Neal v. Allied Van Lines

Neal v. Allied Van Lines

Opinion

ORDER

BE IT REMEMBERED on the 12<th> day of March 2007 the Court reviewed the file in the above-styled cause, specifically Defendant's Motion to Dismiss the Complaint [# 8], Plaintiff's Response thereto [# 10], Defendant's Reply [# 13], Plaintiff's Motion to Amend the Complaint [# 11], Defendant's Response Thereto [# 14], and Plaintiff's Second Amended Complaint [# 12].

Leave to amend is to be freely given, and Plaintiff's Motion to Amend the Complaint [# 11] is therefore GRANTED. Accordingly, Defendant's Motion to Dismiss the Complaint [# 8] is DISMISSED as MOOT. Defendant's Response to Plaintiff's Motion to Amend the Complaint [# 14], however, is properly construed as a Motion to Dismiss the Second Amended Complaint. This motion is well-taken and the Second Amended Complaint is dismissed in part for the following reasons.

Background

 [*2]  Plaintiff Dana Neal contracted with Defendant Allied Van Lines to ship her household goods. The goods were damaged in transit but Defendant disallowed certain of Plaintiff's claims for damaged goods, allegedly in violation of the contract and in violation of the "supplemental insurance" contract Defendant sold Plaintiff. Plaintiff sued in state court for breach of contract and violation of the Texas Deceptive Trade Practices Act. Defendants removed to federal court and moved to dismiss Plaintiff's claims, arguing the Carmack Amendment completely preempts state law claims arising out of the shipment of goods by an interstate carrier. Plaintiff amended her complaint to add a cause of action under the Carmack Amendment but maintains that her causes of action for state law breach of contract and DTPA claims are viable because they arise out of the sale of insurance, not the shipment of goods.

Analysis

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