United States District Court,

D. Nebraska.

Ryan D. WELLS, Plaintiff,

v.

LORENZ FARM SERVICES, INC., and Dennis L. Lorenz, Defendants.

 

No. 4:12–CV–3085.

Nov. 15, 2012.

 

Megan S. Wright, Richard P. Jeffries, Cline, Williams Law Firm, Omaha, NE, for Plaintiff.

 

Robert E. Stochel, Robert E. Stochel Law Firm, Merrillville, IN, for Defendants.

 

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

*1 This matter is before the Court on Plaintiff Ryan D. Wells’ Motion for Partial Summary Judgment (filing 33). The Court has considered the parties’ briefs (filing 34, 49, and 50) and Wells’ index of evidence (filing 35). For the reasons discussed below, the Court grants Wells’ motion.

 

I. FACTUAL BACKGROUND

The following facts are those stated in the parties’ briefs that are supported by the record, that the parties have admitted, or that the parties have not properly resisted. See, NECivR 56.1(b)(1); Fed.R.Civ.P. 56(c)(1)(A) and (e)(2).

 

Wells conducts business as RW Farms. Filing 1 at 1, ¶ 1. As part of Wells’ business, he regularly contracts for deliveries of hay to be made to various locations around the country. Filing 1–1.

 

Accordingly, in September 2011, Wells contracted with Defendants Dennis L. Lorenz and Lorenz Farm Services, Inc. (“LFS”) for the purpose of securing a large quantity of hay for RW Farms. Filing 1–1. The parties agreed to enter into ten separate “Commodity Sales Contracts” in which “Wells agreed to purchase certain quantities of hay from LFS, and LFS agreed to sell said quantities of hay to Wells and deliver the same….” Filing 1–1 at 1. At least six of the contracts required that LFS deliver hay to Garden City, Kansas; others required delivery to Hereford, Texas; and perhaps some of the hay was also to be delivered to Yuma, Colorado.FN1 Filing 1–1 at 6–15.

 

FN1. While none of the Commodity Sales Contracts list Yuma as a possible destination, the contracts do not all list a destination, and Yuma unquestionably appears on the “delivery schedule” described below. Filing 1–1 at 6–15. Moreover, while the parties’ later contract (the “Hay Delivery Agreement”) notes that they formed ten separate Commodity Sales Contracts, only nine are attached to Wells’ Complaint. Filing 1–1.

 

By March 2, 2012, however, the hay deliveries—as stipulated by the Commodity Sales Contracts—were behind schedule. Filing 1–1 at 1. Therefore, the parties agreed to form a new contract, the “Hay Delivery Agreement,” which clarified important details such as the quantity of hay yet to be delivered, the specific locations for delivery,FN2 and the dates on which delivery was required. Filing 1–1. These details were listed in the “delivery schedule,” which was incorporated into the Agreement, and which superseded the Commodity Sales Contracts.FN3 Filing 1–1 at 3, 15. Also, the parties agreed that, from that time on, the hay would be delivered in “strict accordance” with the delivery schedules. Filing 1–1 at 2. Accordingly, the parties provided dates upon which they would review and evaluate the progress of deliveries. Filing 1–1 at 2. And Lorenz personally guaranteed LFS’ performance of the contract. Filing 1–1 at 4.

 

FN2. Garden City, Hereford, and Yuma were listed as the required locations for delivery.

 

FN3. The Hay Delivery Agreement provides that “[t]o the extent that the delivery deadlines and/or delivery locations set forth in the delivery schedule(s) … are different than those set forth in the Commodity Sales Contracts, the delivery schedule(s) sheet shall be controlling.” Filing 1–1 at 3.

 

The Agreement also provided that, in the event LFS was having trouble meeting its delivery obligations, Wells could elect to help transport the hay at LFS’ cost, through RJ’s Trucking, a trucking company partly owned by Wells. Filings 1–1 at 2 and 35–1 at 1. However, this provision also stated that “[t]o the extent RJ does not have the capacity and/or availability to handle such loads, this shall not in any way reduce LFS’ obligations herein.” Filing 1–1 at 2.

 

The parties signed the Hay Delivery Agreement on March 2, 2012. Filing 1–1 at 4. And, as required under the agreement, Wells then deposited $150,000 with LFS to pre-pay for the commercial freight expenses that LFS expected to incur. Filing 34 at 7, ¶ 23; filing 49 at 2–3; filing 1–1 at 4.

 

*2 The parties dispute much of what took place after March 2, 2012. Wells alleges that under the Agreement, LFS was supposed to have delivered 714 loads of hay by April 15, 2012, but had only delivered 90. Filing 1 at 2. Throughout March and April of 2012, Wells let LFS know that he was concerned about the status of the deliveries. Filing 35–1 at 4–7. Wells has provided copies of several such text messages that he sent to Defendants during March and April of 2012 which demonstrate his concern about the deliveries. Filing 35–1 at 4–7. For example, on March 14, 2012, Wells wrote:

 

Bill what is actually going on here? ? [sic] The way it is sounding to me is there is no hay or I mean not 33700 ton [sic] and especially not 8000 ton [sic] of 3 x 4 bales. I need to get 3000 ton [sic] of big squares to Hereford by 4–30–12. If this is not going to be possible you please need to call a spade a spade….”

 

Filing 35–1 at 4. Similarly, on March 16, 2012, Wells wrote:

Out of the 32000 ton [sic] you have left to haul you cannot tell me there is no where I can send my trucks Dennis? ? [sic] In order for you to fulfill agreement [sic] you have to deliver 120 loads per week to me from today on Dennis. This needs to be addresses [sic] and resolved or it is going to cause much financial loss and responsibility to you. .[sic] Please respect my concern and step up to the plate and deliver how you agreed [sic]. Thanks again.

 

Filing 35–1 at 5.

 

Defendants, on the other hand, tell a different story. In their initial Answer, they allege that Wells breached the contract by failing to adequately provide trucks for picking up the hay. Filing 14 at 4. Defendants argue that Wells “refused and failed to cooperate and act in good faith regarding the use of [his] trucks for the pick-up and delivery of hay.” Filing 49–1 at 2. And while Defendants admit that Wells did make an effort “to pick-up hay for delivery” on a few occasions, they allege that Wells improperly “demanded that Lorenz Farm Service pay the costs of a round trip for such truck” despite the fact that the trucks would have only carried hay one-way. Filing 49–1 at 2.

 

From there, however, Defendants’ side of the story becomes somewhat confusing. In Defendants’ response to Wells’ Motion for Partial Summary Judgment, they admit one version of the story, but then argue a different one. First, Defendants admit that “[n]ot long after the Agreement was executed, LFS’ and Lorenz’ failure to meet delivery requirements became apparent.” Filing 34 at ¶ 17; filing 49 at 3. However, Defendants later suggest that they had in fact met all of the delivery requirements, but that Wells had thwarted their attempts to deliver by improperly rejecting the hay. Filing 49–1 at 2. Therefore, they argue, “if Plaintiff had not rejected the hay … Lorenz Farm Service would have been current and not been in default of any of the terms and conditions of the Hay Delivery Agreement.” Filing 49–1 at 2.

 

*3 No matter what took place after March 2, 2012, however, it is clear that by the middle of April the parties’ relationship had deteriorated. Consequently, in light of what Wells alleges was Defendants’ “material breach” of the contract, Wells “seasonably canceled the Agreement by written notice” on April 24 and demanded a return of his $150,000 deposit. Filing 1 at 2, ¶ 11.

 

Then, Wells filed the present complaint in this Court alleging that the Defendants had breached the Hay Delivery Agreement. Filing 1. Defendants answered and filed several counterclaims, which will be discussed in more detail below. Filing 14. Wells eventually filed the Motion for Partial Summary Judgment (filing 33) which is now before the Court, seeking summary judgment as to Defendants’ counterclaims and their liability under the parties’ contracts.

 

II. STANDARD OF REVIEW

Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c)(2). The moving party bears the initial responsibility of informing the court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

 

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. The mere existence of a scintilla of evidence in support of the nonmovant’s position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791–92 (8th Cir.2011).

 

Furthermore, an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed.R.Civ.P. 56(c)(4). The nonmovant “may not merely point to unsupported self-serving allegations, but must substantiate allegations with sufficient probative evidence that would permit finding in [the nonmovant’s] favor.” Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir.2005). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.   Torgerson, 643 F.3d at 1042.

 

III. ANALYSIS

*4 Wells argues that there are no genuine issues of material fact with regard to Defendants’ counterclaims, and Defendants’ liability under the Commodity Sales Contracts and/or the Hay Delivery Agreement. The Court will address each issue in turn.

 

A. Defendants’ Counterclaims Against Wells

Defendants bring several counterclaims against Wells. Filing 14 at 4. And while Defendants’ claims are put in the form of ten numbered paragraphs, Defendants essentially make one claim. Filing 14 at 4. Put simply, they allege that the Hay Delivery Agreement required “both parties to cooperate in various matters in the delivery of quantities of hay to Wells.” Filing 14 at 4. Defendants contend that because Wells “failed and refused to cooperate in coordinating the pick-up and delivery of hay provided by Lorenz Farm,” Wells breached the contract. Filing 14 at 4.

 

Under Nebraska law,FN4 courts interpreting a contract must give effect to the parties’ intentions at the time the writing was made. Volquardson v. Hartford Ins. Co. of the Midwest, 647 N.W.2d 599, 604 (Neb.2002). When the terms of a contract are clear, they should be accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. Misle v. HJA, Inc., 674 N.W.2d 257, 264 (Neb.2004). “In such a case, a court shall seek to ascertain the intention of the parties from the plain language of the contract.” Id.

 

FN4. Because this is a diversity case, state substantive law applies. Emp’rs Reinsurance Co. v. Mass. Mut. Life Ins. Co., 654 F.3d 782, 789 (8th Cir.2011). Also, because neither party has raised the choice of law question, and because Nebraska is the “forum state” in this instance, Nebraska contract law and Nebraska’s Uniform Commercial Code apply by default. BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, 960 n. 3 (8th Cir.2003).

 

Turning to the contract at issue, the Court finds that the terms of the Hay Delivery Agreement plainly show that Wells had no duty to pick up and deliver the hay. The relevant portion of the Agreement provided:

 

If, at any one or more of the evaluation periods, the aggregate number of loads delivered to date is not within ten (10) of the total required loads established for said period as set forth on the delivery schedule(s) sheet (Exhibit “11”), LFS shall (at its own cost) pay RJ’s Trucking, LLC FN5 (“RJ”) to pick up and deliver the load shortages at RJ’s freight rate then in existence. Provided, further, however, that the parties understand and acknowledge that RJ shall only pick up and deliver said loads to the extent it has the capacity and availability so to do. To the extent RJ does not have the capacity and/or availability to handle such loads, this shall not in any way reduce LFS’ obligations herein.

 

FN5. RJ’s Trucking LLC is a Nebraska limited liability company, of which Wells is a partial owner. Filing 34 at 3.

 

Filing 1–1 at 2. Several points are worth highlighting here.

 

At the outset, it is important to view this provision in its proper context. As explained above, under the parties’ original agreement (the Commodity Sales Contracts), LFS and Lorenz were solely responsible for transporting the hay to Wells. See filing 1–1 at 1. However, by the end of February 2012, LFS had failed to deliver much of the hay, causing Wells to question LFS’ ability to perform. Filing 1–1 at 1. The parties then entered into the Hay Delivery Agreement, which provided Wells with several assurances that LFS would deliver the hay. Filing 1–1 at 1. First, the parties set out a clear schedule for LFS to follow. Filing 1–1 at 15. Second, Wells agreed to prepay LFS $150,000 for freight charges. Filing 1–1 at 4. Third, the parties agreed that Lorenz would be personally liable in the event that LFS failed to deliver the hay. Filing 1–1 at 4. And fourth, the parties agreed to the provision at issue. Filing 1–1 at 2.

 

*5 It is apparent, therefore, when this provision is read in context, that it was intended to give Wells the option to pick up the hay himself if LFS could not deliver it—not to require Wells to do so. It would make little sense for Wells to bind himself (or RJ’s Trucking) to transport any portion of the hay after paying LFS a substantial sum for delivery and securing Lorenz’s personal guarantee that LFS would perform.

 

Beyond that, RJ’s Trucking is not a party to the contract. Filing 1–1 at 4. While Wells is a partial owner of RJ’s Trucking, no one disputes that the two are separate entities. Filing 34 at 3. If the parties really intended to require RJ’s Trucking to cooperate in transporting the hay, it would have been a party to the Agreement.

 

But most importantly, the plain language of the provision simply does not require that Wells or RJ’s Trucking transport the hay. Instead, the provision expressly states the opposite by emphasizing, first, “RJ shall only pick up and deliver said loads to the extent it has the capacity and availability so to do” and, second, “this shall not in any way reduce LFS’ obligations herein.” Filing 1–1 at 2.

 

In short, Defendant’s counterclaims depend upon a construction of the Hay Delivery Agreement that is contradicted by its plain terms. Therefore, Wells’ Motion for Summary Judgment is granted insofar as it relates to Defendants’ counterclaims, and those counterclaims will be dismissed.

 

B. Defendants’ Liability Under the Contracts

Turning to the other half of Wells’ Motion, Wells asserts that there are no genuine issues of material fact with regard to Defendants’ liability under the Commodity Sales Contracts and/or the Hay Delivery Agreement. After construing the facts in a light most favorable to Defendants, the Court agrees.

 

Under Nebraska law, to prove that Defendants are liable, Wells must establish “the existence of a promise, its breach, damage, and compliance with any conditions precedent that activate the defendant’s duty.” Henriksen v. Gleason, 643 N.W.2d 652, 658 (Neb.2002). Furthermore, in order to recover, Wells must defeat Defendants’ affirmative defenses.

 

The parties agree that there was a promise in the form of several valid contracts. Filing 1 at ¶¶ 6, 14; filing 14 at ¶¶ 6, 14. The parties also agree that Wells can show damages of at least the amount of the deposits he paid to LFS. Filing 34 at ¶¶ 5, 23; Filing 49 at 2–3. Moreover, the parties agree that Wells satisfied all conditions precedent to LFS’ performance under the contract.FN6 Filing 1 at ¶ 15; filing 14 at ¶ 15. This leaves only one requirement: Defendants’ breach.

 

FN6. In their brief on summary judgment, Defendants purport to change their minds as to whether Plaintiff satisfied this factor. Filing 49 at ¶ 16. But once a defendant admits an item in a pleading, this admission is “in the nature of judicial admissions binding upon the part[y], unless withdrawn or amended.” Missouri Housing Development Commission v. Brice, 919 F.2d 1306, 1314 (8th Cir.1990) (citations omitted). It does not matter here, though, because—despite their best efforts to confuse matters—Defendants do not actually attempt to refute an earlier admission. Wells’ acceptance of hay is not a “condition precedent.” Under Nebraska law, “[a] condition precedent is a condition which … must be fulfilled before a duty to perform an existing contract arises.” Cimino v. FirsTier Bank, N.A., 530 N.W.2d 606, 613 (Neb.1995). As Plaintiff notes, in this instance, “as a matter of logic, Wells could not reject hay based on poor quality before LFS and Lorenz had the obligation to deliver it.” Filing 50 at 9.

 

As to breach, Defendants have told two different stories at various points in this litigation. Essentially, Defendants first said, “We couldn’t deliver the hay because Wells wouldn’t help pick it up,” and then later said “We tried to deliver the hay but Wells refused it.” And while it may be possible to reconcile the Defendants’ various assertions, the fact that Defendants did not adopt the second version until nearly 5 months after the start of this litigation certainly raises questions. See filing 49–1 at 2.

 

*6 Even so, Defendants’ assertions might have been enough to survive summary judgment—but they are also unsupported by the record and contrary to Defendants’ own admissions. To begin with, in the same filing in which Defendants introduce Wells’ supposed rejections of hay, they also admit that “[n]ot long after the Agreement was executed, [their] failure to meet delivery requirements became apparent….” Filing 34 at ¶ 17; filing 49 at 3. Defendants do not try to explain away this contradiction; nor is the Court required to do so on their behalf. Under NECivR 56.1(b)(1):

 

The party opposing a summary judgment motion should include in its brief a concise response to the moving party’s statement of material facts. The response should address each numbered paragraph in the movant’s statement and, in the case of any disagreement, contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies. Properly referenced material facts in the movant’s statement are considered admitted unless controverted in the opposing party’s response.

 

(Emphasis in original.)

 

More importantly, Defendants also fail to offer any evidence persuasively establishing that Wells actually rejected deliveries of hay-even in the face of the evidence Wells has placed in the record supporting the opposite conclusion. Filing 35–1 at 4–7. Lorenz asserted in his affidavit that hay was refused. Filing 49–1 at 2. But his statement is conclusory, and unsupported by any foundation. Lorenz does not explain when Wells supposedly rejected any hay deliveries, or aver any facts supporting the conclusion that the hay supposedly delivered was satisfactory. Nor is there any basis for Lorenz’s conclusion that the Defendants’ failure to deliver substantial quantities of hay was entirely attributable to such rejections. Or, stated another way, there is no foundation for Lorenz’s conclusions. While Lorenz avers that his conclusory assertions are based on “personal knowledge,” he never identifies the source of that knowledge—he never says that he witnessed these events, or how else he might have learned of them.

 

To survive a motion for summary judgment, parties must provide the court with more than mere speculation or conjecture. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791–92 (8th Cir.2011). And it is well established that “unsupported self-serving allegations” are similarly insufficient.   Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir.2005). Lorenz’s affidavit is the very definition of unsupported and selfserving. Therefore, because Defendants’ allegations are conclusory, at odds with the record, and contradicted by Defendants’ own admission under NECivR 56.1(b)(1), the Court finds that Defendants’ breach of the contract is established as a matter of law.

 

Finally, in order to demonstrate that there are no genuine issues of material fact regarding Defendants’ liability under the contract, Wells must also survive Defendants’ affirmative defenses. Defendants raise three affirmative defenses. First, Defendants contend that “Plaintiff is estopped from claiming a default under [the contract] … [because he] fail[ed] to comply with the terms and conditions of said contract.” Filing 14 at 3. While Defendants do not explain how Wells failed to comply with the contract, they are apparently referring to their allegation that Wells failed to cooperate in transporting the hay. Filing 14 at 3–4. As already discussed, however, there was no requirement in any contract between the parties that Wells cooperate in transporting the hay. Therefore, this defense is meritless.

 

*7 Second, Defendants assert that “Plaintiff has waived any and all defaults … [by] acquiescence to the Defendant’s [sic] compliance with contract terms.” Yet Defendants fail to provide any evidence supporting this assertion. Instead, the record supports the opposite conclusion. Wells has provided several pages of text messages and emails clearly demonstrating his anxiety about whether Defendants were going to perform. Filing 35–1 at 4–7; filing 35–2 at 4–13. This defense is also meritless.

 

Finally, Defendants argue that Wells has failed to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Put simply, Rule 12(b)(6) requires that Wells’ complaint contain factual allegations that are sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this determination, the Court takes as true all facts alleged in the complaint. E–Shops Corp. v. U.S. Bank Nat. Ass’n, 678 F.3d 659, 662 (8th Cir.2012).

 

Here, Wells has stated a claim for relief. As discussed above, in order to recover, Wells must establish the existence of a promise, its breach, damage, and compliance with any conditions precedent to Defendants’ duty. Henriksen, 643 N.W.2d at 658. Wells’ complaint alleges facts supporting each of these elements, and Defendants have admitted all of these requirements.

 

IV. CONCLUSION

The Court finds that Wells is entitled to partial summary judgment. Lorenz and LFS have failed to present evidence from which a reasonable jury could find that their counterclaims are successful or that they are not liable under the contracts between the parties.

 

IT IS ORDERED:

 

1. Plaintiff Wells’ Motion for Partial Summary Judgment (filing 33) is granted.

 

2. Defendants are liable to Wells for breach of contract, as set forth in this Memorandum and Order, for an amount yet to be determined.

 

3. Defendants’ counterclaims are dismissed.

United States District Court,

D. New Hampshire.

AMERISWISS TECHNOLOGY, LLC

v.

MIDWAY LINE OF ILLINOIS, INC.

 

Civil No. 11–cv–148–LM.

Nov. 15, 2012.

 

Frank J. Weiner, Deutsch Williams Brooks Derensis & Holland PC, Boston, MA, John F. Bisson, Cronin & Bisson PC, Manchester, NH, for Ameriswiss Technology, LLC.

 

Wesley S. Chused, Looney & Grossman LLP, Boston, MA, Mary K. Ganz, Ganz Law Office, Seabrook, NH, for C.H. Robinson Worldwide, Inc.

 

ORDER

LANDYA McCAFFERTY, United States Magistrate Judge.

*1 On January 27, 2012, the clerk of the court entered a default against Midway Line of Illinois, Inc. (“Midway”) on a claim brought against it by Ameriswiss Technology, LLC (“Ameriswiss”), under the federal Carmack Amendment, 49 U.S.C. § 14706. That claim arises from a traffic accident in which thirteen machines that Midway was transporting for Ameriswiss were “damaged beyond repair.” Compl. (doc. no. 1) ¶ 23. Before the court is Ameriswiss’s motion for entry of judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure (“Federal Rules”). In its motion, Ameriswiss asks the court to enter final judgment in its favor, against Midway, in the amount of $545,000. For the reasons that follow, Ameriswiss’s motion is granted in part.

 

Discussion

By failing to respond to Ameriswiss’s complaint as required by the Federal Rules, Midway has defaulted on Ameriswiss’s Carmack Amendment claim. Ameriswiss is entitled to a default judgment as to liability given that its machines were delivered to Midway in good condition and were damaged while being transported by Midway. See Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 274 (1st Cir.2000) (setting out elements of Carmack Amendment claim). When a motor carrier is liable for damaging a shipper’s goods, the shipper is entitled to recover “the actual loss or injury to [its] property .” 49 U.S.C. 14706(a)(1). The issue here is the amount of Ameriswiss’s actual loss.

 

“Within the meaning of the Carmack Amendment, ‘actual loss or injury to … property’ is ordinarily measured by the reduction in market value at destination or by replacement or repair costs occasioned by the harm.”   Camar, 221 F.3d at 277 (citing Fredette v. Allied Van Lines, Inc., 66 F.3d 369, 372 (1st Cir.1995)). “Although mathematical precision is not required … a damages award must have a ‘rational basis in the evidence.’ “ Camar, 221 F.3d at 279 (quoting Thermo Electron Corp. v. Schiavone Constr. Co., 958 F.2d 1158, 1166 (1st Cir.1992); citing Jay Edwards, Inc. v. N.E. Toyota Distrib., Inc., 708 F.2d 814, 819 (1st Cir.1983)). In other words, an award of damages must be based on more than speculation. See Camar, 221 F.3d at 277.

 

Here, the evidence of the market value of the machines that Midway damaged is two-fold. First, it is undisputed that on September 20, 2010, less than a month before the accident that gave rise to Midway’s liability, Ameriswiss paid $44,800 for thirteen machines,FN1 including eleven used Model D6 Escomatic screw machines that were between twenty and thirty years old. Second, Ameriswiss has submitted an affidavit from one of its members (Paul Luscher) and an affidavit from an appraiser (Steven Beck), both stating that Ameriswiss’s D6 Escomatics were worth $545,000. Those affidavits are supported by Beck’s appraisal report which states that if Ameriswiss’s eleven D6s had not been damaged, they would have had a fair market value of $545,000 as of April 4, 2012.FN2

 

FN1. That price consisted of $40,000 for the previous owner of the machines plus a twelve-percent commission for the auctioneer who handled their sale.

 

FN2. Without any readily apparent explanation, Beck valued ten of the D6s at $50,000 apiece, while assigning a value of $45,000 to the other one.

 

*2 Beck’s report, however, says little of substance about how he determined the value of the damaged D6s. To be fair, the report indicates that Beck viewed photographs of them, “conducted an investigation into the market conditions for this type of equipment,” and “consulted with several new and used machinery dealerships as well as reports and periodicals.” Pl.’s Mot. for Entry of J., Ex. B (doc. no. 59–2), at 3. But, the report does not indicate what Beck learned from those sources that led him to determine the values of Ameriswiss’s D6s. More specifically, the report includes no information about either attempted or completed sales of comparable machines.

 

As between the $44,800 Ameriswiss paid for the machines shortly before they were damaged and the $545,000 that Beck says they were worth, the court concludes that their fair market value is no more than $44,800. Beck’s report defines fair market value as:

 

[a] professional opinion of the estimated most profitable price … to be realized for property in an exchange between a willing buyer and a willing seller, with equity to both, neither being under any compulsion to buy or sell, and both parties fully aware of all relevant facts, as of the effective date of this appraisal report.

 

Pl.’s Mot. for Entry of J., Ex. B (doc. no. 59–2), at 4. Beck’s professional opinion is that the machines had a fair market value of $545,000. But his report identifies no evidence supporting that opinion such as the prices asked by other willing sellers for similar equipment or the prices paid by other willing buyers. The fact that Beck’s report mentions no other sales of used D6s from the 1980s suggests that sales of machines such as the ones Midway damaged occur infrequently enough to make any opinion concerning their market value inherently speculative. See Camar, 221 F.3d at 278 (pointing out, in connection with claim for lost profits, difference between markets for fungible new goods and markets for used goods). But, of course, the record does include evidence of one sale of used Escomatic D6 screw machines involving a willing buyer and a willing seller: Ameriswiss’s purchase of the machines that Midway damaged, for $44,800.FN3

 

FN3. In response to the summary judgment motion filed by former defendant C.H. Robinson Worldwide, Inc., Ameriswiss produced evidence that it was prepared to offer $200,000 for the equipment Midway later damaged, and that Paul Luscher was surprised that the auctioneer accepted his offer of $40,000. See Mem. of Law (doc. no. 49–1), at 6. But, as in Camar, “[t]he low price for which [Ameriswiss] obtained the equipment suggests … that in the eyes of the seller and of other [potential purchasers] the market for it remained quite questionable and uncertain.” 221 F.3d at 278. That is, Luscher may believe he got a great deal on the D6s, but there is no objective evidence from the marketplace to corroborate his belief.

 

While the court has found no case that is directly on point, the First Circuit’s opinion in Camar offers useful guidance as to the kind of evidence necessary to support an award of damages under the Carmack Amendment. In Camar, the plaintiff shipper was a company that, like Ameriswiss, bought used equipment and refurbished it for resale. See 221 F.3d at 273. In August of 1995, Camar purchased 156 pieces of “used marine equipment located at a naval depot in California,” id., “from the United States Navy’s Defense Reutilization and Marketing Service (‘DRMS’),” id. The “Navy had originally paid $275,000 to acquire the equipment,” id ., but sold it to Camar for $215, id. Camar then contracted with Preston to transport its newly acquired equipment. Id. After Preston lost Camar’s goods, “Camar submitted a loss claim to Preston of $137,500.” Id. When Preston did not pay that claim, Camar sued for $137,500, and later “amended its complaint to allege damages of $353,370, claiming it could have sold the equipment for [that] sum.” Id.

 

*3 At summary judgment, Camar contended that [its] actual loss should be measured by what foreign buyers had previously paid [it] for similar items.”   Camar, 221 F.3d at 273–74. Regarding the legal aspect of Camar’s argument, i.e., the correct measure of damages, the court of appeals held that the Carmack Amendment “permits recovery of lost profits unless they are speculative.” Id. at 277 (citing Pillsbury Co. v. Ill. Cent. Gulf R.R., 687 F.2d 241, 245–46 (8th Cir.1982); Hector Martinez & Co. v. S. Pac. Transp. Co., 606 F.2d 106, 108 (5th Cir.1979); Polaroid Corp. v. Schuster’s Express, Inc., 484 F.2d 349, 351 (1st Cir.1973)).

 

The court of appeals then described Camar’s attempt to prove its lost profits in the trial court:

 

To establish the dollar value of its loss, Camar submitted exhibits describing each type of lost equipment and comprising the record of its procurement and of Camar’s previous sales of similar equipment to foreign buyers. For example, one exhibit includes a statement as follows:

 

This is a bearing turbine, similar to the four lost by Preston Trucking…. On July 21, 1995 Camar sold one of these to the Brazilian Navy for $59,830. If the goods had been delivered and Camar had been able to sell the missing four at that price, Camar would have earned $239,320 on the four bearing turbines Preston lost.

 

Procurement history data, including the identity of the vendor and the price paid by the U.S. government, follow. Next are invoices and other documents reflecting the sale of the allegedly similar equipment to the Brazilian Navy. The other exhibits are similar, except as to two categories of equipment in which the damages calculations are based solely on the procurement history.

 

Id. at 277. In the face of the foregoing evidence, including the price Camar received for a turbine the month before it purchased four similar turbines that Preston lost, “[t]he district court determined that the $215 Camar paid for the equipment was its value for purposes of ascertaining Camar’s actual loss and that the evidence as to lost profits was too speculative.” Id. at 276–77. The court of appeals agreed “that the evidence of past sales on this record is too speculative to form the basis of a damages award greater than the $215 purchase price.” Id. at 277. The court continued:

Camar’s evidence did not identify any prospective purchasers for the lost used equipment at prices like those paid for the previously sold equipment, or, indeed, at any price. In his deposition testimony, Camar’s president, James Mercanti, admitted that Camar had no customer for the equipment at the time of the bid or at the time Preston lost the shipment. No evidence of subsequent customer demand was submitted.

 

Id. As the court of appeals explained, “we think the district court did not err in concluding that ‘[t]he DRMS Notice of Award indicating Camar’s purchase price of $215 is the only non-speculative evidence of the market value of the lost equipment.” Id. at 278.

 

*4 Here, the evidence concerning the fair market value of Ameriswiss’s eleven used D6s is even less substantial than the evidence of lost profits the court held to be insufficient in Camar.FN4 In Camar, the plaintiff produced evidence of recent sales of equipment similar to the equipment lost by the trucking company. Here, there is no evidence of any sales of equipment comparable to the machines that Midway damaged. Unsupported by such evidence, Beck’s opinion, while rendered by an expert in the field, cannot be regarded as anything more than well-informed speculation about a “market [that is] quite questionable and uncertain,” Camar, 221 F.3d at 278. Thus, the price Ameriswiss paid for the equipment that Midway damaged is the only non-speculative evidence of the market value of that equipment.

 

FN4. While Ameriswiss is not seeking lost profits, the court notes that based on the evidence in the summary judgment record concerning the lack of identified customers for the D6s that Midway hauled, see Mot. Summ. J., Ex. 1, Luscher Dep. (doc. no. 41–4), at 138, any claim for such damages would be as unavailing as the lost-profits claim in Camar, see 221 F.3d at 277 (“In his deposition testimony, Camar’s president, James Mercanti, admitted that Camar had no customer for the equipment at the time of the bid or at the time Preston lost the shipment.”).

 

Having determined that Ameriswiss’s adequately supported damages do not exceed the $44,800 it paid for the equipment that Midway hauled, the court turns to one final issue. Ameriswiss has a duty to mitigate its losses. See Paper Magic Grp., Inc. v. J.B. Hunt Transp., Inc., 318 F.3d 458, 463 (3d Cir.2003) (citing M. Golodetz Export Corp. v. S/S Lake Anja, 751 F.2d 1103, 1112 (2d Cir.1985)). For that reason, and because Ameriswiss has retained the damaged machines, its losses are limited to the fair market value of those machines less their salvage value. See Paper Magic, 318 F.3d at 465 (explaining that where shipper retains damaged goods, it is entitled to fair market value less salvage value, and where carrier retains such goods, shipper is entitled to full fair market value); Eastman Kodak Co. v. Trans Western Express, Ltd., 765 F.Supp. 1484, 1486 (D.Colo.1991); see also B & D Appraisals v. Gaudette Mach. Movers, Inc., 733 F.Supp. 505, 508–09 (D.R.I.1990) (ruling that jury committed no error in Carmack Amendment case by awarding damages based on fair market value of damaged machinery, reduced by net salvage value).

 

Allowing Ameriswiss the full market value of its machines with no deduction for their salvage value, while it retains the machines, would give Ameriswiss a partial double recovery, cf. Paper Magic, 318 F.3d at 465, a result that is not permitted under the Carmack Amendment. The Carmack Amendment allows a “shipper [to] recover ‘all damages resulting from’ the carrier’s negligence.”   Am. Nat’l Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 935 (7th Cir.2003) (quoting Se. Express Co. v. Pastime Amus. Co., 299 U.S. 28, 29 (1936)). But, “the shipper cannot recover more than ‘the injury suffered.’ “ American National, 325 F.3d at 935 (quoting Ill. Cent. R.R. Co. v. Crail, 281 U.S. 57, 63 (1930)). A shipper that recovers the full market value of its damaged goods from a carrier, while retaining the goods, and thus their salvage value, would recover more than the injury it suffered, in the amount of that salvage value.

 

At summary judgment, former defendant C.H. Robinson Worldwide, Inc. produced evidence that Ameriswiss had obtained information on the scrap value of its machines, but had no other information about their salvage value. See Mot. Summ. J., Ex. 1, Luscher Dep. (doc. no. 41–4), at 147–48. Before the court can determine the damages to which Ameriswiss is entitled, Ameriswiss must produce evidence of the salvage value of its damaged equipment.

 

Conclusion

*5 For the reasons described above, Ameriswiss’s motion for entry of judgment, document no. 59, is granted to the following extent: Ameriswiss is entitled to judgment against Midway in the amount of $44,800, less the salvage value of the damaged equipment. The court will enter final judgment against Midway upon submission of evidence establishing the salvage value of the thirteen machines Midway damaged. The court concludes by noting that in the event Ameriswiss opts for a salvage value based on scrapping its machines, it would be well advised to produce competent evidence that it would not be able to make appreciably more money by engaging in some other form of salvage, such as selling undamaged components individually and selling as scrap only those pieces that are too badly damaged to be reused.

 

SO ORDERED.