United States District Court, S.D. Florida.

CERTAIN UNDERWRITERS SUBSCRIBING TO A POLICY OF INSURANCE, as subrogee of Banks DIH Limited, Plaintiff, SA

v.

GUYANA NATIONAL INDUSTRIAL COMPANY, INC., et al., Defendants.

CASE NO.: 23-cv-20172-GAYLES/TORRES

Signed March 18, 2024

Attorneys and Law Firms

Lindsey C. Brock, III., McLeod Brock Law, PLLC, Jacksonville, FL, for Plaintiff.

Andrew Robert Spector, Spector Rubin, P.A., Miami, FL, Omar Ortega, Reinaldo J. Dorta, Jr., Dorta & Ortega, P.A., Coral Gables, FL, for Defendants Guyana National Industrial Company Inc., Laparkan Holdings Limited, National Engineering Company, Laparkan Trading Limited Company, Laparkan Trading Limited, Laparkan Trading (Guyana) Limited Company.

Omar Ortega, Reinaldo J. Dorta, Jr., Dorta & Ortega, P.A., Coral Gables, FL, for Defendant Laparkan Trading Limited Company.

ORDER

DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE

*1 THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss Complaint (the “Motion”). [ECF No. 29]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons set forth below, the Motion shall be granted.

BACKGROUND¹

In or around December of 2021, Defendants Laparkan Trading Limited (“LTL”) and/or Laparkan Trading Limited Company (“LTLC”) (collectively the “Carrier”) issued Bills of Lading² for the ocean transport of several items (the “Cargo”) from West Palm Beach, Florida to Georgetown, Guyana. [ECF No. 1 ¶ 17]. Banks DIH Ltd. (“DIH”) was the consignee³ of the Cargo. Id. ¶ 28. Once in Guyana, the Cargo was “delivered off-loaded” in good condition to Laparkan Bond, an in-terminal warehousing facility at Defendant Guyana National Industrial Company’s (“Guyana National”)⁴ Port Facility. Id. ¶ 18. The Cargo was then stored in a warehouse in Laparkan Bond. Id. ¶ 19.

On July 16, 2022, there was a fire at Laparkan Bond which completely destroyed the Cargo.⁵ As a result, DIH was unable to take delivery of the Cargo. On February 14, 2022, DIH presented its claim for the loss of the Cargo to its insurer, Plaintiff Certain Underwriters Subscribing to a Policy of Insurance (“Plaintiff”). Id. ¶¶ 6, 30.

*2 On January 16, 2023, Plaintiff, as subrogee of DIH, filed this action alleging claims against Defendants Guyana National, Laparkan Holdings Limited, National Engineering Company, LTLC, Laparkan Trading Limited Company d/b/a Laparkan Shipping, LTL, and Laparkan Trading (Guyana) Limited Company (collectively “Defendants”)⁶ for Negligence (Counts I-VII), Breach of Contract and Statutory Duty Under the Pomerene Act § [81110]⁷ (Counts VIII-XIV), Breach of Bailment (Counts XV-XXI), and Breach of Contract and Statutory Duty Under Carriage of Goods By Sea Act, 46 U.S.C. § 30701 (“COGSA”) (Counts XXII-XXVIII). [ECF No. 1]. Defendants now jointly move to dismiss the Complaint, alleging (1) Plaintiff fails to state a claim under COGSA or the Pomerene Act and, therefore, the Court lacks federal question jurisdiction; (2) Plaintiff fails to state a claim for the common law claims for negligence and breach of bailment; and (3) the Court lacks personal jurisdiction over three of the five defendants. [ECF No. 29].⁸

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’ ” meaning that it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true, “conclusory allegations … are not entitled to an assumption of truth—legal conclusions must be supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). “[T]he pleadings are construed broadly,” Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the plaintiff. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Therefore, a complaint that merely presents “labels and conclusions or a formulaic recitation of the elements of a cause of action” will not survive dismissal. Id. (internal quotation omitted).

DISCUSSION

As Plaintiff alleges that this Court has federal question jurisdiction over this action, [ECF No. 1 ¶ 2], the Court first addresses Plaintiff’s federal claims.

I. Federal Claims

A. COGSA

In Counts XXII through XXVIII, Plaintiff alleges that each Defendant was a “common carrier or transportation provider of cargo” that “breached its contract of carriage, including but not limited to its duty under COGSA,” by failing to deliver the Cargo in good condition. [ECF No. 1 ¶¶ 172, 180, 188, 195, 202, 209, 216]. Essentially, Plaintiff contends because the Cargo was destroyed in the warehouse fire, Defendants failed to deliver it in good condition.

“COGSA regulates the carriage of goods by sea between U.S. and foreign ports.” Daewoo Int’l Corp. v. Sea-Land Orient Ltd., 196 F.3d 481, 484 (3d Cir. 1999). “By its terms, COGSA governs bills of lading for the carriage of goods ‘from the time when the goods are loaded on to the time they are discharged from the ship.’ ” Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 29 (2004) (quoting 46 U.S.C.App. § 1301(e)).⁹ See also Crowley Am. Transp., Inc. v. Richard Sewing Mach. Co., 172 F. 3d 781, 785 n.6 (11th Cir. 1999) (“[COGSA] governs a carrier’s duty from the time of loading to the time of discharge ….”); Underwriters at Interest under Bailee Ins. Policy No. 09RTAMIA1158 v. SeaTruck, Inc., 858 F. Supp. 2d 1334, 1337 (S.D. Fla. 2012) (“By default, COGSA applies only from the time cargo is loaded onto a carrier’s vessel until it is discharged.”). The statute does not define “discharged”, but courts have held that “[g]oods are not ‘discharged’ from a vessel under COGSA until they are released from the ship at the final port of destination ….” Schramm, Inc. v. Shipco Transport, Inc., 364 F.3d 560, 564 (4th Cir. 2004). However, “COGSA also gives the option of extending its rule by contract.” Norfolk Southern, 543 U.S. at 29. See also Underwriters at Interest, 858 F. Supp. 2d at 1338 (“[T]he parties may agree in the bill of lading to extend the applicability of COGSA to the pre-loading and post-discharge period.”).

*3 Defendants argue that COGSA does not apply here because the loss of the Cargo did not occur until after the Cargo was discharged from the vessel. The Court agrees. Though Plaintiff argues in its response to the Motion that “there remains the possibility that COGSA, or certain of its limited terms, was extended by the parties to cover the cargo while in Defendants’ custody at the warehouse where the fire occurred,” the Complaint contains no allegations that the parties contracted, through the bills of lading, to extend COGSA beyond discharge from the vessel. Moreover, the bills of lading filed in support of Defendants’ Motion do not contain language extending coverage.¹⁰ Accordingly, Plaintiff fails to state a claim under COGSA.

The Court notes that even if the bills of lading had extended COGSA to cover the Cargo while stored in the warehouse, Plaintiff fails to allege with any particularity how each of the seven Defendants would be liable under the bills of lading which were, according to the Complaint, issued only by LTC or LTLC. As a result, Plaintiff fails to adequately allege its claims under COGSA.¹¹

B. Pomerene Act

In Counts VIII through XIV of the Complaint, each titled Breach of Contract and Statutory Duty Under the Pomerene Act, Plaintiff alleges that each Defendant breached its duty under “46 U.S.C. § 80101.” [ECF No. 1 ¶¶ 75, 83, 91, 98, 105, 112, 119]. The alleged statute, 46 U.S.C. § 80101, is not the Pomerene Act. Rather, 46 U.S.C. § 80101 governs vessels stranded on a foreign coast. On this basis alone, Counts VIII through XIV are inadequately pled and shall be dismissed.

Even if the Court looks to the language of the Pomerene Act set forth at 49 U.S.C. § 80101 et seq. (emphasis added), Plaintiff fails to state a claim. The Pomerene Act provides that a carrier is liable to a person having rights in good when the carrier delivers the goods to a person who is not lawfully entitled to them. 49 U.S.C. § 80111(a). See also Polygram Group Distribution, Inc. v. Transus, Inc., 990 F. Supp. 1454 (N.D. Ga. 1997) (applying Pomerene Act to the mis-delivery of goods). Here, Plaintiff does not allege that Defendants delivered to Cargo to the wrong person. Indeed, the Complaint is devoid of allegations that the Cargo was improperly delivered to Laparkan Bond. Accordingly, Counts VIII through XIV, to the extent they attempt to raise claims under the Pomerene Act, shall be dismissed.¹²

II. Supplemental Jurisdiction over State Law Claims

As the Court has dismissed Plaintiff’s federal claims, it must decide whether to continue to exercise supplemental jurisdiction over Plaintiff’s state law claims for negligence and breach of bailment.¹³

*4 Where a district court has original jurisdiction over an action, the court “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However, a district court “may decline to exercise supplemental jurisdiction over a claim … [if] the district court has dismissed all claims over which it has original jurisdiction[.]” Id. § 1367(c)(3).

“The decision to exercise supplemental jurisdiction over pendant state claims rests within the discretion of the district court.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (per curiam) (citing Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999)); see also West v. City of Albany, 830 F. App’x 588, 596 (11th Cir. 2020) (per curiam) (noting that a “district court’s decision to either retain or reject” supplemental jurisdiction over state law claims is “purely discretionary” and “not a jurisdictional matter.” (citation omitted)). The Eleventh Circuit has “encouraged district courts to dismiss any remaining state claims when … the federal claims have been dismissed prior to trial.” Raney, 370 F.3d at 1089. As announced in United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966), a district court should consider the factors of judicial economy, convenience, fairness, and comity before doing so. West, 830 F. App’x at 597 (citations omitted). The Gibbs factors “may, by their presence or absence, influence the court in its decision concerning the exercise of such discretion” to retain or reject supplemental jurisdiction. Palmer v. Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1569 (11th Cir. 1994).

After considering the § 1367(c) factors and the Gibbs factors, which weigh in favor of dismissal, the Court declines to continue exercising supplemental jurisdiction over the remaining state law claims.¹⁴

CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion to Dismiss Complaint, [ECF No. 29], is GRANTED.

2. The Complaint is dismissed without prejudice as Plaintiff fails to adequately allege its federal claims and the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims.

3. This action is CLOSED and all pending motions are DENIED as MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of March, 2024.

All Citations

Footnotes

1. As the Court is proceeding on a motion to dismiss, it accepts the allegations in Plaintiff’s Complaint as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam). In addition, the Court considers the eight bills of lading attached to the Motion as they are referenced in the Complaint and central to Plaintiff’s claims. See Id. (“[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff’s claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal[.]”); see also Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir. 2019) (“In deciding whether a complaint states a claim upon which relief may be granted, we normally consider all documents that are attached to the complaint or incorporated into it by reference.”).
2. “A bill of lading is, in the first instance and most simply, an acknowledgment by a carrier that it has received goods for shipment. Secondly, the bill is a contract of carriage. Thirdly, if the bill is negotiated … it controls possession of the goods and is one of the indispensable documents in financing the movement of commodities and merchandise throughout the world.” Matter of Hapag-Lloyd Aktiengesellschaft, 573 F. Supp. 3d 934, 948 n.4 (S.D.N.Y. 2021) (internal quotations omitted).
3. “Consignee means the recipient of cargo from a shipper; the person to whom a transported commodity is to be delivered.” Matter of Hapag-Lloyd Aktiengesellschaft, 573 F. Supp. 3d at 952 n.18 (quoting 46 C.F.R. § 520.2).
4. Defendants Laparkan Holdings Limited and National Engineering Company own, respectively, 70% and 30% of Guyana National. [ECF No. 1 ¶ 19].
5. Plaintiff alleges “upon information and belief” that the fire was caused by arson and that the chemicals were stored in the warehouse where the fire began. [ECF No. 1 ¶¶ 23, 26].
6. Plaintiff alleges that it is “unsure of the identity of the proper Defendant or Defendants and include[s] all of the Laparkan entities in an abundance of caution to preserve the statute of limitations.” [ECF No. 1 ¶ 16].
7. In the Complaint, Plaintiff improperly cites to 46 U.S.C. § 80101, a statute that pertains to vessels stranded on a foreign coast, when referencing the Pomerene Act.
8. On April 17, 2023, Defendants first moved to dismiss the Complaint. [ECF No. 28]. That same day, Defendants filed the operative Motion to Dismiss, [ECF No. 29], and filed a Notice of Striking the first motion to dismiss, [ECF No. 30]. As a result, the Court only considers the arguments made in, and attachments to, the operative Motion to Dismiss.
9. “While previously appearing at 46 U.S.C. §§ 1300–1315, in 2006, COGSA was reorganized and restated to appear in a note to 46 U.S.C. § 30701.” Hapag-Lloyd Aktiengesellschaft v. Levy, No. 2:20-cv-11155, 2021 WL 5630299 at *3 n.3 (D.N.J. Dec. 1, 2021).
10. Plaintiff argues that the back side of the bills of lading (and other documents) are not before the Court. However, Plaintiff is not arguing that the back side of the bills of lading—if there even is a back side—necessarily extend COGSA’s coverage. Rather, Plaintiff contends that there might be other documents that extend coverage. But Plaintiff’s speculation in response to a Moton to Dismiss cannot overcome insufficient allegations in a Complaint.
11. The Court notes that if COGSA had applied, Plaintiff would not be permitted to proceed on its tort claims. See Polo Ralph Lauren, L.P. v. Tropical Shipping & Const. Co., 215 F. 3d 1217, 1220 (11th Cir. 2000) (“We conclude that because COGSA applies in this case, it provides [the plaintiff’s] exclusive remedy.”); Kelts v. King Ocean Services, Ltd., No. 22-22299, 2022 WL 4111079 at *2 (S.D. Fla. Sep. 8, 2022) (“A plaintiff … may not plead tort claims under state law where a COGSA claim would be appropriate.”).
12. Like Plaintiff’s claims under COGSA, Plaintiff also fails to plead with any particularity how each Defendant would be liable under bills of lading issued only by LTC or LTLC.
13. The Complaint alleges that this Court has federal question jurisdiction over Plaintiff’s claims. It does not allege diversity jurisdiction. [ECF No. 1 ¶ 2]. Moreover, the Complaint does not allege the citizenship of all the parties. As a result, the Court cannot determine whether the parties are completely diverse.
14. Because the Court is dismissing Plaintiff’s federal claims and declining to exercise supplemental jurisdiction over Plaintiff’s state law claims, it does not address Defendants’ arguments regarding personal jurisdiction.

End of Document

United States District Court, E.D. New York.

CELL DEAL INC., Plaintiff,

v.

FEDEX FREIGHT, INC., Defendant.

21-CV-788 (DG)(MMH)

Signed February 28, 2024

Attorneys and Law Firms

Joshua Reid Bronstein, The Law Offices of Joshua R. Bronstein & Associates, PLLC, Port Washington, NY, for Plaintiff.

George W. Wright, George W. Wright & Associates, LLC, Hackensack, NJ, for Defendant.

REPORT AND RECOMMENDATION

MARCIA M. HENRY, United States Magistrate Judge:

*1 Plaintiff Cell Deal Inc. (“Cell Deal”) sued Defendant FedEx Freight, Inc. (“FedEx”), alleging violations of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq. (the “Carmack Amendment”). (See generally Am. Compl., ECF No. 8.)¹ Before the Court is FedEx’s motion for partial summary judgment limiting liability (Def. Mot., ECF No. 20)² and Cell Deal’s motion for summary judgment on liability and damages (Pl. Mot., ECF No. 23)³, both pursuant to Federal Rule of Civil Procedure 56. The Honorable Diane Gujarati referred the motions for report and recommendation. For the reasons stated below, the Court respectfully recommends that both motions should be denied.

I. BACKGROUND

A. Undisputed or Unopposed Facts⁴

This is a commercial dispute arising out of several packages that were allegedly lost and damaged during transit. Cell Deal is a corporation authorized to conduct business in New York, with a corporate address in Brooklyn, New York. (Pl. 56.1 Stmt., ECF No. 23-1 ¶ 1.) FedEx is a corporation authorized to do business in New York with headquarters in Arkansas. (Answer to Am. Compl., ECF No. 10 ¶ 5.) FedEx is also a motor carrier licensed by the Federal Motor Carrier Safety Administration (the “FMCSA”), pursuant to the definition of “motor carrier” under 49 U.S.C. § 14706(a)(1). (Def. 56.1 Resp., ECF No. 24 at 2 ¶ 3; Pl. 56.1 Stmt., ECF No. 23-1 ¶ 3.)⁵

1. The Disputed Shipment

*2 In December 2020, Cell Deal purchased cellphones from AT&T Mobility Invoice (“AT&T”). (Def. 56.1 Stmt., ECF No. 20-1 ¶ 1; Alhob Decl. Ex. B, ECF 23-5 at 2–3.) The cellphones were “used, in a working condition, and were not broken nor damaged.” (Def. 56.1 Stmt., ECF No. 20-1 ¶ 2.) The shipment was to travel from AT&T in Flower Mound, Texas to Cell Deal’s location in Brooklyn, New York. (Id. ¶ 7.) Cell Deal hired Del Express, a broker licensed by the FMCSA, to arrange for FedEx to pick up the cellphones from “AT&T c/o CTDI” and to deliver them to Cell Deal. (Pl. 56.1 Stmt., ECF No. 23-1 ¶ 15; Def. 56.1 Stmt., ECF No. 20-1 ¶¶ 3, 6.)

On or about December 7, 2020, FedEx picked up one pallet from AT&T for shipment to Cell Deal. (Pl. 56.1 Stmt., ECF No. 23-1 ¶¶ 6–7; Def. 56.1 Stmt., ECF No. 20-1 ¶ 4.) The pallet included 27 boxes containing the cellphones and weighed a total of 306 pounds. (Pl. 56.1 Resp., ECF No. 21-2 ¶ 23; Def. 56.1 Stmt., ECF No. 20-1 ¶¶ 17–18.). On December 11, 2020, the date of delivery, “Eddy” signed the delivery receipt indicating that the shipment was received in apparent good order and did not note any exceptions. (Jones Decl. Ex. B., ECF No. 20-4 at 7.)

On December 16, 2020, Del Express filed a claim on Cell Deal’s behalf for the loss of four boxes totaling $12,796.50 in damages. (Id. at 5–6 (Loss and Damage Claim); Def. 56.1 Resp., ECF No. 24 at 3 ¶ 11.)⁶ The parties dispute whether Cell Deal has actually paid FedEx for transporting the shipment. (Def. 56.1 Resp., ECF No. 24 at 4 ¶ 17; Pl. 56.1 Stmt., ECF No. 23-1 ¶ 17.)⁷ However, they appear to agree that FedEx did not offer to compensate Cell Deal for the full amount of its actual damages. (Pl. 56.1 Stmt., ECF No. 23-1 ¶ 14; Def. 56.1 Resp., ECF No. 24 at 4 ¶ 14.)

2. Provisions Governing the Disputed Shipment

The parties do not seriously dispute that Del Express (but not Cell Deal) and FedEx entered into at least two agreements related to the disputed shipment.

Before the disputed shipment, Del Express and FedEx were parties to a Customer Pricing Agreement (the “Del Express Agreement”), effective January 6, 2020. (Def. 56.1 Stmt., ECF No. 20-1 ¶ 8; Jones Decl. Ex. B, ECF No. 20-4 at 2–4.) In the Del Express Agreement, FedEx provided Del Express with favorable shipping rates in exchange for beneficial terms and conditions for FedEx, which applied to all shipments between Del Express and FedEx. (Def. 56.1 Stmt., ECF No. 20-1 ¶ 9.) The Del Express Agreement includes a “Liability Notice,” which states in relevant part:

Except as provided herein, this pricing program is subject to common carriage laws, rules and regulation with the maximum liability coverage not to exceed $25.00 per pound per package or $100,000 per incident, whichever is lower when the shipment is on the US Side of the US-MX border. For other limitations of liability, excess liability coverage and international shipments, refer to FXF 100 rules tariff item 420. Those items described in the National Motor Freight Classification Series (NMFC 100 series) shipped under released value provisions are subject to the maximum released value depending on the class listed at the time of shipment.

(Jones Decl. Ex. B, ECF No. 20-4 at 4 (emphasis added).) The term “FXF 100 rules tariff item 420” refers to Item 420 of FedEx’s Rules Tariff 100 (“FedEx Rules Tariff”), which limits FedEx’s maximum liability for “used or reconditioned articles” to “50 cents per pound per package or $10,000 per incident, whichever is lower” when the consignor or consignee does not declare value or “fails to describe articles as used or reconditioned on the original Bill of Lading.” (Jones Decl., ECF No. 20-2 ¶ 11; Jones Decl. Ex. B, ECF No. 20-4 at 9 ¶ 6(A).) Item 420 also establishes procedures for a FedEx customer to request higher limits of liability for damage to used goods. (Def. 56.1 Stmt., ECF No. 20-1 ¶ 15.) Neither Cell Deal nor Del Express requested higher limits of liability for the shipment. (Id. ¶ 16.) The “NMFC 100 Series” refers to the National Motor Freight Classification Series 100, a document providing voluntary standards for classification of commodities moving in interstate commerce. (Id. ¶ 12; Jones Decl. Ex. C, ECF No. 20-5 at 2.) FedEx is a participating member interstate carrier and its rates are based on or refer to NMFC 100 Series’ provisions. (See Jones Decl. Ex. C, ECF No. 20-5 at 3 (listing FedEx as a participating carrier).)

*3 The disputed shipment was also governed by Del Express’s standard bill of lading. (Def. 56.1 Stmt., ECF No. 20-1 ¶ 10; Pl. 56.1 Stmt., ECF No. 23-1 ¶ 7.) The bill of lading lists FedEx as the carrier, “CTDI” as “SHIPPER (FROM)”, and Cell Deal as “CONSIGNEE (TO).” (Jones Decl. Ex. B, ECF No. 20-4 at 8.) The bill of lading further states in relevant part:

It is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination and as to each party at any time interested in all or any said property, that every service to be performed hereunder shall be subject to all bill of lading terms and conditions in the governing classification NMFC 100 on the date of the shipment. Shipper hereby certifies that he is familiar with all the bill of lading terms and conditions in the governing classification NMFC 100 and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns.

(Id.) The bill of lading for the disputed shipment does not state the declared value of the shipment and, in fact, expressly states “Shipment Value Not Specified.” (Id.)

B. Procedural History

On January 19, 2021, Cell Deal sued FedEx in the Supreme Court of the State New York, Kings County, alleging negligence in shipping the pallet and seeking damages. (See generally Compl., Cell Deal Inc. v. FedEx Freight, Inc., Index No. 501396/2021 (N.Y. Sup. Ct.), ECF No. 1-2.) FedEx timely removed the action to this court based on federal question jurisdiction—specifically, because Cell Deal’s state law claims are preempted by the Carmack Amendment. (Notice of Removal, ECF No. 1.) Cell Deal subsequently amended the Complaint, replacing allegations of negligence with allegations of Carmack Amendment violations. (Am. Compl., ECF No. 8.) Defendant timely answered the Amended Complaint. (Answer to Am. Compl., ECF No. 10.) Discovery was certified as closed on January 6, 2022. (Jan. 6, 2022 Order.)

FedEx requested a pre-motion conference for an anticipated motion for summary judgment, which Cell Deal opposed. (Def. Ltr., ECF No. 16; Pl. Ltr., ECF No. 17.) The Court denied the request and ordered briefing. (Jan. 7, 2022 Order; Jan. 18, 2022 Order.) Judge Gujarati referred the motions for report and recommendation. (Oct. 28, 2022 Order.)

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

A court “shall grant summary judgment if the movant shows that 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 genuine dispute of material fact exists where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Kee v. City of New York, 12 F.4th 150, 158 (2d Cir. 2021) (cleaned up). “The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, and in assessing the record to determine whether there is a genuine issue as to a material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Frost v. New York City Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020) (cleaned up). “If the moving party carries its initial burden, the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in its favor.” McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (cleaned up).

*4 “A party asserting that a fact cannot be or is genuinely disputed must … cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c); see also McKinney, 49 F.4th at 738 (“[R]ather than merely ‘deny the moving party’s allegations in a general way,’ the party opposing summary judgment ‘must present competent evidence that creates a genuine issue of material fact.’ ”) (citation omitted). Affidavits or declarations used to support or oppose summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

For cross-motions for summary judgment, “the court evaluates each party’s motion on its own merits, and all reasonable inferences are drawn against the party whose motion is under consideration.” Roberts v. Genting New York LLC, 68 F.4th 81, 88 (2d Cir. 2023) (cleaned up). “[I]n reviewing the evidence and considering what inferences may reasonably be drawn, the court ‘may not make credibility determinations or weigh the evidence.’ ” S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2021) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000)).

III. DISCUSSION

FedEx seeks partial summary judgment limiting its maximum liability to $153 pursuant to the terms of the Del Express Agreement and/or the bill of lading. (See generally Def. Mem., ECF No. 20-7.) Cell Deal cross-moves for summary judgment as to liability and damages of $109,651 based on the Carmack Amendment. (Pl. Mem., ECF No. 23-11 at 6–9.) As set forth below, Cell Deal is not entitled to summary judgment because there are genuine issues of material fact regarding the amount of damages. Further, partial summary judgment for FedEx is not warranted because there are genuine issues of material fact regarding whether the Del Express Agreement or the bill of lading validly limits FedEx’s liability.

A. Prima Facie Case for Carrier Liability

“The Carmack Amendment ‘addresses the subject of carrier liability for goods lost or damaged during shipment, and most importantly provides shippers with the statutory right to recover for the actual loss or injury to their property caused by any of the carriers involved in the shipment.’ ” Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 170 (2d Cir. 2014) (quoting Cleveland v. Beltman N. Am. Co., 30 F.3d 373, 377 (2d Cir. 1994)). “[T]he Carmack Amendment allows suits by anyone entitled to recover in the receipt or bill of lading, including the buyer who was to receive the goods.” Chubb Seguros Argentina S.A. v. UPS, No. 20-CV-3074, 2022 WL 1321401, at *2 (S.D.N.Y. May 3, 2022) (citing Windows, Inc. v. Jordan Panel Sys. Corp., 177 F.3d 114, 118 (2d Cir. 1999)).

“The Carmack Amendment ‘imposes something akin to strict liability’ on carriers of goods.” Lewis Brass & Copper Co. v. ABF Freight Sys., Inc., No. 13-CV-3251 (JG), 2014 WL 991726, at *3 (E.D.N.Y. Mar. 13, 2014) (quoting Mitsui Sumitomo Ins. Co., Ltd. v. Evergreen Marine Corp., 621 F.3d 215, 216 (2d Cir. 2010) (per curiam)). “The plaintiff must first show a [prima facie] case by demonstrating ‘(1) delivery to the carrier in good condition; (2) arrival in damaged condition; and (3) the amount of damages caused by the loss.’ ” Lewis Brass, 2014 WL 991726, at *3 (quoting Project Hope v. M/V IBN SINA, 250 F.3d 67, 73 n.6 (2d Cir. 2001)). “Once the shipper establishes a [prima facie] case of Carmack liability by showing delivery in good condition, arrival in damaged condition, and the amount of damages, the carrier is liable for the actual loss or injury to the property it transports, unless the carrier can establish that it was free of negligence and that the loss or damage was caused by one of five excusable factors.” Sompo Japan, 762 F.3d at 171 (cleaned up).⁸

*5 In its motion papers and in opposition to FedEx’s motion, Cell Deal argues that the record establishes a prima facie case of liability against FedEx because the cellphones were tendered to FedEx for shipment in good condition, the shipment was delivered to Cell Deal in damaged condition, and Cell Deal suffered damages of $109,651. (See Pl.’s Mem, ECF No. 23-11 at 5–8; Pl.’s Opp., ECF No. 21 at 5–7.) FedEx initially did not respond to Cell Deal’s arguments in its opposition to Cell Deal’s motion, instead insisting that the Court should focus on the limited damages available to Cell Deal. (Def. Opp., ECF No. 24 at 16.) In reply papers related to its motion, FedEx finally asserts that Cell Deal failed to establish a prima facie case of Carmack Amendment liability because: (1) the amount of damages is contested and (2) Cell Deal offers only inadmissible evidence regarding the shipment’s condition before or after delivery. (Def. Reply, ECF No. 22 at 11–15.) For the reasons set forth below, the Court agrees that genuine issues of material fact remain regarding the amount of damages.⁹

“The liability imposed under [the Carmack Amendment] is for the actual loss or injury to the property caused” by a carrier. 49 U.S.C. § 14706(a)(1). “While it is true that damages under the Carmack Amendment should generally be based on the fair market value, [the Second Circuit has] held that it need not be applied if ‘circumstances suggest a more appropriate alternative.’ ” Project Hope, 250 F.3d at 77 (citing Contempo Metal Furniture Co. v. East Tex. Motor Freight Lines Inc., 661 F.2d 761, 764 (9th Cir. 1981) and quoting Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 540 (2d Cir. 1994)). “For instance, the Second Circuit has approved the award of repair or replacement costs as an alternative measure of damages in the absence of an open market from which a fair market value could be set …. The Carmack Amendment also permits recovery of lost profits unless they are speculative.” Ensign Yachts, Inc. v. Arrigoni, No. 3:09-CV-209 VLB, 2011 WL 3351969, at *8 (D. Conn. Aug. 3, 2011) (citing Project Hope, 250 F.3d at 77 and Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 277 (1st Cir. 2000)).

Here, the record reflects that Cell Deal’s position on the value of the cargo has changed over time such that summary judgment is not appropriate. At the time of the delivery, Del Express filed a claim with FedEx on Cell Deal’s behalf, declaring a total loss of $12,796.50 for four missing boxes. (Def. 56.1 Stmt., ECF No. 20-1 ¶¶ 22–23; Pl. 56.1 Resp., ECF No. 21-2 ¶¶ 21–22.) According to Cell Deal, eight of the total 27 boxes on the pallet were damaged or missing, but Cell Deal filed a claim with FedEx for the missing boxes only. (Def. 56.1 Stmt., ECF No. 20-1 ¶ 23; Pl. 56.1 Resp., ECF No. 21-2 ¶¶ 21, 23.) In the state court complaint filed in January 2021, Cell Deal alleged that the total amount of damages was $140,866—specifically, $115,866 for the cost of the cellphones and “at least” $25,000 for lost profits. (Notice of Removal Ex. A., ECF No. 1-2 at 6–7 ¶¶ 9, 13, 18, 20 (Verified Complaint).) After the case was removed to federal court, Cell Deal alleged damages of $109,651 for “damaged” and “missing” freight. (Am. Compl., ECF No. 8 ¶¶ 21, 23–24.) In discovery, Cell Deal claimed damages “pursuant to the damaged pallet and stolen/missing boxes in the sum of $109,000.” (Jones Decl. Ex. A., ECF No. 20-3 at 5–6 (response to Interrog. No. 2 referring to “Exhibit B” for an itemized breakdown).)¹⁰ Cell Deal now returns to its claim for total damages in the amount of $109,651, based on the amounts it paid to AT&T to purchase the cellphones.¹¹ (Def. 56.1 Stmt., ECF No. 20-1 ¶ 24; Alhob Decl. Ex. B, ECF No. 23-5 at 2–3 (AT&T invoice).) Construing these facts in the light most favorable to FedEx, a reasonable jury could find that Cell Deal’s damages were between $12,796.50 and $115,866 based on their assessment of Cell Deal’s proffered evidence, which is an appropriate role for the factfinder. See Great Am. Ins. Co. of New York v. TA Operating Corp., No. 06-CV-13230 (WHP), 2008 WL 5335317, at *8 (S.D.N.Y. Dec. 8, 2008) (holding that jury must determine whether shipper suffered lost profits).

*6 Based on the foregoing, the Court respectfully recommends that Cell Deal’s motion for summary judgment should be denied.

B. Limit on Carrier Liability

Even assuming that Cell Deal had met its prima facie burden, summary judgment is not warranted because genuine issues of material fact remain regarding whether FedEx validly limited its liability.

A motor carrier may limit its liability “to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” 49 U.S.C. § 14706(c)(1)(A). “[W]here a carrier attempts to limit a shipper’s recovery under the Carmack Amendment by invoking a limitation of liability provision contained in an agreement between the parties, courts apply federal common law to determine the validity of that limitation.” Royal & Sun All. Ins., PLC v. E.C.M. Transp., Inc., No. 14-CIV-3770 (JFK), 2015 WL 5098119, at *3 (S.D.N.Y. Aug. 31, 2015) (citing Great Am. Ins. Co. of New York, 2008 WL 5335317, at *4).

“There are essentially two requirements of an enforceable limitation on liability under the Carmack Amendment: (1) ‘the limitation of liability was the result of a fair, open, just and reasonable agreement between carrier and shipper, entered into by the shipper for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount or risk,’ and (2) ‘the shipper was given the option of higher recovery upon paying a higher rate.’ ” Stephenson Equip. v. ATS Specialized, Inc., No. 5:10-CV-1517 GTS/TWD, 2013 WL 4508444, at *7 (N.D.N.Y. Aug. 23, 2013) (quoting Shippers Nat’l Freight Claim Council, Inc. v. ICC, 712 F.2d 740, 746 (2d Cir. 1983)). “In evaluating whether these prerequisites are met, courts have considered such factors as: (1) whether the carrier has given adequate notice of the limitation of its liability to the shipper; (2) the economic stature and commercial sophistication of the parties; and (3) the availability of ‘spot’ insurance to cover a shipper’s exposure.” Gemnet Express, Inc. v. Fed. Express Corp., No. 06-CV-2648 (DF), 2009 WL 928299, at *5 (S.D.N.Y. Mar. 30, 2009) (citation omitted).

1. Del Express Agreement

FedEx first relies on the terms of the “Liability Notice” in the Del Express Agreement, which incorporates the FedEx Rules Tariff that limits FedEx’s liability for used and reconditioned goods to fifty cents per pound, or a total of $153 for the disputed shipment. (Def. Mem., ECF No. 20-7 at 15; Jones Decl., ECF No. 20-2 ¶¶ 7–10.) FedEx insists that Cell Deal agreed to the terms of the Del Express Agreement, including the FedEx Rules Tariff, by hiring Del Express as the broker for the shipment. (Def. Mem., ECF No. 20-7 at 12–13.) In its opposition, Cell Deal does not directly address these arguments, though Eddie Alhob, the president and owner of Cell Deal, concedes that Del Express and FedEx “handled the pricing” for shipments. (Pl. 56.1 Resp., ECF No. 21-2 ¶ 9.)

When courts uphold a carrier’s limitation of liability, the carrier has put forth credible evidence that: (1) the shipper was involved in negotiations of the agreement containing the limitation of liability and (2) the shipper was familiar with the carrier’s limitations. See, e.g., Design X Mfg., Inc. v. ABF Freight Sys., Inc., 584 F. Supp. 2d 464, 469–70 (D. Conn. 2008) (carrier’s summary judgment evidence included deposition testimony from shipper’s vice-president and affidavits regarding negotiations about the liability limitation); see also Royal & Sun All. Ins., 2015 WL 5098119, at *6 (carrier’s summary judgment evidence included shipper’s deposition testimony about negotiations leading to limitation of liability). In contrast, viewing the record here in the light most favorable to Cell Deal, it is not clear that the Del Express Agreement between Del Express and FedEx did or could provide adequate notice to Cell Deal about FedEx’s limitation of liability. See, e.g., Chubb Seguros, 2022 WL 1321401, at *2 (denying summary judgment because, inter alia, the record did not include specifics about negotiations or whether carrier’s private agreement with a third party was known to the shipper). It is undisputed that Cell Deal is not a party to the Del Express Agreement, which was negotiated between Del Express and FedEx. There is also no evidence in the record that Alhob or any other representative of Cell Deal received copies of the Del Express Agreement. According to Cell Deal, Del Express and FedEx “handled the pricing” for shipments, which suggests that Cell Deal was not familiar with and was not involved in negotiating the provisions of the Del Express Agreement, including the inclusion of the FedEx Rules Tariff. (Pl. 56.1 Resp., ECF No. 21-2 ¶ 9.) The Del Express Agreement does not include the terms of the FedEx Rules Tariff, which FedEx concedes is separately set forth on its public website. (See Jones Decl., ECF No. 20-2 ¶ 14.) Even if the terms were included, FedEx presents no evidence that the information was provided to Cell Deal before the disputed shipment.

*7 On this record, a reasonable jury could find that Cell Deal did not have notice of the FedEx Rules Tariff and its limitation of liability from the Del Express Agreement. Therefore, summary judgment is not proper on this ground.

2. Bill of Lading

FedEx also argues that the bill of lading for the disputed shipment limits its maximum liability for used goods because it incorporates by reference the NMFC 100 Series. (Def. Mem., ECF No. 20-7 at 15–21.) Specifically, “Item 172” of the NMFC 100 Series, titled “Limitation of Carrier Liability Where Value is Not Declared by Shipper,” limits carrier liability when a shipper fails to declare the value of the shipment but the carrier inadvertently accepts the shipment. (Jones Decl. Ex. C, ECF No. 20-5 at 4.) When this happens, Item 172 states that the provisions of “other tariffs” limit the carrier’s liability, and according to FedEx, the “other tariffs” include Item 420 of the FedEx Rules Tariff and the limitations of liability set forth therein. (Def. Mem., ECF No. 20-7 at 16–17.) FedEx further claims that Cell Deal is bound by the bill of lading because Del Express created the bill of lading as Cell Deal’s agent, even if Cell Deal did not understand references to “NMFC” or “tariffs.” (Id. at 15 & n.3.)

Admittedly, whether the limitations on FedEx’s liability were adequately communicated to Cell Deal in the bill of lading is a closer call. “A bill of lading ‘records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.’ ” Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 94 (2010) (quoting Norfolk Southern R. Co. v. James N. Kirby, 543 U.S. 14, 18–19 (2004)). If a sophisticated shipper directly prepares the bill of landing, it is usually treated as evidence that the limitation on liability was set forth in a “reasonably communicative form,” and therefore, binding on the shipper. See e.g., Design X Mfg., 584 F. Supp. 2d at 469 (granting summary judgment in favor of the carrier, in part due to evidence that the shipper prepared the bill of lading form.) The facts are distinguishable here because Del Express, not Cell Deal, completed the bill of lading on Cell Deal’s behalf. At the same time, it is reasonable to infer that Cell Deal provided the relevant information to Del Express regarding the shipment’s condition, weight, contents, and any requested special instructions such that Cell Deal should have been aware of any potential limitations on liability.

However, “ ‘[t]he conditions to be considered … [in assessing whether adequate notice of a limitation of liability has been provided to the shipper] include the customer’s familiarity with the contract of carriage, the time and incentive under the circumstances to study the provisions of the contract, and any other notice that the customer received outside of the contract.’ ” Stephenson Equip., 2013 WL 4508444, at *7 (quoting Gemnet Express, 2009 WL 928299, at *7). Here, there is nothing in the record to suggest that the bill of lading reasonably communicated FedEx’s limitation of lability directly to Cell Deal, not to Del Express. Like the Del Express Agreement, the bill of lading does not include the terms of the FedEx Rules Tariff or the website for the tariff’s terms and conditions. Instead, it states (in miniscule font), “Shipper hereby certifies that he is familiar with all the bill of lading terms and conditions in the governing classification NMFC 100 and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns.” (Jones Decl. Ex. B, ECF No. 20-4 at 8.) The relevant provisions of the NMFC 100 Series are also not located on the bill of lading, and even if they were, they would not include Item 420 of the FedEx Rules Tariff containing FedEx’s limitation of liability. (See Jones Decl. Ex. C, ECF No. 20-5.) The only signature on the bill of lading appears to be that of a FedEx representative, not anyone from Cell Deal. Viewing these facts in favor of Cell Deal, a jury could reasonably infer that FedEx did not adequately provide notice to Cell Deal, via the bill of lading, about the limitations of liability.

*8 In similar cases addressing the enforceability of limited liability when an agent signed the bill of lading on behalf of the shipper, the court evaluated a number of factual circumstances to assess whether the shipper and agent engaged in prior dealings, whether the limited liability language was set forth “in a reasonably prominent writing” on the form, and whether the shipper received a copy of the shipping documents from the agent prior to shipment. See, e.g., Martino, S.A. v. Transgroup Express, 269 F. Supp. 2d 448, 450 (S.D.N.Y. 2003). Here, FedEx relies only on the existence of the bill of lading signed by Del Express to support its assertion that Cell Deal should be bound by the acts of its agent. FedEx has not offered any deposition testimony or other evidence, other than the provision in tiny font on the bill of lading, that the liability limitation was “reasonably communicat[ed]” to Cell Deal in the bill of lading.

For the foregoing reasons, FedEx has not established, as a matter of law, that the purported agreement to limit its liability was “the result of a fair, open, just, and reasonable agreement” with Cell Deal. Gemnet Express, 2009 WL 928299, at *8 (cleaned up). Therefore, the Court respectfully recommends denying FedEx’s motion for partial summary judgment limiting liability.

IV. CONCLUSION

Based on the foregoing, the Court respectfully recommends that the cross-motions for summary judgment at ECF Nos. 20 and 23 should be denied.

A copy of this Report and Recommendation is being served on all parties via ECF. Within 14 days of service, any party may serve and file specific written objections to this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests for an extension of time to file objections shall be directed to Judge Gujarati. If a party fails to object timely to this Report and Recommendation, it waives any right to further judicial review of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).

SO ORDERED.

All Citations

Footnotes

1. All citations to documents filed on ECF are to the ECF document number (i.e., “ECF No. ___”) and pagination “___ of ___” in the ECF header unless otherwise noted.  
2. FedEx’s motion includes a memorandum of law (Def. Mem., ECF No. 20-7), Rule 56.1 statement of facts (Def. 56.1 Stmt., ECF No. 20-1), the declaration of Teresa Jones (Jones Decl., ECF No. 20-2) and its four exhibits (Jones Decl. Exs. A–D, ECF Nos. 20-3 through 20-6), and FedEx’s reply brief (Def. Reply, ECF No. 22). Cell Deal’s opposition papers include a memorandum of law (Pl. Opp., ECF No. 21), the declaration of Eddie Alhob (Alhob Decl., ECF No. 21-1), and Cell Deal’s responsive Rule 56.1 statement (Pl. 56.1 Resp., ECF No. 21-2).  
3. Cell Deal’s motion includes a memorandum of law (Pl. Mem., ECF No. 23-11), Rule 56.1 Statement of Facts (Pl. 56.1 Stmt., ECF No. 23-1), the declaration of Joshua Bronstein (Bronstein Decl., ECF No. 23-2) and its two exhibits (Bronstein Decl. Exs. F–G, ECF Nos. 23-9 through 23-10), the declaration of Eddie Alhob (Alhob Decl., ECF No. 23-3) and its five exhibits (Alhob Decl. Exs. A–E, ECF Nos. 23-4 through 23-8), the verification to the Amended Complaint (Pl. Verification, ECF No. 23-12), and Cell Deal’s reply brief (Pl. Reply, ECF No. 25). FedEx’s opposition papers include a memorandum of law (Def. Opp., ECF No. 24 at 8–29), the declaration of Matthew Attara (Attara Decl., ECF No. 24 at 6–7), and FedEx’s responsive Rule 56.1 statement (Def. 56.1 Resp., ECF No. 24 at 2–5).  
4. The Court has considered the facts set forth in the parties’ declarations and exhibits attached thereto, and the Rule 56.1 Statements of Facts and opposing 56.1 Statements. The Court must and will construe the facts in the light most favorable to the nonmoving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005). Unless otherwise noted, the parties consider the facts stated herein as undisputed or the opposing party has not proffered evidence in the record to dispute them.  
5. A “motor carrier” is defined as “a person providing motor vehicle transportation for compensation.” Ikegwuoha v. Art Vill. Gallery, No. 21-CV-6263 (JMF), 2023 WL 1868420, at *4 (S.D.N.Y. Feb. 9, 2023) (quoting 49 U.S.C. § 13102(14)). Cell Deal admits that FedEx is a motor carrier, but also contends that FedEx acted as a freight forwarder for the disputed shipment. (Pl. 56.1 Stmt., ECF No. 23-1 ¶ 3.)  
6. Notwithstanding the claim form that lists “Delexpress” as Claimant’s name, FedEx asserts that Cell Deal submitted this claim. (Def. 56.1 Stmt., ECF No. 20-1 ¶¶ 21–22.)  
7. FedEx refers to a letter it sent to Cell Deal stating that the freight charges remain unpaid (see Def. 56.1 Resp., ECF No. 24 at 3 ¶ 8), but the letter is not attached to either party’s motion papers.
8. Specifically, a defendant “is liable for damage to goods transported by it unless it can show that the damage was caused by (a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.” Lewis Brass, 2014 WL 991726, at *3 (quoting Missouri Pac. R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964)).  
9. For this reason, the Court does not address the remaining elements of the prima facie case.
10. FedEx did not attach the exhibits to Cell Deal’s interrogatory responses to its motion papers, and Cell Deal did not proffer the interrogatory responses at all.  
11. In addition to the fluctuating damages amount, Cell Deal has not established as a matter of law that it is entitled to the AT&T invoice prices as the appropriate damages. “To recover market value, Plaintiff must show that it in fact suffered lost profits and that it could not mitigate damages by substitution of comparable goods from the market. If this showing is not made, the market value measure of damages may be discarded and other more accurate means resorted to.” Id. (quoting Levi Strauss & Co. v. Sea-Land, No. 00-CV-7585 (JSM), 2003 WL 21108311, at *1 (S.D.N.Y. May 15, 2003)). Cell Deal makes no such showing.  

End of Document

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