AQUA GULF LOGISTICS, INC.

v.

GLOBALTRANZ ENTERPRISES, LLC

THIS CAUSE is before the Court on Defendant Primetime Global Logistics, Inc.’s Amended Motion to Dismiss Plaintiff's Complaint and Incorporated Memorandum of Law (Doc. 33; Motion) filed on July 26, 2023.1 In the Motion, Primetime requests that the Court dismiss Count II of Plaintiff Aqua Gulf Logistics, Inc.’s (AGL’s) Complaint (Doc. 1) filed on May⁵, 2023, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Rule(s)). See Motion at 1. AGL timely filed a response in opposition to the Motion. See Memorandum of Law in Opposition to Primetime Global Logistics, Inc.’s

I. Legal Standard

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema N.A., 534

U.S. 506, 508 & n.1 (2002); see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Randall v. Scott, 610 F. 3d 701, 705 (11th Cir. 2010). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F. 3d 1250, 1262–63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary,” the complaint should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege

U.S. at 679. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570).

II. Background4

On May 9, 2022, “AGL emailed [Primetime] for carriage of” a pallet of 122 cases of wine from American Canyon, California to Jacksonville, Florida. Complaint ¶¶ 8–9. Primetime “accepted responsibility for the delivery.” Id. ¶ 9. To facilitate the delivery, Primetime “coordinated with” GlobalTranz Enterprises, LLC (GlobalTranz) as a “freight forwarder and receiving/delivering carrier.” GlobalTranz, in turn, utilized TForce Freight, Inc. (TForce) “as the motor carrier for the shipment.” See id. ¶ 10. The wine shipment, “valued at $18,096.00,” was ultimately “lost or destroyed” during transit, and was “never delivered to its destination.” Id. ¶¶ 8, 22.

In seeking to recover damages for the loss of the shipment, AGL initially filed suit against GlobalTranz (Count I), Primetime (Count II), and TForce (Count III). See generally id. In each count, AGL asserted a claim of strict liability under the Carmack Amendment, 49 U.S.C. § 14706. See generally id.

On June 15, 2023, AGL filed a notice requesting that the Court voluntarily dismiss its claim against GlobalTranz, and the Court did so the following day. See Order (Doc. 17) entered June 16, 2023. As such, AGL now pursues the

Defendant, TForce Freight, Inc. and Affirmative Defenses (Doc. 14; TForce Answer) filed June⁵, 2023. However, Primetime seeks to dismiss Count II of the Complaint for failure to state a claim upon which relief can be granted. Motion at 1.

III. Discussion

“The Carmack Amendment [to the Interstate Commerce Act] was adopted to achieve uniformity in rules governing interstate shipments, including the rules governing injury or loss to property shipped.” UPS Supply Chain Sols.,

Inc. v. Megatrux Transp., Inc., 750 F. 3d 1282, 1285 (11th Cir. 2014). It “is a strict liability statute” which creates “a prima facie presumption of liability” when shipped goods are lost or damaged while in the possession of a motor carrier. See id. at 1285–86. Notably, however, the Carmack Amendment

“does not apply to brokers, which are purposefully distinguished from motor carriers throughout the” Interstate Commerce Act. Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F. 3d 1292, 1300 (11th Cir. 2018). Here, Primetime contends that Count II must be dismissed because “the pleaded facts in the Complaint clearly indicate that TForce, not Primetime, was the motor carrier involved in the transaction,” and that Primetime “acted as a broker,” and as such, is not subject to liability under the Carmack Amendment. Motion at 8–9. In support, Primetime asserts that “[i]t is both factually inaccurate and impossible for two motor carriers to have both delivered the same cargo at the same time as alleged in the Complaint.” Id. Primetime also contends that GlobalTranz issued a bill of lading which “clearly indicates that TForce is the motor carrier.”⁵ Id. Additionally, Primetime emphasizes that TForce “did in fact have possession of the shipment at the time of the alleged loss or damage.” Id. at 9. According to Primetime, these facts establish that it is not a motor carrier, and thus that it has no liability under the Carmack Amendment.6 See id. Determining whether a party is a broker or a motor carrier is an

“inherently fact-intensive” inquiry.7 See Essex, 885 F. 3d at 1302 (quoting

Eating, Inc. v. Jama’s Express LLC, No. 8:21-cv-1798-CEH-CPT, 2022 WL 17782391, at *8 (M.D. Fla. Dec. 19, 2022) (“[T]he existence of one carrier does not preclude the liability of other carriers, because the Carmack Amendment expressly provides for the liability of more than one carrier.”).

The Eleventh Circuit Court of Appeals discussed the distinction between a motor carrier and a broker in Essex, 885 F. 3d at 1300–02. There, the court appropriate for resolution on a motion to dismiss.” See Swenson v. Alliance Moving & Storage LLC, No. 21-cv-01968-CMA-STV, 2022 WL 1508506, at *7 (D. Colo. Apr. 26, 2022) (citing Essex, 885 F. 3d at 1302), report and recommendation adopted, 2022 WL 1500778. The Court notes that although decisions of other district courts are not binding, they may be cited as persuasive authority. See Stone v. First Union Corp., 371 F. 3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any other district court’s determination, the decision would have significant persuasive effects”). explained that under the Interstate Commerce Act, a broker is “‘a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.’” Id. at 1300 (quoting 49 U.S.C. § 13102(2)). In contrast, an entity is a motor carrier if it is “‘providing motor vehicle transportation for compensation.’” Id. (quoting 49 U.S.C. § 13102(14)). The “key distinction” between a broker and a motor carrier is “whether the disputed party accepted legal responsibility to transport the shipment.” Id. at 1300–01. For this reason, “a party is not a broker under the

Carmack Amendment if it has agreed with the shipper to accept legal responsibility for that shipment.” Id. at 1301; accord Tryg Ins. v. C.H. Robinson Worldwide, Inc., 767 F. App’x 284, 287 (3d Cir. 2019) (“If an entity accepts responsibility for ensuring the delivery of goods, then that entity qualifies as a carrier regardless of whether it conducted the physical transportation.” (citing Essex, 885 F. 3d at 1301)). While a party “can insulate itself from strict liability . . . if it makes clear in writing that it is merely acting as a go-between to connect the shipper” with a carrier, “[w]here no such writing exists, the question will depend on how the party held itself out to the world, the nature of the party’s communications and prior dealings with the shipper, and the parties’ understanding as to who would assume responsibility for the delivery of the shipment in question.” Essex, 885 F. 3d at 1302. As the Eleventh Circuit stated in Essex, “the operative inquiry is this: pursuant to the parties’ agreement, with whom did the shipper entrust the cargo?” Id. Here, AGL alleges that it emailed Primetime “for carriage of the subject pallet of wine” and that Primetime “accepted responsibility for the delivery.” Complaint ¶¶ 9–10. The Court must accept these factual allegations as true at this stage in the litigation, and they plausibly show that AGL entrusted the shipment to Primetime, and Primetime accepted legal responsibility for the shipment. Thus AGL has plausibly alleged that Primetime is a motor carrier for purposes of its claim under the Carmack Amendment.

Primetime’s arguments to the contrary and in support of dismissal are unavailing. Primetime argues that the bill of lading establishes that TForce was a motor carrier, that TForce “did in fact have possession of the shipment at the time of the alleged loss or damage,” and that it is “factually inaccurate and impossible for two motor carriers to have both delivered the same cargo at the same time.” Motion at 4, 9. These arguments miss the mark. As an initial matter, Primetime assumes that if TForce is a motor carrier, then Primetime cannot be a motor carrier for purposes of AGL’s claims. But this assumption is inaccurate: multiple motor carriers may be liable for the same shipment. Ever Better Eating, 2022 WL 17782391, at *8 (citing 49 U.S.C. § 14706(a)(1)). Indeed, as noted above, the plain language of the Carmack Amendment provides for the liability of more than one carrier. Id.8 Likewise, the bill of lading’s reference to TForce as a motor carrier does not control whether Primetime is a motor carrier or a broker. See id. (concluding that a defendant’s omission from a bill of lading was “not dispositive of its liability”). And as discussed above, TForce’s actual possession of the shipment is equally nondispositive. See Essex, 885 F. 3d at 1301. “[T]he Eleventh

Circuit has made clear that a ‘motor carrier’ as defined by the Carmack Amendment need not be the party who actually transports the shipment.” Ever Better Eating, 2022 WL 17782391, at *8. Similarly, while Primetime alleges in the Complaint that TForce “accepted responsibility for the delivery” (albeit from GlobalTranz, not AGL), this does not preclude a finding that Primetime also accepted responsibility for the shipment such that it too might fall within the definition of a motor carrier.9 See Essex, 885 F. 3d at 1302 (explaining that the inquiry depends on “the parties’ understanding as to who would assume responsibility for the delivery”). For these reasons, Primetime’s

MARCIA MORALES HOWARD

United States District Judge Ie31 Copies to: Counsel of Record