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Burrill v. XPO Logistics Freight, Inc.

United States District Court, D. New Hampshire

November 19, 2019

David Burrill
v.
XPO Logistics Freight, Inc.

          ORDER

          Landya McCafferty United States District Judge.

         Plaintiff 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.

         STANDARD OF REVIEW

         Under 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).

         BACKGROUND

         David 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.

         On June 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, 2018.[1]

         On 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.

         DISCUSSION

         Burrill's 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.

         In 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.[2] 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.

         The Carmack Amendment states:

A carrier[3] 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 ...

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