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Davis v. Larson Moving & Storage Co.: US District Court : MOTOR | ARBITRATION - Truth in Lending Act claims regarding carrier lease not time-barred; claims referred to arbitration, case stayed

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Ken Davis,
Plaintiff,
v. Civ. No. 08-1408 (JNE/JJG)
ORDER
Larson Moving & Storage Co.,
d/b/a Mohawk Moving & Storage Co.,
Defendant.
______________________________________________________________________________
James C. Hardman, Esq., Law Offices of James C. Hardman, and Paul O. Taylor, Taylor &
Associates, Ltd., appeared on behalf of Plaintiff Ken Davis.
Andre T. Hanson, Esq., and Patrick R. Martin, Esq., Fulbright & Jaworski LLP, appeared on
behalf of Defendant Larson Moving & Storage Co., d/b/a Mohawk Moving & Storage Co.
______________________________________________________________________________
Plaintiff Ken Davis brings this action against Defendant Larson Moving & Storage Co.,
d/b/a Mohawk Moving & Storage Co., for breach of contract and for violations of the Truth-in-
Leasing regulations. See 49 U.S.C. 14704(a)(2) (2000); 49 C.F.R. 376.12 (2007). The case
is before the Court on Defendants Motion to Dismiss Amended Complaint or in the Alternative
to Stay and Refer to Arbitration. For the reasons set forth below, the Court grants the motion in
part and denies the motion in part.
I. BACKGROUND
Plaintiff is the owner and operator of one or more semi-trailer tractor trucks. Defendant,
a moving company, is in the business or transporting and storing household goods and
commodities.
On May 19, 1998, Plaintiff and Defendant entered into an independent contractors lease
agreement (1998 ICLA). The 1998 ICLA provided, among other things, that Plaintiff would
2
lease a truck to Defendant and transport cargo belonging to Defendants customers. On
September 28, 2004, the parties entered into an independent contract operating agreement (2004
ICOA), which superseded the 1998 ICLA and similarly provided that Plaintiff would lease
equipment to Defendant and transport cargo belonging to Defendants customers. According to
the Amended Complaint, the leases between Plaintiff and Defendant are subject to the Truth-in-
Leasing regulations.
On October 16, 2006, Plaintiff served the Complaint, alleging breach of the 1998 ICLA,
on Defendant, and the Complaint was subsequently filed in Anoka County District Court.1 On
May 21, 2008, Plaintiff filed the Amended Complaint. The Amended Complaint contains two
counts. One count alleges that Defendant breached the 1998 ICLA and the 2004 ICOA. The
other count is a claim under 49 U.S.C. 14704(a)(2) for damages arising from Defendants
alleged failure to comply with the Truth-in-Leasing regulations. Defendant removed the case to
federal court and filed the present motion, requesting dismissal or, in the alternative, a stay and
referral to arbitration.
II. DISCUSSION
Defendant makes three arguments in support of its motion. First, Defendant asserts that
Plaintiffs claims related to the 1998 ICLA are barred by a two-year statute of limitations.
Second, Defendant argues that Plaintiff is contractually obligated to arbitrate his claims related to
the 2004 ICOA. Third, Defendant argues that Plaintiff fails to state a claim for breach of
contract.
1 In Minnesota, a civil action is commenced by service on the defendant. See Minn. R.
Civ. P. 3.01, 3.02.
3
A. Statute of limitations on actions pursuant to 49 U.S.C. 14704(a)(2)
The Federal Highway Administrations Truth-in-Leasing regulations mandate that leases
between motor carriers like Defendant and truck owner-operators like Plaintiff contain certain
provisions. See 49 C.F.R. 376.12. The Truth-in-Leasing regulations further require that motor
carriers comply with those mandatory provisions. See id. Section 14704(a)(2) creates a right of
action to recover damages for violation of the Truth-in-Leasing regulations. See Owner-
Operator Indep. Drivers Assn v. New Prime, Inc., 192 F.3d 778, 785 (8th Cir. 1999).
Defendant argues that Plaintiffs claim under 49 U.S.C. 14704(a)(2) for violation of the
Truth-in-Leasing regulations with respect to the 1998 ICLA must be dismissed because it is
time-barred. Specifically, Defendant argues that this action was commenced more than two
years after termination of the 1998 ICLA, and that the two-year limitations period in 49 U.S.C.
14705(c) (2000) applies because section 14705(c) contains a scriveners error and mistakenly
references section 14704(b) instead of section 14704(a)(2). Plaintiff contends that no limitations
period is specified for section 14704(a)(2) and that therefore the four-year catch-all limitations
period of 28 U.S.C. 1658 (Supp. V 2005) applies.
The Courts objective in interpreting a federal statute is to give effect to the intent of
Congress. United States v. McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (quotation marks
omitted). If the plain language of the statute is unambiguous, that language is conclusive absent
clear legislative intent to the contrary. Therefore, if the intent of Congress can be clearly
discerned from the statutes language, the judicial inquiry must end. Id. (quotation marks
omitted). A court should not rewrite a statute because of an alleged scrivener error unless a
literal interpretation would lead to an absurd result. Owner-Operator Indep. Drivers Assn v.
Landstar Sys., Inc., 541 F.3d 1278, 1297 (11th Cir. 2008); see United States v. Ron Pair Enters.,
4
Inc., 489 U.S. 235, 242 (1989) (The plain meaning of legislation should be conclusive, except
in the rare cases [in which] the literal application of a statute will produce a result demonstrably
at odds with the intentions of its drafters. (quotation marks omitted)). But see Lamie v. U.S.
Trustee, 540 U.S. 526, 542 (2004) (If Congress enacted into law something different from what
it intended, then it should amend the statute to conform it to its intent. It is beyond our province
to rescue Congress from its drafting errors, and to provide for what we might think . . . is the
preferred result. (citation omitted)).
Section 14705(c), the statute that allegedly contains a scriveners error, states that an
action to recover damages under section 14704(b) [must be filed] within 2 years after the claim
accrues. Although section 14705(c) does not mention section 14704(a)(2), some district courts
have read section 14705(c) to apply its two-year limitations period to section 14704(a)(2) rather
than to section 14704(b). See Owner-Operator Indep. Drivers Assn v. United Van Lines, LLC,
503 F. Supp. 2d 1200, 1204 (E.D. Mo. 2007) (noting (1) that section 14705(c) references
damages but cites 14704(b), which relates to overcharges, and (2) that section 14705 states two
conflicting limitations periods for actions for overcharges but gives no limitations period for
actions for damages), appeal docketed, No. 07-3829 (8th Cir. Dec. 14, 2007); Fitzpatrick v.
Morgan S., Inc., 261 F. Supp. 2d 978, 983, 986 (W.D. Tenn. 2003) (discussing drafting history
of sections 14704 and 14705; the Surface Transportation Boards determination that a scriveners
error existed; legislative intent to preserve the relevant statute of limitations, which was two
years under the former Interstate Commerce Act; and legislative intent to make the limitations
period, which had previously been two years for rail and pipeline carriers, uniform for all types
of carriers).
5
However, the Eleventh Circuit Court of Appeals, in the only appellate opinion to have
addressed this issue, concluded that [t]here is no absurd result imposing different statute of
limitations for two different types of claims arising out of 14704. Landstar Sys., Inc., 541
F.3d at 1297; cf. Owner-Operator Indep. Drivers Assn v. C.R. England, 325 F. Supp. 2d 1252,
1265 (D. Utah 2004) (The Court finds that the imposition of the two-year statute of limitations
for one category of claims while retaining the general four-year federal statutes of limitations for
the type of claims at issue in this case was a reasoned choice by Congress and the Court will not
attempt to rewrite the statute.). As a result, the court in Landstar declined to correct any alleged
scriveners error and held that the four-year catch-all statute of limitations applied. 541 F.3d at
1297; cf. United Van Lines, 503 F. Supp. 2d at 1204 (noting that a majority of district courts
addressing the issue applied the four-year limitations period). By its plain terms, section
14705(c) does not apply to actions under section 14704(a)(2), and the Court agrees that literal
application of section 14705(c) does not produce absurd results. Accordingly, the four-year
limitations period of 28 U.S.C. 1658 applies, and Plaintiffs section 14704(a)(2) claims
regarding the 1998 ICLA are timely.
B. Arbitration
Defendant argues that Plaintiffs claims related to the 2004 ICOA are subject to that
documents mandatory arbitration provisions. Plaintiff argues that the arbitration provision in
the 2004 ICOA does not apply to his claims against Defendant, that claims for violation of the
Truth-in-Leasing regulations may not be contractually committed to arbitration, that his claims
are exempt from compulsory arbitration pursuant to section 1 of the Federal Arbitration Act
(FAA), and that Defendant waived its arbitration rights.
6
Under the FAA, [a] party aggrieved by the alleged failure, neglect, or refusal of another
to arbitrate under a written agreement for arbitration may petition any United States district court
. . . for an order directing that such arbitration proceed in the manner provided for in such
agreement. 9 U.S.C. 4 (2006). The FAA establishes a liberal federal policy favoring
arbitration agreements. Moses H. Cone Meml Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983). As a result, any doubts concerning the scope of arbitrable issues should be resolved in
favor of arbitration, whether the problem at hand is the construction of the contract language
itself or an allegation of waiver, delay, or a like defense to arbitrability. Lyster v. Ryans
Family Steak Houses, Inc., 239 F.3d 943, 945 (8th Cir. 2001) (quotation marks omitted).
In relevant part, the 2004 ICOA states:
24(a). Arbitration Required for All Disputes. Any dispute (including a request for
preliminary relief) arising in connection with or relating to this Agreement, its
terms, or its implementation, including any allegation of tort or of breach of this
Agreement or of violations of the requirements of any applicable government
authorities, whether local, state, federal, or foreign, including but not limited to
the federal leasing regulations (49 C.F.R. Part 376), shall be fully and finally
resolved by arbitration in accordance with (1) the Commercial Arbitration Rules
(and related arbitration rules for preliminary relief) of the American Arbitration
Association (AAA); (2) the Federal Arbitration Act (ch. 1 of tit. 9 of United
States Code, with respect to which the parties agree that this Agreement is not an
exempt contract of employment) or, if the Federal Arbitration Act is held not to
apply, the arbitration laws of the State of Missouri; and (3) the procedures set
forth below.
Accordingly, by its plain terms, the arbitration clause in the 2004 ICOA applies to Plaintiffs
contractual and regulatory claims related to that document.
Plaintiff has not identified authority establishing that, as a general matter, resolution of
regulatory or statutory claims may not be committed to arbitration. Cf. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) ([S]tatutory claims may be the subject
of an arbitration agreement, enforceable pursuant to the FAA.). Agreements to arbitrate
7
statutory claims may be voided if the party seeking to avoid arbitration establishes that
arbitration is prohibitively expensive. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92
(2000). Plaintiff, however, has not established that arbitration would be prohibitively expensive.
The Court notes, for example, that the 2004 ICOA states that, for owner-operators who lease
only one truck to Defendant, arbitration expenses above the amount of the court filing fee in the
United States District Court for the District of Minnesota will be borne by Defendant. Plaintiff
appears to have leased a single truck to Defendant in the 2004 ICOA, and Plaintiff has not
established otherwise.
Plaintiff has not established that claims under section 14704(a)(2) specifically may not
be committed to arbitration. At oral argument, Plaintiff asserted that the regulatory scheme
applicable to motor carriers such as Defendant evidences Congresss intent to preclude
resolution of claims for violation of the Truth-in-Leasing regulations through arbitration.
However, Plaintiff cited no authority establishing this contention. To the contrary, district courts
have enforced agreements to arbitrate claims arising from violations of the Truth-in-Leasing
regulations. See Owner-Operator Indep. Drivers Assn v. United Van Lines, LLC, No.
4:06CV219, 2006 WL 5003366, at *3, *5-6 (E.D. Mo. Nov. 15, 2006); Owner-Operator Indep.
Drivers Assn v. Swift Transp. Co., 288 F. Supp. 2d 1033, 1040 (D. Ariz. 2003). Even when
courts have denied motions to compel arbitration of claims for violation of the Truth-in-Leasing
regulations, they have not done so because enforcement of the Truth-in-Leasing regulations,
independent of the effect of other legal authorities, is necessarily exempted from arbitration. See
C.R. England, 325 F. Supp. 2d at 1258, 1262-64 (denying motion to compel arbitration of
violations of the Truth-in-Leasing regulations because the arbitration agreement was
8
unconscionable; the plaintiffs could not effectively vindicate their federal statutory rights via
arbitration of their claims; and the claims fell under a specific exemption in the FAA).
Plaintiff has not established that the 2004 ICOA is exempted from mandatory arbitration
by section 1 of the FAA, which excludes from the FAAs coverage contracts of employment of
seamen, railroad employees, or any other class of workers engaged in foreign or interstate
commerce. 9 U.S.C. 1 (2006). Plaintiff asserts that contracts for the services of
transportation workers, regardless of whether they specifically qualify as employees, are
excluded from application of the FAA by section 1. Plaintiff, however, does not identify
authority that supports this interpretation. Plaintiffs suggested interpretation is contrary to the
plain language of section 1, and the Court concludes that application of section 1 is limited to
employment contracts. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001)
(Section 1 exempts from the FAA only contracts of employment of transportation workers.);
United Van Lines, 2006 WL 5003366, at *2 (Courts construe [section 1] narrowly, but the FAA
does exclude contracts of employment for transportation workers. (citations omitted)); C.R.
England, 325 F. Supp. 2d at 1258 ([T]he Court considers the Operating Agreements to
determine whether or not they are contracts of employment of a class of workers engaged in
interstate commerce within the meaning of the FAA [to determine whether section 1 of the FAA
applies].); Swift Transp. Co., 288 F.Supp.2d at 1035 & n.3 (noting a lack of authority
specifically on whether section 1 applies to transportation workers who are independent
contractors and concluding that section 1 did not apply where plaintiffs did not appear to be
employees either functionally or under the terms of their contracts); Gagnon v. Serv. Trucking
Inc., 266 F. Supp. 2d 1361, 1364 (M.D. Fla. 2003) (Having determined that truck drivers fall
within the class of transportation workers that are excluded under the FAA, the Court also must
9
determine whether the Lease Agreement in this case is a contract of employment as used in the
FAA in order for the exemption to apply.), vacated pursuant to settlement, No. 5:02-CV-342-
OC-10GRJ, 2004 WL 290743, *1 (M.D. Fla. Feb. 3, 2004).
Plaintiff further argues that section 1 of the FAA applies because owner-operator truck
drivers such as Plaintiff are classified as employees by operation of law. The Secretary of
Transportation has the authority to require that a regulated motor carrier
that uses motor vehicles not owned by it to transport property under an
arrangement with another party to . . . have control of and be responsible for
operating those motor vehicles in compliance with requirements prescribed by the
Secretary on safety of operations and equipment, and with other applicable law as
if the motor vehicles were owned by the motor carrier.
49 U.S.C. 14102(a) (2000). The federal motor carrier leasing regulations state that
[t]he lease shall provide that the authorized carrier lessee shall have exclusive
possession, control, and use of the equipment for the duration of the lease. The
lease shall further provide that the authorized carrier lessee shall assume
complete responsibility for the operation of the equipment for the duration of the
lease.
49 C.F.R. 376.12(c)(1). Plaintiff argues that, because regulated motor carriers like Defendant
necessarily have possession and control of the leased equipment and assume responsibility for its
the operation, leases like the 2004 ICOA necessarily create employment relationships. See
Gagnon, 266 F. Supp. 2d at 1365 ([T]he Defendant by operation of federal law[, that is, 49
U.S.C. 14102(a) and 49 C.F.R. 376.12(c)(1),] is deemed to have assumed the responsibility
and the duty to control the vehicle, a key ingredient in determining whether a relationship is
deemed to be employer-employee or is deemed to be an independent contractor relationship.).
Plaintiffs argument, however, cannot be reconciled with 49 C.F.R. 376.12(c)(4), which states
[n]othing in the provisions required by paragraph (c)(1) of this section is intended
to affect whether the lessor or driver provided by the lessor is an independent
contractor or an employee of the authorized carrier lessee. An independent
10
contractor relationship may exist when a carrier lessee complies with 49 U.S.C.
14102 and attendant administrative requirements.
Accordingly, the Court concludes that compliance with 49 C.F.R. 376.12(c)(1) does not
conclusively establish that the 2004 ICOA is a contract of employment. See United Van Lines,
2006 WL 5003366, at *3 n.3 (concluding that the holding in Gagnon is erroneous because it
ignores section 376.12(c)(4)); cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843-44 (1984) (indicating that, when Congress has delegated authority to an agency to
give effect to a statute by promulgating regulations, the resulting regulations should be deemed
valid unless they are arbitrary, capricious, or manifestly contrary to the statute).
In the alternative, Plaintiff argues that section 1 of the FAA applies because Plaintiff was
functionally an employee of Defendant. The common law factors for determining whether an
individual has been hired as an employee include the hiring partys right to control the manner
and means by which the product is accomplished, as well as
the skill required; the source of the instrumentalities and tools; the location of the
work; the duration of the relationship between the parties; whether the hiring
party has the right to assign additional projects to the hired party; the extent of the
hired partys discretion over when and how long to work; the method of payment;
the hired partys role in hiring and paying assistants; whether the work is part of
the regular business of the hiring party; whether the hiring party is in business;
the provision of employee benefits; and the tax treatment of the hired party.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-324 (1992) (quotation marks omitted);
see Tretter v. Dart Transit Co., 135 N.W.2d 484, 486 (Minn. 1965) (indicating that factors
relevant to whether an employment relationship exists include (1) [t]he right to control the
means and manner of performance; (2) the mode of payment; (3) the furnishing of material or
tools; (4) the control of the premises where the work is done; and (5) the right of the employer to
discharge). Under the 2004 ICOA, Plaintiff was required to provide his own truck. Plaintiff
assumed control over selection of routes and fuel stops, decisions about maintenance of his truck,
11
arrangements for loading an unloading his truck, and scheduling work hours and rest periods,
subject to legal requirements and the needs of Defendants customers. Plaintiff was permitted to
hire additional personnel to perform services under the lease, with Plaintiff assuming
responsibility for hiring, supervision, and compensation of the additional personnel. Plaintiff
could elect to reject specific shipments and could choose to be unavailable to Defendant for
reasonable periods of time. Under these circumstances, the Court concludes that Plaintiff has not
established that he was functionally an employee of Defendant.2
Finally, the Court concludes that Defendant has not waived its arbitration rights. See
Ritzel Commcns, Inc. v. Mid-Am. Cellular Tel. Co., 989 F.2d 966, 969 (8th Cir. 1993) ([W]e
will find waiver where the party claiming the right to arbitrate: (1) knew of an existing right to
arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these
inconsistent acts.). Plaintiff did not assert his claims under the 2004 ICOAthe agreement
containing the arbitration provisionuntil Plaintiff filed the Amended Complaint on May 21,
2008. Defendant filed the present motion on June 25, 2008. The Court concludes that
Defendants delay of approximately one month does not support a finding of waiver. Moreover,
even if Plaintiff could establish that Defendant was required to assert its arbitration rights at
some earlier time, Plaintiff has not demonstrated prejudice by any delay. See Stifel, Nicolaus &
Co. v. Freeman, 924 F.2d 157, 159 (8th Cir. 1991) (Delay in seeking to compel arbitration does
not itself constitute prejudice.).
2 The Court notes that the 2004 ICOA labels Plaintiff an independent contractor, and the
arbitration provision itself states that, with respect to the FAA, the parties agree that this
Agreement is not an exempt contract of employment.
12
In summary, Plaintiffs claims related to the 2004 ICOA are subject to the arbitration
provision in that document. Plaintiffs claims are not exempt from compulsory arbitration under
section 1 of the FAA. Defendant has not waived his arbitration rights.
C. Breach of Contract
Defendant argues that Plaintiffs state law contract claim should be dismissed because,
while the original Complaint stated claims for breach of the 1998 ICLA, the Amended
Complaint omits all detailed breach of contract allegations and merely re-labels Plaintiffs
section 14704(a)(2) claim in Count 1 as a claim for breach of contract in Count 2. Defendant
argues that, as a result, Plaintiffs contract claim in Count 2 is conclusory and does not state a
claim upon which relief may be granted.3
When considering a motion to dismiss, a court construes the pleadings in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994). A motion to dismiss should be granted as a
practical matter . . . only in the unusual case in which the plaintiff includes allegations that show
on the face of the complaint that there is some insuperable bar to relief. Frey v. City of
Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (quotation marks omitted). A complaint must,
however, contain enough facts to state a claim to relief that is plausible on its face. Bell Atl.
Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
Count 2 of the Amended Complaint, alleging breach of contract, states as follows:
3 As discussed above, Plaintiffs claims related the 2004 ICOA are committed to
arbitration. As a result, any defenses related to the merits of Plaintiffs claim for breach of the
2004 ICOAincluding any argument that Plaintiff fails to state a claim for breach of the 2004
ICOAshould be addressed through the arbitration process. See St. Paul Fire & Marine Ins.
Co. v. Courtney Enters., 270 F.3d 621, 625 (8th Cir. 2001) ([In deciding whether to compel
arbitration], the court may not rule on the merits of any claim the parties have agreed to
arbitrate.).
13
For Count Two of his Complaint, Plaintiff realleges those matters set forth
in paragraphs one through thirty-eight above and further states:
39. Defendant has breached its lease with Plaintiff which incorporated the
provisions specified in 49 C.F.R. 376.12 as a matter of law.
40. As a result of the breach of the leases by Defendant, Plaintiff Kenneth
Davis has incurred damages to be determined at trial, but which are in excess of
,000.
Notably, Count 2 incorporates the allegations in Count 1, Plaintiffs section 14704(a)(2)
claim breach of the Truth-in-Leasing regulations. Included in Count 1 are the following
allegations:
23. Although [the 1998 ICLA] and [the 2004 ICOA] complied with 49
C.F.R. 376.12(g) [(stating that leases must require authorized carriers to
provide certain rate and pay documentation to lessors)], Defendant did not
provide Plaintiff with copies of the rated freight bills, or a computer-generated
document containing the same information contained on a rated freight bill, for
that Plaintiff transported by Plaintiff at or before the time of settlement. In
addition, Defendant did not permit Plaintiff to examine copies of documents from
which rates were computed.
. . . .
27. Although [the 1998 ICLA] and [the 2004 ICOA] complied with 49
C.F.R. 376.12(i) [(The lease shall specify that the lessor is not required to
purchase or rent any products, equipment, or services from the authorized carrier
as a condition of entering into the lease arrangement.)], Defendant required the
Plaintiff to purchase uniforms from Defendant in violation of 49 C.F.R.
376.12(i).
. . . .
36. In addition to its failure to adhere to the 49 C.F.R. 376.12 with
respect to the form of leases, Defendant violated the mandatory lease terms in the
following respects:
A. It did not pay Plaintiff compensation due including, but not limited to,
fuel surcharges for shipments transported by Plaintiff;
B. It did not pay Plaintiff all of the compensation due him within 15 days
of submission of delivery documents and daily logs;
C. It did not provide Plaintiff with copies of its rated freight bills for
shipments that he transported;
14
D. It did not allow Plaintiff to examine copies of documents from which it
computed rates;
E. It did not itemize, explain and document for loss and damage charges;
F. It did not reimburse Plaintiff for unused portions of base plates;
G. It withheld from Plaintiff fuel tax credits and other escrow funds[.]
Taken together, Count 1 and Count 2 allege not only a claim under section 14704(a)(2)
for violation of the Truth-in-Leasing regulations but also a claim for breach of the terms of the
1998 ICLA. Accordingly, the Court concludes that Count 2 states a claim for breach of
contract.4
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants Motion to Dismiss Amended Complaint or in the Alternative
Stay and Refer to Arbitration [Docket No. 6] is GRANTED in part and
DENIED in part.
2. Plaintiffs claims related to the 2004 ICOA are referred to arbitration
pursuant to 9 U.S.C. 4 and this action is stayed as to those claims
pending the outcome of the arbitration pursuant to 9 U.S.C. 3 (2000).
3. Either party may file a motion to stay litigation of Plaintiffs claims related
to the 1998 ICLA. Until such a motion is granted, litigation on those
claims will proceed.
Dated: October 27, 2008
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
4 In Defendants reply memorandum, Defendant specifically disclaims any argument that
Plaintiffs contract claims are preempted by federal statutes or regulations. Cf. Hall v. N. Am.
Van Lines, Inc., 476 F.3d 683, 687-88 (9th Cir. 2007) (The Carmack Amendment is a federal
statute that provides the exclusive cause of action for interstate shipping contract claims, and it
completely preempts state law claims alleging delay, loss, failure to deliver and damage to
property.); 49 C.F.R. 376.12 (The required lease provisions shall be adhered to and
performed by the authorized carrier.).
 

 
 
 

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