IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

OCEAN BEAUTY SEAFOODS, LLC, )

)

Plaintiff, )

)

v. ) No. 12 C 685

)

LANDSTAR RANGER, INC., et al., )

)

Defendants. )

MEMORANDUM ORDER

Following the recent removal of this action from the Circuit

Court of Cook County to this District Court, this Court both

(1) issued a February 2 memorandum order requiring codefendant

Landstar Ranger, Inc. to correct errors in its responsive

pleading and (2) set a February 27 initial status hearing date.1

Now the other codefendant, J. Attarian Trucking Co.

(“Attarian”), has noticed up for that February 27 date its motion

to dismiss the Complaint pursuant to Fed. R. Civ. P. (“Rule”)

12(b)(6). Because that motion reflects a misconception of the

federal concept of a “claim,” this Court denies it and will

retain the February 27 status hearing date.

Attarian’s counsel peg their motion on the preemptive force

of the Carmack Amendment (49 U.S.C. §14706) as fatal to common

law causes of action such as Count I, in which plaintiff Ocean

 With removed cases, because it is unnecessary to allow 1

time for service of process and for the filing of responsive

pleadings (as is needed in cases originally brought in the

District Court), this Court customarily sets a much earlier

status hearing than in the parenthetically-described situation.

Case: 1:12-cv-00685 Document #: 13 Filed: 02/09/12 Page 1 of 3 PageID #:65
Beauty Seafoods, LLC (“Ocean Beauty”) asserts a breach of

contract, and Count II, which sounds in negligence. But there’s

the rub--those contentions are indeed “causes of action,” as

might have been expected of a Complaint filed in the state court

system as this one was.

Federal practice, however, does not follow the “cause of

action” model, which includes a theory of recovery as part of

what a plaintiff must plead. It must be remembered that 2

Rule 12(b)(6) speaks in terms of “failure to state a claim upon

which relief can be granted” (emphasis added)--and on that score

this Court commends to counsel a reading of Judge Easterbrook’s

pellucid opinion in NAACP v. Am. Fam. Mut. Ins. Co., 978 F.2d

287, 291-93 (7th Cir. 1992).3

What the matter boils down to is that if Ocean Beauty has a

claim against Landstar or Attarian or both under the Carmack

Amendment, it retains its place here in the federal court system. 

To be sure, its counsel will have to reframe the language of the

Complaint if Attarian’s total preemption point is correct, but

the congeries of facts alleged in the Complaint appears to state

a Carmack Amendment claim (Attarian’s motion gives no indication,

 Unsurprisingly, Attarian’s lawyer consistently employs 2

the incorrect “cause of action” vocabulary throughout the current

motion.

 That opinion is far from alone in making the distinction 3

spoken of here. It is simply, in this Court’s view, the most

articulate.

2

Case: 1:12-cv-00685 Document #: 13 Filed: 02/09/12 Page 2 of 3 PageID #:66
and this Court expresses no view, as to the possible existence of

any flaw in a claim under the Carmack Amendment). In the

interim, then, Attarian’s motion is denied.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: February 9, 2012

3

Case: 1:12-cv-00685 Document #: 13 Filed: 02/09/12 Page 3 of 3 PageID #:67