United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. Van Bokkelen United States District Judge
matter is before the Court on cross-motions for summary
judgment filed by Defendant Best Transportation Services Inc.
(“Best”) (DE 56) and Plaintiff Apex Compounding
Pharmacy LLC (“Apex”) (DE 59). Apex's motion
is also directed at Katherine Rodriguez, who was named as a
defendant but has not appeared in this action. Best has also
filed a motion to strike Exhibit 4 from Apex's
designation of evidence in support of its motions (DE 70).
Undisputed Material Facts
operates a for-hire delivery service that is registered with
the United States Department of Transportation. Apex
manufactures and sells specialized prescription medication.
Apex had an agreement with eight customers to deliver
prescriptions for medication to them. Apex engaged Best to
pick up the prescriptions at Apex's location in Dyer,
Indiana, and deliver them to the customers in Chicago and
various Illinois suburbs of Chicago, namely: Lansing, Oak
Lawn, Park Forest, and Crete. Katherine Rodriguez, as agent
for Best, picked up the prescriptions. Apex claims that the
eight customers never received their medications, but does
not direct the Court to any admissible evidence to support
its claim. Virtually none of the materials Apex
refers to in support of its version of the facts actually do
support the claimed facts.
amended complaint seeks damages from Katherine Rodriguez for
gross negligence, fraud, and conversion, and alleges a breach
of contract action against Best as well as respondeat
superior liability for Rodriguez's gross negligence,
fraud, and conversion.
Best's Motion for Summary Judgment.
argument is that, because the delivery from Indiana to
Illinois was an interstate shipment, the Carmack Amendment to
the Interstate Commerce Act, 49 U.S.C. § 14706(a),
provides the exclusive remedy for shippers seeking to recover
against carriers for the loss of property and pre-empts all
state law claims. Best maintains that because Apex did not
allege a claim under this federal law, its amended complaint
should be dismissed. Apex counters that the Carmack Act does
not apply because of the exemption created by 49 U.S.C.
§ 13506(b)(1), which provides:
(b) Exempt unless otherwise
necessary.-Except to the extent the Secretary or
Board, as applicable, finds it necessary to exercise
jurisdiction to carry out the transportation policy of
section 13101, neither the Secretary nor the Board has
jurisdiction under this part over-
(1) transportation provided entirely in a municipality, in
contiguous municipalities, or in a zone that is adjacent to,
and commercially a part of, the municipality or
municipalities . . ..
U.S.C. § 13506 and § 14706 are found in Title 49,
Subtitle IV, Part B.
and Apex argue about whether Lake County, Indiana, and Cook
County, Illinois, are areas that fall within the exemption
created by § 13506, but a federal regulation, 49 C.F.R.
§ 372.233, removes this issue from debate by
establishing the boundaries of “a zone that is adjacent
to and commercially a part of” Chicago as follows:
The zone adjacent to, and commercially a part of Chicago, IL,
within which transportation by motor vehicle, in interstate .
. . commerce . . . is partially exempt under 49 U.S.C.
13506(b)(1), includes and is comprised of all points as
(a) The municipality of Chicago, IL, itself;
(b) All points within a line drawn 20 miles beyond the