This case arises out of a single-vehicle accident that destroyed thirteen pieces of machinery owned by Ameriswiss Technology, LLC (“Ameriswiss”). When they were destroyed, Ameriswiss’s machines were being trucked to New Hampshire by Midway Line of Illinois, Inc. (“Midway”). Midway had been hired by C.H. Robinson Worldwide, Inc. (“Robinson”), which itself had been hired by Ameriswiss to arrange for the transportation of its machines. Ameriswiss is suing Robinson for negligence (Count I) and breach of contract (Count II). Ameriswiss also asserted a claim against Midway under the federal Carmack Amendment, 49 U.S.C. § 14706, and default has been entered against Midway in favor of Ameriswiss. See doc. no. 33. Robinson has asserted a cross claim against Midway for indemnification. Ameriswiss’s suit has been consolidated with a three-count subrogation action that was brought by Ameriswiss’s insurer, Massachusetts Bay Insurance Company (“MB Insurance”), against Robinson, Midway, and the driver employed by Midway.
Summary Judgment Standard
“To prevail on summary judgment, the moving party must show that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Market Am. Ins. Co. v. Diaz-Santiago,
“The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Sánchez-Rodríguez v. AT & T Mobility P.R., Inc.,
Background
Robinson has submitted a statement of material facts that meets the requirements of Local Rule 7.2(b)(1). Ameriswiss has not responded by submitting “a short and concise statement of material facts, supported by appropriate record citations, as to which [it] contends a genuine dispute
Ameriswiss, which is headquartered in Holderness, New Hampshire, buys used Escomatic machines and reconditions them for resale. On September 20, 2010, Ameriswiss purchased eleven used Escomatic machines, along with a grinding machine and an optical projector, all of which were located in Morrison, Illinois. For the thirteen machines, it paid $40,000, plus a twelve-percent commission, for a total outlay of $44,800.
Ameriswiss then contracted with Robinson to arrange the shipment of its machines from Illinois to New Hampshire. The parties agree that the terms of their contract are expressed in an e-mail from Robinson’s Jonathan Dunlop to Ameriswiss’s Heidi Luscher that states, in full: “Morrison, IL > Holderness, NH $2600 all inclusive.” Def.’s Mot. Summ. J., Dunlop Aff., Ex. 3 (doc. no. 41-5), at 20. After Ameriswiss contracted with Robinson, Robinson engaged Midway to haul the machines. On October 15, the machines were loaded onto one of Midway’s trucks. The next day, they were destroyed when the truck was involved in a single-vehicle accident in New York.
Based on the foregoing, Ameriswiss asserts that Robinson is liable for negligence because it breached its duty of care by failing to select a competent carrier to transport the machines, and is liable for breach of contract because it failed to safely transport the machines and failed to secure appropriate insurance for them while they were in transit. MB Insurance, in turn, asserts that Robinson: (1) by virtue of contracting with Midway, is liable for negligently transporting Ameriswiss’s machines; (2) breached its duty of care as a common carrier; (3) and breached its duty of care as a bailee.
Discussion
Robinson moves for summary judgment, arguing that: (1) both of the ordinary negligence claims (Ameriswiss’s Count I and MB Insurance’s Count I), MB Insurance’s common-carrier negligence claim (Count II), and its bailment claim (Count III) are preempted by federal law; (2) even if not preempted, the ordinary negligence and bailment claims fail as a matter of law;
A. Robinson’s Role
Before mounting its substantive arguments for summary judgment, Robinson devotes several pages of its memorandum of law to what it calls “a threshold issue,” Def.’s Mem. of Law (doc. no. 41-1), at 11, namely, whether its actions were those of a transportation broker or those of a motor carrier.
[u]nder long-standing principles of transportation law, cargo damage claims against interstate motor carriers are determined under the Carmack Amendment to the ICC Termination Act of 1995, 49 U.S.C. § 14706 (“ICCTA”), whereas that statute does not govern (or even mention) brokers in the scheme of interstate cargo loss and damage liability. Chubb Group of Insurance Companies v. H.A. Transportation Systems, Inc.,243 F.Supp.2d 1064 , 1068-1069 (C.D.Cal.2002).
Def.’s Mem. of Law (doc. no. 41-1), at 11. Ameriswiss counters by contending that there is a genuine issue of material fact as to whether Robinson was a motor carrier in this case.
In Robinson’s view, determining whether it was a transportation broker or a motor carrier “will dictate what law should be applied to Ameriswiss’ claims.” Def.’s Mem. of Law (doc. no. 41-1), at 11. And, it goes on to cite Chubb for the proposition that “the Carmack Amendment [49 U.S.C. § 14706(a) ] does not apply to brokers.”
Accordingly, the court bypasses the question of Robinson’s status and moves to Robinson’s arguments for summary judgment.
B. Negligence & Bailment
In Count I of its complaint, Ameriswiss asserts that Robinson “owed [it] a duty to use reasonable [care] in the selection of a carrier to transport [its] property,” Compl. (doc. no. 1) ¶ 30, and that Robinson “breached its duty of care ... by failing to choose a trustworthy carrier competent to transport [its] property,” id. ¶ 31. In Count I of its complaint, MB Insurance asserts that the accident that destroyed Ameriswiss’s equipment “was due to the negligence of the defendants in the transportation of the equipment,” Compl. (doc. no. 1 in ll-cv-266-JL) ¶ 17, and that “[a]s a dispatcher, CH Robinson is responsible for the acts of its contractors,” id ¶ 11. In Count II, MB Insurance asserts that defendants breached their duties of care as common carriers. See id. ¶ 22. In Count III, MB Insurance asserts that “[defendants accepted [Ameriswiss]’s goods for bailment,” id. ¶24, and breached their duties and obligations to return the goods in an undamaged condition, see id. ¶¶ 25-26.
Robinson argues that it is entitled to summary judgment on the ordinary negligence claims asserted by Ameriswiss and MB Insurance because there is no evidence that it negligently selected Midway to transport Ameriswiss’s machines. It further argues that those claims, along
The liability of interstate motor carriers to shippers
A carrier providing transportation or service ... shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service ... are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the dehvering carrier, or (C) another carrier over whose line or route the property is transported in the United States ...
49 U.S.C. § 14706(a)(1).
“The Carmack Amendment effectively creates a federal statutory remedy on the bill of lading against both the originating and destination carrier.” Rankin v. Allstate Ins. Co.,
“It is accepted ... that the principal purpose of the [Carmack] Amendment was to achieve national uniformity in the liability assigned to carriers.” Rini v. United Van Lines, Inc.,
The preemptive effect of the Carmack Amendment over state law governing damages for the loss or damage of goods has been reiterated by the Supreme Court in many cases and is well established. See, e.g., Southeastern Express Co. v. Pastime Amusement Co.,299 U.S. 28 ,57 S.Ct. 73 ,81 L.Ed. 20 (1936) (claim of negligence for failure to deliver a film on time is preempted); Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co.,237 U.S. 597 ,35 S.Ct. 715 ,59 L.Ed. 1137 (1915) (state statuteimposing a penalty for failure to pay claims to a shipper within 40 days is preempted).
Under the doctrine of implied preemption, “Congress may implicitly preempt state law by creating a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Fitzgerald v. Harris,
In addition to the implied preemptive effect of the Carmack Amendment, described above, the power of the states to regulate the interstate transportation of goods is also expressly constrained by the Interstate Commerce Commission Termination Act (“ICCTA”), which provides, in pertinent part:
a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.6
49 U.S.C. § 14501(c)(1).
Based on the foregoing, and as Judge Lindsay’s opinion in Chatelaine, Inc. v. Twin Modal, Inc.,
If Robinson was a carrier rather than a broker, as Ameriswiss appears to contend, then Ameriswiss’s negligence claim would certainly be barred by the implied preemptive effect of the Carmack Amendment. See Noble v. Wheaton Van Lines, Civ. No. 09-10564-GAO,
In York v. Day Transfer Co., a shipper brought negligence claims against several defendants, including a transportation broker. See 525 F.Supp.2d 289, 293 (D.R.I.2007). In the course of deciding that the plaintiffs common-law claims against the broker were impliedly preempted by the Carmack Amendment, Judge Smith explained:
The principle purpose of the Carmack Amendment was “to achieve national uniformity in the liability assigned to carriers.” Rini,104 F.3d at 504 ; see, e.g., New York, New Haven & Hartford R.R. Co. v. Nothnagle,346 U.S. 128 , 131,73 S.Ct. 986 ,97 L.Ed. 1500 (1953); Atchison, Topeka & Santa Fe Ry. Co. v. Harold,241 U.S. 371 , 378,36 S.Ct. 665 ,60 L.Ed. 1050 (1916). Through the enactment, “Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.” Rini,104 F.3d at 504 . The Carmack Amendment exists to provide “a measure of predictability for interstate carriers in the exposure to damages they face.” Gordon [v. United Van Lines, Inc.], 130 F.3d [282,] 287 [(7th Cir.1997)]. To accomplish this goal, “the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods.” Smith v. United Parcel Serv. (UPS),296 F.3d 1244 , 1246 (11th Cir.2002).
The Carmack Amendment, with few exceptions, “provide[s] the exclusive cause of action for loss or damage to goods arriving from the interstate transportation of those goods by a common carrier.” Harris v. Crown Moving, No. 07-CV-126-JLQ,2007 WL 1724299 at *2 (E.D.Wash. June 14, 2007); Hall [v. N. Am. Van Lines, Inc.], 476 F.3d [683,] 688 [ (9th Cir.2007) ].
York, 525 F.Supp.2d at 297-98 (parallel citations omitted). Then, in response to an argument by the plaintiffs, Judge Smith ruled:
[W]hile Plaintiffs allege Day to have been negligent in its engagement of Williams Moving to facilitate the movement of the Yorks’ property, their attempt to circumvent the Carmack Amendment fails. The role played by Day clearly falls within the Carmack Amendment, particularly where the Amendment defines covered transportation services as being “services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, ... storage, handling, packing, [and] unpacking.”
Id. at 301 (quoting 49 U.S.C. § 13102(23)(B); citing Glass v. Crimmins Transfer Co.,
However, even if those claims are not subject to implied preemption under the Carmack Amendment, they are expressly preempted by the ICCTA. In Kashala v.
District courts in other circuits have reached similar conclusions with respect to a variety of state common-law tort claims against brokers. In Non Typical, Inc. v. Transglobal Logistics Group, Inc., after noting that “the [preemption] statute expressly lists brokers,” Nos. 10-C-1058 & ll-C-0156,
There is some authority that, at first glance, might appear to support Ameriswiss’s position on the preemption issue, but careful scrutiny reveals that authority to be unavailing. In an order in a case in which he reached the merits of a shipper’s state-law negligence claim against a transportation broker, Judge Matz wrote:
The Carmack Amendment governs “motor carriers” and “freight forwarders.” 49 U.S.C. §§ 14706(a) (1996). The statute absolutely preempts all state common law claims against such carriers and freight forwarders. Hughes Aircraft Co. v. North American Van Lines, Inc.,970 F.2d 609 , 613 (9th Cir.1992). However, the Carmack Amendment does not apply to brokers. See, e.g. Professional Communications, Inc. v. Contract Freighters, Inc.,171 F.Supp.2d 546 , 551 (D.Md.2001); Independent Machinery,867 F.Supp. at 761 ; Adelman v. Hub City Los Angeles Terminal,856 F.Supp. 1544 , 1547-48 (N.D.Ala.1994). Consequently, most courts hold that brokers may be held liable under state tort or contract law in connection with shipments. Intercargo Ins. Co. v. Burlington Northern Santa Fe Railroad,185 F.Supp.2d 1103 , 1113-1115 (C.D.Ca.2001) (applying California law to party that was neither a carrier nor a freight forwarder); Professional Communications,171 F.Supp.2d at 551-52 (applyingFlorida and Maryland law of negligence to a motor carrier broker); Independent Machinery, 867 F.Supp. at 762 (applying state law to party that was neither a carrier nor a freight forwarder); Adelman,856 F.Supp. at 1548-49 (same).
Chubb,
Here is the problem with Ameriswiss’s reliance on Chubb. In Chubb, Judge Matz relied on the same rule that Judge Lindsay relied on in Chatelaine, i.e., the Car-mack Amendment does not impliedly preempt state-law claims brought against brokers because brokers are not covered by the Carmack Amendment. But, there is no indication in the Chubb order that the broker in that case ever argued, as Robinson does here, that the shipper’s claim was expressly preempted by 49 U.S.C. § 14501(c)(1). The same holds true for Intercargo, Professional Communications, Independent Machinery, and Adelman. Thus, the conclusion that is most appropriately drawn from Chubb is not that “most courts hold that brokers may be held liable under state tort ... law in connection with shipments,”
Robinson, however, unlike the brokers in Chubb, Intercargo, Professional Communications, Independent Machinery, and Adelman, is relying on the ICCTA and its express preemption provision. Because Chubb and the cases cited therein discuss only implied preemption under the Carmack Amendment, they run counter to Judge Smith’s opinion in York, but do not stand for the proposition that 49 U.S.C. § 14501(c)(1) does not preempt state-law tort claims against transportation brokers. Thus, those opinions do nothing to erode the persuasive reasoning of Kashala, Non Typical, Chatelaine, and Huntington with regard to the preemptive effect of 49 U.S.C. § 14501(c)(1).
The court concludes by acknowledging that preemption does have a different effect on claims against motor carriers than it has on claims against the other entities listed in 49 U.S.C. § 14501(c)(1). When a state common-law claim against a motor carrier arising out of damage to cargo in interstate transportation is preempted, a plaintiff still has a claim against the carrier under the Carmack Amendment. But, because the Carmack Amendment creates a federal statutory remedy against motor carriers only, when a state common-law claim against a motor private carrier or a broker is preempted by 49 U.S.C. § 14501(c)(1), a plaintiff is left with no claim at all against a defendant who has successfully invoked preemption. While that may seem to be an anomalous result of the interplay between the ICCTA preemption provision and the Carmack Amendment, there is no good basis for arguing that Congress did not intend that result, given its interest in standardizing and simplifying the adjudication of claims arising in the context of interstate shipping. See Rini,
C. Breach of Contract
In its complaint, Ameriswiss makes the following factual allegations:
Prior to completion of the purchase [of the machines that were destroyed], Ameriswiss contacted [Robinson] to make arrangements to have the Machines shipped by truck from Morrison, Illinois to Ameriswiss’s business location in Holderness, New Hampshire.
Based on its discussions with [Robinson], Ameriswiss hired [Robinson] to have the Machines shipped by truck from Morrison to Ameriswiss’s business location in Holderness.
In turn, [Robinson] hired Midway to actually haul the Machines by truck from Morrison to Holderness.
Compl. ¶¶ 14-16. Based on those allegations, Ameriswiss asserts, in Count II, that Robinson is liable for breach of contract:
Pursuant to its agreement with Ameriswiss, [Robinson] was obligated to transport safely or to arrange for the safe transportation of the Machines from Morrison to Holderness.
In addition, pursuant to its agreement with Ameriswiss, [Robinson] was obligated to ensure that the transportation of the Machines from Morrison to Holderness was protected by appropriate insurance.
[Robinson] breached its agreement with Ameriswiss in that it failed to transport safely the Machines from Morrison to Holderness and it failed to ensure that the transportation of the Machines from Morrison to Holderness was protected by appropriate insurance.
Compl. ¶¶ 34-36. While styled as a claim for breach of contract, Ameriswiss’s assertion that Robinson breached the parties’ agreement by failing to safely transport the machines is best understood as a claim for breach of warranty, specifically, a warranty that Ameriswiss’s machines would not be damaged in transit. That said, the court turns to each of the two theories of recovery advanced in Count II, the breach-of-warranty claim stated in paragraphs 34 and 36, for failure to safely transport the machines, and the claim stated in paragraphs 35 and 36, for failure to properly insure them.
1. Failure to Safely Transport
Robinson argues that it is entitled to summary judgment on Ameriswiss’s claim that it breached the parties’ agreement by failing to safely transport the machines because: (1) it agreed to do nothing more than arrange for a carrier to transport the machines; (2) it took all necessary precautions when doing so; and (3) “[n]othing in the record suggests Midway was not a duly qualified or competent ... motor carrier [and that] there is [no] evidence that [it] knew or should have known of any fact to disqualify Midway from handling the load.” Def.’s Mem. of Law (doc. no. 41-1), at 19. For its part, and notwithstanding its failure to identify factual disputes in the manner required by Local Rule 7.2(b)(2), Ameriswiss contends that Robinson is not
Under New Hampshire law, “[a] breach of contract occurs when there is a failure without legal excuse[ ] to perform any promise which forms the whole or part of a contract.” Lassonde v. Stanton,
Robinson argues that the only promise it made to Ameriswiss was that it would arrange for the transportation of its machines. Necessarily, it argues that it did not warrant their safe delivery. The complaint alleges no facts which, if proven at trial, would establish the existence of any such warranty in the agreement between Robinson and Ameriswiss.
[W]hile C.H. Robinson may be clear in its understanding of the transaction, Ameriswiss could reasonably have understood that “all inclusive” meant something entirely different.
Here, Ameriswiss’s view of the terms of the agreement find support in the facts discovered to date. While C.H. Robinson may have set forth facts in support of its myopic view of the agreement, the facts are plainly disputed. Thus, summary judgment is not appropriate.
Pl.’s Mem. of Law (doc. no. 49-1), at 20.
Robinson is entitled to judgment as a matter of law on the breach-of-warranty claim. Ameriswiss takes the position that the entire agreement between the parties is contained in the email from Dun-lop to Ms. Luscher. According to Ameriswiss: “the Court need look no further than Mr. Dunlop’s email to ... Luscher setting forth the scope of the agreement between Ameriswiss and C.H. Robinson.” Pl.’s Mem. of Law (doc. no. 49-1), at 13; see also id. at 19 (“the actual agreement between C.H. Robinson and Ameriswiss is simple to repeat — ‘$2,600, all inclusive.’ ”).
Without reference to any evidence of record or any legal authority, Ameriswiss defines “all inclusive” to mean “the pick up of the shipment at [its] point of origin, delivering the shipment to [its] destination, and covering the shipment for loss or damage.” Pl.’s Mem. of Law (doc. no. 49-1), at 13. But, Ameriswiss does not allege or argue that anyone from Robinson made an oral promise to warrant the safety of the delivery and has not produced evidence of any such oral promise. Thus, the question before the court, to be resolved as a matter of law, is this: do the two words “all inclusive” communicate a promise by Robinson to warrant the safe delivery of Ameriswiss’s machines? They do not. Moreover, because the question before the court is limited to construing the language of a writing that, according to Ameriswiss itself, establishes the full scope of the parties’ agreement, Ameriswiss’s belief that
2. Failure to Insure
Ameriswiss also asserts in Count II that Robinson “breached its agreement with Ameriswiss in that it ... failed to ensure that the transportation of the Machines from Morrison to Holderness was protected by appropriate insurance.” Compl. ¶ 36. The complaint, however, alleges no facts concerning any promise by Robinson to ensure the procurement of insurance in an amount satisfactory to Ameriswiss. Perhaps for that reason, Robinson does not appear to address the insurance-coverage theory in its motion for summary judgment.
Under most circumstances, the court would be hesitant to grant summary judgment to a party that does not specifically request it. But here, Ameriswiss cannot possibly prevail on its claim that Robinson breached the parties’ agreement by failing to ensure the provision of insurance coverage satisfactory to Ameriswiss. For starters, as with the breach-of-warranty claim, the claim stated in paragraphs 35 and 36 of Ameriswiss’s complaint appears eminently susceptible to dismissal for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The complaint nowhere alleges any facts which, if proven, would establish that Robinson agreed to make sure that there was adequate insurance in place to protect Ameriswiss’s interest in its machines.
Moving to the summary-judgment record, Ameriswiss appears to hang its hat on: (1) the words “all inclusive” in the email from Dunlop to Ms. Luscher; (2) a request from Ameriswiss’s Paul Luscher for insurance coverage in the amount of $300,000; and (3) evidence from Robinson’s expert concerning what Dunlop told Mr. Luscher about the insurance coverage that was in place. None of that creates a triable issue concerning the existence of a promise by Robinson to provide, procure, or guarantee insurance coverage.
First, as a matter of law, the two words “all inclusive” do not establish a promise by Robinson to provide insurance coverage for Ameriswiss’s cargo in any amount, much less whatever amount Ameriswiss might deem to be “appropriate.” Second, Mr. Luscher testified that he asked Robinson to provide insurance coverage in the amount of $300,000, see Pl.’s Mem. of Law, Luscher Dep. (doc. no. 49-2), at 89, but he also testified that Dunlop told him that Robinson did not provide coverage for used machines, see id. at 89, 100. Thus, Mr. Luscher’s request for insurance is not evidence that Robinson agreed to provide it. Third, Ameriswiss’s reliance on Robinson’s expert’s testimony that Dunlop “told Mr. Luscher that there was insurance in place,” Pl.’s Mem. of Law (doc. no. 49-1), is entirely misplaced. The expert was unable to say when Dunlop made that statement, see PL’s Obj., Ex. 2, Wentzell Dep. (doc. no. 49-2), at 114, which makes the statement worthless as evidence that Robinson promised to provide insurance, as a term of its agreement with Ameriswiss. Because Ameriswiss has produced no evidence that Robinson ever agreed to provide or procure insurance coverage for the machines Midway transported, Robinson is entitled to judgment as a matter of law on the second theory on which Ameriswiss bases its claim for breach of contract.
Several loose ends remain to be tied up. First, because Robinson is entitled to judgment as a matter of law on all of the claims asserted by Ameriswiss and MB Insurance, there is no need to address Robinson’s request for summary judgment that its liability is limited to the amount Ameriswiss paid for the machines that were destroyed. Second, because Robinson is not liable to Ameriswiss, Robinson’s cross claim against Midway for indemnification is dismissed. Third, Robinson has moved to strike portions of Ameriswiss’s objection to summary judgment, but given the court’s favorable ruling on Robinson’s motion for summary judgment, its motion to strike is denied as moot.
Conclusion
For the reasons' given above, Robinson’s motion for summary judgment, document no. 41, is granted. As a result, its motion in limine, document no. 50, and its two motions to strike, document nos. 54 and 55, are all denied as moot. The clerk of the court shall enter judgment in accordance with this order and close the case.
SO ORDERED.
Notes
. In that second action, Robinson asserted cross claims for contribution and indemnification against Midway, but Midway and its driver have been dismissed from that action, without prejudice. See doc. no. 39.
. Robinson does not appear to argue that MB Insurance’s common-carrier negligence claim fails as a matter of law.
. The relevant statute defines "[t]he term 'motor carrier’ [to] mean[] a person providing commercial motor vehicle ... transportation for compensation.” 49 U.S.C. § 13102(14). That statute defines the term "broker” to
mean[ ] 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.
49 U.S.C. § 13102(2).
. "[A]n issue of fact is genuine if 'a reasonable jury could resolve it in favor of either party.' ” Markel,
. “Shipper” is the term of art that denotes a person whose goods are transported by a carrier. See 49 U.S.C. § 13102(13).
. For purposes of this provision, "[s]tate common law counts as an 'other provision having the force and effect of law.’ ” Non Typical, Inc. v. Transglobal Logistics Grp. Inc., Nos. 10-C-1058, 11-C-0156,
. The ICCTA preemption provision "had been part of the Federal Aviation Administration Authority Act ('FAAAA') passed by Congress in 1994.” Mastercraft Interiors, Ltd. v. ABF Freight Sys., Inc.,
. Judge Hillman also noted that "[e]ven if 49 U.S.C. § 14501(b), (c) [sic] did not apply, the Carmack Amendment would preempt all state and common law claims.” Kashala,
. Here, for example, Ameriswiss is in line to receive a default judgment against Midway on
. Thus, it is difficult to see how Ameriswiss’s breach-of-warranty claim could have survived a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.