United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Defendant AG Source, Inc.’s Motion to
Dismiss Plaintiff’s Amended Complaint [Doc. No. 44],
filed pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has
filed a timely response [Doc. No. 45] and Defendant has
replied [Doc. No. 46]. Both parties have filed notices of
supplemental authority [Doc. Nos. 49, 50, 51,
The Motion is fully briefed and at issue.
brings a common law negligence action to recover damages for
personal injuries suffered in a motor vehicle accident.
Defendant AG Source, Inc. (“AGS”) is a freight
broker who allegedly selected an unsafe motor carrier,
Defendant Paul Salazar d/b/a RAS Trucking, to transport
property, and the carrier’s employee allegedly caused
the trucking accident that injured Plaintiff. AGS asserts
that two federal statutes preempt any negligence claim based
on its brokerage services: the Interstate Commerce Commission
Termination Act (ICCTA), 49 U.S.C. § 14501(b); and the
Federal Aviation Administration Authorization Act (FAAAA), 49
U.S.C. § 14501(c).
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. By its
Motion, AGS does not challenge the sufficiency of
Plaintiff’s factual allegations to state a negligence
claim but, instead, raises a legal challenge based on the
doctrine of federal preemption. The legal sufficiency of a
complaint is properly decided under Rule 12(b)(6), and
federal preemption is a legal issue. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (Rule
12(b)(6)); Scarlett v. Air Methods Corp., 922 F.3d
1053, 1061 (10th Cir. 2019) (preemption). “The party
claiming preemption bears the burden of showing with
specificity that Congress intended to preempt state
law.” Mount Olivet Cemetery Ass’n v. Salt
Lake City, 164 F.3d 480, 489 n.4 (10th Cir. 1998)
(citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
255 (1984)); see Cook v. Rockwell Int’l Corp.,
618 F.3d 1127, 1143 (10th Cir. 2010).
Amended Complaint states that Plaintiff (an Oklahoma citizen)
was severely injured in a highway accident involving a
semitrailer-tractor truck operated by Defendant Robiet Leon
Carrazana (a Texas citizen) while employed by Defendant
Salazar (a Texas citizen), whose sole proprietorship was a
licensed motor carrier, U.S. DOT No. 2354708. According to
Plaintiff, “Carrazana was transporting freight brokered
to Salazar by [AGS], ” and AGS (a Kansas citizen) is a
licensed freight broker, U.S. DOT No. 228140 (MC No. 413830).
See Am. Compl. [Doc. No. 33] ¶¶ 4, 8.
“Prior to [AGS] brokering the load to Salazar, the U.S.
Department of Transportation assigned Salazar a
‘Conditional’ rating as a motor carrier due to
serious violations, including hours of service violations,
record retention violations, and operating without required
authority.” Id. ¶ 9.
asserts as his “Fourth Cause of Action” a claim
against AGS of “Negligent Hiring of a Motor
Carrier/Negligent Brokering.” Id. at 4 (ECF
page numbering). Plaintiff alleges that AGS “is a
freight broker whose enterprise involves selecting motor
carriers as an integral part of its business” and it
“owed a duty to the motoring public to select a
competent motor carrier to haul the load Carrazana was
transporting at the time of the accident.” Id.
¶¶ 24-25. According to Plaintiff, AGS “knew
or should have known that Salazar was an unsafe motor
carrier, and that Salazar utilized incompetent, unsafe, and
careless drivers – such as Carrazana – and
Salazar regularly entrusted its vehicles to such
drivers.” Id. ¶ 26. Specifically, AGS
“negligently, recklessly, and/or intentionally ignored
Salazar’s repeated unlawful and unsafe conduct,
including – but, not limited to – hours of
service violations and operating commercial motor vehicles
unsafely.” Id. ¶ 27. Plaintiff claims
that AGS’s “negligent hiring of Salazar by
entrusting the freight to Salazar constitutes gross
negligence or amounts to the wanton and reckless disregard of
the rights and safety of Loyd, entitling him to both
compensatory and exemplary damages.” Id.
Motion, AGS raises a claim of “express preemption,
which occurs when the language of the federal statute reveals
an express congressional intent to preempt state law.”
See Mount Olivet Cemetery Ass’n v. Salt Lake
City, 164 F.3d 480, 486 (10th Cir. 1998); see also
U.S. Airways, Inc. v. O’Donnell, 627 F.3d 1318,
1324 (10th Cir. 2010). The parties’ arguments regarding
this claim present three legal issues: 1) Whether
Plaintiff’s negligent brokering claim is preempted by
the ITTCA, § 14501(b); 2) Whether the claim is preempted
by the FAAAA, § 14501(c)(1); and if so, 3) Whether the
claim is saved from preemption by a provision excepting state
safety laws, § 14501(c)(2).
of a change in federal regulatory policy toward the
transportation industry, Congress passed statutes that
deregulated trucking and prevented states from imposing their
own regulations. As pertinent here, the ITTCA includes the
(b) Freight forwarders and brokers.--
(1) General rule. -- Subject to paragraph (2) of this
subsection [regarding Hawaii], no State or political
subdivision thereof and no intrastate agency . . . shall
enact or enforce any law, rule, regulation, standard, or
other provision having the force and effect of law relating
to intrastate rates, intrastate routes, or intrastate
services of any freight forwarder or broker.
49 U.S.C. § 14501(b)(1). AGS asserts that this provision
protects it from state common law claims that are based on
its performance of services as a freight broker.
to the Supreme Court, “[t]he [preemption] question, at
bottom, is one of statutory intent, and we accordingly begin
with the language employed by Congress and the assumption
that the ordinary meaning of that language accurately
expresses the legislative purpose.” Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)
(internal quotations omitted). By its terms, the ITTCA
preempts state laws “relating to intrastate
rates, intrastate routes, or intrastate
services of any freight forwarder or broker.”
Id. (emphasis added). AGS’s preemption
argument regarding this statute necessarily requires that the
Court either disregard this language and ...