Griffith, 85 F. Supp.2d at 998. As
the Fourth Circuit explained, "section 1446(b) does not imply in any way
that later served [sic] defendants have less than thirty days in which to
act." McKinney, 955 F.2d at 926. Indeed, "a rule that the last-served
defendant has 30 days in which to remove a case to federal court is
imperative. . . . [or] `later served [sic] defendants will either have to
forego removal or join hurriedly in a petition for removal and face
possible Rule 11 sanctions.'" Brierly, 184 F.3d at 532 (quoting McKinney,
955 F.2d at 928).
The Third Circuit has not addressed the question of whether a
later-served defendant may seek removal if the time within which to seek
removal has lapsed for the first-served defendant. In light of the
Supreme Court's holding in Murphy Brothers, however, it is
counter-intuitive to maintain a "first-served defendant" rule when the
Supreme Court would not — consistent with Murphy Brothers —
begin to run a later-served defendant's time to seek removal until that
defendant received proper service of process. Indeed, the Third Circuit's
opinion in Foster v. Mutual Fire, Marine & Inland Insurance Company, 986
F.2d at 53, appears to forecast the Supreme Court's decision in Murphy
Brothers in this respect. The Third Circuit's actions in Foster
reinforces the conclusion that the Third Circuit would not adopt the
"first-served defendant rule," nor should this Court.*fn6 This Court
therefore holds that, as a later-served defendant, Defendant Allied is
entitled to thirty days from the date of proper service of process to
seek removal. Defendant Allied's notice of removal was timely filed.
III. Federal Question Jurisdiction, Pursuant to 28 U.S.C. § 1331
A. General Principle of "Federal Question" Jurisdiction
Article III of the Federal Constitution gives the federal courts
authority to hear cases "arising under" federal statutes. U.S. Const.
art. III; 28 U.S.C. § 1331; Merrell Dow Pharm., Inc. v. Thompson,
478 U.S. 804, 808 (1986). The question of whether a claim "arises under"
federal law must be determined by reference to the "well-pleaded
complaint." Id. (citing Franchise Tax Bd. v. Const. Laborers Vacation
Trust, 463 U.S. 1, 9-10 (1983). A "well-pleaded complaint" is one "which
provides that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiffs properly pleaded complaint . . .;
he or she may avoid federal jurisdiction by exclusive reliance on state
law." Ethridge v. Harbor House Rest., 861 F.2d 1389, 1394 (9th Cir. 1988)
(citing Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987)).
When a plaintiffs complaint relies on federal law as the source of
recovery, the case necessarily "arises under" federal law. Ethridge, 861
F.2d at 1394. Further, a case may "arise under" federal law "where the
vindication of a right under state law necessarily turn[s] on some
construction of federal law." Merrell Dow,
478 U.S. at 808-809 (quoting
Franchise Tax Bd. 463 U.S. at 9). A defendant, therefore, may remove a
case if the claim could have been brought in federal court, either
because the claim relies on federal law or because the claim necessarily
turns on some construction of federal law. 28 U.S.C. § 1441 (b).
Hence, the question of whether a claim may be removed must also be
determined by reference to the "well-pleaded complaint."
In the instant matter, this Court must remand, pursuant to
28 U.S.C. § 1447 (c), unless Defendants can demonstrate that
Plaintiffs' complaint "arises under" or requires construction of federal
law. Notably, a defense that raises a federal question is inadequate to
confer federal jurisdiction. Merrell Dow, 478 U.S. 807 (citing Louisville
& Nashville R. Co. v. Mottley, 211 U.S. 149 (1908)). Although Plaintiffs
only cite state and common law causes of action, Defendants correctly
state that Plaintiffs' causes of action are preempted by federal law.
B. Federal Preemption as a Means to Confer Jurisdiction, Pursuant
to 28 U.S.C. § 1331
Congress' power to preempt state law derives from the Supremacy Clause
of the United States Constitution. St. Thomas — St. John Hotel &
Tourism Assoc., Inc. v. U.S. Virgin Islands, 218 F.3d 232, 237 (3d Cir.
2000). The Clause states, in relevant part, that the laws of the United
States "shall be the supreme laws of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding." U.S.
Const. art. VI, cl. 2. To this end, the Supreme Court recognizes three
ways that federal law may preempt or displace state law: (1) express
preemption, which requires an express statutory command that state law is
displaced, (2) field preemption, which requires that federal law "so
thoroughly occup[y] a legislative field as to make reasonable the
inference the Congress left no room for the state to supplement it," and
(3) conflict preemption, in which state law makes it impossible to comply
with both the state and federal. St. Thomas, 218 F.3d at 238 (citations
The Supreme Court begins its analysis of preemption with the
"presumption that Congress does not intend to supplant state law."
Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 366-67 (quoting N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travlers Ins. Co.,
514 U.S. 645, 654 (1995)). Absent a demonstration that Congress stated or
intended otherwise, federal law does not preempt applicable state law.
Abdullah, 181 F.3d at 366.
The case at bar is one in which Congress' intent to supplant state law
is implicit from the language of the Carmack Amendment. Indeed, as
explained more fully below, the Carmack Amendment was intended to so
thoroughly occupy the legislative field "as to make reasonable the
inference that Congress left no room for the States to supplement it."
Id. (quoting Fid. Fed. Say. & Loan Assn. v. de la Cuesta, 458 U.S. 141,
IV. The Carmack Amendment
Plaintiffs argue that their complaint does not assert a federal
question such that the Court can maintain jurisdiction, pursuant to
28 U.S.C. § 1331. Defendants argue that the Carmack Amendment to the
Interstate Commerce Act, 49 U.S.C. § 14706, completely preempts
Plaintiffs' claims such that jurisdiction is proper. For the reasons set
forth below, the Court concludes that the Carmack Amendment completely
preempts Plaintiffs' state law claims because Plaintiffs' complaint, in
alleging a cause of action against interstate carriers based on loss or
damage to shipped goods, articulates a federal question, pursuant to
28 U.S.C. § 1331. Jurisdiction is therefore proper.
In Adams Express Company v. E.H. Croninger, the Supreme Court observed
that Congress enacted the Carmack Amendment in 1906 to "take possession
of the subject [of interstate carriers' liability for lost or damaged
property], and supersede all state regulation with reference to [liability
for lost or damaged property]. . . ." 226 U.S. 491, 505-506 (1913). A
state law cause of action is therefore preempted by the Carmack Amendment
if the cause of action involves loss of goods or damage to goods caused
by the interstate shipment of those goods by a common carrier. Id.
Although the Third Circuit has failed to consider the scope of preemption
under the Carmack Amendment, many other jurisdictions have examined the
scope of preemption, pursuant to the Carmack Amendment. Main Rd. Bakery,
Inc. v. Consol. Freightways, Inc., 799 F. Supp. 26, 28 (D.N.J. 1992)
(citing Underwriters at Lloyds of London v. N. Am. Van Lines,
890 F.2d 1112, 1115-1121 (10th Cir. 1989); Intech, Inc. v. Consol.
Freightways, Inc., 836 F.2d 672, 677 (1st Cir. 1987); Hughes v. United
Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987); Hopper Furs Inc.
v. Emery Air Freight Corp., 749 F.2d 1261, 1264 (8th Cir. 1984); Air
Prod. & Chem. v. Ill. Cent. Gulf R.R. Co., 721 F.2d 483, 487 (5th Cir.
1983); W.D. Lawson & Co. v. Penn Cent. Co., 456 F.2d 419, 421 (6th Cir.
1972); Philips Consumer Elec. v. Arrow Carrier Corp., 785 F. Supp. 436,
440 (S.D.N.Y. 1992); Pierre v. United Parcel Serv., Inc.,
774 F. Supp. 1149, 1150 (N.D. Ill. 1991)). These courts, and other courts
presented with issues potentially arising under the Carmack Amendment,
have consistently held that the Carmack Amendment preempts state law
under almost all circumstances.
For example, in Strike v. Atlas Van Lines, Inc., 102 F. Supp.2d 599,
600-601 (M.D. Pa. 2000), the court observed that the Carmack Amendment
preempted state law causes of action "whether contract based or tort based
claims." See also Rini v. United Van Lines, Inc., 104 F.3d 502, 505-506
(1st Cir. 1997) (holding that all state laws that impose liability on
carriers based on the loss or damage of shipped goods are preempted);
Margetson v. United Van Lines, Inc., 785 F. Supp. 917, 919 (D.N.J. 1991)
(noting that "[c]ourts have consistently recognized the preemptive effect
of the Carmack Amendment over breach of contract claims"); but see Rini,
104 F.3d at 506 (observing that a claim for intentional infliction of
emotional distress is not preempted by the Carmack Amendment because that
harm is separate and distinct from the loss or damage of goods). Indeed,
even special damages are available under the Carmack Amendment "if the
carrier had notice of the special circumstances from which such damages
would flow at the time the bill of lading contract was made." Main Rd.
Bakery, Inc., 799 F. Supp. at 28.
Plaintiffs articulate precisely the type of cause of action envisioned
by the Carmack Amendment. Indeed, the claims of fraud as to the bill of
lading, any claim that may arise from Plaintiffs' extra protection plan,
and Plaintiffs' claims for punitive damages concern issues that should be
considered under the Carmack Amendment. All of Plaintiffs' causes of
action arise from the contractual relationship between common carriers
and shippers of goods that were allegedly lost and/or damaged such that
the Carmack Amendment applies. The matter therefore presents a federal
question, pursuant to 28 U.S.C. § 1331.
For the foregoing reasons, Plaintiffs' motion to remand this action to
the Superior Court of New Jersey, Law Division, Morris County is hereby
DENIED. In light of this Court's denial of Plaintiffs' motion, the motion
for attorneys' fees is MOOT.