American Road Serv v. Consol Rail Corp

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 6, 2003
• Docket: 02-1475
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Am. Road Serv. Co. v. No. 02-1475 ELECTRONIC CITATION: 2003 FED App. 0396P (6th Cir.) Consolidated Rail Corp. File Name: 03a0396p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: David A. Byers, Eden Prairie, Minnesota, for _________________ Appellant. Jonathan F. Ball, JANSSEN & KEENAN, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: AMERICAN ROAD SERVICE X David A. Byers, Eden Prairie, Minnesota, for Appellant. Paul COMPANY , - D. Keenan, JANSSEN & KEENAN, Philadelphia, Plaintiff-Appellant, - Pennsylvania, Dirk H. Beckwith, FOSTER, SWIFT, - No. 02-1475 COLLINS & SMITH, Farmington Hills, Michigan, for - Appellee. v. > , _________________ - CONSOLIDATED RAIL - OPINION CORPORATION , - _________________ Defendant-Appellee. - - RICHARD MILLS, District Judge. American Road N Services Company (“American”) filed a subrogation action Appeal from the United States District Court against Consolidated Rail Corporation (“Conrail”) seeking for the Eastern District of Michigan at Detroit. compensation for damaged property. No. 00-74640—Victoria A. Roberts, District Judge. The district court concluded that American’s complaint was Argued: September 9, 2003 untimely and entered summary judgment for Conrail.

Decided and Filed: November 6, 2003 We AFFIRM.

Before: MOORE and GILMAN, Circuit Judges; MILLS, I. FACTS AND PROCEDURAL BACKGROUND District Judge.* Larry Krueger, a Ford Motor Company (“Ford”) employee, was stationed on an overseas work assignment in the Czech Republic. At the conclusion of his stay, his household goods and personal belongings were packed, crated, and placed in a container by Interdean, an international moving company, and shipped to port at Bremerhaven, Germany. Mark VII, an international transportation company, issued a bill of lading * to Interdean and forwarded the goods overseas via Maersk The Hon orable R ichard M ills, United States District Judge for the Central District of Illinois, sitting by designation.

1 No. 02-1475 Am. Road Serv. Co. v. 3 4 Am. Road Serv. Co. v. No. 02-1475 Consolidated Rail Corp. Consolidated Rail Corp.

Sea Lines to port at Newark, New Jersey. Conrail transported claims that the court entered summary judgment sua sponte Krueger’s goods by rail to their final destination in Detroit, and did not allow American an opportunity to respond. Michigan. Two days later, Conrail employees discovered that the 45-foot container holding Krueger’s goods had been “The clearly established rule in this circuit is that a district broken into and set on fire. American, an affiliate of Ford, court must afford the party against whom sua sponte paid Krueger $182,587.60 for his loss. summary judgment is to be entered ten days notice and an adequate opportunity to respond.” Yashon v. Gregory, 737 On September 23, 1998, American notified Conrail of its F.2d 547, 552 (6th Cir. 1984). “Noncompliance with the time intent to pursue subrogation and on January 25, 1999 gave provision of the rule deprives the court of authority to grant notice of the final amount of the claim. Conrail denied the summary judgment, unless the opposing party has waived this claim on June 8, 1999.1 On October 18, 2000, American filed requirement, or there has been no prejudice to the opposing suit in district court alleging a negligence claim and a claim party by the court’s failure to comply with this provision of pursuant to the Carmack Amendment. the rule.” Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir. 2001) (quoting Kistner v. Califano, 579 F.2d 1004, 1006 (6th On March 13, 2002, the district court entered summary Cir. 1978)). judgment in favor of Conrail because American’s complaint was untimely. At the final pretrial conference, according to both parties, the district court requested that the parties brief certain On appeal, American claims that the district court erred dispositive issues. At the end of Conrail’s Brief, Conrail when it failed to provide American notice and an opportunity requested “the entry of judgment as a matter of law.” to respond before entering summary judgment sua sponte. American responded to the issues raised and asked the court American also claims genuine issues of material fact to deny Conrail’s request for judgment. precluded summary judgment. Finally, American argues that the district court erred when it considered testimony of a American therefore had notice, was aware of the relevant witness who was not disclosed in accordance with Rule 26 of issues, had an opportunity to respond and did in fact respond the Federal Rules of Civil Procedure. to Conrail’s request for judgment as a matter of law. Accordingly, the Court rejects American’s characterization of II. ANALYSIS the judgment in this case as sua sponte.2 A. Sua Sponte B. Genuine Issue of Material Fact American claims that the district court’s order granting The district court found that the Mark VII bill of lading was judgment in favor of Conrail was inappropriate because the a through bill of lading and that the Carmack Amendment’s time for filing dispositive motions had expired. American

2 1 Even if it were possible to characterize the grant of summary Conrail denied the claim because American failed to provide a more judgment as sua sponte, Ame rican suffered no prejudice, as is evident in explicit description of its claim. Section B of this opinion. No. 02-1475 Am. Road Serv. Co. v. 5 6 Am. Road Serv. Co. v. No. 02-1475 Consolidated Rail Corp. Consolidated Rail Corp.

two-year period of limitation for filing a civil action therefore Determining whether a shipment is governed by a through did not apply. The court then examined the Mark VII bill of bill of lading is a question of fact. Capitol, 965 F.2d at 394. lading to determine whether the time to commence a suit was In Capitol, LEP Transport was hired by Capitol to arrange for limited by contract. Section XVIII of the Mark VII bill of the transportation of machinery from Italy to Chicago. The lading states, “Carrier shall be discharged from all liability for machinery never arrived and Capitol sued LEP under the loss of damage to goods unless suit is brought within 9 Carmack Amendment. The district court held that the months after delivery of the goods.” Based on that language, shipment was governed by a through bill of lading, making the district court found American’s complaint, filed almost the Carmack Amendment inapplicable, because the bill of two years after the fire in the rail yard, was untimely. lading was issued in Italy, showed Chicago as the place of delivery, was prepaid and was not followed by a separate, American argues on appeal that the Carmack Amendment domestic bill of lading. Id. applies to this case and that a genuine issue of material fact precluded summary judgment. We review a district court’s Here, the district court concluded that the shipment was grant of summary judgment de novo. Cherrington v. Skeeter, covered by a through bill of lading because (1) the final 344 F.3d 631, 636 (6th Cir. 2003). destination was included in the bill of lading issued by Mark VII to Interdean; (2) the freight was prepaid for the entire The Carmack Amendment was enacted in 1906 as an shipment to Detroit; and (3) no separate bill of lading was amendment to the Interstate Commerce Act of 1887 and issued for the trip from Newark to Detroit. addresses the liability of common carriers for goods lost or damaged during a shipment over which the Interstate American disputes the accuracy of the district court’s Commerce Commission (“ICC”) has jurisdiction. Capitol findings. Specifically, American claims there is evidence Converting Equipment, Inc. v. LEP Transport, Inc., 965 F.2d Conrail issued a domestic bill of lading. That evidence is 391, 394 (7th Cir. 1992). The Amendment requires, among found in Conrail’s claim notes, which state that “this other things, that a carrier transporting property issue a bill of document does not constitute a claim within the meaning of lading to the shipper, and makes the carrier liable to the one section 2(b) of bill of lading contract.” American states that entitled to recover under the bill of lading for loss of or injury a “section 2(b)” is not listed in the bills of lading issued by to the property. Maersk or Mark VII and argues “[w]hether there is a third Conrail bill of lading that also governs the transaction is a “A bill of lading issued in a foreign country to govern a question of fact that precludes summary judgment.” shipment throughout its transportation from abroad to its final destination in the United States, is termed a ‘through’ bill of To support a claim under the Carmack Amendment, lading.” Capitol, 965 F.2d at 394. The ICC’s jurisdiction American must present some proof that a domestic bill of does not extend to a shipment under a through bill of lading lading was issued. Speculation, unsupported by facts in the unless a domestic segment of the shipment is covered by a record, is insufficient to create a genuine issue of material fact separate domestic bill of lading. See 49 U.S.C. § 10501; Swift and falls short of what is required to survive summary Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701 judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (11th Cir. 1986); Capitol, 965 F.2d at 394; Shao v. Link 252 (1986) (holding that “[t]he mere existence of a scintilla Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993). of evidence in support of the plaintiff’s position will be No. 02-1475 Am. Road Serv. Co. v. 7 Consolidated Rail Corp.

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff”). Without evidence to the contrary, the Court agrees with the district court’s finding that the Mark VII bill of lading was a through bill of lading. Such a finding renders the Carmack Amendment inapplicable to the shipment at issue.3 As a result, the Mark VII bill of lading’s nine-month period of limitation controls and American’s negligence claim, filed almost two years after the goods were destroyed by fire, was too late. AFFIRMED.

3 American raises another issue on appeal: whether the district court abused its discretio n when it considered the d epo sition testimony of Maersk’s claims manager, Massoud M esskoub. American argues that the testimony was inadmissible because Co nrail failed to disclose M esskoub’s identity until nine months after the witness disclosure deadline. The district court relied o n M esskoub’s testim ony to conclude that American’s complaint was untimely even if the Carmack Amendment applied. Because the Court has concluded the Carmack A mendme nt is inapplicable, a ruling on whether M esskoub’s testim ony wa s adm issible is unnec essary.