1 2
3 4 5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF WASHINGTON 7 GENERAL CASUALTY COMPANY No. 1:20-CV-03158-JPH OF WISCONSIN, a/s/o Energy 8 Challenges LLC, ORDER STRIKING MOTION FOR SUMMARY JUDGMENT AND 9 Plaintiff, AMENDED SCHEDULING ORDER; AND SETTING DEADLINES FOR 10 vs. RESPONSE
11 UNITED PARCEL SERVICE, INC., a 12 Delaware corporation, ECF No. 13
13 Defendant.
14 Before the Court is United Parcel Service, Inc.’s (an Ohio corporation) 15 Motion for Summary Judgment, ECF No. 13. The parties consented to proceed 16 before a magistrate judge. ECF No. 6. The undersigned has reviewed the motion 17 and the record herein and is fully informed. 18 This case concerns the interstate shipment of goods by non-party Energy 19 Challenges, LLC, the shipper, which were allegedly damaged during transport and 20 insured by Plaintiff. On October 5, 2020, Plaintiff filed a Complaint naming sole 2 defendant, United Parcel Service, Inc., a Delaware corporation, seeking 2|| subrogation in the amount of $19,560.57 under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, for property loss caused by “the 4|| delivering carrier.” ECF No. | at 3. 5 For the reasons discussed below, the Motion for Summary Judgment (ECF No. 13) and deadlines remaining in the Scheduling Order (see ECF No. 25) are stricken. 8 FACTUAL BACKGROUND 9 On June 8, 2018, Energy Challenges LLC tendered approximately three pallets of electrical equipment to a third party for shipment from Cudahy, Wisconsin to Goldendale, Washington. ECF No. | at 2; ECF No. 16 at 2,91. An electronic bill of lading attached as Exhibit A to Plaintiff's Complaint identifies 13||“UPS Freight” as the carrier:
15 Load#:|267314009
16]! see ECF No. 1 at 6; ECF No. 16 at 2, 92; ECF No. 19 at 5,4] 19. The shipping on one of the allegedly damaged packages contains the tracking number “PRO #441922515” and identifies “UPS Freight” as the carrier. ECF No. 16 at 2, 19 q3. 20
ORDER - 2
1 PROCEDURAL BACKGROUND 2 A. Pleadings
3 On October 5, 2020, Plaintiff commenced this action naming “United Parcel 4 Service, Inc., a Delaware corporation” (herein after UPS-Delaware) as the sole 5 defendant, both in the caption and in the body of the Complaint. ECF No. 1 at 1-2.
6 The Complaint also alleged that the defendant has its principal place of business in 7 Atlanta, Georgia and is an “interstate motor carrier operating pursuant to authority 8 issued to it by the Federal Motor Carrier Safety Administration (“FMCSA”).” 9 ECF No. 1 at 2, ¶ 2.2. Plaintiff asserts a claim under the Carmack Amendment to
10 the Interstate Commerce Act, 49 U.S.C. § 14706, for property loss caused by “the 11 delivering carrier.” ECF No. 1 at 3. 12 On January 15, 2021, a subsidiary of UPS-Delaware with the same name,
13 “United Parcel Service, Inc.,” but organized in the state of Ohio (herein referred to 14 as UPS-Ohio), filed the Answer to the Complaint. ECF No. 3. The Answer 15 includes an admission that UPS-Ohio is a motor carrier, but states it is organized 16 under the law of the state of Ohio, not Delaware. ECF No. 3. UPS-Ohio also filed
17 a corporate disclosure statement, identifying itself as the defendant, an Ohio 18 corporation, and a “wholly owned indirect subsidiary of United Parcel Service, Inc. 19 (a Delaware corporation).” ECF No. 4 at 1. The corporate disclosure statement
20 also reported that “United Parcel Service, Inc. (a Delaware corporation) is publicly 2 1 traded, has no parent corporation, and no public corporation owns ten percent or 2 more of its stock.” ECF No. 4 at 1-2.
3 After the Answer was filed, Plaintiff never sought to amend the Complaint 4 or correct the caption to name the Ohio subsidiary. UPS-Delaware, the named 5 defendant in the caption, has not appeared. UPS-Ohio did not motion the Court for
6 intervention. 7 B. Discovery 8 UPS-Ohio, assuming it was the intended defendant, proceeded to investigate 9 this case and engage Plaintiff in discovery. Discovery responses dated April 9,
10 2021 included the following statement in a footnote: 11 The Complaint names United Parcel Service, Inc. as the defendant and alleges that United Parcel Service, Inc., the motor carrier, was the carrier of 12 the package at issue in the litigation. Based on those allegations, UPS understands the Complaint to treat United Parcel Service, Inc., the Ohio 13 company, as the intended defendant, even though the Complaint incorrectly alleges that UPS is incorporated in Delaware. 14 ECF No. 15-5 at 3, n1; see also ECF No. 15-6 at 3 (initial disclosures dated May 15 14, 2021, noting the Delaware corporation, United Parcel Service, Inc., was named 16 in the Complaint, but that “the small package motor and air carrier, is an Ohio 17 corporation”). On June 25, 2021, defense counsel contacted Plaintiff’s counsel and 18 asked if Plaintiff intended to “amend its pleading to name the proper party.” ECF 19 No. 15-9 at 2. On June 30, 2021, defense counsel followed up on this email 20 2 1 seeking response. ECF No. 15-10 at 2. As of October 15, 2021, defense counsel 2 had not received a response to these June 2021 emails. ECF No. 15 at 5.
3 C. Motion for Summary Judgment 4 On October 15, 2021, UPS-Ohio filed a Motion for Summary Judgment. 5 ECF No. 13. UPS-Ohio seeks dismissal of this action, claiming Plaintiff has
6 misidentified it as a defendant as it was not the carrier of the goods at issue in this 7 case.1 ECF No. 13 at 8. UPS-Ohio states that “UPS personnel” conducted a 8 search for the tracking number at issue in this case “across several UPS systems,” 9 including “UPS’s primary tracking system.” ECF No. 14 at 2, ¶ 2. The tracking
10 number does not match any shipments in databases searched and does not conform 11 to UPS-Ohio’s tracking numbers, which typically start with the prefix “1Z.” ECF 12 No. 16 at 2-3, ¶ 5. UPS-Ohio claims to provide “small package carrier” services,
13 not freight. ECF No. 20 at 2. UPS-Ohio informed Plaintiff that it was not the 14 carrier of the subject shipments. ECF No. 16 at 3, ¶ 7. Plaintiff filed a response to 15 the motion, ECF No. 17, and UPS-Ohio replied, ECF Nos. 20. 16 Although UPS-Delaware has yet to appear in this action, Plaintiff’s
17 summary judgment response refers to UPS-Delaware as the defendant, with 18
19 1 UPS-Ohio represents in its Reply that it suspects the carrier was UPS Ground 20 Freight, Inc., however, this statement is not supported. ECF No. 20 at 4, n1. 2 1 references to its status as a publicly traded company with subsidiaries. See ECF 2 Nos. 17, 18, 19. Plaintiff contends summary judgment is not appropriate because a
3 question of fact exists as to whether UPS-Delaware should be held liable as the 4 carrier of the subject freight. ECF No. 17 at 5. 5 DISCUSSION
6 The summary judgment materials reflect a fundamental confusion as to the 7 identity of the defendant because two corporations with the name “United Parcel 8 Service, Inc.” exist. Plaintiff named the Delaware parent corporation, and the Ohio 9 subsidiary appeared. Generally, a parent company has a separate corporate
10 existence from its subsidiary and is treated separately from the subsidiary in the 11 absence of circumstances justifying disregard of the corporate entity. See United 12 States v. Bestfoods, 524 U.S. 51, 61 (1998) (“It is a general principle of corporate
13 law deeply ‘ingrained in our economic and legal systems’ that a parent 14 corporation ...
Free access — add to your briefcase to read the full text and ask questions with AI
1 2
3 4 5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF WASHINGTON 7 GENERAL CASUALTY COMPANY No. 1:20-CV-03158-JPH OF WISCONSIN, a/s/o Energy 8 Challenges LLC, ORDER STRIKING MOTION FOR SUMMARY JUDGMENT AND 9 Plaintiff, AMENDED SCHEDULING ORDER; AND SETTING DEADLINES FOR 10 vs. RESPONSE
11 UNITED PARCEL SERVICE, INC., a 12 Delaware corporation, ECF No. 13
13 Defendant.
14 Before the Court is United Parcel Service, Inc.’s (an Ohio corporation) 15 Motion for Summary Judgment, ECF No. 13. The parties consented to proceed 16 before a magistrate judge. ECF No. 6. The undersigned has reviewed the motion 17 and the record herein and is fully informed. 18 This case concerns the interstate shipment of goods by non-party Energy 19 Challenges, LLC, the shipper, which were allegedly damaged during transport and 20 insured by Plaintiff. On October 5, 2020, Plaintiff filed a Complaint naming sole 2 defendant, United Parcel Service, Inc., a Delaware corporation, seeking 2|| subrogation in the amount of $19,560.57 under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, for property loss caused by “the 4|| delivering carrier.” ECF No. | at 3. 5 For the reasons discussed below, the Motion for Summary Judgment (ECF No. 13) and deadlines remaining in the Scheduling Order (see ECF No. 25) are stricken. 8 FACTUAL BACKGROUND 9 On June 8, 2018, Energy Challenges LLC tendered approximately three pallets of electrical equipment to a third party for shipment from Cudahy, Wisconsin to Goldendale, Washington. ECF No. | at 2; ECF No. 16 at 2,91. An electronic bill of lading attached as Exhibit A to Plaintiff's Complaint identifies 13||“UPS Freight” as the carrier:
15 Load#:|267314009
16]! see ECF No. 1 at 6; ECF No. 16 at 2, 92; ECF No. 19 at 5,4] 19. The shipping on one of the allegedly damaged packages contains the tracking number “PRO #441922515” and identifies “UPS Freight” as the carrier. ECF No. 16 at 2, 19 q3. 20
ORDER - 2
1 PROCEDURAL BACKGROUND 2 A. Pleadings
3 On October 5, 2020, Plaintiff commenced this action naming “United Parcel 4 Service, Inc., a Delaware corporation” (herein after UPS-Delaware) as the sole 5 defendant, both in the caption and in the body of the Complaint. ECF No. 1 at 1-2.
6 The Complaint also alleged that the defendant has its principal place of business in 7 Atlanta, Georgia and is an “interstate motor carrier operating pursuant to authority 8 issued to it by the Federal Motor Carrier Safety Administration (“FMCSA”).” 9 ECF No. 1 at 2, ¶ 2.2. Plaintiff asserts a claim under the Carmack Amendment to
10 the Interstate Commerce Act, 49 U.S.C. § 14706, for property loss caused by “the 11 delivering carrier.” ECF No. 1 at 3. 12 On January 15, 2021, a subsidiary of UPS-Delaware with the same name,
13 “United Parcel Service, Inc.,” but organized in the state of Ohio (herein referred to 14 as UPS-Ohio), filed the Answer to the Complaint. ECF No. 3. The Answer 15 includes an admission that UPS-Ohio is a motor carrier, but states it is organized 16 under the law of the state of Ohio, not Delaware. ECF No. 3. UPS-Ohio also filed
17 a corporate disclosure statement, identifying itself as the defendant, an Ohio 18 corporation, and a “wholly owned indirect subsidiary of United Parcel Service, Inc. 19 (a Delaware corporation).” ECF No. 4 at 1. The corporate disclosure statement
20 also reported that “United Parcel Service, Inc. (a Delaware corporation) is publicly 2 1 traded, has no parent corporation, and no public corporation owns ten percent or 2 more of its stock.” ECF No. 4 at 1-2.
3 After the Answer was filed, Plaintiff never sought to amend the Complaint 4 or correct the caption to name the Ohio subsidiary. UPS-Delaware, the named 5 defendant in the caption, has not appeared. UPS-Ohio did not motion the Court for
6 intervention. 7 B. Discovery 8 UPS-Ohio, assuming it was the intended defendant, proceeded to investigate 9 this case and engage Plaintiff in discovery. Discovery responses dated April 9,
10 2021 included the following statement in a footnote: 11 The Complaint names United Parcel Service, Inc. as the defendant and alleges that United Parcel Service, Inc., the motor carrier, was the carrier of 12 the package at issue in the litigation. Based on those allegations, UPS understands the Complaint to treat United Parcel Service, Inc., the Ohio 13 company, as the intended defendant, even though the Complaint incorrectly alleges that UPS is incorporated in Delaware. 14 ECF No. 15-5 at 3, n1; see also ECF No. 15-6 at 3 (initial disclosures dated May 15 14, 2021, noting the Delaware corporation, United Parcel Service, Inc., was named 16 in the Complaint, but that “the small package motor and air carrier, is an Ohio 17 corporation”). On June 25, 2021, defense counsel contacted Plaintiff’s counsel and 18 asked if Plaintiff intended to “amend its pleading to name the proper party.” ECF 19 No. 15-9 at 2. On June 30, 2021, defense counsel followed up on this email 20 2 1 seeking response. ECF No. 15-10 at 2. As of October 15, 2021, defense counsel 2 had not received a response to these June 2021 emails. ECF No. 15 at 5.
3 C. Motion for Summary Judgment 4 On October 15, 2021, UPS-Ohio filed a Motion for Summary Judgment. 5 ECF No. 13. UPS-Ohio seeks dismissal of this action, claiming Plaintiff has
6 misidentified it as a defendant as it was not the carrier of the goods at issue in this 7 case.1 ECF No. 13 at 8. UPS-Ohio states that “UPS personnel” conducted a 8 search for the tracking number at issue in this case “across several UPS systems,” 9 including “UPS’s primary tracking system.” ECF No. 14 at 2, ¶ 2. The tracking
10 number does not match any shipments in databases searched and does not conform 11 to UPS-Ohio’s tracking numbers, which typically start with the prefix “1Z.” ECF 12 No. 16 at 2-3, ¶ 5. UPS-Ohio claims to provide “small package carrier” services,
13 not freight. ECF No. 20 at 2. UPS-Ohio informed Plaintiff that it was not the 14 carrier of the subject shipments. ECF No. 16 at 3, ¶ 7. Plaintiff filed a response to 15 the motion, ECF No. 17, and UPS-Ohio replied, ECF Nos. 20. 16 Although UPS-Delaware has yet to appear in this action, Plaintiff’s
17 summary judgment response refers to UPS-Delaware as the defendant, with 18
19 1 UPS-Ohio represents in its Reply that it suspects the carrier was UPS Ground 20 Freight, Inc., however, this statement is not supported. ECF No. 20 at 4, n1. 2 1 references to its status as a publicly traded company with subsidiaries. See ECF 2 Nos. 17, 18, 19. Plaintiff contends summary judgment is not appropriate because a
3 question of fact exists as to whether UPS-Delaware should be held liable as the 4 carrier of the subject freight. ECF No. 17 at 5. 5 DISCUSSION
6 The summary judgment materials reflect a fundamental confusion as to the 7 identity of the defendant because two corporations with the name “United Parcel 8 Service, Inc.” exist. Plaintiff named the Delaware parent corporation, and the Ohio 9 subsidiary appeared. Generally, a parent company has a separate corporate
10 existence from its subsidiary and is treated separately from the subsidiary in the 11 absence of circumstances justifying disregard of the corporate entity. See United 12 States v. Bestfoods, 524 U.S. 51, 61 (1998) (“It is a general principle of corporate
13 law deeply ‘ingrained in our economic and legal systems’ that a parent 14 corporation ... is not liable for the acts of its subsidiaries”); Quaker State Dyeing & 15 Finishing Co., Inc., v. ITT Terryphone Corp., 461 F.2d 1140, 1142 (3d Cir. 1972) 16 (“[A] subsidiary corporation which is incorporated as a separate entity from its
17 parent corporation is considered to have its own principal place of business.”). The 18 law allows a corporation to organize so as to isolate liabilities among separate 19 entities.
20 2 1 Here, the caption of the Complaint identifies UPS-Delaware as the only 2 named defendant and it appears it was the only entity summoned. See ECF No. 2
3 (Court issued summons to United Parcel Service, Inc., 55 Glenlake Parkway NE., 4 Atlanta, GA 30328); ECF No. 18 at 11 (SEC filing identifying Atlanta address for 5 UPS-Delaware). Plaintiff has not filed proof of service and the parties’ joint status
6 report only indicates that service of process was completed “on defendant” on 7 October 15, 2020. ECF No. 7 at 2. There is no evidence of record that UPS-Ohio 8 was ever served and UPS-Ohio has not motioned the Court to intervene. If UPS- 9 Ohio was not the entity served, it was misguided of UPS-Ohio to ignore the
10 summons and Complaint and assume that the wrong entity had been named. 11 Plaintiff has also failed to acknowledge UPS-Ohio’s appearance in this case, 12 recognize it as a separate entity, or respond to statements in the record (and in
13 discovery) asserting the assumption that Plaintiff intended to name a different 14 entity defendant. 15 Based on the current record, it appears that the subsidiary UPS-Ohio is not 16 the named, served, or intended party in this case, and UPS-Ohio has overlooked
17 the procedural requirements of Federal Rule of Civil Procedure 24 governing 18 intervention. As neither Plaintiff nor UPS-Ohio have addressed these threshold 19 procedural issues, IT IS HEREBY ORDERED:
20 1. UPS-Ohio’s Motion for Summary Judgment, ECF No. 13, is 2 1 STRICKEN with leave to renew if it the Court finds it has obtained status as a 2 named or intervening party.
3 2. Counsel for Plaintiff and UPS-Ohio shall confer regarding the issues 4 identified in this Order by not later than January 31, 2022 and file an affidavit 5 attesting to compliance with this directive. Plaintiff shall file the proof of service
6 of the Complaint by not later than January 31, 2022. 7 3. By not later than February 7, 2022, Plaintiff and UPS-Ohio shall file a 8 response or motion(s), addressing the issues herein. 9 4. All remaining deadlines in the amended scheduling order, ECF No.
10 25, including the trial date are STRICKEN and will be re-set at a later date. 11 The District Court Executive is directed to file this Order and provide copies 12 to counsel.
13 DATED January 13, 2022. 14 s/James P. Hutton JAMES P. HUTTON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19
20 2