2020 WL 6802309

United States District Court, S.D. California.
Fernando Inigo, Plaintiff,
v.
Express Movers, Inc., a Hawaii Corporation, d/b/a Movers Hawaii, Defendant.
Case No.: 3:18-cv-2844-BEN-DEB
|
Filed 11/18/2020

ORDER GRANTING IN PART PLAINTIFF’S MOTION TO PROVE DAMAGES
HON. ROGER T. BENITEZ United States District Judge
*1 On August 24, 2020, the Court entered default judgment against Defendant Express Movers, Inc (“Express Movers”). ECF No. 37. This matter now comes before the Court on Plaintiff Fernando Inigo’s Motion to Prove Damages.

I. Background
Inigo filed a Complaint against Express Movers on December 17, 2018. ECF No. 1. He initially sought $39,827.00 in damages, representing the value of household goods and a vehicle he alleged were being unlawfully withheld by Express Movers as the result of a dispute over shipping costs. Id. at 9. On April 22, 2020, Express Movers relinquished possession of Inigo’s household goods. Mot., ECF No. 42, 7.

On June 24, 2020, the Court granted Mr. Elliot Canter’s motion to withdraw as counsel for Express Movers. ECF No. 33. As Local Civil Rule 83.3(j) requires corporations to be represented by counsel, the Court granted Express Movers thirty days to obtain new counsel and for that counsel to file a notice of appearance. Id. The Court also delayed the Final Pretrial Conference until August 3, 2020. Id.

Express Movers failed to appear at the Final Pretrial Conference and no new counsel filed a notice of appearance on its behalf. ECF No. 35. The Court issued an Order to Show Cause, requiring Express Movers to obtain new counsel and warning it that failure to do so could result in sanctions, including striking Express Movers’ Answer and entering default judgment against it. ECF No. 36. Express Movers again failed to respond. Accordingly, the Court entered default judgment on August 24, 2020, and granted Inigo leave to file a Motion to Prove Damages. Id. Inigo filed his motion, and Express Movers has not responded.1

Inigo seeks damages pursuant to 49 U.S.C. § 14706 for Express Movers’ alleged failure to transport his household goods with “reasonable dispatch.” Mot., ECF No. 41, 3. He no longer seeks damages for the total value of his household goods, but rather damages for a select few items he purchased while his household goods were being withheld by Express Movers. Id. at 2-3. He also alleges one large box of kitchen items was lost, entitling him to further damages. Id. at 3.

II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(3), a plaintiff’s demand for relief must be specific, and he “must ‘prove up’ the amount of damages.” Philip Morris USA Inc. v. Banh, Case No. 03-CV-4043-GAF-PJW, 2005 WL 5758392, at *6 (C.D. Cal. Jan. 14, 2005). “The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). Relief following a motion for entry of default judgment is limited to that identified in the complaint. See Fed. R. Civ. P. 54(c) (“A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”); see also PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (stating that a default judgment “shall not be different in kind from or exceed in amount that prayed for in the [complaint]”).

III. Analysis
*2 Inigo seeks an award of $2,107.20 for the failure to transport household goods with reasonable dispatch and $300.00 for damages incurred as the result of a lost large box of kitchen items. Mot., ECF No. 41, 3. As a preliminary matter, the Court finds these damages are not different in kind from and do not exceed the amount of what was demanded in Inigo’s Complaint. Instead, Inigo’s motion reasonably reduces the damages sought based on Express Movers’ decision to release his household goods.

In support of his claimed damages, Inigo attached a declaration to his motion stating that Express Movers refused to deliver his household goods to him as contracted because a dispute arose over the amount due to Express Movers. Decl, ECF No. 41-1, ¶¶ 3-5. Inigo alleged that Express Movers refused to relinquish possession of his household goods for over nine months, and that Inigo was required to purchase a new washing machine, washer hose, queen mattress, box spring, and television for his home. Id. at ¶ 10. The total cost of these items was $2,107.20, evidenced by receipts attached to Inigo’s declaration. Id. at ¶ 10, Ex. C. Inigo further alleges one large box of kitchen items was not included in the items eventually released by Express Movers. Id. at ¶ 13. He estimates those kitchen items are valued at $300.00.

The Carmack Amendment states that a carrier providing transportation of goods is liable “for the actual loss or injury to the property” caused by that carrier. 49 U.S.C. § 14706(a)(1). The carrier’s failure to issue a bill of lading does not affect its liability. Id. While the statute does not explicitly provide for recovery of “reasonably foreseeable damages,” other courts have consistently recognized that a carrier may be liable for all “reasonably foreseeable consequential damages resulting from a breach of the contract of carriage.” Ready Transp., Inc. v. CRST Malone, Inc., No. 07-CV-0905-JTL, 2009 WL 10669257, at *12 (C.D. Cal. Jan. 13, 2009) (citing Air Prods. & Chems., Inc. v. Illinois Central Gulf R. Co., 721 F.2d 483, 485 (5th Cir. 1983), cert. denied, 469 U.S. 832 (1984)). The Supreme Court has likewise stated that “[t]he words of the [Carmack Amendment] ‘are comprehensive enough to embrace all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination.’ ” Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936) (quoting New York, Philadelphia & Norfolk R.R. Co. v. Peninsula Produce Exch. of Maryland, 240 U.S. 34, 38 (1916)).

Here, Inigo has pleaded that Express Movers refused to relinquish possession of his household goods despite Inigo’s offer to pay 110% of the estimated costs. See 49 C.F.R. § 375.407 (requiring a carrier to relinquish possession of household goods if the individual shipper pays 110% of the non-binding estimate on a collect-on-delivery shipment). Compl., ECF No. 1, ¶ 29, Following Inigo’s offer, Express Movers continued to withhold delivery of Inigo’s household goods for more than nine months. As noted above, the Court accepts these well pleaded allegations as true. See TeleVideo Sys., Inc., 826 F.2d at 917-18.

Applying those pleadings to Inigo’s claimed damages, the Court finds that the damages sought for purchase of a replacement television, queen mattress, and box spring would be reasonably foreseeable and are thus recoverable. A shipper like Inigo quite reasonably believes that, once the needed time for transit has passed, he will be able to rest on a bed. Today, he could also expect a common comfort like a television. While the Court would also conclude Inigo has a need for a washing machine, Inigo’s inventory did not show he shipped a washing machine. Compl., ECF No. 1, Ex. B. Accordingly, the Court finds Express Movers could not reasonably have anticipated Inigo would buy a replacement washing machine and washer hose. Inigo has sufficiently proved his remaining damages with respect to the lost large box of kitchen items.

*3 The Court finds that Inigo has therefore sufficiently proved damages in the amount of $1,838.97, representing Inigo’s claimed damages less the $538.23 he incurred for a new washing machine and washer hose.

IV. Conclusion
For the foregoing reasons, Plaintiff’s Motion to Prove Damages is GRANTED in part. The Clerk of Court shall enter judgment in favor of Plaintiff in the amount of $1,838.97 in total damages. Plaintiff is granted leave to file a Motion for Attorney’s Fees in accordance with Federal Rule of Civil Procedure 54 and 49 U.S.C. § 14708. A request for Costs may be submitted to the Clerk of Court.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 6802309

Footnotes

1
Igor Stojadinovic, purportedly a representative of Express Movers, sent a letter to the Court dated October 5, 2020, requesting a delay in the hearing on this motion. ECF No. 45. Mr. Stojadinovic stated he could not travel due to COVID-19 concerns. Id. The Court vacated the hearing on this motion and the matter was submitted in accordance with Local Civil Rule 7.1(d)(1). Accordingly, the request is denied as moot. The Court also rejects the letter because it was submitted on behalf of a corporate defendant by a non-attorney. See Civ. L. R. 83.3(j).

2020 WL 6585542

United States District Court, D. Arizona.
J&N Agency LLC, Plaintiff,
v.
National Superior Express Limited, et al., Defendants.
No. CV-19-05691-PHX-ROS
|
11/10/2020

(Count II) is DISMISSED., Honorable Roslyn O. Silver, Senior United States District Judge

ORDER
*1 Plaintiff J&N Agency LLC (“J&N”) leased a $25,000 printer from a company in New Jersey. Defendant National Superior Express, Ltd. (“NSE”) transported the printer from New Jersey to Arizona. J&N alleges the printer was damaged in transport and brings claims under the Carmack Amendment and a theory of negligence against both the carrier, NSE, and the shipper who packaged the printer, Defendant Pedowitz Machinery Movers of N.J., Inc. (“Pedowitz”). Pedowitz now moves for summary judgment on both claims J&N alleged. J&N separately moves for summary judgment on the Carmack Amendment claim against NSE. For the reasons set forth below, Pedowitz and J&N’s motions will both be granted.

BACKGROUND
Unless otherwise noted, the following facts are undisputed. In November 2018, J&N leased an industrial printer (the “Printer”) used to print large signs from a company known as Geneva Capital. (Docs. 41 at 2; 55 at 1). J&N then arranged, through a third-party, Frieghtquote.com, Inc. (“Freightquote”), for Pedowitz to package the Printer and NSE to transport the Printer from New Jersey to Arizona. (Docs. 41 at 2; 55 at 1). On November 20, 2018, Pedowitz brought the Printer, undamaged, from its original location to Pedowitz’s warehouse in New Jersey where it was photographed, packaged, and loaded onto a skid. (Docs. 41 at 3; 55 at 2).

The events surrounding the transfer of the Printer from Pedowitz to NSE are partially disputed. On December 3, 2018, NSE’s driver, Ismael Guardado picked up the undamaged Printer from Pedowitz’s warehouse. (Docs. 55 at 2; 41 at 3). Bruce Fozman, a Pedowitz employee, loaded the Printer into NSE’s truck and took photographs. (Doc. 41 at 3). Fozman says he twice advised Guardado, and Guardado twice refused, to strap down the Printer within the truck. (Doc. 41 at 3). NSE states that Guardado will testify contrary to Fozman’s Affidavit (Doc. 55-1 at Ex. 5) but does not include any such testimony in the record. (Doc. 58 at 2). NSE’s Safety Manager Dorothy Kawula says the Printer was “secure within the oversized pallet” and “did not need to be secured within the trailer;” instead, Kawula claims the Printer was “incorrectly placed on the pallet.” (Doc. 68-1 at 1–2). NSE insists that the Printer should have been “secured to the pallet, before being loaded onto NSE’s truck.” (Doc. 58 at 2).

On December 10, 2018, the Printer arrived in Arizona severely damaged, rendering the Printer unusable. (Docs. 41 at 4; 55 at 3). Initially, J&N sought to return the damaged printer, but the return attempt failed. (Doc. 55 at 3). In May 2019, J&N notified Freightquote the Printer had been damaged in transit. (Doc. 55 at 3). On July 31, 2019, Freightquote sent NSE a “Standard Form for Presentation of Loss Claim and Damage.” (Doc. 55 at 3). The parties do not disclose any additional interactions before J&N filed this lawsuit.

On November 26, 2019, J&N filed a complaint against NSE alleging NSE’s liability for damage to the Printer under the Carmack Amendment, 49 U.S.C. § 14706. (Doc. 1 at 4–5). After filing an answer, NSE stated at a scheduling conference on March 20, 2020, that NSE had not settled the case because it intended to name a non-party at fault. (Doc. 19). The Court ordered NSE to name the non-party at fault by March 23, 2020 and J&N to amend its complaint to add the non-party by March 27, 2020.1 (Doc. 19). The parties complied and J&N filed its First Amended Complaint adding Pedowitz as a defendant. (Doc. 22). The Amended Complaint alleged NSE and Pedowitz were liable under both the Carmack Amendment and a theory of negligence. (Doc. 22 at 5).

*2 On July 2, 2020, Pedowitz filed a motion for summary judgment against J&N for the Carmack Amendment claim and the negligence claim. (Doc. 40).

On July 15, 2020, J&N separately filed a motion for summary judgment against NSE solely on the claim under the Carmack Amendment. (Doc. 50).

LEGAL STANDARD
The moving party is entitled to summary judgment if the evidence, viewed in the light most favorable to the non-moving party, shows “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004); Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). At summary judgment, the court cannot weigh the evidence nor make credibility determinations. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1035 (9th Cir. 2005). The moving party initially bears the burden of proving the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321–25 (1986). To do so, “[t]he moving party must either produce evidence negating an essential element of the non-moving party’s claim or defense or show that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the non-moving party to demonstrate the existence of a factual dispute that might affect the outcome of the suit. Saddiq v. Trinity Servs. Grp., 198 F. Supp. 3d 1051, 1055 (D. Ariz. 2016). Non-movants “must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (emphasis in original) (citing Anderson v. Liberty Lobby, 447 U.S. 242, 257 (1986). “A non-movant’s bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment.” Id. (citing Galen v. Cty. of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007)).

Regarding the evidence, the district court “need consider only the cited materials.” Fed. R. Civ. P 56(c)(3). Thus, “where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found” “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact.” Wyatt Tech. Corp. v. Smithson, 345 F. App’x 236, 239 (9th Cir. 2009) (quoting Carmen v. San Fran. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001)). That said, the district court may consider materials in the record not cited by the parties. Fed. R. Civ. P 56(c)(3).

ANALYSIS

I. NSE’S LIABILITY
All parties agree the Carmack Amendment, 49 U.S.C. § 14706, applies to this dispute. The Carmack Amendment governs liability for all losses, damages, or injuries to goods transported in interstate commerce. ASARCO v. England Logistics, 71 F. Supp. 3d 990, 994 (D. Ariz. 2014); see also Chubb Grp. of Ins. Cos. v. H.A. Transp. Sys., 243 F. Supp. 2d 1064, 1068 (C.D. Cal. 2002). The statute “subjects common carriers…transporting cargo in interstate commerce to absolute liability for actual loss or injury to property.” ASARCO at 994. Courts interpreting the Carmack Amendment have established a burden-shifting regime where the shipper seeking to recovery must first establish a prima facie case, after which the burden shifts to the carrier to try to avoid liability. Missouri Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 138 (1964) (citations omitted). A prima facie case is established by proving three elements: “delivery [to the carrier] in good condition, arrival in damaged condition, and the amount of damages.” Id.; see also Alfonso v. Pasha Grp., 933 F.2d 1013 (9th Cir. 1991). The burden of proof then moves to “the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Missouri Pac. at 138 (citations omitted). The Carmack Amendment limits recovery to actual damages. 49 U.S.C. § 14706(a)(1).

A. Carmack Amendment
*3 J&N moves for summary judgment against NSE under the Carmack Amendment. (Doc. 50). No party disputes that NSE is a common carrier subject to the Carmack Amendment. Thus, the initial burden is on J&N to prove a prima facie case.

J&N has shown the Printer was delivered in good condition to NSE. Evidenced by photographs and Fozman’s Affidavit, the Printer was not damaged when it arrived at Pedowitz’s warehouse on November 20, 2018 nor when the Printer was loaded onto NSE’s truck on December 3, 2018. (Docs. 55 at 2; 55-1 at Exs. 5 at 2, A, B). NSE does not dispute these facts. J&N has established the Printer was delivered in good condition to NSE and the first element of a prima facie case is met.

J&N has shown the Printer arrived in damaged condition. Photographs in the record, as well as J&N Chief Executive Officer Joseph Bui’s Declaration, show the Printer was delivered to J&N in damaged condition. (Doc. 55-1 at Exs. 9, 10). NSE does not dispute this fact. J&N has established the Printer arrived in damaged condition and the second element of a prima facie case is met.

J&N has shown the amount of damages to be $31,829.29. As a result of the damaged Printer, J&N lost the $25,000 cost of the Printer, $3,250 of rigging and packaging costs, and $3,579.29 of shipping costs. (Doc. 55 at 4).2 NSE does not dispute these facts. J&N has established damages of $31,829.29 and the third element of a prima facie case is met.

Because J&N has shown the Printer was in good condition when delivered to NSE, the Printer was damaged upon arrival in Arizona, and the amount of damages, J&N has established a prima facie Carmack Amendment claim. Therefore, the burden shifts to NSE to try to avoid liability.

B. Act of the Shipper
After a prima facie case is established, the burden of proof moves to “the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Missouri Pac. at 138 (citations omitted). One of those expected causes is known as the “Act of the Shipper” defense. Missouri Pac.at 137 (citations and internal quotations omitted). NSE invokes this defense and asserts the shipper, Pedowitz, improperly loaded the Printer on NSE’s truck excusing NSE’s liability. Because this case is at summary judgment, the question is whether NSE can point to evidence establishing a genuine dispute of material fact regarding this defense. NSE cannot.

When improper loading is alleged, the inquiry collapses from two steps into one:
which party is responsible for avoiding negligence? Drawing on tort law principles, the Fourth Circuit described this inquiry in United States v. Savage. 209 F.2d 442 (4th Cir. 1953), cert. denied, 347 U.S. 952 (1954); see Alitalia v. Arrow Trucking, 977 F. Supp. 973, 984 (D. Ariz. 1997); Thousand Springs Trout Farms v. IML Freight, 558 F.2d 539, 543 (9th Cir. 1977). When a shipper, such as Pedowitz, loads property onto the carrier’s motor vehicle, a shipper is liable for latent and concealed defects, while the carrier, such as NSE, remains liable for any apparent defect. Savage, 209 F.2d at 445. In maintaining carrier liability for apparent defects, the Savage Court reasoned carriers retain responsibility when the carrier “had the last clear chance to avoid the accident.” Id. at 447.

*4 NSE states the Printer did not need to be “secured” because the Printer was heavy and on an oversized pallet. (Doc. 66 at 4). The only evidence provided by NSE is Kawula’s Declaration, which says the printer “was secure within the oversized pallet” and the “pallet did not need to be secured within the trailer.” (Doc. 68-1 at 1). NSE then argues that the damage was Pedowitz’s fault because the Printer was improperly placed on thin steel beams, which caused the damage.3 (Doc. 66 at 4). NSE points to photographs of the Printer on thin steel beams as evidence of its improper placement. (Doc. 66 at 4).

On the evidence provided, a jury could not find in NSE’s favor. NSE bears the burden to prove Pedowitz was responsible for improper loading. See Savage, 209 F.2d at 445. As a non-movant, NSE must present “affirmative evidence from which a jury could find in his favor.” Stefanchik, 559 F.3d at 929. “ ‘[C]onclusory, self-serving affidavit[s], lacking detailed facts and any supporting evidence,’ are insufficient to create a genuine issue of material fact.” Hexcel Corp. v. Ineos Polymers, 681 F.3d 1055, 1063–64 (9th Cir. 2012) (quoting F.T.C. v. Publ’g Clearing House, 104 F.3d 1168, 1171 (9th Cir. 1997)). Here, NSE asserts the Printer was secure, both within the pallet and the trailer, but provides no affirmative evidence supporting that assertion. NSE then asserts the Printer was improperly placed on thin steel beams without evidence. Because NSE failed to meet its burden to present sufficient affirmative evidence, summary judgment for J&N will be granted.

But assuming NSE provided sufficient evidence to show the Printer did not need to be secured and the thin steel beams were improper, NSE still cannot withstand summary judgment because NSE was liable for any apparent defects in loading. Apparent defects are the responsibility of the carrier. Savage at 445. In the photographs that NSE points to, the thin steel beams were apparent, not latent nor concealed. (Doc. 55-1 at Exs. A, 9). The beams are visible in photographs before and after interstate transport. (Doc. 55-1 at Exs. A, 9). Because the beams were apparent, even if improper, NSE still remains liable for the defect. As such, J&N will be granted summary judgment against NSE for its Carmack Amendment claim.

C. Negligence
J&N also asserts a negligence claim against NSE, and J&N did not move for summary judgment on this claim. Normally, the Court cannot grant summary judgment on a claim not argued without giving notice and an opportunity to respond. Fed. R. Civ. P. 56(f). However, the negligence claim fails as a matter of law such that notice would be futile. It is well-established that the Carmack Amendment preempts “any state common law action” against a common carrier. Hartford Fire Ins. v. 3DL Design Incorporation, No. CV-17-02937-PHX-GMS, 2018 WL 2387930, at *3 (D. Ariz. May 25, 2018) (citing Hughes Aircraft v. North American Van Lines, 970 F.2d 609, 613 (9th Cir. 1992)). As such, J&N’s negligence claim against NSE will be dismissed.

II. PEDOWITZ’S LIABILITY

A. Carmack Amendment
Pedowitz moves for summary judgment on the Carmack Amendment claim. Pedowitz asserts that it is not subject to the Carmack Amendment as Pedowitz did not transport the Printer interstate. (Doc. 40 at 5–8). J&N concedes this point. (Doc. 56 at 3). Accordingly, Pedowitz will be granted summary judgment on J&N’s Carmack Amendment claim.

B. Negligence
*5 As described above, state law negligence claims are preempted by the Carmack Amendment. However, even if the negligence claim against Pedowitz was not preempted, there is no evidence in the record of Pedowitz’s negligence. Thus, Pedowitz will be granted summary judgment on the issue.

III. ATTORNEY’S FEES
J&N argues for attorney’s fees, costs, and expenses under Arizona Revised Statues § 12-349. Attorney’s fees are not available under Arizona state law for alleged misconduct in federal district court proceedings. In re Larry’s Apartment, 249 F.3d 832, 837-39 (9th Cir. 2001) (holding that Arizona Revised Statutes § 12-349 could not be a basis for fee award in federal court proceeding). As such, any motion seeking attorney’s fees must have an alternative basis.

Accordingly,

IT IS ORDERED Pedowitz’s Motion for Summary Judgment (Doc. 40) is GRANTED.

IT IS FURTHER ORDERED J&N’s Motion for Summary Judgment (Doc. 50) is GRANTED. The parties shall confer within seven days of this Order and, if they can reach agreement, no later than November 17, 2020, they shall file a stipulation regarding the amount of the judgment to be entered against NSE. If they cannot agree, no later than November 17, 2020, J&N shall file a motion seeking final judgment which identifies the exact amount requested. NSE shall file its response no later than November 24, 2020 and J&N shall file its reply no later than December 1, 2020.

IT IS FURTHER ORDERED J&N’s claim against Pedowitz for Negligence (Count II) is DISMISSED.

Dated this 10th day of November, 2020.

Honorable Roslyn O. Silver

Senior United States District Judge
All Citations
Slip Copy, 2020 WL 6585542

Footnotes

1
It is unclear why J&N was ordered to amend its complaint to include the non-party. Subsequent events would show that J&N does not, in fact, believe that the non-party should be held liable for damaging the printer.

2
Shipping and handling costs are recoverable as actual damages under the Carmack Amendment. See Contempo Metal Furniture Co. of California. v. E. Texas Motor Freight Lines, 661 F.2d 761, 764 (9th Cir. 1981); F. J. McCarty Co. v. S. Pac. Co., 428 F.2d 690, 693 (9th Cir. 1970); see also Alitalia v. Arrow Trucking, 977 F. Supp. 973, 978 (D. Ariz. 1997).

3
Kawula’s Declaration states that the “damage was the result of the printer being incorrectly placed on the pallet,” but does not mention the thin steel beams. (Doc. 68-1 at 2). The Court finds no additional evidence in the record tending to show it was improper to place the Printer on thin steel beams.