United States District Court,

S.D. Texas,

Houston Division.

SIEMENS WATER TECHNOLOGY CORP., Plaintiff,

v.

TRANS–UNITED, INC., Defendant.

 

Civil Action No. 4:11–cv–3272.

Aug. 29, 2013.

 

Iliaura Hands, Miller & Williamson LLC, New Orleans, LA, for Plaintiff.

 

Vic Houston Henry, Katherine Johnson Knight, Henry Oddo Austin & Fletcher, P.C., Dallas, TX, for Defendant.

 

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

*1 This case is before the Court on Defendant Trans–United, Inc.’s (“Defendant”) Second Motion for Summary Judgment [Doc. # 48] (the “Motion”) and Plaintiff Siemens Water Technology Corporation’s (“Plaintiff”) Cross Motion for Partial Summary Judgment [Doc. # 51] (the “Cross Motion”).FN1 The matter is fully briefed and ripe for decision. The Court has carefully reviewed the entire record, the parties’ arguments, and applicable law, and concludes Defendant’s Motion and Plaintiff’s Cross Motion should be denied.

 

FN1. Defendant filed a Supplement to the Motion [Doc. # 49], and Plaintiff filed a Response to the Motion [Doc. # 50] (“Plaintiff’s Response”). Defendant filed a Reply to the Response to the Motion [Doc. # 52] (“Defendant’s Reply”) and a Response to the Cross Motion [Doc. # 55] (“Defendant’s Response”). Plaintiff filed a Reply to the Response to the Cross Motion [Doc. # 56] (“Plaintiff’s Reply”).

 

I. BACKGROUND

From the summary judgment record, the facts of the case appear as follows. Plaintiff, the shipper, hired ATS Logistics Services, Inc. (“ATS”) FN2 to act as its broker to arrange the transportation of a Quench Separator Tower (“QST”) from Rothschild, Wisconsin, to the Port of Houston.FN3 ATS arranged for Defendant to serve as the carrier. Defendant hired Pathway, Inc. (“Pathway”) to transport the QST on behalf of Defendant.

 

FN2. ATS also does business as Sureway Transportation Company. See Defendant’s Responses and Objections to Plaintiff’s Discovery Requests [Exh. 8 to Doc. # 50–4], at 10.

 

FN3. It is unclear from the record when Plaintiff hired ATS and whether Plaintiff and ATS had a preexisting relationship.

 

On September 6, 2005, Defendant and ATS entered into a Broker/Carrier Agreement [Exh. 1 to Doc. # 51–3]. As part of the Broker/Carrier Agreement, Defendant agreed to “transport shipments to and from such origins and destinations as may be designated by [ATS] from time-to-time, at the rates set forth in Exhibit A attached hereto, or agreed to in the Individual Load Confirmation delivered by [ATS] to [Defendant].” FN4 The Broker/Carrier Agreement states that “Carrier’s liability for the goods shall be for the ‘full actual loss’ ….” and that “[t]he terms of the bill of lading are subordinate to the terms of this Agreement, and in the event of a conflict between such bill of lading and this Agreement, the terms of this Agreement shall govern.” FN5 Further, the Broker/Carrier Agreement explains that:

 

FN4. Broker/Carrier Agreement, at 3.

 

FN5. Id. at 6.

 

This Agreement with all Exhibits attached hereto represents the entire understanding and agreement hereto relating to the Transportation Services … Except as otherwise permitted herein, no terms, conditions, prior course of dealing, course of performance, usage of trade, understandings or agreements purporting to modify, vary, supplement or explain any provision of the Agreement shall be effective unless in writing, signed by representatives of both parties authorized to amend this Agreement. In no event shall the preprinted terms or conditions found on any Carrier documents or acknowledgments be considered as amendment or modification of this Agreement, even if such documents are signed by representatives of both parties, and such preprinted terms or conditions shall be considered null and of no effect. FN6

 

FN6. Id. at 8.

 

The Broker/Carrier Agreement was signed by representatives of Defendant and ATS. Plaintiff is not a party to the Broker/Carrier Agreement.

 

On October 24, 2008, Defendant signed ATS’s Load Confirmation & Rate Agreement [Exh. B to Doc. # 51–3] (“Load Confirmation”), at 10. The Load Confirmation identified, inter alia, Plaintiff (the shipper), the item being transported (the QST), the locations where the item would be picked up (Rothschild, Wisconsin) and transported to (the Port of Houston), and how much Defendant would be paid to transport the QST ($25,000.00).FN7

 

FN7. See Affidavit of Kevin J. Grantz [Exh. 14 to Doc. # 51–6] (“Grantz Affidavit”), at 1; Load Confirmation, at 10.

 

*2 On October 31, 2008, in connection with transport of the QST, Plaintiff’s employee, Michael Shea, an export and customs contact and material manager, provided a bill of lading to the Pathway driver, David Husband, who signed it.FN8 Shea obtained the form, entitled “Shipper’s Domestic Truck Bill of Lading” (the “24/7 Bill of Lading”) [Exh. 5 to Doc. # 51–3], from the website of an unrelated company, 24/7 Express Logistics Inc. (“24/7 Express”). Shea partially filled out the form with the particulars of the QST shipment. FN9

 

FN8. Plaintiff’s Admissions, at 1; Shea Depo., at 21; Deposition of David Husband [Exh. 1 to Doc. # 50–1] (“Husband Depo.”), at 28.

 

FN9. See Plaintiff’s Response to Defendant’s Request for Admissions [Exh. B to Doc. # 48–4] (“Plaintiff’s Admissions”), at 1, 6; Deposition of Michael Shea [Exh. 2 to Doc. # 50–2] (“Shea Depo.”), at 5–6.

 

It is undisputed that 24/7 Express had no involvement in the QST shipment and was not a party to any of the agreements signed as part of the shipment. FN10 Other than Shea’s unsolicited use of its form, 24/7 Express was not involved in any way in the events in issue. Defendant’s name is not listed on the 24/7 Bill of Lading.FN11 The 24/7 Bill of Lading states that it is “RECEIVED, subject to the ‘Common Carrier Rate Agreement’ or the CONTRACT between the Shipper and Carrier in effect on the date of shipment …” FN12 The 24/7 Bill of Lading also explains that “[f]ull disclosure of terms and conditions are listed on the back of this form or visit our website www.247expresslogistics.com.” FN13 Nothing was printed on the back of the form given to Husband.FN14 The Terms & Conditions of Service on 24/7 Express’s website state that:

 

FN10. Plaintiff’s Admissions, at 3; Motion, at 7.

 

FN11. 24/7 Bill of Lading, at 15.

 

FN12. Id.

 

FN13. Id.

 

FN14. See Affidavit of Thomas D. Boo [Exh. 7 to Doc. # 51–3], at 14–15.

 

24/7 Express Logistics, Inc., liability in the absence of a higher declared value for carriage is limited to $0.50 per pound up to a maximum of $50.00 unless greater amount is declared prior to shipment, declared on the bill of lading, and applicable declared value charges paid thereon. The maximum declared value for any shipment is $10,000.00.

 

This limitation is subject to revision as published in 24/7 Express Logistics, Inc. tariffs in effect at the time of a shipment. Declared value for carriage shall be subject to an excess valuation charge of $0.65 per $100.00 of declared value.FN15

 

FN15. Terms & Conditions of Service [Exh. 6 to Doc. # 51–3], at 13 (emphasis added).

 

The Terms & Conditions of Service additionally explain that:

 

All claims for lost or damaged shipments must be submitted in writing and received by 24/7 Express Logistics, Inc. within the prescribed limits of the date the shipment is accepted by the consignee (or reasonable time has been allowed for delivery to occur) … freight limits are 9 months from the date any shipment should have been delivered.FN16

 

FN16. Id. (emphasis added).

 

There is a dispute whether Shea and/or Husband read, were aware of, acknowledged, discussed, or expressed any intent on behalf of their employers or otherwise to adopt the Terms and Conditions of Service on 24/7 Express’s website.FN17

 

FN17. See Shea Depo., at 14–16; Husband Depo., at 9.

 

The QST was loaded on Husband’s Pathway tractor-trailer and left Rothschild for the Port of Houston on November 1, 2008. En route, the QST on the trailer struck the underside of the I–39 Porter Drive overpass in Plover, Wisconsin. FN18 Plaintiff’s personnel examined the external structure of the QST. FN19 Plaintiff alleges that both the QST and the overpass sustained visible damage.FN20 Plaintiff’s personnel determined that the lifting lugs had been bent from the impact, removed the lifting lugs, and decided that Husband should continue to the Port of Houston.FN21

 

FN18. Plaintiff’s Admissions, at 4–5; Motion, at 11.

 

FN19. Plaintiff’s Admissions, at 5; Motion at 11.

 

FN20. Complaint, at 3–4; Cross Motion, at 12–13; Plaintiff’s Answers to Interrogatories [Exh. D to Doc. # 48–6], at 3; Defendant’s Responses and Objections to Plaintiff’s Discovery Requests [Exh. 8 to Doc. # 50–4] (“Defendant’s Discovery Responses”), at 11.

 

FN21. Cross Motion, at 13; Defendant’s Discovery Responses, at 11. An unsigned Freight Invoice [Exh. 4 to Doc. # 51–3], dated November 14, 2008, was issued by Defendant and listed the cost of the shipment.

 

*3 The QST arrived in Houston on either November 11 or 18, 2008.FN22 Lyndon Jones FN23 received the QST, wrote on the Delivery Receipt [Exh. 13 to Doc. # 51–6] and the Bill of Lading that the QST was in good condition except for “light scratches, scraps [sic], rust,” and signed each document. On or about November 21, 2008, the QST left the Port of Houston for Gujarat, India.

 

FN22. Compare Delivery Receipt [Exh. 13 to Doc. # 51–6], at 4 (delivered November 11, 2008), with First Amended Complaint [Doc. # 13], at 4 (delivered November 18, 2008).

 

FN23. The record does not reflect who Lyndon Jones is or for whom he works.

 

Almost a year later, on October 22, 2009, Plaintiff sent ATS a notification that the QST arrived with damaged contents and that the total amount of loss was unknown but was at least $290,000 plus labor costs.FN24 That same day, Plaintiff sent a Form for Presentation of Loss and Damage Claim [Exh. B to Doc. # 51–6] (the “Form”), at 3, to Defendant, claiming damages of $361,428.86.

 

FN24. Letter Holding Carrier Liable [Exh. A to Doc. # 51–6]; Plaintiff’s Admissions, at 4; Grantz Affidavit, at 2.

 

Plaintiff filed suit against Defendant on September 2, 2011. Defendant filed a Motion to Dismiss Plaintiff’s Claim for Attorneys’ Fees [Doc. # 8], which was granted by the Court on December 21, 2011 [Doc. # 12]. On April 30, 2012, Plaintiff filed a First Amended Complaint [Doc. # 13]. On August 30, 2012, Defendant filed a Motion for Summary Judgment [Doc. # 20]. The Court denied the Motion.FN25 The Court now turns to the parties’ pending summary judgment motions.

 

FN25. See November 16, 2012 Memorandum and Order [Doc. # 32].

 

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008). The moving party bears the burden of demonstrating that there is no evidence to support the nonmoving party’s case.   Celotex Corp., 477 U.S. at 325; Nat’l Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5th Cir.2008). If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2006) (internal citations omitted). The Court construes all facts and considers all evidence in the light most favorable to the nonmoving party.   Nat’l Union, 532 F.3d at 401.

 

The Court is not required to accept the non-movant’s conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 413 (5th Cir.2003)); see also Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008) (stating that “conclusory allegations” or “unsubstantiated assertions” do not meet the non-movant’s burden); In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000) (explaining that “a party’s self-serving and unsupported claim” in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary). The nonmoving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir.2003) (internal quotation marks and citation omitted). In the absence of any proof, the Court will not assume that the non-movant could or would prove the necessary facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc ) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Although the Court may consider other materials in the record, the Court only needs to consider cited materials. FED. R. CIV. P. 56(c)(3).

 

III. ANALYSIS

*4 The parties agree that Plaintiff’s only remedy against Defendant is under the Carmack Amendment.FN26 The Carmack Amendment “provide[s] the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir.2003) (emphasis omitted). “Congress intended by the Carmack Amendment to provide a uniform national remedy against carriers for breach of the contract of carriage, including a liability for default in any common-law duty as a common carrier.” Air Prods. & Chems., Inc. v. Ill. Cent. Gulf R.R. Co., 721 F.2d 483, 487 (5th Cir.1983). The Fifth Circuit has explained that:

 

FN26. See Reply to Motion, at 3.

 

[The Carmack Amendment’s] attempt to supercede overlapping and sometimes differing state remedies for breach is nowhere shown to have been intended to modify the common-law duties of a common carrier under its contract of carriage, nor to eliminate recovery for their breach simply because the carrier issued a bill of lading. To the contrary, as the decisions show, the statutory emphasis upon a carrier’s liability under the bill of lading issued by it was, in the interests of shippers and consignees, to centralize in one carrier—the one that issued the bill of lading—liability for breaches in the contract of carriage, so that shippers and consignees could look to this one source (instead of seeking out fault from among connecting carriers) for damages caused by any default in the performance of the contract of carriage.

Id.; see also Arnold J. Rodin, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 477 F.2d 682, 688 (5th Cir.1973).

 

Defendant argues that the 24/7 Bill of Lading governs Defendant’s liability, if any, to Plaintiff for the damages to the QST.FN27 It asserts that under the Carmack Amendment, 49 U.S.C. § 14706(a) (1), a bill of lading is the exclusive source of a carrier’s liability and that Plaintiff is bound by the 24/7 Bill of Lading because Plaintiff issued it.FN28 Defendant contends, therefore, that under the terms of the 24/7 Bill of Lading, Plaintiff is bound by the limitation of liability and the notice limitations in the Terms & Conditions of Service on 24/7 Express’s website. Plaintiff responds that subsection 14706(a)(1) does not dictate what agreements or documents govern recovery under the Carmack Amendment.FN29 According to Plaintiff, the statute states only that a shipper’s exclusive source of recovery for lost or damaged property is the party or parties listed as the carrier(s) on “the receipt or bill of lading.” FN30 Plaintiff argues further that the 24/7 Bill of Lading was merely a receipt and the Broker/Carrier Agreement and the Load Confirmation constitute the contract of carriage for the shipment at issue.FN31

 

FN27. “A bill of lading ‘records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.’ ” Kawasaki Kisen Kaisha Ltd. v. Regal–Beloit Corp., ––– U.S. ––––, ––––, 130 S.Ct. 2433, 2439, 177 L.Ed.2d 424 (2010) (citing Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18–18, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004)). General principles of contract law govern the interpretation of a bill of lading. See OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1098 (9th Cir.2011) (citation omitted); EF Operating Corp. v. Am. Bldgs., 993 F.2d 1046, 1050 (3d Cir.1993) (citations omitted).

 

FN28. See Motion, at 14–15; Defendant’s Reply, at 5–7; Defendant’s Response, at 1–5. The Court notes that 49 U.S.C. § 14706(a)(1) directs carriers to issue a receipt or bill of lading for property it receives. Here, Defendant, the carrier, did not issue the bill of lading; Plaintiff, the shipper, issued it.

 

FN29. See Plaintiff’s Reply, at 1–6.

 

FN30. See id.

 

FN31. See Cross Motion, at 10–16; Plaintiff’s Response, at 9–13.

 

The Court need not decide at this pretrial juncture which of the Bill of Lading or the Broker/Carrier Agreement and Load Confirmation govern the parties’ dispute. In either case, genuine issues of material fact remain. Significantly, for instance, the 24/7 Bill of Lading’s incorporation clause states that the 24/7 Bill of Lading is “RECEIVED, subject to the ‘Common Carrier Rate Agreement’ or the CONTRACT between the Shipper and Carrier in effect on the date of shipment …” FN32 Accordingly, even if only the 24/7 Bill of Lading between Plaintiff (the shipper) and Pathway, as Defendant’s (the carrier) agent, governs Defendant’s liability to Plaintiff, the terms of that document may be contingent on the terms of the Broker/Carrier Agreement and/or the Load Confirmation, documents between ATS (the broker) and Defendant (the carrier). There are genuine issues of material fact (1) whether either the Broker/Carrier Agreement and/or the Load Confirmation constitute the “Common Carrier Rate Agreement” and (2) whether those agreements are contracts “between the Shipper [Plaintiff] and Carrier [Defendant] in effect on the date of shipment.” No document in the record is entitled “Common Carrier Rate Agreement.”

 

FN32. See 24/7 Bill of Lading, at 15.

 

*5 It is also unclear whether ATS was acting as Plaintiff’s agent when it entered into the Broker/Carrier Agreement and/or the Load Confirmation with Defendant. If ATS was not acting as Plaintiff’s agent when it entered into the Broker/Carrier Agreement and the Load Confirmation, Plaintiff would not be a party to the agreements. If Plaintiff was not a party to the agreements through ATS, the terms of the agreements would not, by their own force, govern Plaintiff’s relationship with Defendant. If ATS was not acting as Plaintiff’s agent and neither the Broker/Carrier Agreement nor the Load Confirmation is the “Common Carrier Rate Agreement,” the terms of the agreements would not be incorporated into the 24/7 Bill of Lading through its incorporation clause.

 

Additionally, there are fact issues whether the parties actually intended the 24/7 Bill of Lading’s Terms & Conditions of Service to bind them (to be part of the contract of carriage) and regarding the meaning of the Terms & Conditions of Service.FN33 It is unclear whether at the time Plaintiff “drafted” and Defendant (through its agent, Pathway) signed the 24/7 Bill of Lading, the Terms & Conditions of Service were available on 24/7 Express’s website. Further, it is unclear whether the parties’ representatives, Shea and Husband, had actual or apparent authority to bind the parties to the terms of the 24/7 Bill of Lading.FN34 Further, the Terms & Conditions of Service did not use the generic term “carrier” and did not refer to Defendant (or its agent, Pathway) by name.FN35 Instead, the form nonsensically states that notice of damage must be given to 24/7 Express within “9 months from the date any shipment should have been delivered” and limits 24/7 Express’s liability to the shipper.FN36 In sum, there is no evidence regarding what the parties intended these clauses to mean.

 

FN33. These terms were crafted by a company unrelated to any party or this transaction (except for Shea’s use of the form, an act he cannot explain, see Shea Depo., at 10–11, 14). It is unclear if Plaintiff ever used the 24/7 Bill of Lading before this transaction and if Plaintiff therefore had prior notice of the Terms & Conditions of Service. See id. at 10–11, 16.

 

FN34. See Shea Depo., at 10–11 (stating that he did not have written or verbal authority to sign the Bill of Lading), 21–22 (stating that he did not recall if before October 31, 2009, he had training concerning the management of transportation of cargo); Husband Depo., at 38 (stating that he was not involved in negotiating the terms of the Bill of Lading and that negotiations were done by someone else). But see Plaintiff’s Admissions, at 6 (“It is also admitted that Mr. Shea had authority to issue and sign the bill of lading which expressly provides that the carriage is “subject to the Common Carrier Rate Agreement or the CONTRACT of carriage between the shipper and carrier in effect on the date of Shipment.”).

 

FN35. See Defendant’s Discovery Responses, at 19.

 

FN36. See Terms & Conditions of Service, at 13.

 

Finally, as the Court explained in its November 16, 2012 Memorandum and Order, if the terms of the 24/7 Bill of Lading govern, there are genuine issues of material fact concerning the applicability of the $10,000 damage cap and whether Plaintiff timely filed a written claim for damage.

 

Accordingly, because multiple issues of material fact remain, the Court denies both summary judgment motions.

 

V. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

 

ORDERED that Defendant Trans–United’s Second Motion for Summary Judgment [Doc. # 48] is DENIED. It is further

 

ORDERED that Plaintiff Siemens Water Technology Corporation’s Cross Motion for Partial Summary Judgment [Doc. # 51] is DENIED.

United States District Court,

C.D. California.

ELITE LOGISTICS CORPORATION and on behalf of all others similarly situated, Plaintiff,

v.

MOL AMERICA, INC., Defendants.

 

No. CV 11–02952 DDP (PLAx).

Dkt. No. 63.

Aug. 29, 2013.

 

David C. Wright, Jae Kook Kim, Kristy M. Arevalo, Richard D. McCune, Jr., McCune Wright LLP, Redlands, CA, Edward J. Chong, Law Offices of Edward J. Chong and Associates, Los Angeles, CA, for Plaintiff.

 

Aleksandrs Eduards Drumalds, Alisa Manasantivongs, Erich P. Wise, Nicholas S. Politis, Thomas C. Jorgensen, Elene M. Daley, Flynn, Delich & Wise LLP, Long Beach, CA, for Defendants.

 

ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

DEAN D. PREGERSON, District Judge.

*1 Presently before the court is Plaintiff’s Motion for Partial Summary Judgment Regarding Declaratory and Injunctive Relief. Having considered the submissions of the parties and heard oral argument, the court denies the motion and adopts the following order.

 

I. Background

Defendant MOL (America) Inc. (“MOL”) is an international ocean carrier, and transports cargo in shipping containers MOL owns. (Declaration of Don Licata, ¶ 3). Independent motor carriers, or truckers, such as Plaintiff, transport MOL’s cargo containers from ports to inland distribution centers, then return the empty containers to MOL at the port. (Id. ¶ 5.) MOL contracts with the cargo owners, not the truckers, for the overland transport. (Id. ¶ 6.) The cargo owners, in turn, hire and pay the truckers. (Id. ¶ 7.)

 

MOL’s contracts with cargo owners provide for some period of “free time,” during which MOL does not charge customers for the use of its shipping containers. (Id. ¶ 13.) When containers are returned after the expiration of the “free time” period, MOL assesses a “detention charge.” (Id. ¶ 10.) In other words, MOL allows its cargo customers to check out, or borrow, the shipping containers containing the cargo owners’ property at no charge for a certain time period. Ideally, the container can be delivered, unloaded, then returned to MOL within the “free time” period. If the container is returned late, however, MOL charges a late return fee.FN1

 

FN1. The parties refer to this late fee either as a “detention charge” or “per diem.”

 

While cargo owners contract with MOL to transport containers to the inland container yard, the independent truckers actually pick up, transport, and return MOL’s containers. The truckers are not, however, parties to the transportation service contract.FN2 Nevertheless, when truckers are late returning MOL’s containers, for whatever reason, it is the truckers, not the contracting cargo owners, who must pay the late fee. (Id. ¶ 15.) Truckers pay the late fees, then in turn bill cargo owners for those fees. (Declaration of Erich Wise, Ex. A at 20). If truckers refuse to pay late fees, they may be denied access to shipping containers and essentially foreclosed from doing business. (Id. at 21).

 

FN2. Though the record is somewhat unclear, the parties appear to agree that this case only concerns what the parties dub either “CY moves” or “merchant haulage” scenarios where truckers deliver containers to a container yard. In “door move” scenarios, in contrast, MOL itself hires a trucker to deliver cargo to the cargo owner’s facility. (Licata Decl. ¶¶ 6–7).

 

In 2005, California enacted Business and Professions Code § 2298, which states:

 

(b) An intermodal marine equipment provider or intermodal marine terminal operator shall not impose per diem, detention, or demurrage charges on an intermodal motor carrier relative to transactions involving cargo shipped by intermodal transport under any of the following circumstances:

 

(1) When the intermodal marine or terminal truck gate is closed during posted normal working hours. No per diem, detention, or demurrage charges shall be imposed on a weekend or holiday, or during a labor disruption period, or during any other period involving an act of God or any other planned or unplanned action that closes the truck gate.

 

Cal. Bus. & Profs. Code § 2298.

 

By this motion for partial summary judgment, Elite seeks a declaratory judgment that California Business and Professions Code § 2298 prohibits MOL from charging late fees on any weekend or holiday, as well as related injunctive relief.FN3

 

FN3. This motion does not seek summary judgment regarding damages.

 

II. Legal Standard

*2 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 323.

 

Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and material facts are those “that might affect the outcome of the suit under the governing law.”   Anderson, 477 U.S. at 248. There is no genuine issue of fact “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

 

It is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found.” Id.

 

III. Discussion

 

A. Preemption

 

MOL argues that Section 2298 is preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 49 U.S.C. § 14501(c) (1). That statute states, in relevant part, that “a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).

 

The question presented here is whether Section 2298 is sufficiently connected with, or makes reference to, motor carrier rates, routes, or services. Rowe v. New Hampshire Motor Transp. Assoc., 552 U.S. 364, 370, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). MOL appears to argue that because truckers pass the cost of late fee charges on to cargo owners, any law affecting the upstream fees charged to the truckers affects or is related to the fees the truckers themselves charge, and is therefore preempted. (Opp. at 13).

 

*3 Section 2298 regulates the fees that marine equipment providers such as MOL may charge motor carriers. The statute does not require anything of the carriers themselves. Thus, the effect of Section 2298 on motor carriers’ rates or services with respect to transportation of property is indirect, at best. While a law having even an indirect effect on rates, routes, or services may, in some cases, be preempted, the FAAA does not preempt state laws that affect prices, routes, or services “in only a tenuous, remote, or peripheral manner.” Dan’s City Used Cars, Inc. v. Pelkey, ––– U.S. ––––, ––––, 133 S.Ct. 1769, 1778, 185 L.Ed.2d 909 (2013) (citations and alteration omitted); Rowe, 552 U.S. at 370.

 

In Rowe, Maine passed a law (1) requiring tobacco retailers to use delivery services that used particular recipient-verification services and (2) forbidding transportation of tobacco under certain circumstances and from certain shippers. Rowe, 552 US. at 368. The Supreme Court held that Maine’s recipient-verification law, which regulated shippers rather than carriers, was “less ‘direct’ than it might be,” but nevertheless effectively required motor carriers to offer services that they otherwise would not provide, thus hampering the competitive market forces that the FAAA was designed to protect.   Id. at 371–72. More damningly for preemption purposes, the state statute’s imposition of civil liability upon motor carriers for failure to conduct certain specific inspection procedures directly regulated shippers’ services.   Id. at 372–73. Accordingly, the Court held Maine’s law preempted.FN4 Id. at 377.

 

FN4. In American Trucking Associations, Inc. v. City of Los Angeles, the Supreme Court recently held that the FAAA preempted a Port of Los Angeles requirement that truckers display certain placards and submit parking plans to city authorities. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, ––– U.S. ––––, ––––, ––––, 133 S.Ct. 2096, 2100, 2105, 186 L.Ed.2d 177. There, however, there was no dispute whether the Port’s regulations were related to truckers’ services. Id. at 202. The issue rather, was whether the Port’s regulations had the force and effect of law. Id.

 

Here, unlike the statute at issue in Rowe, California Business & Professions Code § 2298 has no regulatory effect, whether direct or indirect, on motor carriers’ services. At most, by limiting truckers’ exposure to certain fees, Section 2298 has a tenuous impact on truckers’ prices. Elite, for its part, disputes even this peripheral link, asserting that it invoices per diem fees separate and apart from its freight rates, which are independent of such charges. (Wise Decl., Ex. A.) Even if Elite did build late fees into its fee structure, the effect of that increased cost would be remote, akin to that of other state-imposed input costs resulting from such regulations as highway weight and clearance restrictions, speed limits, and fuel taxes. Section 2298’s impact on truckers’ prices, routes, and services, if any, is sufficiently remote as to fall outside the ambit of the FAAA preemption provision.

 

B. Meaning of Section 2298

Section 2298 prohibits late fees “[w]hen the intermodal marine or terminal truck gate is closed during posted normal working hours.” A trucker cannot, of course, return an overdue container if the truck gate is closed. The parties appear to agree that MOL cannot, and does not, currently charge late fees when the truck gate is closed.

 

Elite contends, however, that Section 2298 forbids the imposition of late fees on any weekend or holiday, regardless whether the terminal is open for business. Specifically, Elite points to the second sentence of Section 2298(b)(1), which reads, “No per diem, detention, or demurrage charges shall be imposed on a weekend or holiday, or during a labor disruption period, or during any other period involving an act of God or any other planned or unplanned action that closes the truck gate.”

 

*4 Courts need not look beyond the clear language of a statute to determine its meaning. Clayworth v. Pfizer, Inc., 49 Cal.4th 758, 770, 111 Cal.Rptr.3d 666, 233 P.3d 1066 (2010). The second sentence of Section 2298(b)(1) sets forth a number of “planned and unplanned action[s]” that could conceivably result in the closing of the truck gate. Absent any limitation other than the closed gate language, the statute would be so broad as to be meaningless. See Metcalf v. Country of San Joaquin, 42 Cal.4th 1121, 1135, 72 Cal.Rptr.3d 382, 176 P.3d 654 (2008); Hensel Phelps Const. Co. v. San Diego Unified Port Dist., 197 Cal.App.4th 1020, 1034, 129 Cal.Rptr.3d 59 (2011). Without any geographical or temporal restriction on the terms “labor disruption period” or “act of God,” the statute might theoretically be applicable at any given moment. Nor would it make sense to read into those phrases a requirement that each scenario disrupt operations at the terminal, as the “closes the truck gate” language, which Plaintiff seeks to ignore with respect to weekends and holidays, serves precisely that purpose.

 

To the extent the statutory language is ambiguous, Section 2298’s legislative history confirms that it applies only when the truck gate is closed. See Alejo v. Torlakson, 212 Cal.App.4th 768, 787, 151 Cal.Rptr.3d 420 (2013). The legislative analysis of the bill that became Section 2298 stated that the bill “stems from the complaints of the commercial vehicle operators … regarding the penalties imposed for the late return of cargo containers which they characterize as unfair and unwarranted. These vehicle operators argue that they are ‘charged late fees for the return of empty containers, even when terminals are closed ….” CA. B. An., S.B. 45 Assem., 7/1/2005. A later analysis specified that the bill prohibits late charges “[w]hen the marine terminal or terminal truck terminal is closed.” CA. B. An., S.B. 45 Sen., 8/18/2005. This history confirms that Section 2298 applies only when the truck gate is closed, and not, as Plaintiff contends, on any and all weekends and holidays.

 

Because Section 2298 prohibits late fees only on weekends and holidays when the truck gate is closed, Elite’s Motion for Summary Judgment Regarding Declaratory and Injunctive relief is denied, insofar as it seeks a declaratory judgment that MOL cannot charge late fees on any weekend or holiday and injunctive relief against such charges.

 

C. Pass–On Defense

MOL also contends that Elite lacks standing to pursue the relief requested because it passes on any late fee charges to the cargo customer, and therefore has not sustained any injury. (Opp. at 20.) MOL did not, however, fully brief its argument. In any event, the court need not reach the issue, having rejected Elite’s interpretation of Section 2298 and determined that Elite’s motions must be denied. The court notes, however, that the California Supreme Court has rejected such a “pass-on” defenses, even outside the antitrust context.   Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 334, 120 Cal.Rptr.3d 741, 246 P.3d 877; Clayworth, 49 Cal.4th at 789, 111 Cal.Rptr.3d 666, 233 P.3d 1066 (“That a party may ultimately be unable to prove a right to damages … does not demonstrate that it lacks standing to argue for its entitlement to them…. [M]itigation, while it might diminish a party’s recovery, does not diminish the party’s interest in proving it is entitled to recovery.).

 

IV. CONCLUSION

*5 For the reasons stated above, Plaintiff’s Motion for Summary Judgment Regarding Declaratory and Injunctive relief is DENIED.

 

IT IS SO ORDERED.