United States District Court,

C.D. California.

MATTEL, INC., a Corporation, Plaintiff,

v.

BNSF RAILWAY COMPANY, a Corporation, Defendant.

 

Nos. CV 10-0681-R, CV 10-3127-R.

Jan. 3, 2011.

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MANUEL L. REAL, District Judge.

The Motion for Summary Judgment or Alternatively for Partial Summary Judgment of Defendant BNSF RAILWAY COMPANY (“BNSF”) came on for hearing on December 6, 2010. Attorney Leslie G. McMurray appeared as counsel on behalf BNSF. Attorney Stanley Gibson appeared on behalf of Plaintiff Mattel, Inc. (“Mattel”). After fully considering the moving, opposition and reply papers filed by the parties, all evidence and exhibits filed therewith, all filed and stated objections, the Court’s own files and records, and having considered the oral argument of counsel for both parties, the Court hereby makes the following findings of fact and conclusions of law:

 

FINDINGS OF FACT

1. The ocean carrier through its American agent CMA-CGM, S.A. (“CMA”), contracted with various shippers to move the containers at issue in this case from China to Fort Worth, Texas (“the shipments”). [10/15/10 Decl. of C. Martrou (“CM”) at ¶ 2, p. 2:16-25, 3:1-3, Ex A (front pages) ]

 

2. CMA issued through bills of lading for the shipments (hereafter the “CMA TBOL”). [CM, ¶ 1, p. 3:6-7.]

 

3. Each CMA TBOL contains the same pre-printed contract terms. [CM, ¶ 2:4-7.]

 

4. Mattel was the designated consignee for receipt of the shipments in Fort Worth, Texas. [CM, ¶ 4, p. 4:2-3; Mattel Complaint, ¶ 1:23-24.]

 

5. CMA subcontracted with BNSF for BNSF to move the shipments by rail from Long Beach to Fort Worth under BNSF Confidential Contract MA-66, Contract No. BF 53785 and the BNSF Intermodal Rules & Policies Guide (“IR & PG”) (collectively, the “BNSF Contract”). [Decl. of Ronald Hamilton (“RGH”) of 8/25/10 at ¶ 7 p. 7:17-27, p. 8, and Ex D at p. 3, ¶ 5, and Ex. E, Item 1, p. 6 (marked BN006); CM, at ¶ 7, p. 7:6-17.]

 

6. The BNSF train carrying the shipments derailed in Texas on November 22, 2008. [Decl. of John Wiederholdt dated 8/24/10 (“JW”) at ¶ 3, p. 2; Decl. of John Stanford dated 10/15/10 (hereafter, “JS”), at ¶ 4, p. 3.]

 

7. Mattel now sues BNSF in its own name seeking $1,266,182.63. [Mattel Complaint at pp. 2:27-28, 3:1 (Prayer.) ECF Dkt. # 1.]

 

8. The CMA TBOL was for “combined transport.” [CM at ¶¶ 2-3 (Exhibit A, see face pages of each TBOL).]

 

9. The CMA TBOL defined the term “Merchant” to include the shipper, cargo owner, and consignee, binding each to its terms. [CM at ¶ 4:21-22, ¶ 5:1-3; CM ¶ 4, p. 3:21-22, 4:1-2 (Ex. C, at ¶ 1, “DEFINITIONS”); RGH ¶ 4:9-13 and Ex. C at ¶ 1 “DEFINITIONS.”]

 

10. Mattel was the designated consignee on the shipments. [CM at ¶ 2:16-24, ¶ 3:1-4 (and Exhibit A thereto, first pages of TBOL).]

 

11. Mattel avers that it was the beneficial owner of the cargo at issue. [Mattel’s Complaint against BNSF at ¶ 1:23-24.]

 

12. The CMA TBOL provides:

 

In accepting this bill of lading the Merchant agrees to be bound by all stipulation, exceptions, terms and conditions on the face and back hereof, whether written, typed, stamped or printed, as fully as if signed by the Merchant, any local custom or privilege to the contrary notwithstanding, and agrees that all agreements or freight engagements for and in connection with the carriage of Goods are superseded by this Bill of Lading.

 

[CM at ¶ 5 (Exhibit A, face pages of TBOL); RGH at ¶ 5:14-19, Ex. A, face pages TBOL.) ]

 

13. The CMA TBOL provides:

 

6. CARRIER’S RESPONSIBILITY AND CLAUSE PARAMOUNT

 

(1) … Notwithstanding anything else in this Bill of Lading to the contrary, on shipments to or from the United States, the rights and liabilities of the parties shall be subject exclusively to COGSA which shall also govern before the Goods are loaded on and after they are discharged from the vessel provided, however, that the Goods at said times are in the custody of Carrier or any Sub-Contractor.

 

(2) (c) With respect to Combined Transportation from, to or within the United States, when the Goods are in the custody of the Carrier, or any Underlying Carrier, such Combined Transport will be governed by the provisions of Clause 6(1).

 

(2) (d) In the event Clause 6(1) is held inapplicable to such Combined Transportation from, to or within the United States, then Carrier’s liability will be governed by, and be subject to, the terms and conditions of the Underlying Carriers Bill of Lading and/or, where applicable, the ICC Uniform Bill of Lading together with the Underlying Carrier’s Tariff which shall be incorporated herein. Notwithstanding the foregoing, in the event there is a private contract of Carriage between the Carrier and any underlying Carrier, such Combined Transportation will be governed by the terms and conditions of said contract which shall be incorporated herein as if set forth at length and copies of said contract(s) shall be available to the Merchant at any office of the Carrier upon request.

 

(2) (f) The Carrier shall nevertheless be relieved of liability for loss or damage occurring during the Carriage if such loss or damage was caused by any cause or event which Carrier could not have avoided and the consequences of which he could not have reasonably prevented. Carrier’s maximum liability under this Sub-Section 6(2)(f) shall be One Euro per kilo of the Goods lost or damaged.

 

[CM ¶ 6 and Ex. C at ¶ 6; RGH ¶ 6 pp. 4-5 and Ex. C. at ¶ 6.]

 

14. The CMA TBOL provides:

 

27. SUBCONTRACTING AND INDEMNITY

 

(1) The Carrier shall be entitled to sub-contract the Carriage on any terms whatsoever.

 

(2) The Merchant undertakes that no claim or allegation shall be made against any Person whomsoever by whom the Carriage is performed or undertaken (including all Sub-Contractors of the Carrier), other than the Carrier, which imposes or attempts to impose upon any such Person, or any vessel owned by any such Person, any liability whatsoever in connection with the Goods or the Carriage of the Goods, whether or not arising out of negligence on the part of such Person and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier against all consequences thereof. Without prejudice to the foregoing every such Person shall have the benefit of every right, defense, limitation and liberty of whatsoever nature herein contained or otherwise available to the Carrier as if such provisions were expressly for his benefit; and in entering into this contract, the Carrier, to the extent of these provisions, does so not only on his own behalf but also as agent and trustee for such Persons.”

 

[CM ¶ 6, and Ex. C at ¶ 27; RGH ¶ 6 p. 6 and Ex. C. at ¶ 27].

 

15. There are no terms of the contracts filed with the Court that the Court finds to be ambiguous.

 

16. There is no term in any contract filed with the Court that this Court finds to conflict with or displace the Covenant Not to Sue CMA’s subcontractors in the CMA TBOL.

 

CONCLUSIONS OF LAW

1. The Court has jurisdiction over this matter under the Carriage of Goods by Sea Act and in admiralty. 46 U.S.C. § 30701 (“COGSA”)

 

2. BNSF’s carriage of the shipments was governed by the Carriage of Goods by Sea Act and in admiralty. 46 U.S.C. § 30701 (“COGSA.”)

 

3. Under Rule 56(c) of the Fed. Rules of Civ. Proc., summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where no genuine issue of material fact defeats a defense, the Court may grant summary judgment in whole or in part. Fed. R. Civ. Pro. 56(a),(b); Wang Lab. v. Mitsubishi Elecs. Am., 860 F.Supp. 1448, 1450 (C.D.Cal.1993).

 

4. Once the movant identifies “the pleadings, depositions, affidavits, or other evidence that it “believes demonstrates the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the burden shifts to the opposing party to prove that summary judgment is unwarranted. Id. at 324. It cannot “rest solely on conclusory allegations.” Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). It must designate specific facts showing a genuine issue for trial. Id. More than a “metaphysical doubt” is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

 

5. The Court finds that this matter is ripe for summary judgment. Mattel has had sufficient time to conduct discovery to date and has failed to make the requisite showing of having exercised prior due diligence in conducting discovery to date. Pfingston v. Ronan Engineering Co., 284 F.3d 999, (9th Cir.2002).

 

6. Mattel also fails to identify “specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.” Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir.2006). This Court accordingly denies Mattel’s Fed. Rule 56(f) motion for leave for more time to conduct discovery to try to controvert BNSF’s evidence.

 

7. There is no genuine issue of material fact to defeat BNSF’s defense that Mattel has failed to state a viable cause of action against BNSF, entitling BNSF to dismissal of Mattel’s Complaint against it.

 

8. Mattel was bound by the terms of the CMA TBOL issued for the subject shipments.

 

9. Rail carriers are entitled to enforce ocean carriage through bill of lading terms in their favor including a covenant not to sue, when the rail carrier falls within the definition of the parties covered by a Himalaya clause therein. Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, at 30, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).

 

10. BNSF was a CMA subcontracting carrier within the meaning of the CMA TBL Himalaya clause in the CMA TBL at issue in this case.

 

11. Mattel asserts it was the shipper under the CMA TBOL terms whereas BNSF states that Mattel is bound by the CMA TBOL terms because it was the consignee and asserts it was the beneficial owner of the cargo. The court finds this disagreement to be immaterial to the issue of whether Mattel is bound by the CMA TBOL terms since as the named consignee thereunder, Mattel was bound by the CMA TBOL terms. S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342, 102 S.Ct. 1815, 72 L.Ed.2d 114 (1982).

 

12. This Court may interpret the plain meaning of the terms of the contracts filed with the court on this motion; parole evidence is not required to interpret those terms. Mazda Motors of America, Inc. v. M/V Cougar Ace, 565 F.3d 573 (9th Cir.2009).

 

13. The CMA TBL’s Covenant Not to Sue forbade Mattel to sue any of CMA’s subcontracting carriers for any claims whatsoever on the shipments for cargo loss or damage irrespective of fault.

 

14. Covenants not to sue are not impermissible under Section 1303(8) of COGSA.

 

15. There are no terms in any of the contracts presented to the Court that are inconsistent with or would displace the clause which constitutes the Covenant Not to Sue CMA’s subcontractors in the CMA TBOL.

 

16. The Service Contract between CMA and Mattel does not affect BNSF’s ability to enforce the Covenant Not to Sue. The Service Contract only displaces inconsistent terms in the CMA TBL. And the Covenant Not to Sue subcontractors is consistent with the Service Contract in that both affix liability on the carrier, CMA. Further the Subcontracting and Assignment clause is consistent with the Covenant Not to Sue in the CMA TBL, and any breach of the clause would not affect BSNF’s ability to fully enforce the Covenant Not to Sue.

 

17. Judgment dismissing the Complaint of Mattel, Inc. against BNSF with prejudice shall be entered forthwith.

 

18. BNSF is entitled to recovery of its costs herein.

United States Court of Appeals,

Sixth Circuit.

Mitchel OSMAN, Plaintiff-Appellant,

v.

INTERNATIONAL FREIGHT LTD., LOGISTICS, Defendant-Appellee.

 

No. 09-2326.

Jan. 4, 2011.

 

On Appeal from the United States District Court for the Eastern District of Michigan.

 

Before BOGGS and McKEAGUE, Circuit Judges; and QUIST, Senior District Judge.FN*

 

FN* Honorable Gordon J. Quist, United States Senior District Judge for the Western District of Michigan, Sitting by Designation.

 

OPINION

QUIST, District Judge.

Plaintiff, Mitchel Osman, appeals the district court’s order denying him attorney fees after he prevailed in a jury trial on his claim against Defendant, International Freight Logistics, Ltd. (“IFL”), under the Carmack Amendment. 49 U.S.C. § 14706(a)(1). Osman contends that the district court erred in concluding that a legislative note limits fee awards under 49 U.S.C. § 14708(d) to claims against household goods motor carriers. Alternatively, he argues that the legislative note does not abrogate existing law allowing attorney fees against “freight forwarders.” Finding no error, we affirm.

 

I. FACTS AND PROCEDURAL HISTORY

In December 2007, Osman purchased a decorative ceiling lamp made of opaline glass and brass at a design show in Miami, Florida, for $12,000.00. Osman arranged to have IFL pack, ship and deliver the lamp to Mt. Pleasant, Michigan. IFL transported the lamp to its offices in New York. At that point, IFL arranged for Towne Air Freight (“TAF”) to transport the lamp to Osman. When TAF delivered the lamp, Osman and his wife discovered that it had been destroyed during transport. Osman filed a damage claim with IFL and TAF, and IFL denied the claim.

 

Osman sued IFL and TAF in the state district court, asserting state law claims based on the destruction of the lamp. IFL and TAF removed the case to federal court on the basis of federal question jurisdiction under the Carmack Amendment, 49 U.S.C. § 14706. The federal district court granted summary judgment to TAF, and the case proceeded to trial on the claim against IFL. The jury found IFL liable and rendered a verdict for Osman.

 

Following the trial, Osman moved for an award of attorney fees pursuant to 49 U.S.C. § 14708(d). IFL argued, among other things, that it could not be liable for fees under § 14708(d) because that provision authorizes fee awards only against household goods motor carriers, and IFL does not qualify as a household goods motor carrier. During a hearing on Osman’s motion, the district court sua sponte inquired whether a legislative note added to 49 U.S.C. § 13102 in 2005 precluded Osman’s claim for fees under § 14708(d), and the court directed the parties to file supplemental briefs on the issue. After receiving the supplemental briefs, the district court denied Osman’s motion, concluding that the note “clearly indicates that § 14708(d) [allowing attorney fees] only applies to household goods motor carriers as defined in 49 U.S.C. § 13102(12).”

 

Osman filed this timely appeal.

 

II. STANDARD OF REVIEW

Although this court generally reviews a district court’s denial of attorney fees for abuse of discretion, Jones v. Blige, 558 F.3d 485, 494 (6th Cir.2009), we review such a denial de novo when the denial is based upon the construction of a statute. Trepel v. Roadway Express, Inc., 266 F.3d 418, 421 (6th Cir.2001).

 

III. ANALYSIS

A. Limitation of Fees Under § 14708(d)

The Carmack Amendment, enacted in 1906 as an amendment to the Interstate Commerce Act of 1887, renders common carriers liable for “actual loss or injury to … property” during interstate transport. 49 U.S.C. § 14706(a); see also Am. Rd. Serv. Co. v. Consol. Rail Corp., 348 F.3d 565, 568 (6th Cir.2003). The statute covers two types of parties involved in the interstate shipment of goods: “carriers” and “freight forwarders.” 49 U.S.C. § 14706(a). It is undisputed that IFL qualifies as both a carrier and a freight forwarder. See 49 U.S.C. § 13102(3) (defining “carrier” as “a motor carrier, a water carrier, and a freight forwarder”); 49 U.S.C. § 13102(8) (defining a “freight forwarder” as “a person holding itself out to the general public … to provide transportation of property for compensation” and who, among other things, “assumes responsibility for the transportation from the place of receipt to the place of destination”).

 

The Carmack Amendment does not contain a general attorney fee provision, Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir.1996), but it does authorize fee awards in limited circumstances to shippers of “household goods.” 49 U.S.C. § 14708(d). Section 14708(d) provides, in relevant part:

 

Dispute settlement program for household goods carriers

 

….

 

(d) Attorney’s fees to shippers. In any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 concerning the transportation of household goods by such carrier, the shipper shall be awarded reasonable attorney’s fees if-….

 

49 U.S.C. § 14708(d) (2005). It is undisputed that the lamp qualifies as a “household good,” 49 U.S.C. § 13102(10) (“household goods” are “personal effects and property used or to be used in a dwelling” and for which transportation is “arranged and paid for by the householder”), and that Osman otherwise satisfied all statutory requirements for an award of attorney fees. The issue is whether § 14708(d) applies to any carrier that transports household goods, as Osman contends, or is limited to claims against household goods motor carriers, as defined in 49 U.S.C. § 13102(12), as IFL contends.

 

Osman relies upon the plain language of § 14708(d), which specifies “a carrier,” as well as this Court’s decision in Trepel v. Roadway Express, Inc., 266 F.3d 418 (6th Cir.2001). The Trepel court construed 49 U.S.C. § 11711(d), enacted as part of the Household Goods Transportation Act of 1980, 49 U.S.C. § 10100, et seq. The language of § 11711(d), which was materially indistinguishable from that of § 14708(d), provided:

 

(d) In any court action to resolve a dispute between a shipper of household goods and a motor common carrier providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title concerning the transportation of household goods by such carrier, the shipper shall be awarded reasonable attorney’s fees if-….

 

The purpose of the attorney fees provision, the court explained, was to encourage carriers to provide an inexpensive means for resolving certain claims:

One of the problems apparently faced by shippers of household goods was that common carriers refused to recognize their claims because the carriers knew that few household goods shippers would engage in an expensive lawsuit to recover for damage to common household items of relatively little value. In order to rectify this problem, the Household Goods Transportation Act proposed that shippers provide arbitration and dispute resolution programs so that customers could recover damages without going to court.

 

 

In order to “encourage” carriers to make dispute settlement programs available, the Household Goods Transportation Act stipulated that common carriers who did not make a dispute resolution program available would be liable for attorney’s fees if a customer prevailed on his claim.

 

266 F.3d at 421 (footnote and internal citation omitted). The defendant in Trepel, Roadway Express, argued that it could not be liable for attorney fees under § 11711(d) because it was not a part of the household moving industry, to which the legislation was specifically addressed. The court rejected the argument, noting that “the legislative history does not clearly indicate that Congress intended the fee-shifting provision of section 11711(d) to apply solely to the household goods moving industry.” Id. at 422. In addition, the court observed, § 11711(d) covered Roadway Express because it specifically applied to any “motor common carrier providing transportation subject to the jurisdiction of the Commission under subchapter II of this title.” Id. at 423 (internal quotation and footnote omitted).

 

Section 11711(d) was moved to § 14708(d) as part of the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”), Pub.L. No. 104-88, 109 Stat. 803 (1995). As part of the recodification, the former dispute settlement provisions under § 11711 were revised to require household goods carriers to offer neutral arbitration as a means of resolving disputes and to give shippers notice of the availability of arbitration “before such goods are tendered to the carrier for transportation.” 49 U.S.C. § 14708(b); see Ward v. Allied Van Lines, Inc., 231 F.3d 135, 141 (4th Cir.2000).

 

In 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act, Pub.L. No. 109-59, 119 Stat. 1144 (2005). Subtitle IV.B, entitled the “Household Goods Mover Oversight Enforcement and Reform Act of 2005,” enacted several new provisions governing household goods carriers. Pub.L. No. 109-59, § 4201, et seq. Significantly, the statute added the following definition for “household goods motor carrier”:

 

a motor carrier that, in the ordinary course of its business of providing transportation of household goods, offers some or all of the following additional services:

 

(i) Binding and nonbinding estimates.

 

(ii) Inventorying.

 

(iii) Protective packing and unpacking of individual items at personal residences.

 

(iv) Loading and unloading at personal residences.

 

49 U.S.C. § 13102(12) (2005). In addition, the statute imposes new registration requirements for household goods motor carriers, 49 U.S.C. § 13902(a)(2), and authorizes State attorneys general to file civil actions in federal district court to enforce consumer protection provisions relating to the delivery and transportation of household goods by household goods motor carriers. 49 U.S.C. § 14711(a). Finally, and most significantly for this case, Congress included the following provision as § 4202(c) of the statute:

Application of certain provisions of law. The provisions of title 49, United States Code, and this subtitle (including any amendments made by this subtitle), that relate to the transportation of household goods apply only to a household goods motor carrier (as defined in section 13102 of title 49, United States Code).

 

Pub.L. No. 109-59 § 4202(c); 119 Stat. 1752 (2005) (emphasis added).

 

As the district court correctly observed, the provision, though called a legislative note by the codifiers, was enacted by Congress and is entitled to the same weight as any other law, regardless of whether it was codified in the United States Code. Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1251 (11th Cir.2005) (“That the [Torture Victim Protection Act], which was published in the Statutes at Large, appears in the United States Code as a historical and statutory note to the Alien Tort Act does not make the TVPA any less the law of the land.”). Osman does not argue that the legislative note lacks the force of law or should be disregarded as a part of the statutory analysis of § 14708(d). Rather, he contends that it fails to show Congress’s “clearly expressed” intent to abrogate the holding in Trepel. Given the note’s unambiguous directive that provisions relating to the transportation of household goods apply only to carriers meeting the definition of a household goods motor carrier set forth in 49 U.S.C. § 13102(12), Osman’s argument lacks merit. Consistent with the purposes of the Household Goods Transportation Act of 1980 and Household Goods Mover Oversight Enforcement and Reform Act of 2005, the note clarifies that the provisions relating to the transportation of household goods, including § 14708(d), are directed only toward those carriers that are engaged in the household goods moving industry. “If the language of the statute is clear, this court’s inquiry is at an end: where … the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” Palmer v. United States (In re Palmer), 219 F.3d 580, 583 (6th Cir.2000) (internal quotation marks omitted). Thus, the note must be applied according to its plain language.

 

Osman also makes much of the fact that in adopting the 2005 amendments, Congress inserted the defined term “household goods motor carrier” in several sections, see e.g., 49 U.S.C. § 13902(a)(2), but failed to insert that term in § 14708(d). He asserts that the district court’s “overly-broad application” of the note violates several cardinal rules of statutory construction, but he fails to explain how such rules could limit the note’s clear directive circumscribing provisions relating to the transportation of household goods.

 

Finally, Osman argues that the legislative history fails to support the abrogation of Trepel, but this argument fails because where, as here, “the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” Vergos v. Gregg’s Enters., Inc., 159 F.3d 989, 990 (6th Cir.1998) (internal quotation marks omitted). Thus, the district court’s statutory construction was proper.

 

B. IFL’s Freight Forwarder Status

Osman argues that even if the legislative note limits the award of fees under § 14708(d) to claims involving household goods motor carriers, it does not alter preexisting law recognizing that freight forwarders can be held liable for attorney fees under § 14708(d). He contends that because the district court found that IFL was also acting as a freight forwarder, § 14708(d) authorizes an award of fees against IFL based upon that status. The district court rejected the argument, noting that § 14708(d) only authorizes fee awards against carriers.

 

We agree with the district court’s conclusion, but offer a slightly expanded rationale. Attorney’s fees under § 14708(d) may be awarded only in an action against a “carrier.” The term “carrier” includes “a freight forwarder,” 49 U.S.C. § 13102(3)-a capacity in which IFL was also acting. As discussed above, however, the legislative note to 49 U.S.C. § 13102 narrowed the universe of carriers to which § 14708(d) applies, namely household goods motor carriers. Thus, regardless of a carrier’s status as a freight forwarder, it cannot be liable unless it qualifies as a household goods motor carrier, which IFL does not.

 

C. Remand

Lastly, Osman argues that we should remand the case to the district court for determination of whether IFL acted as a household goods motor carrier. We decline to do so. Arguments first raised in a reply brief on appeal are deemed waived. United States v. Perkins, 994 F.2d 1184, 1191 (6th Cir.1993). Moreover, Osman had sufficient opportunity to raise this issue in the district court, but he failed to do so.

 

IV. CONCLUSION

For the foregoing reasons, we conclude that the district court properly held that the legislative note precludes attorney fees awards against motor carriers that do not meet the definition of “household goods motor carrier” under 49 U.S.C. § 13102(12). The district court’s order is therefore AFFIRMED.