Pcx Holding, Llc v. Guy M. Turner Incorporated, et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re: Crossclaim of Relay Associates, Inc.

E.D.N.C.June 12, 2017

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION CIVIL ACTION 5:17-cv-95 PCX HOLDING LLC, an Ohio Limited Liability Company, Plaintiff, v. GUY M. TURNER, INCORPORATED, a North Carolina Corporation, a/k/a TURNER TRANSFER, a division of Guy M. Turner, Inc. and RELAY ASSOCIATES, INC. of DELAWARE d/b/a Relay & Power Systems, Defendants. RELAY ASSOCIATES, INC. OF DELAWARE d/b/a Relay & Power Systems, Third-Party Plaintiff, v. ALTRAN SOLUTIONS CORP., Third-Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) GUY M. TURNER, INC.’S MOTION TO DISMISS CROSSCLAIM BY RELAY ASSOCIATES, INC. Fed. R. Civ. P. 12(b)(6) COMES NOW Guy M. Turner, Inc. (“Turner”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and moves the Court for an order dismissing the Crossclaim of Relay Associates, Inc. (“RPS”) against Turner, which is styled as Count VIII of RPS’s Counterclaim, Crossclaim and Third Party Complaint. [DE 17] Case 5:17-cv-00095-BO Document 24 Filed 06/12/17 Page 1 of 3 RPS’s crossclaim against Turner is subject to dismissal on the pleadings because the facts alleged in RPS’s operative pleading, when taken as true, demonstrate that this crossclaim is preempted by the Carmack Amendment to the Interstate Commerce Commission Act, 49 U.S.C. § 14706. For this reason, as more specifically addressed in the supporting memorandum that is being filed contemporaneously herewith, Turner respectfully requests that Count VIII of RPS’s Counterclaim, Crossclaim and Third Party Complaint be dismissed. Respectfully submitted, this the 12th day of June, 2017. /s/ Leslie C. Packer Leslie C. Packer N.C. State Bar No. 13640 leslie.packer@elliswinters.com ELLIS & WINTERS LLP P.O. Box 33550 Raleigh, NC 27636 Tel. (919) 865-7000 Fax (919) 865-7010 Christopher W. Jackson N.C. State Bar No. 42939 chris.jackson@elliswinters.com ELLIS & WINTERS LLP P.O. Box 2702 Greensboro, NC 27402 Tel. (336) 217-4193 Fax (336) 217-4198 Counsel for Guy M. Turner, Inc. Case 5:17-cv-00095-BO Document 24 Filed 06/12/17 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of June, 2017, I electronically filed the foregoing Motion to Dismiss with the Clerk of the Court using the CM/ECF system, which will send notification of such filing as service to all counsel of record. I further certify that on this 12th day of June, 2017, I caused to be mailed a copy of the foregoing via United States mail as follows: Altran Solutions Corp. Steven McAleer, Secretary 20 North Avenue Burlington, MA 01803 Third-Party Defendant /s/ Leslie C. Packer Leslie C. Packer Case 5:17-cv-00095-BO Document 24 Filed 06/12/17 Page 3 of 3