United States District Court,

D. Kansas.

FIREMAN’S FUND INSURANCE COMPANY, Plaintiff,

v.

CRST VAN EXPEDITED, INC., Defendant.

Civil Action No. 08-2551-CM.

 

Nov. 10, 2010.

 

MEMORANDUM AND ORDER

 

CARLOS MURGUIA, District Judge.

 

Plaintiff Fireman’s Fund Insurance Company (“Fireman’s Fund”) brings this case in an attempt to recover money for freight lost in interstate transportation. Fireman’s Fund was the insurer of a truckload of cellular phone handsets valued at nearly $4.3 million. Former defendant Sprint Nextel Corporation (“Sprint”) bought the handsets from UTStarcom, Fireman’s Fund’s insured, who is not a party to this case. Sprint had a transportation agreement with former defendant AFC Worldwide Express, Inc. (“AFC”). AFC subcontracted with defendant CRST Van Expedited, Inc. (“CRST”) to transport and deliver the handsets to Sprint. But the handsets were stolen en route. Fireman’s Fund has paid out on the insurance, and now seeks to recover damages from CRST based on breach of federal statutory duties, as well as other theories.

 

The case is before the court on Defendant CRST Van Expedited, Inc .’s Motion for Partial Summary Judgment Against Plaintiff (Doc. 135). CRST asks the court to limit its liability on a number of alternative bases. It argues that its liability is contractually limited to (1) $100,000 by bills of lading issued by UTStarcom that incorporated CRST’s tariff; (2) $10,144 under AFC’s bills of lading; (3) $250,000 pursuant to the contract between CRST and AFC; (4) or $184,012.16 pursuant to the contract between Sprint and AFC. CRST also asks the court to dismiss Fireman’s Fund’s state law claims because they are preempted by the Carmack Act. And CRST states that attorney’s fees are not recoverable under the Carmack Act. Finally, CRST contends that Fireman’s Fund is not the real party in interest and lacks standing. Fireman’s Fund, on the other hand, responds that: (1) CRST failed to give UTStarcom notice of its purported liability limitation; (2) CRST did not give UTStarcom the opportunity to choose a different liability rate; (3) UTStarcom did not agree to limit CRST’s liability; (4) the documents CRST relies on are self-contradictory; and (5) the terms of the agreements are ambiguous and unenforceable.

 

I. FACTUAL BACKGROUND

 

The court construes the facts in the light most favorable to Fireman’s Fund as the non-moving party pursuant to Fed.R.Civ.P. 56. The court has included only those facts which are relevant, material, and properly supported by the record. Fireman’s Fund did not controvert any of CRST’s proposed uncontroverted facts, and they are therefore deemed admitted for the purpose of summary judgment. D. Kan. R. 56.1(a).

 

CRST and AFC are motor truck cargo carriers. Although AFC and CRST do not have a written contract, CRST transports the goods of AFC’s customers, and the two carriers agreed that CRST’s liability would be limited to $250,000.

 

AFC and Sprint also have an agreement. AFC transports goods for Sprint. Their contract states that the maximum liability of AFC to Sprint for loss of or damage to a shipment due to negligence is $9.07 per pound in the absence of a higher declared value.

 

In April 2008, Sprint purchased cell phone handsets from UTStarcom. Sprint asked AFC to transport the handsets from California (where UTStarcom housed them) to Kentucky (where Sprint’s warehouse was). AFC subcontracted with CRST to transport the handsets.

 

 

When CRST drivers stopped at a truck stop, the handsets were stolen. Fireman’s Fund has since paid UTStarcom for its claim of loss on the handsets by a “loan receipt.”

 

AFC issued four bills of lading, or “waybills.” A representative of UTStarcom signed each of them, but did not declare a value for the shipment. Each of AFC’s waybills included a provision that the shipment was released to a value not to exceed $50 per shipment or $0.50 per pound unless a greater value was declared. Applied to this shipment, the liability limitation in AFC’s waybills would be $10,144.

 

UTStarcom also issued four bills of lading. Again, the bills of lading contained a place for UTStarcom to declare a value, but its representative did not declare a value. The bills of lading stated that they were subject to “lawfully filed tariffs in effect on the date of issue.” CRST’s tariff limits liability to $100,000 unless CRST receives written notice of a higher market value.

 

CRST did not prepare or issue its own bill of lading.

 

II. STANDARDS FOR JUDGMENT

 

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

 

III. DISCUSSION

 

A. Real Party in Interest/Standing

 

Although CRST raises its standing and real party in interest arguments at the end of its briefs, the court addresses them first. CRST treats the concepts as somewhat interchangeable. But although the term “standing” is used loosely in many contexts to denote the party with a right to bring a particular cause of action, technically “ ‘standing pertains to suits brought by individuals or groups challenging governmental action which has allegedly prejudiced their interests. On the other hand, the real party in interest question is raised in those much rarer instances between private parties where a plaintiff’s interest is not easily discernible.’ “ Fed. Deposit Ins. Corp. v. Bachman, 894 F.2d 1233, 1235 (10th Cir.1990) (citation omitted).

 

The court determines that the appropriate question here is whether Fireman’s Fund is the real party in interest under Fed.R.Civ.P. 17. CRST claims that the real party in interest is the shipper-UTStarcom-not Fireman’s Fund. UTStarcom received payment from Fireman’s Fund via a “loan receipt.” The loan receipt is repayable out of any recovery UTStarcom may make. But through the loan receipt, UTStarcom also appointed Fireman’s Fund to collect any claim based on the handsets, and to “begin, prosecute, compromise or withdraw, in [UTStarcom’s] name, but at the expense of [Fireman’s Fund], any and all legal proceedings….” (Doc. 136, Ex. P.) The fact that UTStarcom gave Fireman’s Fund the right to bring legal proceedings in its name suggests that UTStarcom is the real party in interest. On the other hand, Fireman’s Fund certainly has the more genuine interest in prosecuting this case; UTStarcom has already been fully reimbursed for its losses. And the loan receipt also includes a provision that the receipt may be converted to a subrogation receipt at any time. When an insurer is fully subrogated to the rights of its insured, the insurer owns the right of action against a wrongdoer. J.C. Livestock Sales, Inc. v. Schoof, 491 P.2d 560, 562 (Kan.1971). To make this issue moot, all Fireman’s Fund needs to do is mail UTStarcom a notice of the exercise of its option to convert the loan receipt into a subrogation receipt. Neither party has devoted much argument or analysis to this issue, however, and the court is not prepared to issue a ruling on it based on the arguments before it.

 

This is also consistent with a leading treatise:

 

Whether the insurer may sue in the name of its insured under a loan-receipt arrangement depends on whether the court is willing to accept the transaction at face value, either on the basis of its own evaluation of the transaction or in terms of state law in diversity cases. If the loan is treated as genuine, there is no basis for subrogation and the action may be brought in the insured’s name. But, if the court views the loan as a sham and as actually constituting payment of the insured’s claim, then the insurer is subrogated and must sue in its own name. When the loan-receipt arrangement is sanctioned by state law, however, the courts have accepted the characterization the parties have given to their transaction and have held the insured to be the real party in interest.

 

6A Charles Alan Wright et al., Federal Practice and Procedure § 1546 (3d ed.). In Kansas, a loan receipt is generally considered valid, but courts have looked at the specific facts before them. See, e.g., Hiebert v. Millers’ Mut. Ins. Ass’n of Ill., 510 P.2d 1203, 1208 (Kan.1973).

 

Even if Fireman’s Fund is not the real party in interest, summary judgment for CRST is not the appropriate remedy. Fed.R.Civ.P. 17(a)(3) states:

 

The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

 

Because dismissal is not a remedy, the court does not grant CRST summary judgment on this issue. It may be, however, that UTStarcom is the real party in interest because of the language in the loan receipt. The court does not make a determinative ruling at this time as to the proper party under Rule 17, but Fireman’s Fund should be prepared to more fully explain why it is the real party in interest or to join or substitute UTStarcom if CRST raises the issue again.

 

B. Limits on Liability

 

CRST offers four documents which might operate to limit its liability. The parties focus their briefing efforts on the $100,000 limit, and give little attention to the other three options. Despite its brief treatment here of the issue, the court has spent considerable time reviewing the parties’ arguments and the caselaw regarding this question. After much consideration, the court determines that it is not currently in a position to rule which liability limit, if any, applies.

 

The court recognizes that a determination of liability limits is an issue that should be capable of being resolved on summary judgment. The briefs of the parties, however, are insufficiently focused on this issue to give the court a full opportunity to consider their positions. They seem to assume that if any of the limitations apply, the $100,000 limit will apply (although plaintiff contends that none of the limits apply). In other words, the parties focus more on whether the $100,000 limit applies than which limit applies (if any). The court is compelled to find that CRST has not met its burden of showing that it is entitled to summary judgment.

 

The court is aware that this case is set for a bench trial. The court will therefore ultimately be resolving these issues. While the court would like to avoid the necessity of bringing the parties in for a full trial, the court is not in a position to resolve the case on the briefs before it. Summary judgment is denied on the issue of which liability limit-if any-applies.

 

C. State Law Claims and Attorney’s Fees

 

Fireman’s Fund does not dispute that its state law claims are preempted by the Carmack Amendment. Fireman’s Fund also does not dispute that attorney’s fees are not recoverable under the Carmack Amendment. The court therefore grants CRST’s motion on these issues.

 

IT IS THEREFORE ORDERED that Defendant CRST Van Expedited, Inc.’s Motion for Partial Summary Judgment Against Plaintiff (Doc. 135) is granted in part and denied in part.

United States District Court,

D. Kansas.

ACE USA, et al., Plaintiffs,

v.

UNION PACIFIC RAILROAD COMPANY, INC., Defendant.

Civil Action No. 09-2194-KHV-DJW.

 

Nov. 8, 2010.

 

MEMORANDUM AND ORDER

 

DAVID J. WAXSE, United States Magistrate Judge.

 

This matter is before the Court on Defendant Union Pacific Railroad Company’s First Motion to Compel Discovery (ECF No. 43). Defendant asks the Court to overrule Plaintiffs’ objections to Defendant’s First Request for Production of Documents Nos. 21 through 26 and to compel Plaintiffs to produce complete copies of all responsive documents. For the reasons set forth below, the Motion is taken under advisement pending a hearing on the Motion.

 

I. BACKGROUND

 

This is a subrogation action brought by Plaintiffs ACE USA and ACE European Group Limited (collectively, “Plaintiffs”), as subrogees of AG Soda Corporation, Inc. (“AG Soda”). As set forth in their Amended Complaint, Plaintiffs seek monetary damages stemming from a rail car accident which occurred while Defendant was transporting AG Soda goods. Plaintiffs claim the accident occurred in Kansas, and damaged AG Soda’s goods while they were in the possession of Defendant. Plaintiffs further claim that Defendant is strictly liable to Plaintiffs for the damages incurred under the Carmack Amendment, which governs the liability of rail carriers for damage to goods in transit.

 

II. DOCUMENT REQUESTS

 

Defendant asks the Court to overrule Plaintiffs’ objections to Document Request Nos. 21 through 26 and to compel Plaintiffs to fully respond to these requests. The requests are as follows:

 

21. Produce all communications with Pete Chepul related to the soda ash train that is the subject of this lawsuit.

 

22. Produce any and all communications with Adrienne Benzoni related to the soda ash train that is the subject of this lawsuit.

 

23. Produce any and all communications with Ron Miller related to the soda ash train that is the subject of this lawsuit.

 

24. Produce any and all communications with Grady Winslow related to the soda ash train that is the subject of this lawsuit.

 

25. Produce any and all communications with James Ratcliffe related to the soda ash train that is the subject of this lawsuit.

 

26. Produce any and all internal ACE USA and ACE European Group Limited communications related to the soda ash train that is the subject of this lawsuit.

 

Pls.’ Resp. to Def.’s First Request for Prod. of Docs., attached as Ex. B to Mem. in Supp. of Def. Union Pacific Railroad Company’s First Mot. to Compel Disc. (ECF No. 44).

 

Before considering the parties’ respective arguments concerning these document requests, the Court must first call the parties’ attention to Rule 26(g), which all parties appear to have violated.

 

A. Rule 26(g)

 

Rule 26(g) provides, “[E]very discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name.”  This signature operates as a certification by the attorney “that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the discovery request, response or objection is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action .”  If an attorney’s certification violates Rule 26(g) “without substantial justification,” then “the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.”

 

Fed.R.Civ.P. 26(g).

 

Id.

 

Id.

 

Rule 26(g) “imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37.”  Rule 26(g) “is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.”  The rule “provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.”  The certification duty of Rule 26(g) requires an attorney to pause and consider the reasonableness of the request, response or objection. If an attorney fails to meet the standards set forth in Rule 26(g), then Rule 26(g) mandates that sanctions be imposed and the nature of those sanctions “is a matter of judicial discretion to be exercised in light of the particular circumstances.”

 

Fed.R.Civ.P. 26 advisory comm. nn. (1983).

 

Id.

 

Id.

 

Id.

 

Id.

 

Having reviewed Defendant’s Document Request Nos. 21 through 26, it appears to the Court that Defendant’s counsel did not pause and consider the reasonableness of these document requests. Document Request Nos. 21 through 25 ask Plaintiffs to provide all communications with certain individuals related to the soda ash train that is the subject of this lawsuit. For example, Document Request No. 21 states, “Produce all communications with Pete Chepul related to the soda ash train that is the subject of this lawsuit.” Document Request No. 26 differs slightly in that it seeks all Plaintiffs’ internal communications related to the soda ash train that is the subject of this lawsuit.

 

Rule 26(g) requires Defendant’s counsel make a reasonable inquiry into the factual basis of the document request. It is clear from Defendant’s Motion that a considerable amount of facts are known to Defendant’s counsel, which should have been used to help shape and focus these discovery requests. For example, Defendant argues that the document requests seek relevant information because they seek information concerning (1) the evaluation of Plaintiffs’ claims; (2) whether the claims are covered under one or more of the insurance policies; (3) the handling of the claims arising from the soda ash shipment that is the subject of this lawsuit; (4) the reasonableness of the amounts Plaintiffs paid; and (5) whether the claimed damages have factual support.0 Instead of using these and other known facts to reasonably focus the document requests to obtain such information, Defendant’s counsel cast a rather broad net and asked for any communications concerning the “soda ash train.” While some of the communications concerning the “soda ash train” may certainly be relevant, the Court is hard-pressed to conclude that a request seeking all communications concerning the soda ash train is reasonable in light of the facts known to Defendant. Thus, Defendant’s counsel appears to be in violation of Rule 26(g).

 

0. In pointing to this information, the Court is not making any finding as to whether such information is, in fact, relevant to the claims and defenses in this case.

 

However, the Court’s analysis does not stop here. Although it appears that Defendant’s counsel did not pause and consider the reasonableness of the document requests, it also appears that Plaintiffs’ counsel failed to stop and think about the legitimacy of the responses and objections to the document requests. Plaintiffs asserted numerous general objections, all of which are meaningless and waste the Court’s time. This Court has explained its view of general objections on several occasions. The Court disapproves of general objections that are asserted “to the extent” that the objections apply. 1 Further, general objections are considered merely “hypothetical or contingent possibilities” when the objecting party makes “no meaningful effort to show the application of any such theoretical objection to any request for discovery.” 2 Where a party has not made an attempt to show the application of the theoretical general objection, the Court will deem those general objections waived and will decline to consider them as objections at all.3

 

1. Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 538 (D.Kan.2006) (citations omitted).

 

2. Id.

 

3. Id.

 

Plaintiffs asserted ten general objections. In seven of these general objections, Plaintiffs objected “to the extent” that the objection applied. In addition, Plaintiffs made no meaningful effort to demonstrate the application of any of the general objections to any particular document request. Rather, Plaintiffs simply incorporated by reference their general objections in each of Document Request Nos. 21 through 26. The Court can only conclude that Plaintiffs’ general objections are hypothetical and meaningless. The Court therefore deems these general objections waived. In addition, insofar as Rule 26(g) is concerned, considering the number of times this Court has made it very clear that general objections such as those asserted by Plaintiffs are invalid and inappropriate, it appears to the Court that Plaintiffs’ counsel did not stop and consider the legitimacy of these objections. Plaintiffs’ counsel therefore also appears to be in violation of Rule 26(g).

 

B. Conference Requirements

 

Not only do all parties appear to be in violation of Rule 26(g), but the Court concludes that the parties did not adequately confer before the Motion was filed. “The court will not entertain any motion to resolve a discovery dispute … unless counsel for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion.” 4 Therefore, before addressing the merits of Defendant’s Motion, the Court must determine whether Defendant’s counsel complied with the conferring requirements of the Federal Rules of Civil Procedure and the Rules of Practice and Procedure for the United States District Court for the District of Kansas.

 

4. D. Kan. Rule 37.2.

 

Rule 37(a)(1) provides in pertinent part, “[A] party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” 5 Under Rule 37, the movant is required “to make a good faith attempt to resolve the discovery dispute [ ] before filing a motion to compel discovery responses.” 6

 

5. Fed.R.Civ.P. 37(a)(1).

 

6. Lohmann & Rauscher, Inc. v. YKK (U.S.A.), Inc., Civ. A. No. 05-2369-JWL, 2007 WL 677726, at(D.Kan. Mar. 2, 2007).

 

In addition, D. Kan. Rule 37.2 requires counsel for the moving party to confer or make a “reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion.” 7 D. Kan. Rule 37.2 makes it clear that “[a] ‘reasonable effort to confer’ means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.” 8

 

7. D. Kan. Rule 37.2.

 

8. Id.

 

The Court has reviewed Defendant’s counsel’s description of the attempts to confer with Plaintiffs’ counsel before filing the Motion. It appears that Defendant’s counsel spoke at length by telephone with Plaintiffs’ counsel. Defendant describes no other attempts to resolve the discovery dispute. Yet Plaintiffs, in their response brief, claim that Plaintiffs’ counsel agreed to reevaluate some of the issues raised in the Motion and to work with Defendant’s counsel to resolve those issues. Considering the lack of communication between the parties, the Court concludes that Defendant’s counsel did not make reasonable efforts to confer with Plaintiffs’ counsel concerning the discovery dispute before filing the Motion.

 

III. CONCLUSION

 

Because of the apparent Rule 26(g) violations and the clear failure of counsel to confer before the Motion was filed, the Court will convert the pretrial conference set for November 15, 2010 at 1:00 p.m. to a hearing on the Motion. Before appearing for the hearing, counsel for the parties shall attempt to confer and resolve the many issues raised in the Motion. In conferring with one another, counsel should bear in mind that Rule 26(b)(1) allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense ….” 9 The Court emphasizes “any party’s claim or defense,” because counsel should keep in mind that if a claim or defense is actually pled in the case, then Rule 26(b)(1) generally allows discovery of information relevant to that claim or defense. In addition, while conferring, counsel may revise the document requests, responses, and objections in an effort to avoid sanctions under Rule 26(g), which the Court is mandated to assess should it find that counsel violated Rule 26(g) without substantial justification. Counsel are further instructed to read Mancia v. Mayflower Textile Servs. Co., 253 F .R.D. 354 (D.Md.2008) to assist them in complying with Rule 26(g). At the hearing, the Court will consider any remaining discovery issues and make a Rule 26(g) assessment.

 

9. Fed.R.Civ.P. 26(b)(1) (emphasis added).

 

IT IS THEREFORE ORDERED that Defendant Union Pacific Railroad Company’s First Motion to Compel Discovery (ECF No. 43) is taken under advisement.

 

IT IS FURTHER ORDERED that a hearing is set on the Motion for November 15, 2010 at 1:00 p.m. in in Courtroom 223, Robert J. Dole U.S. Courthouse, 500 State Avenue, Kansas City, Kansas.

 

IT IS SO ORDERED.