TOTAL QUALITY LOGISTICS, LLC

v.

TRADE LINK CAPITAL, INC., AND TASTE TRACKERS, INC.

Third District Court of Appeal State of Florida

Opinion filed September⁴, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2134 Lower Tribunal No. 2019-37303-CA-01 ________________

Total Quality Logistics, LLC, Appellant,

vs.

Trade Link Capital, Inc., and Taste Trackers, Inc., Appellees.

An Appeal from non-final orders from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Baker Donelson Bearman Caldwell & Berkowitz, PC, Eve A. Cann (Fort Lauderdale), and Marisa R. Dorough (Orlando), for appellant.

Spector Rubin, P.A., and Marc A. Rubin, for appellees.

Before LINDSEY, GORDO and BOKOR, JJ.

GORDO, J.

2 Total Quality Logistics, LLC (“Total Quality”) appeals a non-final order denying its motion to dismiss the verified second amended complaint filed by Trade Link Capital, Inc. and Taste Trackers, Inc. (the “Shippers”). We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(A). For the reasons set forth below, we affirm.

I.

Total Quality entered into written agreements with the Shippers to arrange transportation of cargo as a “freight broker.” Each agreement included a forum selection clause, providing that a dispute arising in connection with any transaction between the parties be exclusively resolved in Ohio state court.¹ The Shippers later filed a complaint against Total Quality in Florida state court, alleging lost cargo. Total Quality filed a motion to dismiss based on improper venue, which the trial court denied. In a prior appeal to this Court,² Total Quality challenged the trial court’s order denying its motion to dismiss for improper venue. We reversed and remanded “with

II.

“The standard of review of a trial court's denial of a motion to dismiss is de novo.” Simpson v. State, 33 So. 3d 776, 778 (Fla. 4th DCA 2010). On appeal, Total Quality argues our previous opinion bars the second amended complaint. We disagree. Our prior opinion did not order the case

III.

Total Quality further argues our previous opinion, upholding the forum selection clause as valid on its face, is law of the case and the Shippers have failed to demonstrate any exception to its enforcement or the applicability of the Carmack Amendment. The Revised Interstate Commerce Act,³ known as the Carmack Amendment, is a federal statutory scheme that governs interstate cargo claims and provides special venue provisions allowing shippers to sue a “carrier” for cargo loss or damage in the judicial district where the loss or damage is alleged to have occurred.⁴ See Mlinar v. United Parcel Serv., Inc., 186 So. 3d 997, 1000 (Fla. 2016) (“The Carmack Amendment . . . permits a civil action to be brought against a ‘carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.’” (quoting 49 U.S.C. § 14706(d)(2))). The Carmack Amendment, which governs cargo disputes between shippers and carriers,

3 49 U.S.C. § 14706.

4 “The Carmack Amendment governs carriers, not brokers.” Hewlett- Packard Co. v. Brother's Trucking Enters., Inc., 373 F. Supp. 2d 1349, 1351 (S.D. Fla. 2005) (footnote omitted).

5 In analyzing whether the Carmack Amendment is applicable here, we rely on federal courts for guidance. See O’Malley v. St. Thomas Univ., Inc., 599 So. 2d 999, 1000 (Fla. 3d DCA 1992) (“Florida courts have looked to the federal courts for guidance in interpreting and applying [federal law]. Therefore, federal decisions should be accorded great weight.”).

6 Once the Shippers established a basis for venue, Total Quality did not meet its burden to plead and prove it was improper, as it only filed an unsworn motion to dismiss with its manager’s affidavit that did not rebut the Shippers’ factual assertions. See Chrysler Credit Corp. v. Laliberty, 506 So. 2d 67, 68 (Fla. 1st DCA 1987) (“Once the plaintiff has selected venue, the burden falls on the party challenging venue to demonstrate by affidavit or sworn pleading that it is improper. Having failed to file an affidavit [challenging venue] or sworn pleading, or to present any evidence to establish that the cause of action did not arise in [the subject judicial district], the defendant in this case has failed to sustain its burden of challenging the plaintiff's venue.”).

7 Importantly, federal courts have consistently held that distinguishing between a “carrier” and a “broker” is often blurry and fact-intensive, making it unsuitable for summary judgment, much less a motion to dismiss. See Nat’l Union Fire Ins. Co. of Pittsburgh v. All Am. Freight, Inc., No. 14-CIV- 62262, 2016 WL 633710, at *7 (S.D. Fla. Feb. 17, 2016) (“‘Whether a company is a broker or a carrier is not determined by what the company labels itself, but by how it represents itself to the world and its relationship to the shipper.’ ‘Because the difference between a carrier and a broker is often blurry, the carrier/broker inquiry is inherently fact-intensive and not wellsuited to summary judgment.’”) (citations omitted).