2020 WL 1171947

United States District Court, S.D. Alabama, Southern Division.
SAMUEL L. ROLLASON, et al., Plaintiffs,
v.
ALL STATE VAN LINES RELOCATION, INC., et al., Defendants.
CIVIL ACTION NO. 1:18-cv-482-TFM-N
|
Filed 03/11/2020

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER UNITED STATES DISTRICT JUDGE
*1 Pending before the Court is Plaintiffs’ Motion for Default Judgment. Doc. 20, filed June 26, 2019. Plaintiffs request the Court enter a default judgment in their favor and against Defendant All State Van Lines Relocation, Inc. Id. Having considered the motion and relevant law, the Court finds the Motion for Default Judgment is due to be GRANTED as to its claim for $70,000.00 in damages.

I. JURISDICTION
The Court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331 (federal question), 49 U.S.C. § 14706, and 28 U.S.C. § 1332 (diversity jurisdiction).

The Court has personal jurisdiction over Defendant All State Van Lines Relocation, Inc., because Plaintiffs allege it is a Florida corporation that conducts business in Baldwin County, Alabama, and it was served via certified mail. Doc. 1-2 at 18, 76; see also Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 925 n.15 (11th Cir. 2003) (“The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process. Amenability to jurisdiction means that a defendant is within the substantive reach of a forum’s jurisdiction under applicable law. Service of process is simply the physical means by which that jurisdiction is asserted.”).

Venue is proper in this Court because Plaintiffs allege all or a substantial part of the events or omissions that gave rise to Plaintiffs’ claim occurred in Baldwin County, Alabama, which is within this Court’s jurisdiction. Doc. 1-2 at 77.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background
Plaintiffs Samuel H. Rollason and Kathleen M. Rollason (collectively, the “Plaintiffs”) originally filed this action in the Baldwin County Circuit Court on July 24, 2018, in which they brought claims of breach of contract (Counts 1 and 6), negligence and wantonness (Count 2), misrepresentation (Count 3), suppression (Count 4), and bad faith (Counts 5 and 7) against Defendants All State Van Lines Relocation, Inc. (“All State”); IXT, LLC (“IXT”); Relo Van Lines, LLC (“Relo”); and Unitrin Auto and Home Insurance Company (“Unitrin”). Doc. 1-1 at 12-20. Plaintiffs filed their First Amended Complaint on October 9, 2018, in which they dismissed Defendant IXT and added Defendant ITX, LLC (“ITX”), and retained the same claims. Doc. 1-1 at 3-11.

Defendant ITX removed this matter to this Court from the circuit court on November 15, 2018, pursuant to 28 U.S.C. §§ 1441 and 1446, based on diversity and federal question jurisdiction. See Doc. 1 at 1. Attached to the Notice of Removal is Defendant All State’s Consent to Removal, which is signed on behalf counsel for Defendant All State with permission. Doc. 1-3 at 2.

On November 15, 2018, Defendant ITX filed its Motion to Dismiss in which Defendant ITX requested the Court to dismiss, pursuant to Fed. R. Civ. P. 12(b), Plaintiffs’ state law claims because they were preempted by the Carmack Amendment to the I.C.C. Termination Act (“Carmack Amendment”), 49 U.S.C. § 14706. Doc. 2. On January 18, 2019, Plaintiffs filed their motion to remand and supporting brief in which they requested the Court remand this action pursuant to 28 U.S.C. § 1447 to the Baldwin County Circuit Court. Doc. 9. The Court granted the motion to dismiss to the extent the previously asserted state law claims of bad faith, breach of contract, misrepresentation, negligence and wantonness, and suppression were dismissed with prejudice and denied to the extent the claims survived as a Carmack Amendment claim. Doc. 15. The Court denied the Plaintiffs’ motion to remand. Id.

*2 On May 14, 2019, the Court granted Plaintiffs’ and Defendant Unitrin’s motion to dismiss Plaintiffs’ claims against Unitrin. Docs. 14, 16.

Based on the fact that Defendant All State had not filed a notice of appearance, responsive pleading, or request for an extension of time to respond to the Complaint, on June 13, 2019, the Court ordered Plaintiffs to file either a motion to dismiss Defendant All State pursuant to Fed. R. Civ. P. 41, a motion for default pursuant to Fed. R. Civ. P. 55 for Defendant All State’s failure to plead or otherwise defend, or a status report that detailed how Plaintiffs intended to proceed against Defendant All State. Doc. 16. In response to the Court’s June 13, 2019 Order, Plaintiffs filed their Motion for Default Judgment in which they requested the Court, pursuant to Fed. R. Civ. P. 55, enter a default judgment against Defendant All State. Doc. 20.

On July 2, 2019, the Court declared Defendant All State to be in default, held the Motion for Default Judgment in abeyance, and ordered Plaintiffs to file evidence in support of their motion. Doc. 25. On August 2, 2019, Plaintiffs filed their evidence in support of their Motion for Default Judgment. Doc. 30. Defendant All State has failed to appear in this matter or otherwise respond to Plaintiffs’ filings. See Docket Sheet. The motion is ripe for review and the Court finds an evidentiary hearing unnecessary, based on the evidence that was filed in support of the Motion for Default Judgment.

B. Factual Background
In May 2017, Plaintiffs employed Defendants All State, ITX, and Relo (collectively, the “Defendants”) to transport Plaintiffs’ furniture and other wares, which included antiques and works of art, from Santa Fe, New Mexico, to Plaintiffs’ home in Daphne, Alabama. Doc. 1-2 at 79. Plaintiffs agreed to pay $15,000.00 for the moving service. Id. Defendants Relo and ITX were employed by Defendant All State to transport the furniture to Daphne, Alabama, via trucks. Id. Defendants represented to Plaintiffs their furniture would be transported with care and would be protected from damage. Id.

The shipment arrived at its destination on June 5, 2017. Id. When the furniture and goods arrived at their destination, they were inspected and many of the pieces were found to be broken and damaged. Id.

III. STANDARD OF REVIEW
The Federal Rules of Civil Procedure establish a two-part process for obtaining a default judgment. FED. R. CIV. P. 55. If “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend” the clerk of court “must enter the party’s default.” FED. R. CIV. P. 55(a). After default has been entered, if the “claim is for a sum certain or a sum that can be made certain by computation,” the clerk must enter default. FED. R. CIV. P. 55(b)(1). In all other circumstances, “the party must apply to the court for a default judgment.” FED. R. CIV. P. 55(b)(2). Also, a “default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” FED. R. CIV. P. 54(c).
The Court of Appeals for the Eleventh Circuit has held that although “a default is not treated as an absolute confession by the defendant of his liability and of the plaintiff’s right to recover, a defaulted defendant is deemed to admit the plaintiff’s well-pleaded allegations of fact. The defendant, however, is not held to admit facts that are not well-pleaded or to admit conclusions of law.” Tyco Fire & Sec., LLC v. Alcocer, 218 Fed. App’x 860, 863 (11th Cir. 2007) (per curiam) citations and internal quotations omitted). Moreover, “before entering a default judgment for damages, the district court must ensure that the well-pleaded allegations of the complaint … actually state a cause of action and that there is a substantive, sufficient basis in the pleadings for the particular relief sought.” Id. (emphasis omitted). Therefore, [Plaintiff] must establish a “prima facie liability case” against the defendants. Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1357 (S.D. Ga. 2004) (citations omitted).
*3 Also, when assessing default judgment damages, the Court has “an obligation to assure that there is a legitimate basis for any damage award it enters.” Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2007). Therefore, when ruling on a motion for default judgment, the Court must determine whether there is a sufficient factual basis in the complaint upon which a judgment may be entered. See Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Gray Cas. & Sur. Co. v. McConnell Contracting, LLC, Civ. Act. No. 11-0184-KD-N, 2012 U.S. Dist. LEXIS 48220, at *8-10, 2012 WL 1145186, at *3-4 (S.D. Ala. Apr. 5, 2012).

IV. DISCUSSION AND ANALYSIS
Upon review of the pleadings, the Court is satisfied the well-pleaded allegations state a basis for relief under the Carmack Amendment, as stated in the Court’s May 14, 2019 Memorandum Opinion and Order, and there is a substantive and sufficient factual basis for the relief sought by Plaintiffs. Specifically, Plaintiffs have provided sufficient evidence to support their claims that Plaintiffs employed Defendants to transport Plaintiffs’ furniture and other wares from Santa Fe, New Mexico, to Plaintiffs’ home in Daphne, Alabama, the furniture and goods were inspected when they arrived, and many of the pieces were found to be broken and damaged. Docs. 1-2 at 79, Doc. 30, Doc. 30-1, Doc. 30-2. In total, the replacement value and repair costs for Plaintiffs’ property is $72,171.94, which includes the replacement value of the property in the amount of $53,295.00 and repair costs in the amount of $18,876.94. Doc. 30 ¶¶ 2-4.

In support of Plaintiffs’ claims, they filed an “Appraisal Report” that was prepared by David L. Sanders, ISA, AM, in which Mr. Sanders appraised the replacement cost for some of Plaintiffs’ household items that were beyond repair. Doc. 30-1. Plaintiffs also filed invoices from Furniture Medic by Key Craftmanship for furniture repair service to Plaintiffs’ household items that were damaged, invoices for cabinet replacement services for cabinetry that was damaged, and an invoice for a mattress that was destroyed. Doc. 30-2 at 2-25.

Fed. R. Civ. P. 54(c) provides a “default judgment must not differ in kind from, or exceed in amount what is demanded in the pleadings.” FED. R. CIV. P. 54(c). In Plaintiffs’ First Amended Complaint and Motion for Default Judgment, they claim damages in the amount of $70,000.00 for the damage to their furniture. Doc. 1-2 at 79-81; Doc. 20 ¶ 5. However, in Plaintiffs’ evidence in support of their Motion for Default Judgment, they claim replacement value and repair costs of $72,171.94 as well as a refund of the moneys paid for the moving services in the amount of $15,463.32. Doc. 30 ¶¶ 4, 5. The Court notes the Carmack Amendment limits a carrier’s maximum liablity for household goods that are lost, damaged, or destroyed to “an amount equal to the replacement value of such goods, subject to a maximum amount equal to the declared value of the shipment and to rules issued by the Surface Transportation Board and applicable tariffs.” 49 U.S.C. § 14706.

Defendant All State has had ample time to appear or file a response to the instant motion for default judgment. This matter was removed from the circuit court on November 15, 2018, with the consent of Defendant All State by permission. Doc. 1; Doc. 1-3, at 2. The instant motion for default judgment was filed on June 26, 2019, and became ripe after Plaintiffs filed their evidence in support of their motion for default judgment on August 2, 2019. Docs. 20, 30. Since the motion for default judgment became ripe, approximately seven (7) months have elapsed and Defendant All State has yet to appear in this matter or respond to Plaintiffs’ motion for default judgment. See Docket Sheet.

*4 Accordingly, Plaintiffs’ Motion for Default Judgment will be granted insofar as Plaintiffs claim $70,000.00 in damages in their First Amended Complaint for the replacement value and repair costs for their furniture.

V. CONCLUSION
Accordingly, based on the foregoing analysis, Plaintiffs’ Motion for Default Judgment is GRANTED as to its claim for $70,000.00 in damages and default judgment is ENTERED in favor of Plaintiffs Samuel H. Rollason and Kathleen M. Rollason and against Defendant All State Van Lines Relocations, Inc., in the amount of $70,000.00.

DONE and ORDERED this the 11th day of March 2020.

All Citations
Slip Copy, 2020 WL 1171947

2020 WL 1430608

United States District Court, W.D. Kentucky.
SECURA INSURANCE, A MUTUAL COMPANY A/S/O KIEL THOMSON PLAINTIFF
v.
OLD DOMINION FREIGHT LINE, INC. DEFENDANT
CIVIL ACTION NO. 3:18-CV-00780-CRS
|
Filed 03/23/2020

MEMORNADUM OPINION
Charles R. Simpson III, Senior Judge United States District Court

I. Introduction
*1 This case is before the Court on Defendant Old Dominion Freight Line Inc.’s (“ODFL”) motion for summary judgment. DN 27. Plaintiff Secura Insurance (“Secura”) filed a response. DN 28. ODFL replied. DN 30. The matter is ripe for review. For the following reasons, the Court will grant ODFL’s motion for summary judgment.

II. Factual Background
This case arises out of damage sustained to a shipment of glass windows. Kiel Thomson, one of Secura’s insureds, ordered custom glass windows from Zeluck Architectural Windows & Doors. DN 1 at 2. Thomson contracted with ODFL, a commercial motor carrier, to have the windows transported from Brooklyn, New York to Louisville, Kentucky. Id. The parties agreed ODFL would transport the windows pursuant to ODFL’s Internet Straight Bill of Lading (“Bill of Lading”). DN 27-1 at 2; DN 27-2 at 15–16. The Bill of Lading was governed by ODFL’s Rules 100 Tariff. DN 27-1 at 2. ODFL’s Rules 100 Tariff, in relevant part, provides that “Carrier must receive all claims for cargo loss or damage including all supporting documentation within nine (9) months of the date of delivery, or, if lost, the date delivery was anticipated.” DN 27-2 at 8.

When the windows arrived on July 19, 2017, Thomson discovered that the windows were damaged. DN 1 at 2. That same day, Thomson sent an email to ODFL (“July 19, 2017 email”) stating:
Bill of lading #07906084756 BKN has arrived with some damage. We are documenting the damage with pictures. Please advise as to the insurance liability, and the process required when making a claim.
DN 27-2 at 12. ODFL responded: “Please note that on the Security Divider service-we are not Liable [sic] for any damages-since it was a shipper load and off load.” Id. at 13. Thomson filed a claim with Secura, who paid $21,076.83 pursuant to Thomson’s insurance policy. DN 1 at 2. Thirteen months after Thomson’s email to ODFL, Secura’s counsel sent a letter (“August 21, 2018 letter”) to ODFL claiming $21,076.83 in damages. Id. ODFL denied Secura’s claim as untimely because Seucra submitted the August 21, 2018 letter after the nine-month window as required by ODFL’s Rules 100 Tariff. DN 27-1 at 3. Following ODFL’s denial, Secura filed this lawsuit.

Secura originally brought three claims against ODFL: (1) a statutory claim for damages under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, (2) bailment, and (3) breach of contract. DN 1. ODFL moved for judgment on the pleadings for the bailment and breach of contract claims. DN 11. This Court granted that motion and held that Secura’s bailment and breach of contract claim were preempted by the Carmack Amendment. DN 13. The statutory claim under the Carmack Amendment is Secura’s sole remaining claim.

III. Legal Standard
Summary judgment is appropriate when the moving party can show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Id. In undertaking this analysis, the Court must view the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

*2 The party moving for summary judgment bears the burden of proof for establishing the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). They can meet this burden by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the…presence of a genuine dispute.” Fed. R. Civ. P. 56(C)(1). This burden can also be met by demonstrating that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The nonmoving party also “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

IV. Discussion
In 1906, Congress enacted the Carmack Amendment to the Interstate Commerce Act of 1877. See 49 U.S.C. § 14706. The Carmack Amendment spells out rights, duties, and liabilities of shippers and carriers when it comes to cargo loss. Regulations promulgated pursuant to the Secretary of Transportation’s authority govern the presentation and adjudication of claims under the Carmack Amendment. See 49 C.F.R.§ 370.1. These regulations provide the minimum filing requirements for a claim of loss or damage to cargo. 49 C.F.R. § 370.3 (b). ODFL argues that Secura failed to submit a claim that substantially complied with the requirements of § 370.3 (b) and is therefore entitled to summary judgment. DN 27-1 at 8. Secura responds with three arguments: (1) Thomson’s email from July 19, 2017 constituted a claim that substantially complied with the requirements of § 370.3 (b), (2) ODFL’s response to Thomson’s alleged claim was deficient, and (3) ODFL’s tariff was not incorporated by reference into the Bill of Lading, and Thomson was not the “shipper” for the purposes of the Bill of Lading. See DN 28. The Court will address each argument.

A. Thomson’s July 19, 2017 Email
The July 19, 2017 email was Thomson’s and Seucra’s only contact with ODFL prior to the August 21, 2018 letter from Secura’s counsel. ODFL argues that this email did not substantially comply with the requirements of § 370.3 (b) and therefore did not constitute a claim under the regulation. Consequently, ODFL argues that the August 21, 2018, correspondence from Secura’s counsel requesting $21,076.83 in damages was outside of the nine-month window in which ODFL’s Rules 100 Tariff requires claimants to submit all claims for cargo loss or damage. Even viewing the facts in the light most favorable to the Secura, the July 19, 2017 email did not substantially comply with the requirements of § 370.3 (b). Accordingly, since it is undisputed that the August 21, 2018 correspondence from Secura’s counsel did not fall within the nine-month window, ODFL is entitled to summary judgment.

Section 370.3 (b), in relevant part, provides:
(b) Minimum filing requirements. A written communication from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and:
(1) Containing facts sufficient to identify the baggage or shipment (or shipments) of property,
(2) Asserting liability for alleged loss, damage, injury, or delay, and
(3) Making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage; Provided, however, that procedures are established to ensure reasonable carrier access to supporting documents
49 C.F.R. § 370.3 (b) (emphasis added).

*3 In the Sixth Circuit, a claim for loss or damage must substantially comply with 49 C.F.R. § 370.3 (b)1 or else recovery is precluded. Trepel v. Roadway Express, Inc., 194 F.3d 708, 713 (6th Cir. 1999). The requirements “provide the carrier with notice of the nature of the baggage or property that is lost or damaged, the fact that the claimant intends to hold the carrier responsible, and a reasonably accurate indication of the value of the claim.” Id. Further, “the purpose of the claim regulation is not to permit the carrier to escape liability but to insure [sic] that the carrier has enough information to begin processing the claim.” Id. The Sixth Circuit held that a plaintiff’s claim that stated damages were “to be determined but not to exceed $150,000” substantially complied with the “specified” or “determinable” amount of money requirement under § 370.3 (b). Id.

Even viewing the facts in the light most favorable to Secura, the July 19, 2017, email does not substantially comply with the requirements of 49 C.F.R. § 370.3 (b). The email is three sentences long:
“Bill of lading #07906084 BKN has arrived with some damage. We are documenting the damage with pictures. Please advise as to the insurance liability, and the process required when making a claim.”
DN 27-2 at 12. The email does not include a specified or determinable amount of money that Thomson was seeking from ODFL. Indeed, there is no damage estimate included whatsoever. Without any reference to any amount Thomson was seeking, the email cannot comply with 49 C.F.R. § 370.3 (b), even under the more lenient substantial compliance standard articulated by the Sixth Circuit. Therefore, ODFL is entitled to summary judgment.

Secura argues that the email substantially complied § 370.3 (b). Secura contends that by stating there was damage in the July 19, 2017 email, and subsequently providing a particularized damage estimate in the August 21, 2018 correspondence, the email provided ODFL enough information to start its investigation into the claim. In other words, Secura argues Thomson’s initial email provided a placeholder for a more specified claim and satisfied the nine-month filing requirement provided in ODFL’s Rules 100 Tariff.2 It is true that § 370.3 (b) does not define “specified” or “determinable” with regard to the amount of money in a claim. But, Secura’s argument would effectively erase those words from the regulation. Further, Secura provides no authority for the proposition that an “initial notice of claim” can act as a placeholder for a more definite claim and ultimately satisfy the requirements of § 370.3 (b). This interpretation would effectively replace the substantial compliance standard articulated by the Sixth Circuit with a minimal compliance standard. Without clear support from Sixth Circuit precedent, the Court refuses to endorse Secura’s interpretation of 49 C.F.R. § 370.3 (b) and its application of the substantial compliance standard.

B. ODFL’s Response to the July 19, 2017 Email
Secura argues that granting ODFL’s motion for summary judgment when ODFL failed to provide an insurance claim form in response to the July 19, 2017 email would “reward them for circumventing the proper claims process that the Plaintiff’s Insured specifically requested to be made aware of.” DN 28 at 5. This argument is easily disposed of.

ODFL responded to Thomson’s July 19, 2017 email by stating “Please note that on the Security Divider Service-we are not liable for any damages-since it was a shipper load and off load.” DN 27-2 at 13. First, ODFL’s response does not negate the deficiency of the July 19, 2017 email. Second, Secura cites no authority for the proposition that a carrier’s initial denial of liability excuses a claim’s requirements under § 370.3 (b) or excuses a claimant from the terms and conditions of a carrier’s tariff. Accordingly, Secura’s argument is without merit.

C. ODFL’s Tariff and Bill of Lading
*4 Secura further argues that, regardless of whether the July 19, 2017, email constituted a valid claim, (1) ODFL’s tariff was not incorporated by reference into the Bill of Lading, and (2) Secura was “not the shipper” for purposes of the Bill of Lading and cannot be bound by ODFL’s Rules 100 Tariff. Both arguments are without merit.

First, Secura tepidly insinuates that the ODFL’s Rules 100 Tariff is not incorporated by reference into the Bill of Lading because it cannot read the Bill of Lading provided by ODFL. See DN 28 at 6, footnote 1. Secura asks ODFL to produce a more legible copy to dispel any confusion. Id. The Court is sympathetic to Secura’s plight; the submitted Bill of Lading is exceedingly difficult to read. But, “OD Rules 100,” referencing ODFL’s Rules 100 Tariff, is included twice under the section “Accessorial Services Requested.” DN 27-2 at 5. Further, Geoff Stephany’s declaration supports the assertion that ODFL’s Rules 100 Tariff is incorporated by reference and governed the terms of the shipment. DN 27-2 at 1 ¶ 6. It is clear that the Bill of Lading incorporated ODFL Rules 100 Tariff by reference and the ODFL Rules 100 Tariff governed the terms of the shipment. Accordingly, Secura’s argument is without merit.

Second, Secura contends that ODFL’s reliance on Fireman’s Fund McGee vs. Landstar Ranger, Inc., 250 F. Supp. 684, 689 (S.D. Tex. 2003) in its motion for summary judgment is misplaced. The court in McGee stated that a “shipper” must request a copy of the carrier’s tariff if the “shipper is unaware of the ‘rate, classifications, rules and practices…agreed to between the shipper and carrier.’ ” Id. Secura correctly notes that Thomson was the consignee, not the “shipper,” for the transaction at issue. DN 28 at 6. Presumably, while Secura did not fully articulate this argument in its response, Secura argues that as the consignee, Thomson did not have an affirmative obligation to request a copy of ODFL’s Rules 100 Tariff. And, therefore, Thomson cannot be bound by the terms of ODFL’s Rules 100 Tariff because Thomson had no knowledge of the tariff’s terms.

As a consignee, Thomson is presumed to know the effect and applicability of ODFL’s Rules 100 Tariff. “[C]onsignors, carriers and consignees are all presumed to know the existence, effect and applicability of tariff provisions.” Atchison, T.&S.F. Ry. Co. v. Springer, 172 F.2d 346, 349 (7th Cir. 1949) (citing American Railway Express Co. v. Daniel, 269 U.S. 40, 42 (1925)); see also Howe v. Allied Van Lines, 622 F.2d 1147, (3d Cir. 1980), cert. denied, 449 U.S. 992, 101 (1980) (holding military servicemen consignees were limited to remedies available under the contract negotiated by the government and carriers). Further, both the Bill of Lading and ODFL’s Rules 100 Tariff bind Thomson as the consignee. The Bill of Lading provides that “any additional party with an interest to any of said property” and “every service to be performed hereinafter” is subject to ODFL’s Rules 100 Tariff. DN 27-2 at 5. Further, ODFL’s Rules 100 Tariff provides, “[t]he person and/or entity who tenders the shipment to ODFL represents and warrants it has the authority to bind itself, and any other person and/or entity with an interest in the cargo transportation, to the limitation of liability and other terms set forth in this Tariff.” DN 30-1 at 7. Even considering Secura’s implied argument, Secura presents no authority for the proposition that a consignee is exempt from a carrier’s tariff if the consignee did not have knowledge of the tariff’s terms. Accordingly, Secura’s argument is without merit.

V. Conclusion
*5 Thomson’s July 19, 2017 email did not substantially comply with 49 C.F.R. § 370.3 (b). The August 21, 2018 correspondence from Secura’s counsel to ODFL was outside of the nine-month window in which ODFL’s Rules 100 Tariff requires all claims for cargo loss or damage to be submitted. Therefore, neither Thomson or Secura filed a valid claim under the Carmack Amendment for the damage sustained to the glass windows. For the reasons stated herein, the Court will grant ODFL’s motion for summary judgment.

A separate order will be entered in accordance with this opinion.

March 20, 2020

All Citations
Slip Copy, 2020 WL 1430608

Footnotes

1
In Trepel, the Sixth Circuit discussed 49 C.F.R. § 1005.2 rather than 49 C.F.R. § 370.3. The regulations found in 49 C.F.R. § 370.3 went into effect in 1997 and are also found in 49 C.F.R. § 1005.2. The two provisions are identical.

2
The Court also notes that even Secura’s counsel refers to the July 19, 2017 email as “their initial notice of claim.” DN 28 at 5.