United States District Court,

N.D. Illinois,

Eastern Division.

SIEMENS TRANSFORMADORES S.A. DE C.V., Plaintiff,

v.

SOO LINE RAILROAD COMPANY, d/b/a Canadian Pacific Railway, Defendant.

 

No. 10 C 3750.

March 7, 2012.

 

Paul J. Kozacky, Jerome Raymond Weitzel, Jessica Marie Fricke, John Norris Rapp, Kozacky & Weitzel, P.C., Chicago, IL, for Plaintiff.

 

Daniel J. Mohan, Alison L. Helin, Daley Mohan Groble PC, Chicago, IL, for Defendant.

 

OPINION AND ORDER

JOAN HUMPHREY LEFKOW, District Judge.

Siemens Transformadores S.A. de C.V. (“Siemens”), a manufacturer of power transformers, filed suit against Soo Line Railway Company, which does business as Canadian Pacific Railway (“Canadian Pacific”), seeking to recover damages to a transformer that Canadian Pacific carried between Eagle Pass, Texas and Ayr, Ontario. Siemens’s suit is brought under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11706 (“Carmack Amendment”), which permits a shipper to recover damages or loss from a carrier in certain circumstances. Siemens has moved for partial summary judgment on the issue of whether Canadian Pacific can assert the affirmative defense of a limitation of liability. For the reasons that follow, the motion [# 23] will be granted.

 

This court has subject matter jurisdiction under 49 U.S.C. § 11706(d)(1) and 28 U.S.C. §§ 1331, 1332, and 1337(a). Venue is proper under 49 U.S.C. § 11706(d)(2)(A)(iii).

 

BACKGROUND

 

The facts set forth in this section are derived from the statements of fact and supporting documents submitted by the parties to the extent they comport with Local Rule 56.1. They are taken in the light most favorable to Canadian Pacific, the non-movant.

 

Siemens is a Mexican corporation that manufactures and sells electrical power transformers. Canadian Pacific is a Minnesota corporation that provides transportation services on its rail lines.

 

In late 2007 or early 2008, Siemens manufactured transformer TP 765 at its Guanajuato, Mexico facility for a customer located in Ontario, Canada. Siemens contracted with Ferrocarril Mexicano, S.A. de C.V. (“Ferromex”) to transport the transformer from Guanajuato to Piedras Negras, Mexico. Transportation from Guanajuato to Piedras Negras was performed under a bill of lading billed by and paid to Ferromex. Siemens also contracted with Fracht FWO, Inc. (“Fracht”), a freight forwarding company, to arrange transport from Eagle Pass, Texas (across the border from Piedras Negras) to the customer in Ontario. Fracht contracted with Canadian Pacific’s subsidiary, Canadian Pacific Logistics Solutions (“CPLS”), to arrange for transportation from Eagle Pass to Ayr, Ontario. CPLS contracted with the BNSF Railway Company for transportation from Eagle Pass to Chicago, and then arranged for transportation from Chicago to Ontario using Canadian Pacific’s line.

 

The parties have not submitted Siemens’s contracts with Fracht. An email from Sven Braum at Fracht to Ricardo Zarate at Siemens that pertains to the shipment of a different transformer (TP 764) contains the following notice at the bottom:

 

Important Notice:

 

All services provided hereunder are subject to the Terms and Conditions of Service of the National Customers Broker and Forwarders Association of America Inc., available at www.frachtusa.com <http://www.frachtusa.com/> Liability of Fracht FWO Inc. may be limited in accordance with said terms.

 

(Def.’s Ex. D at ST0084.) The terms and conditions of service that are available on Fracht’s website provide the following limitation on liability:

Declaring Higher Value to Third Parties. Third parties to whom the goods are entrusted may limit liability for loss or damage; the Company will request excess valuation coverage only upon specific written instructions from the Customer, which must agree to pay any charges therefore; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at Company’s discretion, the goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.

 

(Def.’s Ex. E ¶ 7.) Siemens did not request that Fracht negotiate full liability terms in connection with the shipment of transformer TP 765.

 

On February 11, 2008, CPLS sent a letter to Fracht regarding the details of the shipment from Eagle Pass to Ontario. The letter includes the following disclaimer of liability:

 

For transportation of goods within Canada, Canadian Pacific Railway’s liability for claims involving any alleged loss, damage, or delay to the goods, and the procedures for processing such claims, shall be the same as that specified in the Railway Traffic Liability Regulations, SOR 91/488 (as amended), except that Shipper and Canadian Pacific Railway agree that:

 

…

 

c.) CPLS/CPR shall not be liable for loss or damage to goods which exceed the lesser of:

 

1. Actual value of lost or damaged goods (after salvage)

 

2. $50,000 per carload shipment—CPR lines only

 

(Pl.’s Ex. G.) Siemens concedes, for the purposes of the instant motion, that there were oral communications between Siemens and Canadian Pacific whereby Siemens either agreed to waive its right to declare the value of its cargo or declared the value of its cargo.

 

On February 12, 2008, a bill of lading was issued that reflects the transformer’s transport from Eagle Pass to Ayr, Ontario. (Pl.’s Ex. F.) The bill of lading identifies CPLS as the shipper. The bill of lading does not contain any limitation on liability for damages. Under “Special Handling” instructions, the bill of lading provides, “Do not hump.”

 

A bill of lading “records that a carrier has received goods from the party that wishes to ship them, states the terms of the carriage, and serves as evidence of the contract for carriage.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18–19, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).

 

“Humping” is a method of sorting freight cars in the marshaling yard. Cars are pushed over a raised track, known as a hump, and then they travel downhill over switching points to a berth. Encyclopaedia Britannica Online, “railroad,” http:// www.britannica.com/EBchecked/topic/489715/railroad (last accessed Mar. 2, 2012).

 

Siemens’s complaint alleges that Canadian Pacific delivered the transformer on March 17, 2008 in substantially damaged condition and that Siemens incurred $420,271.67 in repair costs. The complaint further alleges that the damages occurred because of several abnormal impacts outside Chicago, including on February 14, 22, and 27, 2008.

 

SUMMARY JUDGMENT STANDARD

Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Id. While the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), where a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.2000).

 

DISCUSSION

Under the Carmack Amendment, a rail carrier that transports goods is liable for the “actual loss or injury to the property caused by” the carrier. 49 U.S.C. § 11706(a). The purpose of the Carmack Amendment is to “relieve cargo owners ‘of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.’ ” Kawasaki Kisen Kaisha Ltd. v. Regal–Beloit Corp., ––– U.S. ––––, 130 S.Ct. 2433, 2441, 177 L.Ed.2d 424 (2010) (quoting Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 94 L.Ed. 698 (1950)). A rail carrier may limit its liability by establishing rates for transportation that limit liability to “a value established by written declaration of the shipper or by a written agreement between the shipper and the carrier.” Id. § 11706(c)(3)(A). In order to take advantage of a limited liability agreement, however, the carrier must demonstrate that it gave the shipper a reasonable opportunity to choose full Carmack liability protection and that it obtained the shipper’s agreement as to its choice of liability. Tokio Marine & Fire Ins. Co. v. Amato Motors, Inc., 996 F.2d 874, 879 (7th Cir.1993); Co–Operative Shippers, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 840 F.2d 447, 451 (7th Cir.1988); Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 540 F.Supp.2d 486, 493–94 (S.D.N.Y.2008) (Chin, J.). Siemens seeks partial summary judgment on the sole issue of whether the facts are sufficient to support Canadian Pacific’s assertion of the affirmative defense of limited liability.

 

I. Whether the Carmack Amendment Applies to the Shipment of Transformer TP 765

As a threshold issue, Canadian Pacific argues that the Carmack Amendment does not apply to its transport of transformer TP 765 because the shipment originated outside the United States. In Kawasaki, the Supreme Court held that the Carmack Amendment does not apply to a shipment originating overseas under a single through bill of lading. 130 S.Ct. at 2442. The Court noted, however, that Carmack does apply where the bill of lading for foreign transport ends in the United States and the cargo owners then contract to complete a new journey with a United States origin. Id. at 2445 (discussing Reider, 339 U.S. at 117). Here, the transformer was shipped under two separate bills of lading: one covering transportation within Mexico (from Guanajuato to Piedras Negras), and another covering transportation from Eagle Pass, Texas to Ontario.  It is undisputed that the bill of lading for transport within Mexico was distinct from the bill of lading for transport from Eagle Pass to Ontario. Under these circumstances, the Carmack Amendment applies to the shipment from Eagle Pass to Ontario. See Kawasaki, 130 S.Ct. at 2445; Reider, 339 U.S. at 117. Canadian Pacific rightly does not contest that it may be liable for damages caused to a shipment that originated in the United States for export to Canada. See 49 U.S.C. § 11706(a) (3) ( Carmack Amendment applies to transport of cargo “from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading”); Kawasaki, 130 S.Ct. at 2444 (“Today’s decision need not address the instance where goods are received at a point in the United States for export.”). Accordingly, the Carmack Amendment applies to Canadian Pacific’s transportation of the transformer.

 

Neither party explains how the transformer was transported from Piedras Negras across the border to Eagle Pass.

 

Canadian Pacific also argues that (1) Siemens has not established a prima facie case under the Carmack Amendment because it has not demonstrated that the transformer arrived at Eagle Pass in good condition, and (2) the transformer is a “miscellaneous” commodity exempt from the Carmack Amendment under 49 C.F.R. § 1039.11. With respect to the first argument, the merits of Siemens’s claim under the Carmack Amendment are not at issue. In deciding this summary judgment motion, the court only considers whether the amendment applies and whether Canadian Pacific may assert an affirmative defense of a liability limitation. Canadian Pacific’s second argument is without merit; power transformers are explicitly excepted from the “miscellaneous commodities” exemption. See 49 C.F.R. § 1039.11(a).

 

II. Whether Canadian Pacific Has Waived The Affirmative Defense

Siemens first argues that Canadian Pacific waived its right to assert a liability limitation as an affirmative defense because it failed to plead the defense when it filed its answer to the complaint. See Fed.R.Civ.P. 8(c). This is an odd argument for Siemens to make, given the procedural posture of this case. The purpose of the rule requiring a defendant to plead affirmative defenses in its answer “is to avoid surprise and undue prejudice to the plaintiff by providing … notice and the opportunity to demonstrate why the defense should not prevail.” Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir.1997). Here, where Siemens has itself raised the issue of Canadian Railway’s affirmative defense, it can hardly claim to have been “ambush[ed]” by an unexpected argument. Cf. id. at 968. Moreover, courts have recognized that when the parties argue an affirmative defense before the district court, “technical failure to plead the defense is not fatal.” Dresser Indus., Inc. v. Pyrrhus AG, 936 F.2d 921, 928 (7th Cir.1991) (quoting De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir.1987)). Finally, if the court were to deny Siemens’s motion for summary judgment, then it would be within its discretion to allow Canadian Pacific to file an amended answer asserting the defense. See Fed.R.Civ.P. 15(a). For these reasons, Canadian Pacific is not precluded from asserting the affirmative defense because of waiver.

 

III. Whether Canadian Pacific May Assert the Affirmative Defense of a Limitation of Liability

In order for Canadian Pacific to assert an affirmative defense of a limitation of liability, it must show that it gave Siemens or Siemens’s intermediaries a reasonable opportunity to choose full Carmack liability protection. See Tokio Marine, 996 F.2d at 879; Co–Operative Shippers, 840 F.2d at 451; Sompo Japan, 540 F.Supp.2d at 493–94. Canadian Pacific does not argue the June 11, 2008 letter from CPLS to Fracht provided the required notice, nor could it. Nothing in the letter indicates that Fracht or Siemens had a choice between full and limited liability. Nor does Canadian Pacific argue that discovery will show that it provided the required disclosures directly to Siemens through any oral communications.

 

Siemens suggests that Canadian Pacific could not satisfy Carmack unless it gave notice directly to Siemens, the shipper of goods. That is incorrect. In Norfolk Southern Railway Company v. Kirby, 543 U.S. 14, 33, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004), the Supreme Court held that “[w]hen an intermediary contracts with a carrier to transport goods, the cargo owner’s recovery against the carrier is limited by the liability limitation to which the intermediary and carrier agreed.” The underlying principle is that carriers must be able to assume that the intermediary can negotiate for limited liability so as to avoid the burden of investigating all upstream contracts. Id. Although Kirby was a maritime case, it derived its holding from Great Northern Railway Company v. O’Connor, 232 U.S. 508, 34 S.Ct. 380, 58 L.Ed. 703 (1914), a non-maritime case involving transportation by rail. Kirby is therefore applicable to cases brought against carriers under the Carmack Amendment. See Werner Enters., Inc. v. Westwind Maritime Int’l, 554 F.3d 1319, 1324–26 (11th Cir.2009); accord Nipponkoa Ins. Co., Ltd. v. Atlas Van Lines, Inc., No. 09–168, 2011 WL 3739373, at(S.D.Ind. Aug.23, 2011); see also Tokio Marine, 996 F.2d at 879 n. 11 (“We note that courts have enforced agreements limiting liability between a carrier and the shipper’s agent.”). Applying this rule, Siemens is bound by any limitation on liability agreed by Fracht and CPLS.

 

Rather, Canadian Pacific argues that Siemens was given the opportunity to choose between full Carmack protection and limited liability by virtue of its agreement with Fracht. In making this argument, Canadian Pacific highlights the portion of Fracht’s terms and conditions that sets forth the requirements for declaring a higher value of goods to third parties. Any agreement between Fracht and Siemens cannot relieve Canadian Pacific of its obligations under the Carmack Amendment, however. The Eleventh Circuit’s decision in Werner Enterprises, Inc. v. Westwind Maritime International, Inc., 554 F.3d 1319 (11th Cir.2009), is instructive. In that case, the shipper contracted with an intermediary whose invoices used exactly the same third party liability language that appears in Fracht’s terms and conditions. See id. at 1322. The intermediary then entered into an agreement with a second intermediary, which in turn contracted with the trucking company that transported the shipper’s goods. Id. The broker transportation agreement between the second intermediary and the trucking company contained a liability limitation that specifically referenced the Carmack Amendment. Id. After the goods were stolen en route, the shipper’s insurer sought recovery for the full amount of the goods from the trucking company. The Eleventh Circuit held that the trucking company could assert an affirmative defense under the Carmack Amendment. Its analysis focused solely on the terms of the broker transportation agreement entered into by the second intermediary and the trucking company. Id. at 1327–28. Here, as in Werner, the court’s analysis must focus on any agreements between Canadian Pacific and Siemens or Canadian Pacific and Siemens’s intermediaries. Given that neither of these agreements provided the shipper with a reasonable opportunity to choose full Carmack liability protection, the notice of third party liability limitation in the agreement between Fracht and Siemens is irrelevant. Siemens’s motion for partial summary judgment must be granted.

 

Werner considered a claim brought under the portion of the Carmack Amendment relating to motor carriers and freight forwarders, 49 U.S.C. § 14706. The general liability scheme established for motor carriers is similar to the liability scheme for rail carriers. Compare 49 U.S.C. § 14706(a), with 49 U.S.C. § 11706(a). Motor carriers, like rail carriers, are required to demonstrate that they gave the shipper a reasonable opportunity to choose between two or more levels of liability in order to assert an affirmative defense of a liability limitation. See Opp v. Wheaton Van Lines, Inc., 231 F.3d 1060, 1063 (7th Cir.2000). Therefore Werner provides persuasive authority in this case.

 

CONCLUSION AND ORDER

For the foregoing reasons, Siemens’s motion for partial summary judgment [# 23] is granted. This case is set for a status hearing on 3/15/2012 at 8:30 a.m.

Supreme Court of Nevada.

Dusty RHODES, Appellant,

v.

DESIGNER DISTRIBUTION SERVICES, LLC, A Nevada Limited Liability Company and Movers Pak–Man, Inc., A California Corporation, Respondents.

Dusty Rhodes, Appellant,

v.

Designer Distribution Services, LLC, and Movers Pak–Man, Inc., Respondents.

 

Nos. 55522, 56615.

Feb. 24, 2012.

 

The Bach Law Firm

 

Shumway Van & Hansen

 

ORDER AFFIRMING IN PART. REVERSING IN PART AND REMANDING

These are consolidated appeals from a district court judgment in a contract and tort action and a post-judgment order awarding attorney fees and costs. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.

 

Appellant Dusty Rhodes entered into an agreement with respondent Designer Distribution Services, LLC (DDS) whereby DDS, working with respondent Movers Pak–Man, Inc. (MPM), was to ship Rhodes’s household belongings from Las Vegas to Hawaii. DDS picked up Rhodes’s property after Rhodes signed a credit card authorization with DDS and a letter of acceptance with MPM. However, Rhodes’s property weighed more than was originally estimated. As a result, DDS contacted Rhodes to arrange for full payment by requesting that he sign a credit card authorization for the remaining balance. Rhodes submitted an authorization with an inserted provision that required delivery of Rhodes’s belongings by a specific date. A specific delivery date was contrary to the letter of acceptance, and because Rhodes failed to provide a credit card authorization based on the original terms, DDS refused to ship Rhodes’s property. Rhodes’s property remained in DDS’s storage and he did not seek to reclaim it.

 

Rhodes sued DDS and MPM (collectively DDS unless otherwise specified). DDS filed a counterclaim for breach of contract, breach of covenant of good faith and fair dealing, and unjust enrichment. DDS later filed summary judgment motions against Rhodes on his claims for fraud, misrepresentation, unjust enrichment, civil conspiracy, conversion, and request for specific performance and injunctive relief. The district court entered summary judgment against Rhodes on his claims for unjust enrichment, conversion, and request for injunction and specific performance. DDS then filed a partial summary judgment motion against Rhodes on his 49 U.S.C. § 14704 claim. DDS also filed a motion to dismiss Rhodes’s remaining state law claims. The district court granted partial summary judgment against Rhodes on his 49 U.S.C. § 14704 claim. The district court dismissed Rhodes’s remaining state law claims as preempted by the federal Carmack Amendment.

 

Following the district court’s dismissal of Rhodes’s remaining state law claims, Rhodes filed a motion to dismiss DDS’s counterclaims. In response, DDS filed a countermotion for summary judgment on all of its counterclaims. Rhodes then filed for summary judgment on DDS’s counterclaims as well. The district court granted summary judgment against Rhodes on DDS’s counterclaims. After the district court’s grant of summary judgment on DDS’s counterclaims, DDS filed a motion for attorney fees and costs. The district court granted the motion for attorney fees and costs as well.

 

Rhodes now argues on appeal that the district court erred in (1) granting DDS summary judgment on Rhodes’s claims for unjust enrichment, conversion, specific performance and injunctive relief, violations of the Carmack Amendment, and DDS’s counterclaims; (2) granting DDS’s motion to dismiss Rhodes’s remaining state law claims; and (3) granting DDS’s motion for attorney fees and costs.  The parties are familiar with the facts, and we do not recount them further except as is necessary for our disposition.

 

 

We decline to address Rhodes’s other claims of error where he fails to provide any argument or citation to authority regarding those issues in his opening brief. See NRAP 28(a)(8)(A); Edwards v. Emperor’s Garden Rest., 122 Nev. 317, 330 n. 38, 130 P .3d 1280, 1288 n. 38 (2006) (providing that this court need not consider arguments not cogently made or supported by citations to salient authority).

 

DISCUSSION

Standard of review

Statutory construction and unambiguous contractual construction are questions of law reviewed de novo. State, Dep’t of Taxation v.. DaimlerChrysler, 121 Nev. 541, 543, 119 P.3d 135, 136 (2005); Ellison v.C.S.A.A., 106 Nev. 601, 603, 797 P.2d 975, 977 (1990).

 

A district court’s grant of summary judgment is reviewed de novo and without deference to the district court’s findings. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The party opposing a motion for summary judgment must set forth specific facts demonstrating the existence of a genuine factual issue. Id. at 731, 121 P.3d at 1030–31. “[T]he evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party.” Id. at 729, 121 P.3d at 1029.

 

The district court erred by granting DPS summary judgment on Rhodes’s claim that DPS violated 49 U.S.C. § 14704

Rhodes argues that the district court erred in its interpretation of 49 U.S.C. § 14704 and 49 U.S.C. § 14706’s “actual loss” requirement because Rhodes was entitled to damages for non-delivery. We agree.

 

The Carmack Amendment was first enacted in 1906 as an amendment to the Interstate Commerce Act and has been altered and recodified over the last century. Kawasaki Kisen Kaisha Ltd. v. Regal–Beloit Corp., 561 U.S. ––––, ––––, 130 S.Ct. 2433, 2440 (2010). The Carmack Amendment imposes liability on an interstate carrier “for the actual loss or injury to the property” that the carrier agrees to transport. Id. at ––––, 130 S.Ct. at 2441 (citing 49 U.S.C. §§ 11706, 14706). 49 U.S.C. § 14706(a) imposes liability on motor carriers “for the actual loss or injury to the property.” 49 U.S.C. § 14706(a) (2006).

 

Liability may be imposed on a “carrier for all reasonably foreseeable consequential damages resulting from a breach of the contract of carriage, including those resulting from nondelivery of the shipped goods” such as “loss, damage, or delay arising out of the contract to transport the goods.” Air Products & Chemicals v.. Ill. Cent. Gulf R.R., 721 F.2d 483, 485–86 (5th Cir.1983) (citing N.Y. & Norfolk R.R. v. Peninsula Exch., 240 U.S. 34, 37–38 (1915)). Rhodes notes that the “Carmack Amendment is the exclusive cause of action for contract claims alleging delay, loss, failure to deliver or damage to property.” Hall v. North American Van Lines, Inc., 476 F.3d 683, 688 (9th Cir.2007)). Rhodes asserts that there were substantial foreseeable damages after DDS took possession of his property, held the property hostage, and refused to deliver the property by the date Rhodes specified.

 

Rhodes presented evidence demonstrating that the nondelivery of his goods resulted in a loss of business opportunities, the depreciation in value of the non-delivered goods, and costs associated with the replacement of his property. Because this evidence demonstrates that Rhodes may have experienced consequential damages as a result of DDS’s non-delivery, we conclude that there are genuine issues of material fact regarding the damages that Rhodes suffered. Therefore, the district court erred in entering summary judgment against Rhodes on his Carmack Amendment claim.

 

The district court properly granted DPS summary judgment on Rhodes’s claims for unjust enrichment, conversion, and request for specific performance and an injunction

Rhodes argues that the district court erred in granting DDS summary judgment on Rhodes’s claims for unjust enrichment, conversion, and request for specific performance and an injunction. We disagree.

 

The district court properly granted DDS summary judgment on Rhodes’s unjust enrichment claim

“ ‘[U]njust enrichment or recovery [under] quasi-contract [principles] applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice [should not be retained].’ “ LeasePartners Corp. v. Brooks Trust, 113 Nev. 747, 756, 942 P.2d 182, 187 (1997) (quoting 66 Am.Jur.2d Restitution § 11 (1973)). “An action based on a theory of unjust enrichment is not available when there is an express, written contract, because no agreement can be implied when there is an express agreement.” LeasePartners Corp. v. Brooks Trust, 113 Nev. 747, 755, 942 P.2d 182, 187 (1997).

 

Because Rhodes’s unjust enrichment claim was based on the same subject matter as the express contract and was not separate and distinct, we conclude that the district court properly granted summary judgment for DDS on the unjust enrichment claim. See Lipshie v. Tracy Investment Co., 39 Nev. 370, 379, 566 P.2d 819, 824 (1977) (“To permit recovery by quasi-contract where a written agreement exists would constitute a subversion of contractual principles.”);   LeasePartners, 113 Nev. at 756, 942 P.2d at 187.

 

The district court properly granted DDS summary judgment on Rhodes’s conversion claim

“Conversion is ‘a distinct act of dominion wrongfully exerted over another’s personal property in denial of, or inconsistent with [that person’s] title or rights [to the property].’ “ Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 606, 5 P.3d 1043, 1048 (2000) (quoting Wantz v. Redfield, 74 Nev. 196, 198, 326 P.2d 413, 414 (1958)). Conversions are divided between four classes: (1) wrongful taking, (2) alleged assumption of ownership, (3) illegal user or misuser, and (4) wrongful detention. Robinson M. Co. v. Riepe, 40 Nev. 121, 129, 161 P. 304, 305 (1916). Only wrongful detention requires proof of a demand and refusal. Id.

 

Rhodes argues that the district court failed to acknowledge that DDS was holding Rhodes’s property hostage for seventeen months, which Rhodes asserts amounts to conversion. Yet, Rhodes cannot demonstrate that his property was wrongfully taken or that he made a demand for his property. DDS also offered Rhodes the opportunity to retrieve his property and suggests that Rhodes could have sought a writ of restitution. Rhodes fails to demonstrate a genuine issue of material fact regarding the existence of a conversion claim and fails to demonstrate that the district court erred by finding that DDS did not wrongfully obtain and retain Rhodes’s property. Thus, we conclude that the dismissal of Rhodes’s conversion claim was proper.

 

The district court properly granted DDS summary judgment on Rhodes’s request for specific performance and an injunction

Rhodes, citing to Harmon v. Tanner Motor Tours, 79 Nev. 4, 377 P.2d 622 (1963), argues that because the contract concerned a specific and unique obligation on the part of DDS, specific performance was a valid request and the district court erred by granting summary judgment in favor of DDS. However, Harmon does not state that a party may compel another to perform a personal service, and Rhodes provides no analysis as to how Harmon might apply to his case. Harmon, 79 Nev. 4, 377 P.2d 622 (1963).

 

Instead, Harmon imposed specific performance to grant an exclusive franchise, not personal services, and it is a fundamental rule that specific performance is not available to enforce a contract for personal services. See id. at 17–20, 377 P.2d at 630 (noting that a franchise is a property right); Woolley v. Embassy Suites, Inc., 278 Cal.Rptr. 719, 727 (Cal.App.1991) (stating that specific performance is not available to enforce a contract for personal services). Therefore, we conclude that Rhodes’s request for specific performance and an injunction to enforce delivery of his property was improper. We hold that the district court did not err by dismissing Rhodes’s state law claims for unjust enrichment, conversion, and his request for specific performance and an injunction.

 

The district court erred by granting DDS’s motion to dismiss Rhodes’s remaining state law claims because genuine issues of material fact exist as to whether DPS was a “carrier”

Rhodes argues that the district court erred when granting DDS’s motion to dismiss Rhodes’s state law claims by concluding that Rhodes was bound by the allegation that DDS and MPM were “carriers” under the Carmack Amendment and in finding that Rhodes’s state law claims were preempted by the Carmack Amendment. We agree.

 

Standard of review for NRCP 12(b)(5) motion to dismiss

An order granting an NRCP 12(b)(5) motion to dismiss is reviewed de novo.   Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227–28, 181 P.3d 670, 672 (2008). A decision dismissing a complaint pursuant to NRCP 12(b)(5) is rigorously reviewed on appeal with all alleged facts in the complaint presumed true and all inferences drawn in favor of the complaint.   Id. at 228. 181 P.3d at 672. Dismissing a complaint is appropriate “only if it appears beyond a doubt that [the complaint] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief.” Id. All legal conclusions are reviewed de novo. Id.

 

It is not clear whether the district court granted DDS’s motion to dismiss under NRCP 12(b)(5) or NRCP 12(c) because DDS inadvertently cited to NRCP 12(b)(5) in its initial motion to dismiss, but then argued for dismissal as a matter of law under NRCP 12(c) in its reply to Rhodes’s opposition to the motion to dismiss. On appeal, both Rhodes and DDS reference the standard of review for a district court’s dismissal under NRCP 12(b)(5). Therefore, we construe the dismissal of Rhodes’s remaining state law claims under the standard of review for a dismissal pursuant to NRCP 12(b)(5).

 

Rhodes was not bound by his complaint

Rhodes contends that the district court would not have preempted his state law claims if it would have first considered evidence that DDS was not a “carrier” under the Carmack Amendment and that substantial questions of material fact exist as to whether DDS was a “carrier.” DDS answers that Rhodes named DDS and MPM as “carriers” throughout the case, in his pleadings, interrogatories, and 49 U.S.C. § 14706 claim, and that DDS and MPM defended themselves accordingly.

 

After discovery closed and Rhodes failed to seek leave of the court to further amend his pleadings, the district court concluded based on Rhodes’s first amended complaint that DDS and MPM were “carriers.” Rhodes argues that he clearly pleaded that DDS and MPM misrepresented their roles and that he pleaded alternative theories as a result of their deceit. Because there is uncertainty as to whether Rhodes’s pleadings only identified DDS and MPM as “carriers,” we conclude that Rhodes was not bound by his complaint. See Kingsbury v. Copren, 43 Nev. 448, 455, 189 P. 676 (1920) (concluding that “it appeared from the complaint itself, as a matter of law, that there was no uncertainty as to the capacity in which plaintiff [sought] to hold the defendant responsible” and that the plaintiff was “bound by the material allegations in the complaint”).

 

Genuine issues of material fact exist regarding whether DDS was a “carrier” under the Carmack Amendment

Rhodes also argues that the district court erred in dismissing all of his state law claims because DDS may not be a “carrier” within the meaning of the Carmack Amendment, and therefore, the amendment does not preempt Rhodes’s remaining claims. We agree.

 

The Carmack Amendment creates a uniform rule for carrier liability when goods are shipped in interstate commerce. Adams Express Co. v. Croninger, 226 U.S. 491, 505–06 (1913). To accomplish uniformity, the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods. Id. at 505–06; see also Pacific Intermountain v. Leonard E. Conrad, 88 Nev. 569, 571, 502 P.2d 106, 107 (1972) (stating that federal law controls liability for a carrier under the Carmack Amendment). The evidence demonstrates that DDS may have only acted as a broker or agent for MPM with regard to the shipment of Rhodes’s belongings. Because genuine issues of material fact exist regarding whether DDS is a “carrier” within the meaning of the Carmack Amendment, we conclude that the district court erred by dismissing all of Rhodes’s state law claims based on preemption.

 

The district court erred by granting DDS summary judgment on its breach of contract counterclaim for storage fees because genuine issues of material fact exist relating to Rhodes’s fraud claim

Rhodes argues that the district court erred by granting DDS summary judgment on its breach of contract counterclaim for storage fees because genuine issues of material fact exist regarding whether DDS fraudulently induced Rhodes to retain its services. We agree.

 

Rhodes also argues that the Carmack Amendment prohibits the district court from awarding damages relating to services not provided for in the bill of lading, and that any breach of contract claim must relate to the letter of acceptance as the bill of lading. However, the Carmack Amendment does not allow a carrier to sue a shipper based on breach of contract and such a claim does not arise under the Carmack Amendment.   Intransit v. Excel North American Road Transport, 426 F.Supp.2d 1136, 1143 (D.Or.2006); Transit Homes of America v. Homes of Legend, 173 F.Supp.2d 1185, 1187–88 (N.D.Ala.2001)). In fact, nothing in the Carmack Amendment indicates that it applies to claims against a shipper. The intent was to facilitate shippers’ recoveries against carriers. Intransit, 426 F.Supp.2d at 1140, citing Southern Pac. Transp. Co. v. United States, 456 F.Supp. 931, 937 (E.D.Cal.1978)).

 

Rhodes argues that the evidence demonstrates that he did not agree to pay for the storage of his items for more than thirty days. DDS asserts that it sent Rhodes a bid detailing the terms of his property shipment and outlining the scope of storage that would be provided by DDS to Rhodes, Rhodes signed the letter of acceptance with MPM, and Rhodes pleaded in his first amended complaint that he entered into a contract with DDS. Rhodes presented evidence that DDS informed him that his goods would need to be stored in order to meet his requested delivery date. Based on this evidence, Rhodes alleges that DDS used its offer of free storage for thirty days to induce him into retaining DDS’s services. We conclude that genuine issues of material fact exist regarding whether DDS committed fraud against Rhodes with regard to the terms of the contract and storage fees. Therefore, the district court erred by granting DDS summary judgment on its breach of contract counterclaim.

 

The district court abused its discretion in awarding attorney fees and costs

Rhodes argues that DDS was not allowed attorney fees under the Carmack Amendment because it failed to offer him arbitration pursuant to the Carmack Amendment. Because we conclude that the district court erred by granting DDS summary judgment on Rhodes’s 49 U.S.C. § 14704 claim and dismissing Rhodes’s remaining state law claims, we vacate the district court’s award of attorney fees and costs. However, we also seek to clarify when the Carmack Amendment entitles a carrier to attorney fees.

 

The decision to award attorney fees is within the sound discretion of the district court and is not overturned absent a manifest abuse of discretion.   Kahn v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005). Attorney fees are generally not recoverable absent a statute, rule, or contractual provision. Horgan v. Felton, 123 Nev. 577, 583, 170 P.3d 982, 986 (2007).

 

Based on our conclusion above, we vacate the district court’s award of attorney fees and costs. For clarification purposes on remand, we further conclude that although § 14708(e) provides attorney fees to carriers for “any court action to resolve a dispute between a shipper of household goods and a carrier,” the carrier must first offer arbitration to the shipper. See All In The Family Moving & Storage v. Latka, 935 So.2d 87, 88 (Fla.Dist.Ct.App.2006). Therefore, DDS is not entitled to attorney fees under the Carmack Amendment because DDS failed to offer arbitration pursuant to 49 U.S.C. § 14708.

 

Accordingly, we ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART and REMAND this matter to the district court for proceedings consistent with this order.