The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge
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.*fn1
Before the court is Robinson's motion for summary judgment on both of Ameriswiss's claims and all three of MB Insurance's claims. Ameriswiss has objected; MB Insurance has not. For the reasons that follow, Robinson's motion for summary judgment is granted.
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.'" Markel Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 29 (1st Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). "The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).
"The non-movant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). "However, 'a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the non-movant's burden.'" SanchezRodriguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." SanchezRodriguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).
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 exists so as to require a trial." LR 7.2(b)(2). Accordingly, "[a]ll properly supported material facts set forth in [Robinson]'s factual statement [document no. 41-3] shall be deemed admitted." Id. Based upon the application of Local Rule 7.2(b)(2), the following facts, drawn from Robinson's statement, are undisputed.
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.
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;*fn2
(3) Ameriswiss's claim for breach of contract fails as a matter of law; and (4) even if it is liable to Ameriswiss, its liability is limited to $44,800, the amount that Ameriswiss paid for the machines. Ameriswiss disagrees, categorically. As noted, MB Insurance remains on the sidelines.
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.*fn3
Robinson argues that it is beyond genuine dispute*fn4 that it acted, at all times, as a transportation broker. After asserting that it was a broker rather than a motor carrier, Robinson points out that [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." 243 F. Supp. 2d at 1068-69 (citing Prof'l Commc'ns, Inc. v. Contract Freighters, Inc., 171 F. Supp. 2d 546, 551 (D. Md. 2001); Indep. Mach., Inc. v. Kuehne & Nagel, Inc., 867 F. Supp. 752, 761 (N.D. Ill. 1994); Adelman v. Hub City L.A. Terminal, 856 F. Supp. 1544, 1547-48 (N.D. Ala. 1994)). But, because Ameriswiss does not assert a Carmack Amendment claim against Robinson, it is not clear what Robinson gains by establishing that it was a broker rather than a motor carrier, which leaves the court wondering how Robinson's status is a material fact in the first instance. See Markel, 674 F.3d at 29 ("A fact is material if it 'might affect the outcome of the suit' under governing law.") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Accordingly, the court bypasses the question of Robinson's status and moves to Robinson's arguments for summary judgment.
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 11-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 ...