Law Office of Guy Levy, Inc. v. Moishes Moving Systems

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 LAW OFFICE OF GUY LEVY, INC., Case No.: 21-cv-1212-L (AGS) 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS [ECF NO. 6] 14 MOISHE’S MOVING SYSTEMS, LLC, et al., [15] Defendants. [17] Pending before the Court is Defendants’ Moishe’s Moving Systems and Omega [18] Moving and Storage Motion to Dismiss. [ECF No. 6.] On August 24, 2021, Plaintiff [19] (“Law Office”) filed a response in Opposition. [ECF No. 10.] On August 27, 2021, [20] Defendant Moishe’s Moving Systems filed a Reply. [ECF No. 11.] The Court decides [21] the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d)(1). [22] For the reasons stated below, the Court grants the Motion without prejudice and with [23] leave to amend. [24] I. FACTUAL AND PROCEDURAL BACKGROUND [25] Plaintiff Guy Levy Law LLC is a California LLC. Defendant Moishe’s Moving [26] Systems is a motor carrier engaged in the business of interstate transportation of [27] household goods for hire based in the State of New Jersey. Defendant Omega Moving & [28] 1 Storage, Inc., is a shipping company based in the State of California. On December 26, 2 2017, Plaintiff entered into a written agreement with Defendants to transport office 3 furniture from New York City to San Diego. Plaintiff alleges Defendants lost, stole, 4 destroyed, or otherwise failed to deliver some of the office furniture per the terms of the 5 agreement. On May 14, 2021, Plaintiff filed a Complaint in California Superior Court, 6 County of San Diego alleging twelve causes of action arising under State law including: 7 breach of contract, unjust enrichment, fraud, breach of fiduciary duty, conversion, 8 negligence, and declaratory relief. (Oppo. [ECF No. 10-1.]) 9 On July 2, 2021, Defendant Moishe’s Moving Systems LLC removed this action 10 from State court pursuant to 28 U.S.C. §§1331 and 1441, and 49 U.S.C. § 14706 . (Notice 11 of Removal [ECF No. 1.]) On July 9, 2021, this Court remanded the action to state court 12 finding that the Court lacked jurisdiction over Plaintiff’s Complaint which contained only 13 state law claims. [ECF No. 3.] On July 12, 2012, Defendant filed a Motion to Amend or 14 Correct the Order of Removal, arguing that the Carmack Amendment, 49 U.S.C. §14706 15 preempts Plaintiff’s state law claims, citing Hall v. North American Van Lines, Inc., 476 16 F.3d 683 (9th Cir. 2007). By Order dated July 15, 2021, the Court vacated its Order 17 remanding the action, finding the Carmack Amendment preempted the State law claims. 18 (Order [ECF No. 5.]) 19 On August 16, 2021, Defendant Moishe’s filed the present Motion to Dismiss 20 pursuant to Federal Rule of Civil Procedure 12(b)(6). (MTD [ECF 6.]) On August 24, 21 2021, Plaintiff filed a response in Opposition. (Oppo [ECF No. 10.]) On August 27, 22 2021, Defendant Moishe’s filed a Reply. (Reply [ECF No. 11.]) On the same day, 23 Defendant Omega Moving Systems filed a Notice of Joinder to Moishe’s Reply. (Notice 24 [ECF No. 12.]) 25 II. DISCUSSION 26 The court must dismiss a cause of action for failure to state a claim upon which 27 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 28 tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578 , 1 581 (9th Cir. 1983). The court must assume the truth of all factual allegations and 2 “construe them in the light most favorable to [the nonmoving party].” Gompper v. VISX, 3 Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of 4 Seattle, 83 F.3d 1575 , 1580 (9th Cir. 1996). 5 As the Supreme Court explained, “[w]hile a complaint attacked by a Rule 12(b)(6) 6 motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to 7 provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and 8 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotation 10 marks omitted). Instead, the allegations in the complaint “must be enough to raise a right 11 to relief above the speculative level.” Id. at 1965. A complaint may be dismissed as a 12 matter of law either for lack of a cognizable legal theory or for insufficient facts under a 13 cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 , 14 534 (9th Cir. 1984). 15 Here, Plaintiff’s state law claims in the Complaint allege that Moishe’s and Omega 16 “negligently or intentionally lost stole or destroyed office furniture transported from New 17 York to San Diego” during an interstate move. (Oppo. at 2). In Hall, the Ninth Circuit 18 held that “the Carmack Amendment is the exclusive cause of action for interstate19 shipping contract claims alleging loss or damage to property.” Hall, 476 F.3d at 688. 20 Plaintiff’s state law claims are therefore governed by the Carmack Amendment because 21 they include interstate shipping contract claims. Smallwood v. Allied Van Lines, 660 F.3d 22 1115, 1120-21 (9th Cir. 2011); Hughes Aircraft Co. v. North American Van Lines, 970 23 F.2d 609, 613 (9th Cir. 1992)(“The Carmack Amendment, 49 U.S.C. § 11707 (a), (c), 24 subjects a motor carrier transporting cargo in interstate commerce to absolute liability for 25 ‘actual loss or injury to property.’”) Accordingly, the Court grants Defendants’ Motion to 26 Dismiss. 27 Plaintiff contends that it “can amend their complaint to withstand any future 28 Motions to Dismiss” if the Court dismisses the complaint and grants leave to file an 1 ||amended complaint. (Oppo. at 2-3.) Specifically, Plaintiff claims that “based on the facts 2 || of the case, Plaintiff could reasonably plead, in the alternative, a) that the Carmack 3 || Amendment is not applicable, or b) exceptions such as waiver, or estoppel apply, or if it 4 || applies, c) Plaintiff made valid and perfected claims under the Carmack Amendment.” 5 || (Oppo. at 5). 6 Rule 15 advises leave to amend shall be freely given when justice so requires. Fed. 7 Civ. P. 15(a)(2). “This policy is to be applied with extreme liberality.” Eminence 8 || Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). 9 In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 10 □ deficiencies by amendments previously allowed, undue prejudice to the 11 opposing party by virtue of allowance of the amendment, futility of the 12 amendment, etc. — the leave sought should, as the rules require, be freely given. [13] 14 Foman y. Davis, 371 U.S. 178, 182 (1962). Because Plaintiff may be able to assert viable 15 claims, leave to amend is granted. 16 Il. |. CONCLUSION AND ORDER For the foregoing reasons, Defendant’s motion to dismiss is granted with leave to 18 amend. Plaintiff shall file an amended complaint, if any, no later than April 27, 2022. 19 Defendant shall file a response to the amended complaint, if any, no later than the time 30 set forth in Federal Rule of Civil Procedure 15(a)(3). IT IS SO ORDERED. 9 Dated: March 22, 2022 [23] H . James Lorenz, 24 United States District Judge