ATTORNEYS FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
KENNEDY TANK & MFG. CO., INC.                                John R. Maley
Craig J. Helmreich                                           Peter J. Rusthoven
Brandon K. Wiseman                                           T. Joseph Wendt
Scopelitis, Garvin, Light, Hanson & Feary, P.C.              Barnes & Thornburg LLP
Indianapolis, Indiana                                        Indianapolis, Indiana

ATTORNEYS FOR APPELLANTS
HEMLOCK SEMICONDUCTOR OPERATIONS LLC
AND HEMLOCK SEMICONDUCTOR, LLC                                        FILED
A. Richard M. Blaiklock                                          Jan 03 2017, 10:17 am
Charles R. Whybrew                                                    CLERK
Edward D. Thomas                                                  Indiana Supreme Court
                                                                     Court of Appeals
Lewis Wagner, LLP                                                      and Tax Court

Indianapolis, Indiana
______________________________________________________________________________


                                              In the
                         Indiana Supreme Court
                              _________________________________

                                      No. 49S02-1608-CT-431

KENNEDY TANK & MFG. CO., INC.,                         Appellant-Defendant, Third-Party Plaintiff,
AND
HEMLOCK SEMICONDUCTOR OPERATIONS LLC AND
HEMLOCK SEMICONDUCTOR, LLC,                                  Appellants, Third-Party Defendants,


                                                  v.

EMMERT INDUSTRIAL CORPORATION
D/B/A EMMERT INTERNATIONAL,                                                               Appellee-Plaintiff.

                              _________________________________

      Appeal from the Marion Superior Court Civil Division 1, No. 49D01-1501-CT-2052
                          The Honorable Heather A. Welch, Judge
                          _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1507-CT-934
                            _________________________________

                                          January 3, 2017

Rush, Chief Justice.
       After Emmert Industrial Corporation (“Emmert”) successfully transported an enormous
process tower vessel from Indiana to Tennessee, the vessel’s manufacturer—Kennedy Tank &
Manufacturing Company (“Kennedy”)—refused to pay nearly $700,000 in unforeseen
transportation expenses. Emmert attempted to collect, but Kennedy still had not paid by the time
a federal statute of limitations expired. Emmert eventually sued for breach of contract and unjust
enrichment, and Kennedy raised the federal statute of limitations as an affirmative defense, arguing
it preempts Indiana’s longer limitations period. On this issue of first impression, we disagree with
Kennedy and hold that Indiana’s ten-year statute of limitations is not preempted. Emmert’s
collection claim may therefore proceed.

                                  Facts and Procedural History

       Kennedy needed a process tower vessel transported from its headquarters in Indianapolis,
Indiana, to Hemlock Semiconductor’s (“Hemlock”) location in Clarksville, Tennessee. The vessel
was massive—about 280 feet long, 18 feet wide, and 16 feet tall, and weighing about 360,000
pounds. Kennedy contracted with Emmert, an Oregon-based heavy-haul transporter, to get it to
Clarksville. Their contract—which specified it should be interpreted under Indiana law—called
for Kennedy to pay $197,650.00 plus additional unforeseen costs.

       Many of those additional unforeseen costs piled up. The I-64 bridge between Indiana and
Kentucky unexpectedly closed, requiring an alternate route. This led to additional route surveys and
permit applications in Indiana, Illinois, Missouri, and Tennessee. Altogether, construction delays,
road closures, permit applications, safety escorts, and bureaucratic delays cost Emmert an additional
$691,301.03. Despite these troubles, Emmert delivered the vessel on November 11, 2011.

       Emmert then tried to collect the additional costs from Kennedy. They discussed the dispute
through January 2013, then considered arbitration from June to August 2014. But, in September
2014, Kennedy refused to pay any additional charges, claiming to owe nothing because of the
federal eighteen-month statute of limitations in 49 U.S.C. section 14705(a). Emmert then sued,
alleging breach of contract and, in the alternative, unjust enrichment.

       Kennedy moved to dismiss Emmert’s complaint under Indiana Trial Rules 12(B)(1) and
12(B)(6), relying on the eighteen-month federal statute of limitations. Emmert responded that
dismissal was inappropriate because the federal statute did not preempt Indiana’s ten-year


                                                 2
limitations period in Indiana Code section 34-11-2-11. Emmert also claimed that the parties’
settlement discussions equitably estopped Kennedy from asserting the federal statute of
limitations. The trial court denied the motion to dismiss, finding no preemption.

        Following the denial of its motion, Kennedy brought Hemlock into the case—alleging
Hemlock’s responsibility for any additional charges—and filed this interlocutory appeal. The
Court of Appeals reversed the trial court, finding that Indiana’s statute of limitations was
preempted, Kennedy Tank & Mfg. Co. v. Emmert Indus. Corp., 53 N.E.3d 505, 509–11 (Ind. Ct.
App. 2016), and that Emmert waived the equitable estoppel issue on appeal, id. at 506 n.2. Emmert
sought transfer, which we granted—thus vacating the Court of Appeals opinion. Ind. Appellate
Rule 58(A).

        We now affirm the trial court, agreeing that Indiana’s statute of limitations is not preempted.

                                         Standard of Review

        We review the denial of Kennedy’s motion to dismiss de novo. Teaching Our Posterity
Success, Inc. v. Ind. Dept. of Educ., 20 N.E.3d 149, 151 (Ind. 2014). To determine if this denial
was appropriate, we must first determine whether Indiana’s statute of limitations is preempted—a
question of law, Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind. 2012), abrogated on other grounds by
Hillman v. Maretta, 133 S. Ct. 1943 (2013), that we also review de novo, see Clippinger v. State,
54 N.E.3d 986, 988 (Ind. 2016).

                                      Discussion and Decision

        Our analysis begins with a presumption against preemption, which Kennedy and Hemlock
bear the burden to overcome. Yet here, Congress has provided no indication that it intended to
impose a uniform national statute of limitations, and breach of contract collection actions are not
an area of federal regulation. Furthermore, other jurisdictions addressing this issue provide little
guidance and do not compel a different result. Kennedy and Hemlock thus fail to carry their burden
to show that Indiana’s statute of limitations on contract collection actions is preempted.1


1
  Because Indiana’s statute of limitations is not preempted, we need not address Kennedy’s argument that
49 U.S.C. section 14705(a) provides a statute of repose rather than a statute of limitations. We do note,
though, that Indiana Trial Rule 12(B)(1) is not a proper procedural vehicle for a motion to dismiss based
on either type of statute. See R.L. Turner Corp. v. Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012); Gill v.
Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 n.4 (Ind. 2012).


                                                   3
I.      Standard Principles of Federal Preemption Guide This Analysis.

        It has “long been settled” that a preemption analysis begins with the presumption that
federal statutes do not preempt state law. Bond v. United States, 134 S. Ct. 2077, 2088 (2014). The
presumption against preemption comes from two concepts “central to the constitutional design”—
the Supremacy Clause and federalism. See Arizona v. United States, 132 S. Ct. 2492, 2500 (2012).
Although the Supremacy Clause2 gives Congress the power to preempt state law, federalism
requires that we do not easily find preemption. See id. at 2501. In fact, we find preemption only if
it is “the clear and manifest purpose of Congress.” Id. Kennedy and Hemlock, then, must show
that clear and manifest purpose in order to overcome the presumption against preemption. Russ.
Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 309 (7th Cir. 2010).

        Congress can preempt state law in three ways: express preemption, field preemption, and
conflict preemption. Basileh v. Alghusain, 912 N.E.2d 814, 818 (Ind. 2009). Express preemption
exists when Congress states the statute’s preemptive effect. Id. Field preemption applies when
Congress creates “exclusive federal regulation of the area.” Id. And conflict preemption preempts
a state law that conflicts with federal law. Arizona, 132 S. Ct. at 2501.

        This case involves only conflict preemption. Conflict preemption voids a state law in two
different situations: (1) when it is “physically impossible” to comply with both the state and federal
laws, Wyeth v. Levine, 555 U.S. 555, 590 (2009), and (2) when the state law does “major damage”
to the federal law’s purpose, Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1050 (7th Cir.
2013) (quoting Hillman, 133 S.Ct. at 1950). See also Sprietsma v. Mercury Marine, 537 U.S. 51,
64–65 (2002).

        The first type of conflict preemption—physical impossibility—is a “demanding defense”
that asks whether any party could ever comply with the state and federal statutes. See Wyeth, 555
U.S. at 573; Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 291 (1987) (finding no
preemption when “compliance with both statutes ‘is theoretically possible’”). Because Emmert
could have filed suit within the eighteen-month federal limitations period, physical impossibility
preemption does not apply here. See Marsh v. Rosenbloom, 499 F.3d 165, 178 (2d Cir. 2007)


2
 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall
be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.


                                                    4
(finding no “physical impossibility” conflict preemption when a plaintiff could have complied with
three-year and six-year limitations periods by filing suit within three years).

         Kennedy and Hemlock therefore rely on the second type of conflict preemption, arguing
that Indiana’s statute of limitations does “major damage” to Congress’s purpose in enacting the
federal statute of limitations.

II.      Indiana’s Statute of Limitations for Contract Collection Actions Does Not Do “Major
         Damage” to Congress’s Purpose.

         Indiana’s statute of limitations does not do “major damage” to Congress’s purpose because
Congress used the Interstate Commerce Commission Termination Act (“ICCTA”), Pub. L. No.
104-88, 109 Stat. 803 (1995), to shift regulatory authority from the federal government to the
states—not to assert federal authority over state-law collection actions. After all, we are primarily
concerned with “the nature of the activities which the States have sought to regulate,” Chi. & N.W.
Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317–18 (1981) (quoting San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236, 243 (1959)), and here, those activities are areas of state
authority.

      A. The federal statute of limitations’s purpose is not to create a uniform national standard.

         Congress’s purpose is the “ultimate touchstone” for all types of preemption, Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks Int’l Ass’n, Local 1625 v.
Schermerhorn, 375 U.S. 96, 103 (1963)), but it is especially important for the second type of
conflict preemption, where a state law is preempted if it does “major damage” to the federal law’s
purpose, Patriotic Veterans, 736 F.3d at 1050 (quoting Hillman, 133 S. Ct. at 1950). We conclude
that Congress’s purpose for section 14705(a) was not to impose a standard national statute of
limitations, and therefore Indiana’s longer period does not do “major damage” to the federal
scheme.

         We discern Congress’s purpose by “examining the federal statute as a whole and
identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 373 (2000). The federal statute of limitations at issue here, 49 U.S.C. section 14705(a), is part
of the ICCTA—which, as its name suggests and as discussed below, significantly reduced federal
regulation of interstate commerce. The statute of limitations is straightforward: “A carrier
providing transportation or service subject to [federal] jurisdiction . . . must begin a civil action to


                                                   5
recover charges for transportation or service provided by the carrier within 18 months after the
claim accrues.” 49 U.S.C. § 14705(a). Our inquiry, however, is not whether the federal statute is
unclear, but whether applying Indiana’s longer statute would do “major damage” to the ICCTA’s
overarching purpose of deregulation. We conclude it would not.

       Kennedy and Hemlock argue that the federal statute of limitations is meant to create a
uniform national standard for interstate transportation and to encourage the diligent pursuit of
claims once they are known. If Congress intended to provide a uniform national standard, it could
easily have expressly made this statute of limitations a national one. For example, in certain
environmental tort actions under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (“CERCLA”), that’s exactly what Congress did:

       [I]f the applicable limitations period for [a CERCLA] action (as specified in the
       State statute of limitations or under common law) provides a commencement date
       which is earlier than the federally required commencement date, such period shall
       commence at the federally required commencement date in lieu of the date
       specified in such State statute.

42 U.S.C. § 9658(a)(1); see also CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2188 (2014)
(“[Section 9658] by its terms preempts [state] statutes of limitations applicable to state-law tort
actions in certain circumstances.”). If Congress thought state statutes of limitations “posed an
obstacle to its objectives” in enacting the ICCTA, it could have simply preempted them. See
Wyeth, 555 U.S. at 574. But while Congress did precisely that in section 9658, it did not do so
here. See id.

       Instead of relying on the ICCTA’s text, then, Kennedy and Hemlock turn to a House of
Representatives Report from the passage of the ICCTA. That report does note the importance of
“Federal commercial rules established to ensure that all interstate transportation is subject to the
same rules and procedures.” H.R. Rep. No. 104-311, at 85 (1995), as reprinted in 1995
U.S.C.C.A.N. 793, 797. This language, though, refers to the Department of Transportation’s
(“DOT”) responsibility to “oversee and maintain” certain “rules for operation” such as “leasing
rules, uniform cargo loss and damage rules, rules for shipper payment, and perfecting security
interest,” id. (emphasis added)—that is, the type of rules the agency enforces. Statutes of
limitations, by contrast, are litigation rules enforced by courts, not by the DOT. And, the report
characterizes these rules as requiring “very little effort or activity” to enforce, id.—which would


                                                 6
not be the case if the DOT were required to monitor an abundance of state breach of contract suits
and make statute of limitations determinations on each one.

         Kennedy and Hemlock therefore have not persuaded us that Congress intended to dictate a
national statute of limitations.

      B. State collection actions are unlikely candidates for federal regulation because there is no
         uniformity vital to national interests.

         Though neither the text nor the legislative history of section 14705(a) persuades us that
state limitations periods are preempted, conflict preemption can apply if the state’s method is
disruptive to Congress’s system. Arizona, 132 S. Ct. at 2505.

         In Arizona, for example, a state law making it a misdemeanor for an unauthorized alien to
apply for or perform work was preempted even though it shared a common purpose with federal
law: to deter unlawful employment. Id. at 2494, 2505. By contrast, a California law survived
preemption when it governed the maturity of avocados based solely on oil content while the federal
government governed the maturity of avocados based on picking dates, sizes, and weights. Fla.
Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 133, 139 (1963). While Arizona involved
immigration and foreign relations—areas of intense federal concern, 132 S. Ct. at 2498–2500—
the maturity of avocados in Florida Lime “seem[ed] to be an inherently unlikely candidate for
exclusive federal regulation” and was not “a subject demanding exclusive federal regulation in
order to achieve uniformity vital to national interests,” 373 U.S. at 143–44.

         This contract collection case is far more like Florida Lime than Arizona. As discussed
below, Congress has actually removed its prior exclusive federal regulation from contract actions
related to interstate transport. In light of this deregulation, Kennedy and Hemlock have not met
their burden to overcome the presumption against preemption. Indeed, two particular facets of the
ICCTA show that contract collection actions represent “an unlikely candidate for exclusive federal
regulation” and do not “demand[] exclusive federal regulation.” See Fla. Lime, 373 U.S. at 143–
44.

         1. The ICCTA removed the federal cause of action for breach of contract suits for unpaid
            freight charges.

         Interstate transportation used to be “among the most pervasive and comprehensive of
federal regulatory schemes.” Kalo Brick & Tile Co., 450 U.S. at 318. Before the ICCTA


                                                  7
deregulated the trucking industry, for example, the Interstate Commerce Act (“ICA”)—the
ICCTA’s predecessor—required motor carriers to file a tariff with the Interstate Commerce
Commission (“ICC”) and charge all shippers the tariffed rate. Gaines Motor Lines, Inc. v.
Klaussner Furniture Indus., 734 F.3d 296, 302 (4th Cir. 2013). But the ICCTA voided nearly all
of these tariffs, instead allowing private contracts with shippers. Id. at 302–03 (citing 49 U.S.C. §
14101(b)). While the ICA provided a cause of action to recover unpaid charges, id. at 302 (citing
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 534 (1983)), the ICCTA did
not, id. at 305 (holding the ICCTA does “not provide motor carriers with a federal cause of action
when they sue a shipper for unpaid freight charges under a private contract”). Put simply, the
ICCTA “does not provide either the motor carrier or the shipper with a federal statutory right to
enforce in a routine breach of contract claim.” Id.

       This deregulation cuts strongly against Kennedy and Hemlock’s efforts to overcome the
presumption against preemption. We simply cannot “draw from the text, structure, and history” of
the ICCTA that Indiana’s statute of limitations “is an obstacle to the regulatory system Congress
chose,” when that regulatory system relies entirely on state authority and state causes of action.
See Arizona, 132 S. Ct. at 2505. For Congress to impose section 14705(a)’s statute of limitations
on purely state causes of action, it must show its “clear and manifest purpose” to do so. See CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947)). But while it could have made that purpose clear in the ICCTA, it did
not.

       Indeed, the United States Supreme Court relied on Congress’s similar deference to state
authority in a recent preemption case—CTS Corp. v. Waldburger, 134 S. Ct. 2175. There, the
Court held that even when, as discussed above, Congress expressly preempted state statutes of
limitations, it did not preempt state statutes of repose through conflict preemption. Id. at 2188. The
Court reasoned that Congress left intact much state authority, including power over causes of
action, scope of liability, burdens of proof, and rules of evidence. Id. So, it was not shown “that in
light of Congress’s decision to leave those many areas of state law untouched, statutes of repose
pose an unacceptable obstacle to the attainment of [the statute’s] purposes.” Id. Likewise here,
Congress eliminated federal subject matter jurisdiction over collection actions like this one,
leaving them solely to state authority through state causes of action. See Gaines Motor Lines, 734



                                                  8
F.3d at 306–07. Waldburger, then, confirms our conclusion that Kennedy and Hemlock have not
overcome the presumption against preemption.

        2. Breach of contract collection cases do not demand exclusive federal regulation merely
           because they involve interstate transportation.

        “The case for federal preemption is particularly weak where Congress has indicated its
awareness of the operation of state law in a field of federal interest, and has nonetheless decided
to stand by both concepts and to tolerate whatever tension there [is] between them.” Wyeth, 555
U.S. at 575 (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166–67 (1989)).
And here, despite their relation to interstate transportation—admittedly a field of federal interest—
these breach of contract collection cases rely completely on the operation of state law.

        To be sure, contract disputes related to interstate transportation used to be a field of “federal
interest.” Congress began regulating interstate transportation in 1887 with the creation of the
ICC—the first independent federal agency. Paul Stephen Dempsey, Rate Regulation and Antitrust
Immunity in Transportation: The Genesis and Evolution of This Endangered Species, 32 Am. U.
L. Rev. 335, 336 (1983). The ICC’s original purpose was to “protect the public from the
monopolistic abuses of the railroads,” but that purpose shifted in the mid-1900s to “protect[ing]
the transportation industry from the deleterious consequences of unrestrained competition.” Id. at
337. Then, after 1975, the ICC reversed course again, decreasing federal regulation and working
to stimulate competition. Id. This ultimately led to the demise of the ICC in 1995 through the
ICCTA. Maureen E. Eldredge, Who’s Driving the Train? Railroad Regulation and Local Control,
75 U. Colo. L. Rev. 549, 550–51 (2004). The ICCTA’s primary purpose “was to ensure the
economic viability of the rail and trucking industries by eliminating federal economic regulation.”
Id. at 550.

        Today, then, Congress has “indicated its awareness of the operation of state law” within
many areas of interstate transportation. See Wyeth, 555 U.S. at 575. Relevant here, Congress
turned over contract collection actions to the operation of state law in the ICCTA—reflecting its
“goal of reducing federal involvement in motor carriers’ private contracts.” Gaines Motor Lines,
734 F.3d at 304. This elimination of federal economic regulation shows Congress’s “awareness of
the operation of state law in a field of federal interest,” Wyeth, 555 U.S. at 575, because Congress
retained some federal regulation in the interstate transportation field but left these collection cases



                                                   9
to state law. In so doing, Congress demonstrated there is no need for exclusive federal regulation
and decided to “tolerate whatever tension” exists between state and federal law. See id.

        Because Congress created this coexisting system of state and federal regulations for
interstate transportation, Indiana’s statute of limitations is not preempted. In the end, “preemption
will not lie unless it is the clear and manifest purpose of Congress.” Easterwood, 507 U.S. at 664
(quoting Rice, 331 U.S. at 230). Kennedy and Hemlock have not shown that clear and manifest
purpose and, therefore, fail to overcome the presumption against preemption.

III.    Other Jurisdictions Provide Little Guidance on Preemption.

        Few jurisdictions have addressed federal preemption of state statutes of limitations. The
hodgepodge of decisions provides little guidance and does not change the conclusion that Congress
did not preempt state statutes of limitations here.

        Three opinions cited by Kennedy and Hemlock simply conclude, without supporting
analysis, that the ICCTA’s eighteen-month statute of limitations preempts longer state ones.
Emmert Indus. Corp. v. Artisan Assocs., Inc., 497 F.3d 982, 989–90 (9th Cir. 2007); Arctic
Express, Inc. v. Del Monte Fresh Produce NA, Inc., 366 B.R. 786, 792–93 n.2 (S.D. Ohio 2007);
Exel Transp. Servs., Inc. v. Sigma Vita, Inc., 654 S.E.2d 665, 668–69 (Ga. Ct. App. 2007). And
most of the other decisions Kennedy and Hemlock cite merely apply the federal eighteen-month
statute of limitations, without addressing this preemption issue at all.3 Without analysis on this
preemption issue, these opinions provide no guidance.

        A few opinions, however, go the other way—applying state statutes of limitations instead
of shorter federal ones, but still without addressing statute of limitations preemption. See Learning
Links, Inc. v. United Parcel Serv. of Am., Inc., No. 03 Civ. 7902(DAB), 2006 WL 785274, at *5
(S.D.N.Y. Mar. 27, 2006) (unpublished); Owner-Operators Indep. Drivers Ass’n, Inc. v.

3
  See CGH Transp., Inc. v. Quebecor World, Inc., No. 06-6399, 261 F. App’x 817, 821 (6th Cir. Jan. 8,
2008) (unpublished); La. Transp. v. Cowan Sys., LLC, No. 11-3435 (CCC), 2012 WL 1664120, at *3
(D.N.J. May 10, 2012) (unpublished); Smith Bros. Trucking v. Baker Truck Brokerage Inc., No. 1:07-CV-
623, 2008 WL 4681641, at *3 (M.D.N.C. Oct. 21, 2008) (unpublished); B&J Transp., Inc. v. Swift & Co.,
No. 06-39-B-W, 2006 WL 3300392, at *3 (D. Me. Nov. 8, 2006) (unpublished); United Traffic Consultants,
Inc. v. Gordon Trucking, Inc., No. 02-328-JE, 2003 WL 21397697, at *3 (D. Or. Mar. 25, 2003)
(unpublished); C.H. Robinson Co. v. Paris & Sons, Inc., 180 F. Supp. 2d 1002, 1007–08 (N.D. Iowa 2001);
Martin Moving and Storage, Inc. v. Baker, No. 3:97CV-690-S, 1999 WL 33756649, at *1 (W.D. Ky. Mar.
4, 1999) (unpublished); Adv. Warehouse & Distribution Servs., Inc. v. Caliber Logistics Healthcare, Inc.,
No. 3-97-CV-3205-BD, 1998 WL 907011, at *2–3 (N.D. Tex. Dec. 18, 1998) (unpublished).


                                                   10
Mayflower Transit, Inc., No. IP98-457-C B/S, IP98-458-C B/S, 2004 WL 6242347 at *5–6 (S.D.
Ind. Dec. 14, 2004) (unpublished); Steve Marchionda & Assocs. v. Weyerhauser Co., 11 F. Supp.
2d 268, 270–71 (W.D.N.Y. 1998). These inconsistent cases cannot carry Kennedy and Hemlock’s
burden to show preemption and do not replace or change our own preemption analysis.

        Moreover, Congress frequently leaves state statutes of limitations intact when enacting
federal limitations periods—as four federal circuit courts of appeals have recognized in upholding
state statutes of limitations in the face of shorter federal ones. The Ninth Circuit recently held that
the Interstate Land Sales Full Disclosure Act’s three-year statute of repose did not preempt
California’s four-year statute of limitations. Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1178–80
(9th Cir. 2016). Likewise, the Fifth Circuit held that the two-year statute of limitations in the
Federal Communications Act did not preempt Texas’s four-year limitations period. Castro v.
Collecto, Inc., 634 F.3d 779, 787 (5th Cir. 2011). Next, the Eleventh Circuit held that the Fair Debt
Collection Practices Act’s one-year statute of limitations did not preempt Florida’s four-year
statute of limitations. Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1130 (11th Cir. 2004).
And, finally, the Sixth Circuit held that the Clayton Act’s four-year statute of limitations did not
preempt an Ohio law providing that no statute of limitations would bar certain claims. Pinney Dock
and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1482 (6th Cir. 1988).

        While these cases do not involve ICCTA’s statute of limitations—and therefore provide
limited guidance—they do show that Congress does not always preempt state law when enacting
a federal statute of limitations. Because of these cases, Indiana is hardly an outlier in holding that
the ICCTA’s statute of limitations does not preempt Indiana’s limitations period.4

                                              Conclusion

        The ICCTA’s eighteen-month statute of limitations does not preempt Indiana’s ten-year
statute of limitations governing breach of contract claims. Congress’s purpose was not to preempt
state statutes of limitations, and Indiana’s statute of limitations does not do major damage to the
ICCTA’s deregulatory purpose. Kennedy and Hemlock, therefore, have not carried their burden to
establish preemption. We affirm the trial court.

Rucker, David, Massa, and Slaughter, JJ., concur.

4
 Because we find that Indiana’s statute of limitations is not preempted, we need not address the parties’
equitable estoppel arguments.


                                                   11
