United States District Court,

M.D. Pennsylvania.

CSX TRANSPORTATION, INC., Plaintiff

v.

R.M. DELEVAN, INC., Defendant.

No. 3:10cv1126.

 

Oct. 28, 2010.

 

MEMORANDUM

 

JAMES M. MUNLEY, District Judge.

 

Before the court is plaintiff/counterclaim-defendant CSX Transportation’s motion to dismiss Defendant R.M. Delevan’s counterclaim. Having been fully briefed, the matter is ripe for disposition.

 

Background

 

This case arises out of business dealings between Plaintiff CSX Transportation (“CSX”) and Defendant R.M. Delevan (“Delevan”). Plaintiff alleges that on April 4, 2008, CSX moved freight via interstate rail for Delevan. (Complaint (hereinafter “Complt.”) (Doc. 1) at ¶ 7). CSX presented Delevan with a bill of $20,453.40 for these services. (Id. at ¶ 8). Delevan has never paid these charges. (Id. at ¶ 10).

 

On May 25, 2010, CSX filed a complaint in this court pursuant to 49 U.S.C. § 11101, et seq., which relates to the transportation of freight by rail. Plaintiff seeks damages in the amount of the unpaid bill. On June 23, 2010, defendant filed an answer to the complaint. (See Doc. 5). Defendant also filed a counterclaim, which concerns a contract between the parties for delivery of locomotives. Delevan alleges that the parties contracted to have CSX deliver six locomotives to Delevan’s yard in Utica, New York. (Id. at ¶ 1). While these locomotives were sitting in CSX’s rail yard in Syracuse, New York, CSX allowed contacts and other items valued at $18,000 to be removed from the locomotives. (Id. at ¶ 2). Delevan alleges that this conduct amounted to a breach of contract and negligence by CSX. The counterclaim seeks damages of $36,000 for this conduct.

 

On July 14, 2010 CSX filed a motion to dismiss Delevan’s counterclaims. (Doc. 7). CSX argues that those claims are preempted by federal law, the Carmak Amendment, 49 U.S.C. § 11706. The parties then briefed the issue, bringing the case to its present posture.

 

Jurisdiction

 

Plaintiff brings this claim pursuant to the 49 U.S.C. § 11101, et seq. This court therefore has jurisdiction pursuant to 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). The court has jurisdiction over defendant’s state law counterclaims pursuant to 28 U.S.C. § 1367(a) (“In any civil action of which the district courts have original jurisdiction, the district courts 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 II of the United States Constitution.”).

 

Legal Standard

 

Plaintiff/counterclaim defendant seeks to dismiss portions of the counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6). When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether “under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir.1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir.1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir.1977) (per curiam)). The court may also consider “matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir.2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997)).

 

The federal rules require only that plaintiff provide “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ ” a standard which “does not require ‘detailed factual allegations,’ ” but a plaintiff must make “ ‘a showing, rather than a blanket assertion, of entitlement to relief’ that rises ‘above the speculative level.’ ” McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —-, —-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged.” Id.

 

Discussion.

 

CSX seeks dismissal of Delevan’s breach-of-contract and negligence counterclaims. CSX argues that those claims are preempted by the Carmack Amendment, which establishes liability for loss or injury to property shipped on interstate rail lines. See 49 U.S.C. § 11706(a). Delevan argues that the Carmack Amendment does not apply to these claims, which are not about the shipping of goods in interstate commerce, but about the delivery of two locomotives for repair. Even if the Amendment applies, defendant insists that the state-law claims should be read to include a claim under the Carmack Amendment.

 

The United States Supreme Court has concluded that “[w]ith the enactment in 1906 of the Carmack Amendment, Congress superseded diverse state laws with a nationally uniform policy governing interstate carriers’ liability for property loss.” New York, N.H. & H.R. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S.Ct. 986, 97 L.Ed. 1500 (1953). The Carmack Amendment “covers ‘all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transaction.’ ” Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 408 (3d Cir.2008) (quoting Moffit v. Bekins Van Lines Co., 6 F.3d 305, 306 (5th Cir.1993)). In Lewis, the Circuit Court noted that plaintiff’s counsel at oral argument had “correctly conceded that the Amendment prempt[ed] [plaintiffs’] state law claims” for negligence and breach of contract against the defendant carrier. Id. at 407.

 

The court agrees with CSX that the Carmack Amendment preempts Delevan’s state-law counterclaims. The dispute between the parties is about the condition of goods delivered in interstate commerce. CSX allegedly in breach of the contract between the parties and negligently allowed parts to be removed from the locomotives before delivering them to Delevan, meaning that CSX did not deliver the goods promised. Delevan thus suffered a loss from CSX’s “failure to discharge” a duty that was “part of the agreed transaction” between the parties. Lewis, 542 F.3d at 408. The Carmack Amendment applies, and Delevan’s state-law claims are preempted.

 

As an alternative to dismissal, Delevan argues that the court should treat the state-law claims as if they had been pled under the Carmack Amendment. Delevan cites to Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) to argue that “if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” 463 U.S. at 24. Since this case “arises under” federal law, Delevan argues, the court should treat the matter as if brought under the Carmack Amendment and deny the motion to dismiss. The court disagrees. Franchise Tax Board did not address whether a plaintiff could file a claim in federal court under state law and have the court treat that claim as if it were a federal one, but instead addressed whether a defendant could remove a purely state-law claim using the “arising under” provision of 28 U.S.C. § 1441 (establishing as removable “[a]ny civil action of which the district courts have original jurisdiction on a claim or right arising under the Constitution, treaties or laws of the United States” regardless of parties’ citizenship). Citing Avco Corp. v. Aero Lodge No. 735, 376 F.2d 337, 340 (6th Cir.1967) (affirmed, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)), the court emphasized that a defendant could remove a claim brought in state court when that claim was completely preempted by federal law. See also, Ben. Nat’l Bank v. Anderson, 539 U.S. 1, 7, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Here, therefore, CSX could remove defendant’s counterclaim as arising under federal law because Delevan cannot bring a state-law claim on these matters. CSX does not, however, seek to remove the state-law claims, but dismiss them as preempted. Dismissal is different than removal, and treating the claim as a federal one under these circumstances would be inappropriate. Instead, the court will dismiss the counterclaim without prejudice to Delevan filing them under the Carmack Amendment .

 

Delevan cites to Justice Scalia’s dissent in Anderson to argue that the court is authorized to perform “jurisdictional alchemy” and transform the pre-empted state-law claims into a Carmack Amendment action. Anderson, 539 U.S. 14. Justice Scalia apparently would not agree with that view: He wrote in Anderson that “[t]he proper response to the presentation of a nonexistent claim to a state court is dismissal, not the “federalize-and-remove” dance authorized by today’s opinion. Id. at 18 (emphasis in original). The question here is not jurisdiction, but preemption, and Delevan’s claims are preempted by federal law.

 

Conclusion

 

For the reasons stated above, the court will dismiss counterclaim-plaintiff Delevan’s counterclaims without prejudice. An appropriate order follows.

 

ORDER

 

AND NOW, to wit, this 28th day of October 2010, plaintiff’s motion to dismiss the defendant’s amended counterclaim (Doc. 8) is hereby GRANTED without prejudice to Counterclaim Plaintiff R.M. Delevan, Inc. re-pleading the claim pursuant to the Carmack Amendment, 49 U.S.C. § 11706.

United States District Court,

D. Idaho.

CANAL INSURANCE COMPANY, Plaintiff, Counter-defendant,

v.

SHELTER INSURANCE COMPANY, Intervenor, Counter-claimant.

Civil No. 09-456-S-BLW.

 

Oct. 28, 2010.

 

MEMORANDUM DECISION

 

B. LYNN WINMILL, Chief Judge.

 

INTRODUCTION

 

Before the Court are motions for summary judgment brought by Plaintiff Canal Insurance Company and Intervenor/Counter-claimant Shelter Insurance Company. Upon a full review of the record, the Court finds that Canal’s motion should be granted and Shelter’s motion should be denied. An MCS-90 endorsement is not implicated in disputes regarding allocation between insurers. Canal’s insurance policy provided no primary coverage for the vehicles involved in the accident, and did not extend coverage to leased vehicles. As there are no conflicting or competing insurance policies, principles of contribution, subrogation, and indemnity are not implicated.

 

FACTUAL BACKGROUND

 

Plaintiff Canal Insurance Company issued an insurance policy (the “Policy”) insuring Just Cars Shipping of Olathe, Kansas, for the period beginning May 10, 2007, continuing though May 10, 2008. See Canal Policy, Dkt. 38-2 at 3. The Policy provided for $1,000,000 in liability coverage and listed one truck, a 2003 Ford F-350, as covered. Id. at 4-5. The Policy also included an MCS-90 endorsement, a federal liability document required by the Federal Motor Safety Carrier Act. Id. at 84. A change in the Policy, effective August 17, 2007, added a 2007 Ford F-650 to the list of covered automobiles. Id. at 24. This change also added a document to the Policy entitled “Driver Schedule” which listed one covered driver, Caroline M. Ndungu. Id. at 30.

 

On December 4, 2007, Intervenor and Counter-claimant Shelter Insurance Company issued an insurance binder, a precursor to the formal issuance of an insurance policy, to Safari Auto Transport of Lenexa, Kansas. See Shelter Policy, Dkt. 37-5 at 1. The binder provided $500,000 of liability coverage and included a blank MCS-90 endorsement. Id. A 2006 Hino semi-tractor (the “Truck”) and a 2007 Kaufman trailer (the “Trailer”) were expressly covered by the binder. Id. at 9. Two Safari employees were listed as covered drivers, Noombey Bitendelo and Mark Hughes. Id. at 5.

 

On December 29, 2007, Mr. Hughes was driving the Truck and attached Trailer on Interstate 15 near Blackfoot, Idaho. Mr. Hughes was delivering a shipment of automobiles originating in Phoenix, Arizona, to a drop-off point along the Montana-Canada border. See Excerpt of Hughes Deposition, attached to Affidavit of Maguire, Dkt. 37-4 at 13. The day was cold and Interstate 15 was icy. Mr. Hughes lost control of the Truck as he attempted to move into the passing lane to avoid a slowing automobile. Id. at 19-32. As he did so, the Trailer lost traction and flipped onto its side, landing atop a vehicle that had slipped onto the shoulder due to the icy conditions. Id. Mrs. Chris Gray was killed in this collision. See Settlement Agreement and Release, attached to Affidavit of Maguire, Dkt. 37-6 at 9.

 

Mr. Hughes alleges that the Truck and Trailer were leased by Safari to Just Cars at the time of the accident. See Excerpt of Hughes Deposition, supra, at 44. Though he never had a copy of the purported lease agreement between Safari and Just Cars in his possession, Mr. Hughes claims that he saw the lease on Mr. Bitendelo’s laptop at a Kinko’s when Mr. Bitendelo printed the agreement. Id. at 45-46. At the time of the accident, the Truck bore the U.S. Department of Transportation and Motor Carrier numbers for Just Cars on the driver’s door, and was also displaying a sign on the door stating “Leased to Just Cars Shipping.” Id. at 42-45; Deposition Exhibit D, Dkt. 37-6 at 1. The Idaho State Police examination report of the accident indicates that Mr. Hughes was driving the Truck for Just Cars. See Idaho State Police Incident Report, Dkt. 37-6 at 2. The Certificate of Liability Insurance that Mr. Hughes had with him in the cab of the Truck listed “Just Cars Shipping LLC” as the insured. See Excerpt of Hughes Deposition, supra, at 48-49; Certificate of Liability Insurance, Dkt. 37-6 at 3. Mr. Hughes’ daily driver’s logs for the period beginning on December 18, 2007 and continuing through December 29, 2007, list “Just Cars Shipping” in the box labeled “Name of Carrier.” See Driver’s Logs, Dkt. 37-6 at 4-7. Canal did not receive notice of this accident until January 7, 2009, more than a year after it occurred, and alleges that Just Cars was uncooperative as it attempted to investigate. See Affidavit of Fleming, Dkt. 38-6 at 2.

 

On June 18, 2008, Mrs. Gray’s husband and surviving children sued Mr. Hughes, Safari, and Just Cars in Idaho state court. Idaho Action # CV08-2411 PI. On March 2, 2010, Shelter, defending the state court matter on behalf of Mr. Hughes and Safari, settled for $600,000. See Settlement Agreement and Release, supra, at 9-20. Canal defended the action on behalf of Just Cars, but did not participate in settlement discussions. Shelter reserved the right to seek “subrogation, contribution, or indemnity” against Just Cars and Canal based on its belief that Just Cars leased the Truck and Trailer. Id. at 10.

 

On September 11, 2009, while the Idaho state court matter was pending, Canal filed suit against Just Cars, Mr. Hughes, and the surviving members of the Gray family seeking declaratory relief regarding the rights and relationships of the parties. See Complaint, Dkt. 1. Just Cars did not appear, and a Clerk’s Entry of Default was entered against it on May 5, 2010. See Clerk’s Entry of Default, Dkt. 31. Shelter intervened and, along with Mr. Hughes, filed a counter-claim against Canal on June 1, 2010, seeking subrogation, contribution, or indemnity to offset the $600,000 settlement paid the surviving members of the Gray family. See Counterclaim, Dkt. 34. On June 4, 2010, this Court, pursuant to the parties’ agreed stipulation, dismissed the Complaint with prejudice as to Mr. Hughes and the surviving members of the Gray family, and dismissed Mr. Hughes’ counter-claim against Canal with prejudice. See Order of Dismissal, Dkt. 35. Coupled with the default of Just Cars, this dismissal left Shelter and Canal as the only parties in this matter. Id.

 

STANDARD OF REVIEW

 

One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims ….” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

 

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

 

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show “by her affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

 

The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir.1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir.1988).

 

ANALYSIS

 

Canal seeks summary judgment on its claim for declaratory relief, asserting that it is not liable for the events in question because (1) it never insured Mr. Hughes, the Truck, or the Trailer, and (2) it did not receive prompt notice of the incident. Ct. Rec. 38-1, 2.

 

Shelter’s counter-claim and motion for summary judgment thereon concedes that Canal did not directly insure Mr. Hughes or the Truck and Trailer involved in the accident. Rather, Shelter contends that Canal should be allocated some or all of the $600,000 settlement it paid the Grays, based on (1) the MCS-90 endorsement, (2) the purported lease agreement, and (3) principles of subrogation, indemnity, and contribution. See Dft’s Brief, Dkt. 37-1 at 4.

 

An MCS-90 endorsement is not implicated in disputes regarding allocation between insurers. Canal’s insurance policy provided no primary coverage for the vehicles involved in the accident, and did not extend coverage to leased vehicles. As there are no conflicting or competing insurance policies, principles of contribution, subrogation, and indemnity are not implicated.

 

A. MCS-90 Endorsement

 

Shelter defended against the Gray’s state claim on behalf of Safari Auto, and the matter was settled for $600,000. Shelter argues that this figure represents the $500,000 it was obligated to pay pursuant to Safari’s liability policy, supplemented by $100,000 paid pursuant to the MCS-90 endorsement attached thereto. Id. at 7. For the purposes of MCS-90 liability, only the $100,000 paid in excess of the $500,000 liability insurance is relevant.

 

The “primary purpose” of the MCS-90 endorsement “is to assure that injured members of the public are able to obtain judgment from negligent authorized interstate carriers.” John Deere Ins. Co. v. Nueva, 229 F.3d 853, 857-58 (9th Cir.2000) (citing Harco Nat’l Ins. Co. v. Bobac Trucking Inc., 107 F.3d 733, 736 (9th Cir.1997)). In Carolina Casualty Ins. Co. v. Yeates, 584 F.3d 868 (10th Cir.2009), it was held that the surety obligations of the MCS-90 are not triggered

 

unless (1) the underlying insurance policy (to which the endorsement is attached) does not provide liability coverage for the accident, and (2) the carrier’s other insurance coverage is either insufficient to meet the federally-mandated minimums or non-existent. Once the federally-mandated minimums have been satisfied, however, the endorsement does not apply.

 

Id. at 879. The purpose of the MCS-90 is to make sure an injured member of the motoring public can recover no less than $750,000. “[A]n MCS-90 insurer’s duty to pay a judgment arises not from any insurance obligation, but from the endorsement’s language guaranteeing a source of recovery in the event the motor carrier negligently injures a member of the public on the highways.” Id. at 878 (emphasis in original) (collecting cases).

 

For the MCS-90 endorsement attached to Canal’s Policy to be triggered, both prongs of the Carolina Casualty test must be met. The first prong is satisfied, as it is clear that the Policy did not provide primary coverage for Mr. Hughes, the Truck, or the Trailer. One of two conditions may satisfy the second prong; either the carrier against whom a member of the public has obtained a judgment has no insurance, or the carrier has insurance that falls short of the federally-mandated minimum. The second prong is arguably met, because Shelter insured Safari Auto, via the insurance binder, for $500,000, less than the federally-mandated minimum of $750,000 for a motor carrier transporting non-hazardous cargo in interstate commerce. See 49 U.S.C. § 31139(b)(2); Carolina Casualty, 584 F.3d at 874 n. 4.

 

Shelter argues that because both its policy and Canal’s policy carried MCS-90 endorsements, there is no reason to favor one over the other, and the $100,000 should therefore be apportioned between the two. This argument fails for two reasons. First, the Grays settled for $600,000. At this point, the MCS-90 ceases to be implicated in any manner, since the motoring public has been protected and recovered damages up to $750,000. See John Deere, 229 F.3d at 858 (“[T]he integral purpose of the MCS-90, to protect third party members of the public, is not implicated in a dispute between two insurers.”) (citing Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F.2d 304, 313 (5th Cir.1978)).

 

Second, Shelter’s characterization that it provided $500,000 in liability insurance, with the MCS-90 endorsement providing the further $250,000 required to reach the $750,000 federally-mandated minimum, is misleading. The MCS-90 does not create liability insurance. The back of the MCS-90 endorsement expressly lists the minimum insurance requirements that a carrier must maintain, depending on the type of cargo to be carried. See Shelter Policy, Attached to Affidavit of Maguire, supra, at 12. The MCS-90 requires proof that a carrier of non-hazardous cargo has $750,000 in liability insurance; it does not operate as “gap-filler” insurance when the motor carrier has less insurance than that required by federal law. As discussed in Carolina Casualty, the MCS-90 is a surety for the public; therefore it cannot satisfy primary liability insurance requirements. The Secretary of Transportation will not register a motor carrier that has insufficient security. 49 U.S.C. § 13902(a)(4).

 

Integral to this case is the fact that Shelter’s MCS-90 endorsement was attached to a policy carrying less than the federally-mandated minimum of $750,000 of primary liability insurance. Such a scenario is illegal under federal law. It is unclear whether an MCS-90 endorsement attached to a policy or binder providing less coverage than that required by federal law is even valid. The language in John Deere states that the MCS-90 provides the public a surety against negligence by “authorized interstate carriers.” 229 F.3d at 853 (emphasis added). Presumably an unregistered, under-insured interstate carrier is not “authorized.” Shelter cites no precedent supporting its assertion that a blank MCS-90 endorsement, attached to a policy failing to provide the federal minimum coverage, is valid and can be triggered.

 

B. Lease Agreement

 

It is undisputed that no covered driver or vehicle listed in Canal’s Policy insuring Just Cars was involved in the accident. The nature of the relationship, if any, between Just Cars, Safari Auto, and Mr. Hughes is disputed. That relationship, however, is irrelevant as regarding Canal. Even if some form of relationship existed between Just Cars and Safari Auto, the Policy provided no coverage for leased vehicles. Any liability would fall solely on Just Cars.

 

C. Contribution, Subrogation, and Indemnity

 

The Court does not reach the contribution, subrogation, or indemnity arguments raised by Safari. These principles apply only where there exist conflicting or competing insurance policies. That is not the case in this matter because Canal’s Policy provided no primary coverage for Mr. Hughes, the Truck, or the Trailer, and did not cover leased vehicles.

 

CONCLUSIONS

 

An MCS-90 endorsement is not implicated in disputes regarding allocation between insurers. Canal’s insurance policy provided no primary coverage for the vehicles involved in the accident, and did not extend coverage to leased vehicles. As there are no conflicting or competing insurance policies, principles of contribution, subrogation, and indemnity are not implicated. The Court will issue a separate Judgment as required by Federal Rule of Civil Procedure 58(a).