United States District Court, D. New Hampshire
McCafferty United States District Judge.
David Burrill, a snowmobile dealer, ordered snowmobile parts
and accessories from a distributor. The defendant, XPO
Logistics Freight, Inc., (“XPO”) delivered some,
but not all, of Burrill's order. Burrill filed a
complaint in state court alleging that he was entitled to
damages because XPO's actions violated both state and
federal law. XPO removed the action to this court and now
moves to dismiss the state law counts, arguing the counts are
preempted by federal law. Burrill objects.
Federal Rule of Civil Procedure 12(b)(6), the court must
accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff's favor,
and “determine whether the factual allegations in the
plaintiff's complaint set forth a plausible claim upon
which relief may be granted.” Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citations
and internal quotation marks omitted). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See
also Field v. Napolitano, 663 F.3d 505, 508 (1st
Cir. 2011) (applying comparable standard when analyzing
motion to dismiss on grounds of preemption).
Burrill lives in Pittsburg, New Hampshire, and is a long-time
dealer of Arctic Cat snowmobiles, parts, and accessories. In
March 2018, he ordered various parts and accessories from
Arctic Cat. On June 5, 2018, XPO delivered a pallet
containing some, but not all, of the items that Burrill had
ordered. Burrill understood that the rest of his order would
arrive at a later time in two additional pallets. Although
Arctic Cat subsequently told Burrill that the missing items
had been shipped, he never received the missing items.
13, 2018, just over a week after XPO delivered the first
pallet, an authorized agent of XPO procured Burrill's
signature on an invoice which states that the “ORIGINAL
BILL WAS 2 PIECES SHORT.” Doc. no. 3-2 at ¶¶
27, 28. Burrill alleges that XPO then used the invoice
deceptively to claim that he “had received the Missing
Items, when he had not.” Id. at ¶ 29. XPO
denied responsibility for failing to deliver the missing
items and denied a claim from Burrill on December 10,
April 6, 2019, Burrill filed a complaint in state court
seeking damages for the missing items, and additional damages
for XPO's alleged “deceptive act” involving
the June 13, 2018 invoice. Doc. no. 3-5. In July 2019, XPO
removed the case to this court. Doc. no. 3-11.
amended complaint alleges three claims: (1) conversion (Count
I); (2) violation of the New Hampshire Consumer Protection
Act (“CPA”), N.H. Rev. Stat. Ann.
(“RSA”) § 358-A (Count II); and (3)
violation of the Carmack Amendment, a federal law that
governs the liability of carriers for lost or damaged goods,
49 U.S.C. § 14706 (a)(1) (Count III). XPO moves to
dismiss Counts I and II, Burrill's state law claims.
Burrill concedes that Count I should be dismissed, but
objects to dismissal of Count II. The only question before
the court, then, is whether Burrill's CPA claim survives.
Count II, Burrill alleges that XPO committed a
“deceptive act” that violates the CPA. The CPA
makes it “unlawful for any person to use . . . any
deceptive act or practice in the conduct of any trade or
commerce within this state.” RSA 358-A:2. Burrill
alleges that XPO committed a “deceptive act”
when-more than a week after XPO delivered the first pallet
and before Burrill invoked the claims process-XPO had Burrill
sign an invoice indicating that some items had not been
delivered, and then used that invoice as a
“gotcha” to claim falsely that Burrill had
received the missing items. XPO moves to dismiss the CPA
claim, arguing that it is preempted by both the Carmack
Amendment, 49 U.S.C. § 14706, and the Interstate
Commerce Commission Termination Act, 49 U.S.C. § 14501.
Carmack Amendment states:
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 ...