United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING
XPERTFREIGHT'S MOTION TO DISMISS; GRANTING
XPERTFREIGHT'S MOTION FOR SUMMARY JUDGMENT (CARMACK
CLAIM); GRANTING XPERTFREIGHT'S MOTION FOR SUMMARY
JUDGMENT AND ATTORNEYS' FEES (CROSS-CLAIM); DENYING
HARBOR FREIGHT'S MOTION FOR SUMMARY JUDGMENT; AND
GRANTING HARBOR FREIGHT'S MOTION FOR LEAVE TO FILE
the court are the following motions: 1) Xpertfreight's
Motion to Dismiss Plaintiff's negligence and breach of
contract claims (ECF No. 79.); 2) Xpertfreight's Motion
for Summary Judgment on Plaintiff's breach of contract
and Carmack Amendment claim (ECF No. 80.); 3)
Xperfreight's Motion for Summary Judgment on U.S.
Express' cross-claims for contribution and allocation of
fault under the Carmack Amendment, as well as for costs and
attorneys' fees (ECF No. 81.); and 4) Harbor Freight
Transport Corp.'s Motion for Summary Judgment on the
Carmack Amendment claim. (ECF No. 102.) The court heard oral
argument on all these motions on August 3, 2017. Following
the close of discovery and oral argument, Harbor Freight
filed a Motion for Leave to File a Supplemental Brief in
Support of Summary Judgment, alleging newly acquired
evidence. (ECF No. 134.) The court will address each motion
Delta Stone Products (“Delta Stone”), seeks
recovery for losses stemming from damage to a stone cutting
machine it purchased from Simec SPA, an Italian company,
occurring while the machine was in transit from Port of
Newark to Heber, Utah. (See generally ECF No.
On or about November 14, 2014, the stone cutting machine was
shipped from the Port La Spezia; it arrived at the Port of
Newark, New Jersey on or about December 13, 2014. (ECF No. 2
at ¶ 20.) Two days later, Xpertfreight, a “motor
carrier, ” arranged for World Distribution Services
(“WDS”), to pick up the stone cutting machine.
(ECF No. 80-1 at 4.) WDS arranged for Harbor Freight
Transport Corp. (“Harbor Freight”) to transport
the stone cutting machine from the Port of Newark Container
Terminal to its facilities in Newark--the total transport was
two miles and took about ten minutes. (ECF No. 102-1 at 3.)
about December 18, 2014, U.S. Express picked up the stone
cutting machine from Harbor Freight's facilities to
transport it to Heber, Utah. (ECF No. 2 at ¶ 21; see
also ECF No. 102-1 at 7.) At the time of pick up, U.S.
Express' driver, Rafik Nazarov, signed an Invoice/Pickup
Receipt provided by Harbor Freight which contains the
Customer agrees that when HARBOR FREIGHT TRANSPORT CORP
releases goods to customer or its authorized representative,
including any common carrier or bailee engaged by Customer,
that HARBOR FREIGHT TRANSPORT CORP will have no further
obligation or responsibility to Customer or the goods. A
signed receipt to HARBOR FREIGHT TRANSPORT CORP without
exception as to loss or damage shall be conclusive evidence
that the goods were not lost or damaged while in the
possession of HARBOR FREIGHT TRANSPORT CORP.
(ECF No. 102-1 at 7.)
to the Complaint, on December 22, 2014, the stone cutting
machine was delivered to Delta Stone in Heber, Utah
significantly damaged. (ECF No. 2 at ¶ 22.) Upon delivery,
U.S. Express' driver added the following hand-written
note to the Invoice/Pick-up Receipt provided by Harbor
US Express/Seran Salomon recognizes and acknowledges that
they have bent and broken this machine and not limited to
other unseen or undetected damage upon delivery. U.S. Express
accepts all responsibility to fix and replace if Delta Stone
is not satisfied with machinery per the original and new
agreement with manufacturer.
(ECF No. 102-1 at 8.) Sometime thereafter, Vericlaim
conducted a Marine Cargo Survey Report of the transport of
the stone cutting machine and concluded: “Damages were
caused when U.S. Express[sic] truck driver, Mr. Seran
Salamon, utilized ratchet cargo straps over the top of the
machine to secure the protective tarp during inland
transit.” (ECF No. 102-1 at 17.)
result of the damage to the stone cutting machine, Delta
Stone alleges it was delayed in performing its obligations
for a government project, incurring approximately $386, 170
in damages, as well as $44, 441 in repairs. (ECF No. 2 at
¶¶ 24-5.) Delta Stone filed suit in May 2016,
alleging the following claims: 1) Carmack Amendment Liability
against Xpertfreight, U.S. Express, Seran Salamon, Rakiv
Nazarov, Embassy Cargo, and Harbor Freight; 2) Breach of
Contract against Xpertfreight, U.S. Express, Seran Salamon,
Rakiv Nazarov, Embassy Cargo, and Harbor Freight; 3)
Negligence against Xpertfreight, U.S. Express, Seran Salamon,
Rakiv Nazarov, Embassy Cargo, and Harbor Freight; and 4)
Breach of Insurance Contract against RSA-Sun
TO DISMISS (ECF No. 79)
moved to dismiss Delta Stone's second and third causes of
action for breach of contract and negligence pursuant to Rule
12(b)(6). “To survive a motion to dismiss under Rule
12(b)(6), a plaintiff must plead sufficient allegations
‘to state a claim to relief that is plausible on its
face.'” Brokers' Choice of Am., Inc., v.
NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir.
2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim is facially plausible
‘when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.'”
Id. (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
in the Complaint filed in May 2016, Delta Stone pled
Xpertfreight was a “common carrier, ”
“freight forwarder, ” or “interstate motor
carrier.” See ECF No. 2 at ¶¶ 3, 11,
30. The deadline for Delta Stone to file a Motion to Amend
Pleadings pursuant to the Scheduling Order in this matter was
December 16, 2016. (ECF No. 50.) Delta Stone never amended
its Complaint to assert claims against Xpertfreight as a
broker and the deadline to do so has passed.
Stone's claims against Xpertfreight for breach of
contract and negligence are preempted by the Carmack
Amendment, 49 U.S.C. 14706, which provides the exclusive
remedy for cargo claims. “The Carmack Amendment so
thoroughly regulates carrier liability that ‘every
circuit which has considered the matter . . . has either held
or indicated that it would hold that the Carmack Amendment
preempts state common law [claims].'” Bullocks
Express Transp., Inc., v. XL Specialty Ins. Co., 329
F.Supp.2d 1246, 1253 (D. Utah 2004) (quoting Underwriters
v. N. Am. Van Lines, 890 F.2d 1112, 1120 (10th Cir.
1989). “This broad preemption covers not only common
law negligence claims, but also claims for breach of
contract.” Id. at 1253.
as conceded at the hearing by the parties, Xpertfreight's
negligence claim is also preempted by 49 U.S.C. § 14501
(c)(1) (“ICCTA”), which expressly preempts
negligence claims arising out services of a carrier or
broker. Accordingly, the court grants Xpertfreight's
motion to dismiss Delta Stone's breach of contract and
OF REVIEW FOR SUMMARY JUDGMENT
judgment is appropriate “if there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P.56(a). A
material fact is one that may affect the outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The moving party bears the initial
burden of showing an absence of evidence to support the
nonmoving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). “Once the
moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Id. The nonmoving party may
not rest solely on allegations on the pleadings, but must
instead designate “specific facts showing that there is
a genuine issue for trial.” Id. at 324.
in dispute is “material” if it might affect the
outcome of the suit under the governing law; the dispute is
“genuine” if the evidence is such that it might
lead a reasonable jury to return a verdict for the nonmoving
party. Allen v. Muskogee, 119 F.3d 837, 839 (10th
Cir.1997) (citing Anderson, 477 U.S. at 248). To
defeat a properly supported motion for summary judgment,
“there must be evidence upon which the jury could
reasonably find for the plaintiff.” Panis v.
Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.
1995). “Conclusory allegations will not create a
genuine issue of material fact necessitating trial.”
White v. York Int'l. Corp., 45 F.3d 357, 360
(10th Cir. 1995). Generally, the court construes “the
record in the light most favorable to the nonmoving
party.” York v. City of Las Cruces, 523 F.3d
1205, 1210 (10th Cir. 2008).
FOR SUMMARY JUDGMENT-Carmack Amendment (ECF No. 80)
this motion, Xpertfreight seeks summary dismissal of Delta
Stone's first claim, Carmack Amendment Liability, and
second claim, breach of contract. (ECF No. 80 at 3.) The
court already dismissed the breach of contract claim, see
supra. Since that request is now moot, the court will
only address the first claim below.
opening brief, Xpertfreight averred that the legal element
required to prevail on the Carmack Amendment claim is as
The liability imposed on a carrier under the Carmack
Amendment is “for the actual loss or injury to the
property caused by (A) the receiving carrier, (B) the
delivering carrier, or (C) another carrier over whose line or
route the property is transported in the United
States….” 49 U.S.C. § 14706. On a Carmack
claim, “the shipper establishes a prima facie
case against either the initial carrier or the delivering
carrier by proving: (1) delivery of the property to the
carrier in good condition; (2) arrival of the property at the
destination in damaged or diminished condition; and (3) the
amount of its damages.” Mercer Transp. Co. v.
Greentree Transp. Co., 341 F.3d 1192, 1196 (10th Cir.
2003) (citing 49 U.S.C. 14706(a)).
Delta Stone did not respond at all to the “legal
element stated by the moving party” as required by
DUCivR 56-1(c)(2)(A). Since Delta Stone did not
“disagree” with Xpertfreight's stated
element, or provide its own citation to legal authority
regarding Carmack Amendment liability, this court accepts
Xpertfreight's statement of this legal element.
Ultimately, the authority cited by Xpertfreight is the only
legal element for the Carmack claim before the court.
support of its motion, Xperfreight listed thirty-two
“undisputed material facts.” See ECF No.
80. In response Delta Stone only “disputed” eight
of these facts. See ECF. No. 97. The court notes,
however, that none of Delta Stone's alleged disputes are
“genuine.” Allen, 119 F.3d at 839. The
court will address each of Delta Stone's alleged
statement of “Undisputed Material Facts, ”
Xpertfreight alleged in part:
Xpertfreight operates as an interstate property broker
(“freight broker”) pursuant to authority granted
to it to do so by the Federal Motor Carrier Safety
Administration (“FMCSA”) under U.S. DOT Number:
2240854, and MC Number 626764. See Declaration of