United States District Court,

E.D. Missouri,

Eastern Division.

Timmy A. TAYLOR and Deborah Taylor, Plaintiffs,

v.

COTTRELL, et al., Defendants.

 

No. 4:09CV536 HEA.

Feb. 3, 2014.

 

Brian M. Wendler, Wendler Law, P.C., Edwardsville, IL, Michael T. Blotevogel, Charles W. Armbruster, Armbruster and Dripps, LLC, Alton, IL, for Defendants.

 

Amy J. Lorenz–Moser, Daniel J. Carpenter, Armstrong Teasdale, LLP, St. Louis, MO, Paul L. Wickens, William F. Logan, Foland And Wickens, Kansas City, MO, for Plaintiffs.

 

OPINION, MEMORANDUM AND ORDER

HENRY EDWARD AUTREY, District Judge.

*1 This matter is before the Court on defendant Cottrell, Inc.’s Motion for Summary Judgment on LMRA Preemption Grounds, [Doc. No. 140]. The motion is fully briefed.

 

Factual Background

At the time of his injury, Plaintiff was a Teamster car hauler for Jack Cooper Transport since 1992. Plaintiff worked pursuant to a collective bargaining agreement with his employer. Plaintiff voted to ratify the most recent CBA. Cottrell is not a signatory to the CBA. Plaintiff’s employer Jack Cooper Transport, who is a signatory to the CBA, is not a party to this action.

 

Since 1973, the CBA has had a Joint Health and Safety Committee provision, with the purpose to consult on “matters involving highway and equipment safety.” The CBA did not require or approve handholds, cables or handrails.

 

After a fall from a Cottrell rig on October 1, 2007, Plaintiff filed this action against Defendant. Plaintiff also claims to have been injured on January 12, 2010 when he allegedly fell from the upper deck of a Cottrell auto transport trailer in Illinois. Plaintiff alleges strict product liability and negligence.

 

Arguments of the Parties

The question of LMRA preemption has been extensively briefed, and both parties offer many arguments. Their essential claims are as follows:

 

Defendant contends that the parties to a CBA, under the freedom of contract fundamental to labor policy, can agree to the standard of care for determining whether a product “used on the CBA job” is reasonably safe for their use. Defendant declares that, accordingly, CBA interpretation is required to discern this standard of care, thus requiring LMRA preemption. Defendant also contends that its own defenses require CBA interpretation. Furthermore, Defendant contends that CBA party status is unnecessary for preemption to apply.

 

Plaintiff responds that his claims are not founded on rights created by the CBA, as both parties clearly have rights and obligations stemming from negligence and products liability law. Plaintiff further argues that the CBA did not prevent Defendant from designing reasonably safe rigs, which neither prohibited nor required fall protection in the first place, and cites the lack of evidence that Defendant ever consulted the CBA.

 

Summary Judgment Standard

The standard for summary judgment is well settled. In determining whether summary judgment should issue, the Court must view the facts and inferences from the facts in the light most favorable to the nonmoving party.   Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005); Littrell v. City of Kansas City, Mo., 459 F.3d 918, 921 (8th Cir.2006). The moving party has the burden to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir.1996). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson 477 U.S. at 256; Littrell, 459 F.3d at 921. “The party opposing summary judgment may not rest on the allegations in its pleadings; it must ‘set forth specific facts showing that there is a genuine issue for trial.’ “ United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting Fed.R.Civ.P. 56(e)); “ ‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ “ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir.2004). An issue of fact is genuine when “a reasonable jury could return a verdict for the nonmoving party” on the question. Anderson, 477 U.S. at 248; Woods, 409 F.3d at 990.

 

*2 To survive a motion for summary judgment, the “nonmoving party must ‘substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy.’ “ Wilson v. Int’l. Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995) (quotations omitted). Putman v. Unity Health Sys., 348 F.3d 732, 733–34 (8th Cir.2003). A party may not merely point to unsupported self-serving allegations, but must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff’s favor.   Wilson v. Int’l. Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995). “The mere existence of a scintilla of evidence in support of the [party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. 242 at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202; Davidson & Assocs. v. Jung 422 F.3d 630, 638 (8th Cir.2005). Summary judgment is proper if a plaintiff fails to establish any element of the prima facie case. Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 444 (8th Cir.1998) (citing Weber v. American Express Co., 994 F.2d 513, 515–16). “Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party’s own conclusions, are insufficient to withstand a motion for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526–27 (8th Cir.2007). Summary judgment will be granted when, viewing the evidence in the light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable inferences, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Samuels v. Kan. City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir.2006).

 

Here, Defendant requests summary judgment on the grounds that Plaintiff’s claims are preempted by Section 301 of the Labor–Management Relations Act.

 

LMRA Preemption

Section 301 of the Labor–Management Relations Act applies to “[s]uits for violation of contracts between an employer and a labor organization,” 29 U.S.C. § 185(a); in other words, suits for violations of collective bargaining agreements (“CBAs”). Williams v. Nat’l. Football League, 582 F.3d 863, 873 (8th Cir.2009). The Supreme Court has held that section 301 preempts state law claims that are substantially dependent on an analysis of a CBA. Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206, (1985), Williams, 582 F.3d at 874. Otherwise, the application of state law could lead to inconsistent results, “since there could be as many state-law principals as there are States.” Williams, 582 F.3d at 874, quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Rather, “federal labor-law principles—necessarily uniform throughout the nation—must be employed to resolve the dispute.”   Williams, 582 F.3d at 874, quoting Lingle, 486 U.S. at 406.

 

*3 [1][2][3] However, the preemption power of section 301 is necessarily limited. “Not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301.” Lueck, 471 U.S. at 211. Nor does section 301 preempt state law claims merely because the parties involved are subject to a CBA, and the events underlying the claim occurred on the job. Williams, 582 F.3d at 874.”[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for [LMRA] pre-emption purposes.” Bogan v. Gen. Motors Corp., 500 F.3d 828, 832 (8th Cir.2007), quoting Lingle, 486 U.S. at 409–10.

 

[4][5] In determining whether section 301 preemption applies to a claim, courts in the Eighth Circuit start with the claim itself, applying a two-step approach to determine whether it is sufficiently “independent” of the CBA to survive preemption. Williams, 582 F.3d at 874, citing Bogan, 500 F.3d at 832. First, a “state-law claim is preempted if it is ‘based on’ [a] … provision of the CBA,” meaning that the “CBA provision at issue” actually sets forth the right upon which the claim is based. Id. Second, section 301 preemption applies where a state-law claim “is ‘dependent upon an analysis’ of the relevant CBA,” meaning that the plaintiff’s state-law claim requires interpretation of a provision of the CBA. Id. “An otherwise independent claim will not be preempted by the LMRA if the collective bargaining agreement (CBA) need only be consulted during its adjudication.” Williams, 582 F.3d at 876, quoting Trustees of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 330 (8th Cir.2006).

 

Discussion

[6] Defendant argues that it need not be a party to a CBA in order to invoke LMRA preemption, citing Stringer v. Nat’l. Football League, a Southern District of Ohio case which held that non-signatories to a CBA can invoke 301 preemption as a defense to state law claims. Stringer, 474 F.Supp.2d 894, at 901–02. Defendant cites no Eighth Circuit case addressing the rights of non-parties to invoke 301 preemption. However, to the extent that the Stringer case is persuasive authority, its holding regarding defenses is of no avail in this circuit. Here, despite some conflicting precedent FN1, the Eighth Circuit has followed a “narrower approach,” holding that defenses to liability “are not relevant to [a] section 301 analysis”; only the plaintiff’s claim may provide a basis for preemption. Williams, 582 F.3d at 879, Bogan, 500 F.3d at 833, Meyer v. Schnucks Markets, Inc., 163 F.3d 1048, 1051 (8th Cir.1998). Accordingly, Cottrell’s defenses are not relevant to the Court’s analysis, and it cannot use them as a means to overcome its status as nonparty to the CBA.

 

*4 [7] Further, the adjudication of Plaintiff’s claims does not require interpretation of the CBA between Plaintiff’s union and his employer. Plaintiff’s claims turn upon Defendant’s state-law duty to provide reasonably safe products; the mere mention of fall protection in the CBA is irrelevant to Defendant’s fulfillment of that duty. It is not based on any provision of the CBA, but upon state law. As to Defendant’s argument that the parties to the CBA set a special standard of care, whether or not this argument has merit, the “CBA standard” is irrelevant to whether a non-party to the CBA violated his state-law standard of care. A claim is not preempted merely if it “relates in some way to a provision of the collective-bargaining agreement, or more generally the parties to such an agreement.” Lueck, 471 U.S. at 220. Here, the relation to any provision of the collective bargaining is tentative at best, and the relation to one of the parties is entirely lacking. The adjudication of Plaintiff’s claims does not require interpretation of the CBA.

 

As such, this Court denies Cottrell’s motion for summary judgment on LMRA preemption grounds.

 

Accordingly,

 

IT IS HEREBY ORDERED that Defendant’s Supplement to Motion for Summary Judgment on LMRA Preemption Grounds, [Doc. No. 140], is denied.

 

FN1. For a discussion of the evolution of this rule, and the reasoning behind the 8th Circuit’s 2007 holding that it is the correct interpretation of Supreme Court precedent, see Williams, 582 F.3d at 879, n. 13.

United States District Court,

N.D. New York.

RIDLEY ELECTRIC CO., INC., Plaintiff,

v.

LIEBERT CORP. and Con–Way Freight, Inc.,FN1 Defendants.

 

FN1. Con-way has noted that it has previously been improperly named in the case caption as “Conway Freight, Inc.” The Court instructs the Clerk to adjust the caption to state the correct spelling on ECF.

 

No. 5:12–cv–0488 (LEK/ATB).

Feb. 3, 2014.

 

Dirk J. Oudemool, Office of Dirk J. Oudemool, Syracuse, NY, for Plaintiff.

 

Leonard F. Lesser, Andrew W. Dean, Simon, Lesser Law Firm, New York, NY, Todd J. Pinsky, Pinsky, Skandalis Law Firm, Syracuse, NY, for Defendants.

 

MEMORANDUM–DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

*1 Before the Court are Defendants Con-way Freight, Inc. (“Con-way”) and Liebert Corporation’s (“Liebert”) (collectively, “Defendants”) Motions for summary judgment. Dkt. Nos. 20 (“Con-way Motion”); 20–2 (“Con-way Memorandum”); 21 (“Liebert Motion”); 21–21 (“Liebert Memorandum”). Plaintiff Ridley Electric Company, Inc. (“Plaintiff”) brought federal law claims in New York Supreme Court against Con-way under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, and state law claims against Liebert for breach of contract, which the Defendants removed .FN2 Dkt. No. 1; 1–1. Plaintiff then filed an Amended Complaint, which is the operative pleading in this action. Dkt. No. 13 (“Amended Complaint”). Defendants have each moved for summary judgment, Plaintiff responded to each Motion, and Defendants replied. Dkt. Nos. 31 (“Plaintiff’s Con-way Response”); 33 (“Plaintiff’s Liebert Response”); 40 (“Con-way Reply”); 41 (“Liebert Reply”). For the following reasons, the Court denies both Motions.

 

FN2. Liebert and Con-way have brought cross-claims for contribution and indemnity. Dkt. Nos. 15; 18.

 

II. FACTS

Responding to a sales quote, Plaintiff submitted a purchase order to Liebert requesting, inter alia, two Liebert Precision Power Centers (“Power Centers”) to complete an expansion project for Time Warner Cable (“TWC”). Dkt No. 21–1 (“Liebert SMF”) ¶ 6.FN3 Liebert successfully tested the two Power Centers prior to shipment—in the presence of a TWC representative—at its Delaware, Ohio, facility. Id. ¶¶ 11–14. Liebert then issued an invoice, stating that the order would be “F.O.B. Point of Shipment” with Con-way as the “Carrier.” Id. ¶¶ 8, 16. On September 30, 2011—the date that the Power Centers shipped—the Shipping Order, executed by Con-way, provided that the Power Centers were in “good order.” Id. ¶¶ 19–20. Liebert “boxed, shrink wrapped, and loaded” the Power Centers onto Con-way’s truck. Dkt. No. 20–1 (“Con-way SMF”) ¶ 3. Con-way did not know the content or its condition. Id. ¶ 4.

 

FN3. All of the cited paragraphs of Defendants’ Statements of Material Facts have been admitted by Plaintiff without qualification. See Dkt. Nos. 26 (“Liebert SMF Response”); 31 (“Con-way SMF Response”)

 

Con-way delivered the Power Centers to Plaintiff’s warehouse. Liebert SMF ¶ 21. Plaintiff accepted the shipment and signed a receipt stating that it had received the boxed Power Centers in good condition without noting cargo loss or damage. Con-way SMF ¶ 6. Plaintiff held the boxed Power Centers at its warehouse for 27 days, until it moved them to the TWC job site. Id. ¶ 9; Liebert SMF ¶ 22; Dkt. No. 31 (“Pl.’s Con-way SMF”) ¶ 18. Upon unboxing the Power Centers, Plaintiff discovered damage to one unit and requested repair from Liebert. Liebert SMF ¶¶ 22–24. Liebert completed the repairs at cost to Plaintiff. Id. ¶¶ 26–29. Plaintiff submitted a claim to Conway for cargo loss and damage. Con-way SMF ¶¶ 9–10. Con-way denied the claim on the basis that Plaintiff had signed a “clean” delivery receipt. Id. ¶ 11.

 

III. LEGAL STANDARD

 

A. Summary Judgment

 

Summary judgment is proper where “there is no genuine issue as to any material fact,” and thus “the movant is entitled to judgment as a matter of law.”   Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Niagara Mohawk Power Corp. v. Hudson River–Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir.2012). If the moving party will not bear the burden at trial, it may, in order to meet its summaryjudgment burden of production, either: (1) “submit affirmative evidence that negates an essential element of the nonmoving party’s claim”; or (2) “demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Celotex, 477 U.S. at 330–32 (Brennan, J., dissenting). If the moving party carries its burden of production, the nonmoving party must raise some genuine issue of material fact; “metaphysical doubt as to material facts” is not enough. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the burden of persuasion remains at all times with the moving party, who must affirmatively demonstrate entitlement to judgment as a matter of law. Celotex, 477 U.S. at 332.

 

B. Breach of ContractFN4

 

FN4. Liebert notes, and Plaintiff does not contest, that “it is unnecessary to make a choice of law determination because there is not conflict of law as both Ohio and New York have adopted Article 2 of the U.C.C.” Liebert Mem. at 8 n. 3; Pl.’s Liebert Resp. at 1 n. 1. Liebert proceeds to apply Ohio law in its Memorandum, further citing a provision that “the validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the law.” Accordingly, the Court shall apply Ohio law to this claim. See Martinez v. Bloomberg LP, No. 12–3654–cv, 740 F.3d 211, 2014 WL 114252, at *19 (2d Cir. Jan.14, 2014).

 

*2 Under Ohio law, a plaintiff alleging breach of contract must show that (1) “a contract existed”; (2) “the plaintiff fulfilled his obligations”; (3) “the defendant unlawfully failed to fulfill his obligations”; and (4) “damages resulted from this failure.” Mikulski v. Centerior Energy Corp., 501 F.3d 555, 561 n. 3 (6th Cir.2007). Claims arising out of contracts for the sale of goods are governed by Article 2 of the Uniform Commercial Code (“UCC”). See Radio Parts Co. v. Invacare Corp., 178 Ohio App.3d 198, 897 N.E.2d 228, 234 (Ohio Ct.App.2008). If a buyer accepts a shipment of goods, “[t]he burden is on the buyer to establish any breach with respect to the goods accepted.” OHIO REV.CODE ANN. § 1302.65(D). Additionally, “F.O.B. Point of Shipment” contracts shift title and the risk of loss from the buyer to the seller as soon as the goods are shipped. See, e.g., European Pastries, Inc. v. Sichel Bakery Equip. Co., No. C–74428, 1975 WL 181875, at *2 (Ohio Ct.App. July 14, 1975).

 

C. Carmack Amendment

Claims against a carrier for injury sustained to goods shipped in interstate commerce are governed solely by the Carmack Amendment. A plaintiff must prove three elements: (1) the goods were delivered to the carrier in good condition; (2) the goods were damaged upon receipt at the destination; and (3) the value of damages sustained. See 49 U.S.C. § 11707(a)(1); Project Hope v. M/V Ibn Sina, 250 F.3d 67, 73 n. 6 (2d Cir.2001). There are affirmative defenses available to the carrier including: (1) acts of God; (2) crime; (3) acts of the shipper; (4) public authority; and (5) the nature and vice of the goods themselves. See Missouri Pacific R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137–38, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964).

 

III. DISCUSSION

Both Con-way and Liebert argue that Plaintiff has not adduced specific evidence to attribute damage to the Power Center to them—which is an essential element of both claims—and thus they are entitled to summary judgment. See Liebert Mem. at 13–15; Con-way Mem. at 7–9. Rather, all Plaintiff has only showed in its affidavits that it has not caused the damage. See Dkt. Nos. 28; 29; 30. Each Defendant has also submitted affidavits to show that its employees acted with due care, implying that Plaintiff or the other Defendant caused the damage. See Dkt. Nos. 20–4; 21–2.

 

There are limited possibilities: only the three parties had possession of the Power Centers, and presumably at least one caused the damage. Con-way has not argued as an affirmative defense, for example, that an act of God or crime caused the damage. See generally Con-way Mem.; Conway Reply. If the evidence before the Court were presented at trial, with Plaintiff calling Defendants’ affiants as witnesses, a reasonable factfinder could make credibility determinations and return a verdict for Plaintiff if it disbelieved one of the Defendants’ testimony. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”).FN5 If the factfinder finds that none of the presented evidence adequately places blame on one party, Plaintiff will not have proved an essential element of each claim-that Liebert breached its duties under the Contract or that Con-way received the goods in good condition and delivered them in damaged condition—and Defendants would prevail. However, at summary judgment the Court must make every reasonable inference in the nonmoving party’s favor and determine whether judgment for that party would be properly supported. See Anderson, 477 U.S. at 250–52. The Court accordingly finds that the evidence in the record is sufficient to withstand summary judgment.

 

FN5. This says nothing of whether Plaintiff’s decisions to forego discovery in the matter were prudent. See Liebert Reply at 5.

 

*3 Con-way further argues that the return of a “clean” delivery receipt entitles it to summary judgment as a matter of law. See Con-way Mem. at 5–6. However, courts have consistently held that the fact that a “clean” receipt as to externally noticeable damage does not preclude a showing of delivery in bad condition through extrinsic evidence. See, e.g., Vacco Indus. v. Navajo Freight Lines, Inc., 63 Cal.App.3d 262, 271, 133 Cal.Rptr. 628 (Ct.App.1976); U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F.Supp.2d 1322, 1326–28 (S.D.Ala.2003); Wesley S. Chused, The Evolution of Motor Carrier Liability Under the Carmack Amendment Into the 21 st Century, 36 TRANSP. L.J. 177, 183–84 (2009). Because Plaintiff has adduced evidence that they did not damage the Power Center after receipt, there is a genuine issue of fact and summary judgment is denied.

 

IV. CONCLUSION

Accordingly, it is hereby:

 

ORDERED, that Defendants Liebert Corporation and Con-way Freight, Inc.’s Motions (Dkt. Nos. 20; 21) for summary judgment are DENIED; and it is further

 

ORDERED, that the Clerk shall adjust the case caption to state the correct spelling of Defendant Con-way Freight, Inc.; and it is further

 

ORDERED, that the Clerk shall serve a copy of this Memorandum–Decision and Order on all parties.

 

IT IS SO ORDERED.