USCA4 Appeal: 21-1025 Doc: 25 Filed: 12/29/2021 Pg: 1 of 15

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1025

CATHY MARIE BRENTZEL, Individually and as Personal Representative of Robert C. Hacker, Deceased,

Plaintiff - Appellant,

and

ESTATE OF ROBERT C. HACKER,

Plaintiff,

v.

FAIRFAX TRANSFER AND STORAGE, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:20-cv-01076-TSE-MSN)

Submitted: November 30, 2021 Decided: December 29, 2021

Before WILKINSON, DIAZ, and HARRIS, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion. USCA4 Appeal: 21-1025 Doc: 25 Filed: 12/29/2021 Pg: 2 of 15

James R. Tate, TATE BYWATER, Vienna, Virginia, for Appellant. ROBERT E. WORST, KALBAUGH, PFUND & MESSERSMITH, P.C., Fairfax, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Cathy Marie Brentzel appeals from the district court’s order granting Fairfax

Transfer and Storage’s (“FTS”) motion to dismiss her complaint. On appeal, she asserts

that the district court erred in considering documents extraneous to the motion to dismiss,

erroneously found that the complaint was time-barred, and wrongly determined that

Brentzel’s state law conversion claim was preempted by the Carmack Amendment to the

Interstate Commerce Act,

. While we dismiss the appeal as to the Estate

of Robert C. Hacker, we affirm the district court’s order dismissing the complaint.

I.

Brentzel in both her individual capacity and as personal representative of her

deceased husband, Robert C. Hacker, sued FTS, alleging two counts related to the loss of

household goods transported from a Virginia residence to a Washington, D.C. residence,

and a third count for alleged theft of money and a ring from the D.C. residence during

delivery of the transported household goods. Specifically, Brentzel alleged that she

contracted with FTS to move their property from Brentzel’s Virginia residence to her

residence in Washington, D.C.

With respect to the move, Brentzel “was assisted in the moving project by members

of her household staff, including one David Lamonde.” (J.A. 8). Lamonde “was assigned

by plaintiff Brentzel to oversee the arrangements with the moving company and supervise

the physical execution of the actual move.” (J.A. 8). Brentzel alleged that FTS was aware

that “Lamonde’s role was limited to that of an agent only.” (J.A. 8). “Lamonde’s authority

was strictly limited to executing the moving arrangements in accordance with [her]

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instructions.” (J.A. 8). “Lamonde’s limited authority included instructions from plaintiff

Brentzel to (1) commence the move on or about June 15, 2015, and (2) move all of the

contents of the Virginia residence directly to the DC Main Residence in a single move

without interim stops.” (J.A. 8).

Brentzel asserted that Lamonde’s authority did not include the ability “to modify or

waive any legal rights of plaintiff Brentzel under the contract of carriage and/or bills of

lading.” In addition, Brentzel alleged that FTS “was or should have been aware of

Lamonde’s authority,” as well as her instructions to Lamonde. (J.A. 8). “Brentzel and her

family members vacated the Virginia residence” at Lamonde’s request in order to

“facilitate the move.” (J.A. 8-9). Brentzel was, thus, out of town and not available “to

personally supervise Fairfax Transfer’s packing and moving activities.” (J.A. 9). FTS was

allegedly aware of this.

According to Brentzel, FTS’s “documents” revealed that FTS first arrived on

June 22, 2015. (J.A. 10). The “documentation” “reflect[ed] that some or all of the

household goods . . . were not moved directly to the DC Main Residence, but rather to a

transit storage facility under the exclusive control of Fairfax Transfer.” (J.A. 10). Brentzel

alleged that FTS completed its deliveries in January 2016. However, Brentzel further

asserted that FTS failed to deliver approximately one-third of the goods. Finally, Brentzel

alleged that an employee of FTS stole $10,000 in cash and a diamond ring from her D.C.

home. The cash and ring “were not part of contents being moved from Virginia to DC, and

instead were a part of the contents of the DC Main Residence, since before the move

began.” (J.A. 17).

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Based on these allegations, Count 1 sought compensatory damages under the

Carmack Amendment; Count 2 alleged vicarious liability for conversion of the items never

delivered; and Count 3 sought damages under a state law claim for “conversion by a

larceny” regarding the ring and cash. FTS moved to dismiss, attaching the bills of lading

and alleging that such documents were integral to Brentzel’s claims. The bills of lading

contain a condition precedent to recovery, requiring a written claim within nine months.

The district court granted FTS’s motion to dismiss, ruling that the bills of lading

were properly considered and that they rendered Brentzel’s claim untimely. The court also

found that Lamonde had apparent and actual authority to sign the bills of lading. The court

concluded that Brentzel’s conversion claim in Count 2 was preempted by the Carmack

Amendment. Finally, the court declined to exercise pendent jurisdiction over Count 3 and

dismissed it without prejudice.

II.

We review a dismissal for failure to state a claim de novo. Mylan Labs, Inc. v.

Matkari,

, 1134 (4th Cir. 1993). Dismissal under Rule 12(b)(6) is inappropriate

unless it appears beyond doubt that the plaintiff cannot prove any set of facts to support

her allegations. Revene v. Charles County Comm’rs,

, 872 (4th Cir. 1989).

Ordinarily, a court may not consider any documents that are outside of the complaint, or

not expressly incorporated therein, unless the motion is converted into one for summary

judgment. Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co.,

(1st Cir. 2001).

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However, a court may consider documents sufficiently referred to in the complaint

or central to the plaintiff’s claim when the authenticity is not disputed. Id.; see also

Phillips v. LCI Int’l, Inc.,

, 618 (4th Cir. 1999) (permitting consideration of

extraneous material if such materials are “integral to and explicitly relied on in the

complaint”). Mere quotation or reference to documents is not enough to incorporate those

documents into the complaint. See Goines v. Valley Cmty. Servs. Bd.,

(4th Cir. 2016). Instead, for the document to be considered, the plaintiff's claims must turn

on, or otherwise be based on, the contents of the document.

Short of that, a document

is not integral to the complaint and should not be considered.

Brentzel contends first that the district court’s review of the bills of lading was

improper as the bills were not essential or integral to her claims. Brentzel asserts that her

references to bills of lading in the complaint were generic and made in passing. She further

argues that her claims are based on the Carmack Amendment, not the bills of lading.

The Carmack Amendment “creates a national scheme of carrier liability for goods

damaged or lost during interstate shipment under a valid bill of lading.” 5K Logistics,

Inc. v. Daily Express, Inc.,

(4th Cir. 2011) (citation and internal

quotation marks omitted). The statute requires the initial carrier to issue a bill of lading or

receipt for property it transports and states that a carrier is liable to the “person entitled to

recover” under the bill of lading “for the actual loss or injury to the property” caused by

the initial carrier or any subsequent carrier to which the property is delivered.

(a); CNA Ins. Co. v. Hyundai Merchant Marine Co,

(6th Cir.

2014). While the Carmack Amendment specifies that “[f]ailure to issue a receipt or bill of

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lading does not affect the liability of a rail carrier,”

(a), the forming of a

contract via a bill of lading is “typically anticipated.” CNA Ins.,

; see also

Smallwood v. Allied Van Lines, Inc.,

, 1121 n.5 (noting that the Carmack

Amendment requires a receiving carrier to issue a bill of lading).

Thus, a claim under the Carmack Amendment governs situations where a bill of

lading or a receipt is required. While a carrier cannot avoid liability by failing to issue the

required bill of lading or receipt, in such a case the shipping contract is nonetheless implied.

See CNA Ins.,

(noting that there will be either an actual contract, such as

in a bill of lading, or a constructive contract based on the Carmack Amendment).

Moreover, the Amendment recognizes that the parties can limit liability, including the time

period for bringing suit, in a bill of lading in accordance with the statute.

(e).

Accordingly, a claim based on the Carmack Amendment involves a contractual

relationship, and an actual, physical document (bills of lading or receipt) is required to be

issued by the carrier. In district court, Brentzel did not dispute that the bills of lading were

issued to her by FTS upon receipt of her property. She challenged the authority of

Lamonde to sign the bills but not their existence or relevance to the contractual relationship

between the parties. Because the statute on which her claim is based required a receipt or

bill of lading to be issued and explicitly recognized that the document could limit liability

in certain instances, the bills of lading or other receipts (or lack thereof) would be necessary

to determine the scope of liability and the details of the agreement between the parties.

While it is true that Brentzel could have instituted her claim even if no bill of lading was

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issued, Brentzel makes no argument, either below or on appeal, that FTS failed to issue a

bill of lading. Accordingly, we find that the district court correctly found that the bills of

lading were integral to Brentzel’s claims.

Next, Brentzel contends that there is a question as to whether the bills of lading are

authentic. In district court, Brentzel challenged the authenticity of the bills because they

were allegedly signed by a career criminal acting as an unauthorized agent. However, this

argument does not actually challenge the authenticity of the documents themselves; that is,

this argument does not dispute that the bills of lading existed in the form proffered by FTS

and were signed by Lamonde. Instead, Brentzel’s district court argument went to the issue

of whether Lamonde was authorized to sign the bills, which will be discussed below, but

does not affect the authenticity or admissibility of the bills of lading for consideration on a

motion to dismiss.

Moreover, on appeal, while Brentzel briefly restates her authenticity argument, she

also, for the first time, avers that there was no evidence that Lamonde actually signed the

bills of lading. 1 In her reply brief, Brentzel raises even more claims, contending that

Brentzel’s counsel (and perhaps Brentzel and, even, Lamonde) were not aware of the

relevant language on the back of the bills of lading until the motion to dismiss was filed in

district court. Brentzel also questions whether Lamonde ever saw or understood the back

of the forms. Brentzel even surmises that the back of the bills of lading attached to the

motion to dismiss may not have been on the back of the documents signed by Lamonde.

1 In fact, in district court, Brentzel admitted that Lamonde signed the bills.

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However, below, Brentzel did not dispute that the bills of lading proffered by FTS

with its motion to dismiss were complete and were presented to and signed by Lamonde.

Claims raised for the first time on appeal generally will not be considered, absent

exceptional circumstances of plain error or a fundamental miscarriage of justice. Muth v.

United States,

(4th Cir. 1993); First Virginia Banks, Inc. v. BP Exploration

& Oil, Inc.,

, 407 n.1 (4th Cir. 2000) (declining to consider issues raised for

first time on appeal). Moreover, Brentzel avers that, when she filed the complaint, she

possessed copies of the bills of lading that did not include the back of the FTS form, where

the time limitations were listed. Thus, Brentzel would have been able to raise her current

authenticity claim in district court. Instead, Brentzel conceded the authenticity of the

documents, and thus, her allegations to the contrary are untimely raised. As such, given

that the bills of lading were integral to Brentzel’s claims and that there was no timely

objection to their authenticity, the district court properly considered the bills during the

motion to dismiss.

II.

Brentzel next asserts that the district court erred in determining that the complaint

admitted (or inferred) that Lamonde had actual and/or apparent authority to sign the bills

of lading. Brentzel points to allegations in the complaint that “Lamonde’s authority was

strictly limited to executing the moving arrangements in accordance with his instructions;

and included no authority to modify or waive any legal rights of plaintiff Brentzel under

the contract of carriage and/or bills of lading.” (J.A. 8). The complaint further alleged that

FTS “was or should have been aware of the limitations on Lamonde’s authority.” (J.A. 8).

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While the district court did not explicitly address these allegations, the court noted

that conclusory allegations need not be accepted as true when considering a motion to

dismiss. Brentzel avers that these allegations are detailed and should not have been

disregarded. However, we find that these statements are, indeed, conclusory. The

complaint does not allege how, when, or where Brentzel and Lamonde agreed to the agency

relationship and its limitations and fails to provide the contours of this agreement, except

in general terms. While Brentzel alleges that the agency was “strictly limited,” she did not

aver whether there was an employment/agency contract (whether oral or written), whether

she had specific discussions with Lamonde about signing moving-related documents, or

what sort of discretion Lamonde was permitted in order to execute the move. Importantly,

accepting Brentzel’s interpretation of her complaint, she alleged an unworkable agreement

with Lamonde, whereby she gave him authority to commence, oversee, and execute the

move but forbade him from signing the necessary documentation. Such an interpretation

is implausible and does not prevent dismissal of the motion. See Bing v. Brivo Sys., LLC,

, 618 (4th Cir. 2020) (noting that complaint’s factual allegations must state a

plausible claim and not require speculation to “fill in the gaps”), cert. denied,

(2021).

In addition, even assuming that the agency relationship was structured in this

implausible manner, the complaint is silent as to how, when, or where FTS was made aware

of these allegedly strict limitations. See Ashcroft v. Iqbal,

(2009)

(holding that allegations that petitioners “knew of, condoned, and willfully and maliciously

agreed to subject [him] to harsh conditions of confinement” were conclusory and not

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entitled to be assumed true). Brentzel would have known the details of her interactions

with Lamonde and FTS, and she could easily have amended her complaint to include

them. 2 See Penalbert-Rosa v. Fortuno-Burset,

(1st Cir. 2011)

(noting that Iqbal does not create a “mechanical rule” but recognizing that a motion to

dismiss “can be countered by plaintiff’s supplying of the missing detail”). As such, the

district court did not err in finding certain allegations in the complaint lacked the necessary

specificity to require a presumption that they were true.

Brentzel next asserts that an agency relationship is one of fact and not law and

should not have been decided on a motion to dismiss. However, the district court properly

relied on Brentzel’s allegations in the complaint that Lamonde had the authority to “oversee

the arrangements with the moving company and supervise the physical execution of the

actual move.” (J.A. 8). The complaint also provided that Brentzel was not present for the

move, that Lamonde would be supervising the packing and moving activities, and that FTS

was aware of this. (J.A. 8-9). While Brentzel conclusorily alleged that FTS was aware

that Lamonde was under strict instructions not to modify or waive any of Brentzel’s legal

rights, as discussed above, this conclusory allegation need not be presumed true. Further,

Brentzel failed to allege any facts explaining how Lamonde was to execute and supervise

the move without the authority to sign the required documents. Accordingly, because the

complaint’s allegations that were contrary to the district court’s ruling were not entitled to

2 If Brentzel had factual support for her conclusory allegations, she could have filed an amended complaint as a matter of course after receiving the motion to dismiss. Fed. R. Civ. P. 15(a)(1).

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a presumption of truth, the contours of the agency relationship did not require any factual

findings. Instead, the complaint’s allegations that Lamonde was tasked with overseeing

and executing the move, absent any other detailed allegations, included the logical

conclusion that Lamonde had actual authority to sign a bill of lading. 3

Brentzel next contends that Lamonde’s deviations (or Lamonde’s acquiescence to

FTS’s deviations) from the agreed-upon moving arrangements placed FTS on notice that

it should inquire further prior to permitting Lamonde to sign the bills of lading. An agent’s

actions bind a principal when the principal causes a third party, “in good faith and in the

exercise of reasonable prudence, to rely on the agent’s authority.” Auvil v. Grafton Homes,

Inc.,

(4th Cir. 1996). Brentzel provides no facts from which to infer that

FTS should not have relied on Lamonde’s apparent authority. While Brentzel avers that

Lamonde exceeded his authority even before signing the bills of lading, the complaint fails

to allege how or when FTS became aware of this aside from the repeated allegations that

it knew or should have known. Moreover, the complaint affirmatively alleged that

Lamonde was tasked with execution of the move in Brentzel’s absence and that FTS was

aware of this fact, allegations that contradict the conclusion that Lamonde was without any

discretionary authority to make decisions or sign documents required for the execution of

the move.

3 While Brentzel avers that the existence of a bill of lading is not an element of her cause of action, she does not dispute that bills of lading (or receipts) are typical in moving situations and, in fact, required under the Carmack Amendment.

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Thus, the district court correctly considered the motion to dismiss and properly

granted the motion to dismiss the Carmack Amendment claim as untimely. While Brentzel

argues that this result is not consistent with the substantive policies underlying the Carmack

Amendment and required formalistic application of Rule 12(b)(6), we find that instead the

district court merely accepted the facts as alleged in the complaint and disregarded the

conclusory statements. As discussed above, Brentzel was free to file an amended

complaint providing further factual support and details, and thus, it was Brentzel’s decision

to stand on her conclusory complaint, rather than a miscarriage of justice or undermining

of policy, that caused the dismissal of her suit.

III.

Finally, Brentzel contends that the district court incorrectly found that her state law

conversion claim seeking damages for the harm to and destruction of her property shipped

by FTS was preempted by the Carmack Amendment. While recognizing that the Carmack

Amendment generally preempts state law causes of action for goods lost or damaged in

transit, Brentzel argues that FTS’s actions were so extreme that they constituted an

abandonment of the “contract of carriage” and were criminal in nature. Brentzel contends

that the extreme nature of FTS’s alleged actions removed the claim from Carmack

Amendment preemption.

The Amendment's preemptive force is exceedingly broad and embraces “all losses

resulting from any failure to discharge a carrier's duty as to any part of the agreed

transportation.” Ga., Fla. & Ala. Ry. v. Blish Milling Co.,

(1916). The

Carmack Amendment “preempts all state or common law remedies available to a shipper

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against a carrier for loss or damage to interstate shipments.” N. Am. Van Lines, Inc. v.

Pinkerton Sec. Sys., Inc.,

, 456 (7th Cir. 1996). Specifically, state law

conversion claims are preempted. See Am. Ry. Express Co. v. Levee,

(1923); see also Certain Underwriters at Interest at Lloyds of London v. UPS,

, 336 & n.3 (3d Cir. 2014) (citing cases from numerous circuits finding state contract,

fraud, and conversion claims to be preempted).

Brentzel provides no support for an exception to preemption for state law claims

alleging theft or other criminal conduct resulting in damage or destruction to property

during shipping. 4 To the contrary, the Third Circuit has specifically found that even state

law claims based on “intentional conduct or conduct in the nature of theft” are preempted.

Certain Underwriters,

. Thus, we find that the district court correctly

found that Brentzel’s state law claim for damage to and theft of her property during

shipping was preempted by the Carmack Amendment.

Accordingly, we affirm the district court’s judgment. Brentzel has filed a motion to

amend the case caption to include the Estate of Robert C. Hacker. However, because the

Estate has not filed the necessary documentation to participate in the appeal, we deny the

motion and grant FTS’s motion to dismiss the Estate’s appeal. We dispense with oral

4 Instead, Brentzel relies on cases finding that claims seeking damages for injuries separate from the damage or destruction of property are not preempted by the Carmack Amendment. See, e.g., Gordon v. United Van Lines, Inc.,

(7th Cir. 1997) (finding claim for intentional infliction of emotional distress related to the destruction of property not preempted although “a claim for damages to the shippers’ goods” would be preempted).

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argument because the facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART

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