interest to transport the [purification] skid for profit, and each Defendant had an 10 equal right to a voice in the safe direction of the enterprise (transporting the [purification] skid), which gave each Defendant an equal right of control over the transport. 16 Plaintiffs' common claims nucleus of against the operative other Defendants fact" with their thus claims share "a against Talleres Willie, and the Court has supplemental jurisdiction over all of Plaintiff's claims. Removal of the case was proper, and Plaintiffs' Motion to Remand is denied. IV. Order Based on the foregoing, it is ORDERED that Plaintiffs Air Liquide Mexico S. de R.L. de C.V. and Air Liquide Process and Construction, Inc.'s Motion to Remand (Document No.8) is DENIED. The Clerk will enter this Order, providing a correct copy to all counsel of record. SIGNED at Houston, Texas, on this Ji!!/:y of June, 2014. " LEIN, JR. DISTRICT JUDGE 16 Document No. 1-3 ~ 35. 11
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