United States District Court,

M.D. Tennessee,

Nashville Division.

Kimberly MONDS, Plaintiff,

v.

WATKINS TRUCKING CO., INC. and Carl Edward Nelson, Defendants.

 

No. 3:12–1147.

Filed March 28, 2014.

 

Matthew E. Wright Hardee, Martin & Donohoe, P.A., Jackson, TN, Joseph A. Napiltonia, Law Office of Joe Napiltonia, Franklin, TN, for Plaintiff.

 

Charles M. Duke, Thomas F. Mink, II, Mink & Duke, PLLC, Nashville, TN, for Defendants.

 

ORDER

E. CLIFTON KNOWLES, United States Magistrate Judge.

*1 This matter is before the Court upon “Plaintiff’s Motion for Sanctions for Failure of Carl Nelson to Attend His Deposition.” Docket No. 33. Plaintiff has also filed the Declaration of one of her counsel and a Memorandum of Law. Docket Nos. 33–3, 33–10. Defendants have filed a Response in Opposition to the Motion (Docket No. 35), a supplemental Response to the Motion (Docket No. 41), and the Affidavit of one of their counsel (Docket No. 41–1). Judge Trauger has referred the Motion to the undersigned for disposition. Docket No. 44.

 

This diversity case involves a motor vehicle accident that occurred on August 14, 2012, on Interstate 65 in Williamson County, Tennessee. Docket No. 1. Plaintiff avers that she was driving southbound on I–65 and that Defendant Carl Nelson was driving a tractor-trailer owned and operated by Defendant Watkins Trucking Company. Plaintiff avers that Defendant Nelson struck the rear of her vehicle at a high rate of speed. Plaintiff further avers that Defendant Nelson violently and recklessly rammed Plaintiff’s vehicle in an attempt to flee the scene of the wreck. When he was stopped by the Tennessee Highway Patrol, Schedule II Drugs and Schedule III Drugs, including Methamphetamine or “crystal meth” were found inside the cab of the truck. Plaintiff further alleges that Defendant Nelson was using a cell phone, texting, or otherwise distracted.

 

Plaintiff filed her Complaint on November 6, 2012. Docket No. 1. Judge Trauger subsequently entered an Order setting the case for trial on June 10, 2014. Docket No. 10. Judge Trauger also entered an Initial Case Management Order, setting a discovery cut-off deadline of September 30, 2013, and a dispositive Motion deadline of January 15, 2014. Docket No. 12.

 

Thereafter, the parties filed an “Agreed Motion to Extend Discovery Deadlines,” requesting a 60–day extension to complete fact and expert discovery. Docket No. 20. Judge Trauger granted that Motion. Docket No. 21.

 

On November 15, 2013, the parties filed a “Joint (Second) Motion to Amend Scheduling Order.” Docket No. 26. Among other things, that Motion sought an extension of the fact discovery deadline to December 30, 2013, and the dispositive motion deadline to April 7, 2014. Id., p. 1. The Motion further stated, “As grounds for this motion, the Parties show Defendants were not available for deposition until November 25th, 2013, which now has been scheduled.” Id. Docket No. 26. Judge Trauger granted that Motion in part, extending the fact discovery deadline to December 30, 2013. Docket No. 30. Judge Trauger’s Order also provided, “In light of the agreement of the parties that no dispositive motions will be filed, the trial date shall remain in place.”

 

According to the instant Motion, Plaintiff’s counsel made numerous attempts to set Defendant Nelson’s deposition. He initially filed deposition notices for both Defendant Nelson and a corporate representative of Defendant Watkins to be taken on November 25, 2013, in Nashville. See Docket Nos. 27, 28. Defendants’ counsel sought to move the date of the depositions to December 5, 12, or 13. Additionally, Defendants’ counsel “insisted” that the depositions take place in Birmingham. Plaintiff’s counsel agreed and reset the depositions for December 12 in Birmingham.

 

*2 On December 10, 2013, Defendant’s counsel advised Plaintiff’s counsel that Mr. Nelson would be out of town and would not be in attendance at his deposition. Plaintiff’s counsel responded that he intended to proceed with Mr. Nelson’s deposition at the scheduled time. The Motion states that Plaintiff’s counsel appeared on December 12 in Birmingham for the deposition, but that Mr. Nelson did not.

 

Defendants’ counsel later advised Plaintiff’s counsel that Mr. Nelson would be produced in Nashville during the last week of December for his deposition. Mr. Nelson, however, did not appear, and discovery closed on December 30, 2013. On January 3, 2014, Plaintiff filed the instant Motion.

 

It should be noted that the instant Motion is a Motion only for sanctions; it is not a Motion to Compel. Plaintiff seeks sanctions against Defendants pursuant to Fed.R.Civ.P. 37(d)(1)(A)(I). Plaintiff seeks to strike portions of Defendants’ Answer and defenses. Plaintiff also seeks attorneys’ fees and expenses in the total amount of $5,006.56 ($4,675.00) in attorneys’ fees and $331.56 in expenses). The attorneys’ fees represent 5 hours “in preparation and review of discovery materials,” 6 hours in travel time to and from Birmingham, and 1 hour in travel time to the deposition from a hotel in Birmingham. Docket No. 33–3, p. 3. Counsel also seeks 5 hours of attorneys’ fees for “drafting and filing this present Motion with attachments.” Docket No. 33–3, p. 4. Counsel states that his customary hourly rate is $275 per hour, which for 17 hours equals $4,675.00. Counsel also seeks a total of $331.56 in expenses, representing a hotel charge of $111.21, plus $220.35 in mileage expenses (56.5 cents for 390 miles).

 

Defendants argue in their Response that the sanctions sought by Plaintiffs are harsh and unwarranted, even though Defendants admit that Mr. Nelson did not appear for his deposition. Docket No. 35. According to Defendants, Plaintiff’s counsel did not begin to seek dates for the two depositions referred to above until early November 2013. Defendants argue that Mr. Nelson’s deposition was scheduled based upon prior conversations with him. On December 10, 2013, however, Mr. Nelson contacted counsel for Defendants, advised that he was out of state working,FN1 and would be unable to attend a deposition on December 12. Defendants’ counsel immediately contacted Plaintiff’s counsel and advised him of the situation. Id., p. 4.

 

FN1. Neither party discusses whether Mr. Nelson is still a truck driver. Additionally, neither party discusses whether Mr. Nelson is still employed by Defendant Watkins, although the Court presumes that he is not.

 

There was, however, no problem with the company representative for Watkins giving her deposition on December 12 in Birmingham, and she did so. Id., p. 4–5.

 

Thereafter, Defendants’ counsel made continuing attempts to contact Mr. Nelson to have him come to Nashville to be deposed. Those efforts, however, proved unsuccessful. Defendants further state:

 

A private investigator has been secured to locate Mr. Nelson. Once Mr. Nelson is located, counsel for the defendants will immediately arrange for him to Franklin, Tennessee, so that plaintiff’s counsel can complete the requested deposition. Every effort is being extended to have Mr. Nelson appear.

 

*3 Id., p. 5.

 

Plaintiff seeks sanctions pursuant to Fed.R.Civ.P. 37(d), which provides in relevant part:

 

(d) Party’s Failure To Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

 

(1) In General.

 

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

 

(i) a party … fails after being served with proper notice, to appear for that person’s deposition ….

 

…

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

Rule 37(b)(2)(A) provides in relevant part:

 

(2) Sanctions Sought in the District Where that Action Is Pending.

 

(A) For Not Obeying Any Discovery Order. If a party … fails to obey an order to provide or permit discovery … the court where the action is pending may issue further just orders. They may include the following:

 

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

 

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

 

(iii) striking pleadings in whole or in part;

 

(iv) staying further proceedings until the order is obeyed;

 

(v) dismissing the action or proceeding in whole or in part;

 

(vi) rendering a default judgment against the disobedient party….

 

The Sixth Circuit discussed the propriety of a district court’s imposing sanctions under Rule 37 in Beil v. Lakewood Engineering and Manufacturing Co., 15 F.3d 546 (6th Cir.1994). The Beil Court in part:

 

A district court’s decision to invoke Rule 37 sanctions is reviewed by this court for an abuse of discretion …

 

In deciding whether the district court acted unreasonably, arbitrarily or fancifully, this court has announced several factors that it should consider when deciding whether the district court abused its discretion by imposing sanctions. Among the factors are: (1) whether the adversary was prejudiced by the dismissed party’s failure to cooperate in discovery, (2) whether the dismissed party was warned that failure to cooperate could lead to dismissal, and (3) whether less drastic sanctions were imposed or considered before dismissal was ordered ….

 

Dismissal is the sanction of last resort. It should be imposed only if the court concludes that the party’s failure to cooperate in discovery was willful, in bad faith, or due to its own fault.

 

115 F.3d at 552 (citations and internal quotation marks omitted).

 

*4 The Sixth Circuit has also stated, “Dismissal is generally imposed only for egregious misconduct, such as repeated failure to appear for deposition ….“ Regional Refuge Systems v. Inland Reclamation Co., 842 F.2d 150, 155 (citation omitted, emphasis in original).

 

Under the circumstances, the Court agrees that the sanctions sought by Plaintiff are overly harsh and punitive. Defendant Nelson failed to appear for one properly noticed deposition. Two days before the deposition was to occur, he gave notice to his attorneys that he would be out of town working and unable to attend. Moreover, Plaintiff filed her Complaint on November 6, 2012. According to Defendant’s Response to the instant Motion, Plaintiff did not express a desire to take Defendant Nelson’s deposition until early November 2013. Additionally, the parties had filed two Motions to extend deadlines in the Initial Case Management Order, and it does not appear that Plaintiff’s counsel was in any particular hurry to take Mr. Nelson’s deposition.

 

Applying the factors discussed above, the Court concludes that Plaintiff has not been overly prejudiced by Mr. Nelson’s failure to appear for his deposition. As discussed above, counsel’s trip to Birmingham was not a waste of time. Additionally, the trial of this case is set for June 10, 2014. The parties have agreed that they will not file dispositive Motions. Thus there is plenty of time for Mr. Nelson’s deposition to occur. Second, insofar as the record shows, Mr. Nelson was not warned that failure to cooperate could lead to dismissal. The Court does not emphasize this factor, because Mr. Nelson is represented by counsel, who presumably understands the possible sanction of dismissal and/or default. Third, less drastic sanctions were not sought or imposed. As discussed above, Plaintiff has not sought to compel Mr. Nelson to appear for a deposition, although Plaintiff does not necessarily have to do this under Rule 37(d).

 

The attorneys’ fees and expenses sought by Plaintiff are quite surprising. In her Motion and in the Declaration of her counsel, Plaintiff essentially glosses over the fact that her counsel’s trip to Birmingham was not a wasted trip. In fact, Plaintiff’s counsel actually took the deposition of the corporate representative as he had requested. The Court is rather astounded that Plaintiff’s counsel would attempt to claim more than $5,000 in attorneys’ fees and expenses for his trip to Birmingham when he would have generated the same fees and incurred the same expenses in traveling to Birmingham for only one deposition (the deposition of the corporate representative that he actually took).FN2 These circumstances would “make an award of expenses unjust.” See Fed.R.Civ.P. 37(d)(3).

 

FN2. Plaintiff’s counsel makes no attempt to separate the time he spent preparing for Mr. Nelson’s deposition versus the time he spent preparing for the deposition of the Watkins’ representative. Even the time he spent preparing for Mr. Nelson’s deposition will not be wasted, however, if Plaintiff’s counsel is able to take Mr. Nelson’s deposition.

 

As discussed above, applicable Rules allow the Court to “issue further just orders.” Under the circumstances, the Court concludes that the appropriate sanction for Mr. Nelson’s failure to appear at his deposition is an Order from the Court requiring him to give a deposition.

 

*5 Therefore, Defendant Carl Nelson is hereby ORDERED to present himself for a deposition in Nashville, Tennessee, within thirty (30) days of entry of the instant Order. If he fails to do so, the undersigned will recommend that a default judgment be entered against him.

 

In all other respects, the instant Motion, including the request for attorneys’ fees and expenses (Docket No. 33) is DENIED.

 

IT IS SO ORDERED.

United States District Court,

S.D. New York.

FUBON INSURANCE CO. LTD., et al., Plaintiffs,

v.

OHL INTERNATIONAL, et al, Defendants.

Barthco International Inc., d/b/a OHL International, Third–Party Plaintiff,

v.

Cosco Container Lines Co. Ltd., Third–Party Defendant.

 

No. 12 Civ. 5035(RJS).

Signed March 31, 2014.

 

Nathan Thomas Williams of Kennedy, Lillis, Schmidt & English, New York, NY, for Plaintiffs.

 

Sandra Gale Behrle of Law Offices of Sandra Gale Behrle, New York, NY, Brendan Collins of GKG Law, P.C., Washington, DC, for OHL International.

 

George W. Wright and Narinder S. Parmar of George W. Wright and Associates, LLC, New York, NY, for Evans.

 

Patrick F. Lennon of Lennon, Murphy, Caulfield & Phillips, LLC, New York, NY, for COSCO.

 

MEMORANDUM AND ORDER

RICHARD J. SULLIVAN, District Judge.

*1 Plaintiffs, a group of insurance companies acting as subrogated underwriters of Lite–On IT Singapore Pte. Ltd. (“Lite–On,” and together with the insurance companies, “Plaintiffs”), bring this action against Defendants OHL International FN1 and Evans Delivery Co., Inc. (“Evans”) for breach of contract of carriage related to a shipment of optical devices from China to Buffalo, New York. For its part, OHL International asserts cross-claims against Evans and third party claims against COSCO Container Lines Co., Ltd. (“COSCO”) for contribution, indemnity, and negligence. Now before the Court are (1) COSCO’s motion to dismiss OHL International’s claims, (2) Evans’s motion for summary judgment on Plaintiffs’ claim, (3) Evans’s motion for summary judgment on OHL International’s cross-claims, (4) Plaintiffs’ motion for summary judgment on their claim against OHL International, and (5) Plaintiffs’ motion to strike a declaration submitted by OHL International in response to Plaintiffs’ motion for summary judgment.

 

FN1. In the parties’ moving papers, the entity OHL International is referred to in various ways, including OHL International, OHL Global, OHL USA, Barthco International, Inc., BarthcoDart, Inc., and Barthco. For the sake of clarity, the Court will refer to this entity exclusively as “OHL International.”

 

For the reasons set forth below, the Court (1) grants COSCO’s motion to dismiss OHL International’s third party claims, (2) grants Evans’s motion for summary judgment on Plaintiffs’ claim, (3) grants Evans’s motion for summary judgment on OHL International’s cross-claims, (4) denies Plaintiffs’ motion for summary judgment against OHL International, and (5) denies Plaintiffs’ motion to strike the declaration as moot.

 

I. BACKGROUND

A. Freight Transportation

This case largely concerns questions about freight transportation and liability for lost cargo. Therefore, before turning to the facts, the Court briefly provides an overview of relevant law and terminology for context and background.

 

The modern freight transportation industry is based on so-called “multimodalism, door-to-door transport based on efficient use of all available modes of transportation by air, water, and land.” See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 10–4 (5th ed.2011) (hereinafter “Schoenbaum”). This industry relies heavily on intermediaries, which broker intermodal services to transport cargo from point A to point B. Numerous parties may play a role in a single shipment, complicating the determination of liability for lost cargo.

 

The contract of carriage of goods is often in the form of a bill of lading, which is a document that “records that a carrier has received goods from the party that wishes to ship them [i.e., the ‘shipper’], states the terms of carriage, and serves as evidence of the contract for carriage.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18–19 (2004.) As alluded to earlier, “the shipment of the goods may involve carriers other than the sea carrier and the services of an intermediary[.]” 1 Schoenbaum § 10–1.

 

The Carriage of Goods by Sea Act (“COGSA”) governs the liability of so-called “common carriers” that transport cargo by water to and from the United States. See Ch. 229, 49 Stat. 120 (1936) (now uncodified). Common carriers, as relevant here, fall into two categories: (1) a traditional vessel-owning common carrier (“VOCC” or “ocean common carrier”), and (2) a non-vessel-owning common carrier (“NVOCC”), which is a common carrier that “does not operate the vessels by which the ocean transportation is provided[,]” and is “a shipper in its relationship with an ocean common carrier.” 46 U.S.C. § 40102.

 

*2 In a run-of-the-mill shipping transaction,

 

the actual shipper will arrange for the shipment of goods through an NVOCC, who will issue its own “house” bill of lading to its customer [i.e., the shipper]. The NVOCC will arrange for the shipment of the goods with a steamship line (VOCC), who will issue a bill of lading covering the goods shipped.

 

1 Schoenbaum § 10–2. In essence, an NVOCC has a dual role as both carrier and shipper. See Zima Corp. v. M/V Roman Pazinski, 493 F.Supp. 268, 273 (S.D.N.Y.1980) (The NVOCC “acts as shipper with respect to the carrier who actually transports the goods and as carrier with respect to the original shipper[.]”). An NVOCC also “consolidate[s] cargo from numerous shippers into larger groups for shipment by an ocean carrier … [and] issues a bill of lading to each shipper.” Prima U.S. Inc. v. Pan alpina, Inc., 223 F.3d 126, 129 (2d Cir.2000).

 

Similar to an NVOCC, a freight forwarder is an intermediary that arranges, on behalf of a shipper, the transportation of cargo. See Scholastic Inc. v. M/V Kitano, 362 F.Supp.2d 449, 455 (S.D.N.Y.2005). Among other things, a freight forwarder “locate[s] and reserve[s] space on ships, prepare[s] bills of lading, arrange[s] for cargo to be picked up and delivered to the pier and do[es] other paper work concerned with exporting. [It] collect[s] fees from exporters and sometimes also brokerage commissions from ship owners.” 1 Schoenbaum § 10–7. The freight forwarder may be liable to the shipper for negligently supervising the transport of cargo, but a freight forwarder is not subject to carrier liability pursuant to COGSA. Id.

 

The distinction between an NVOCC and a freight forwarder, however subtle, is crucial because COGSA binds NVOCCs, but not freight forwarders, to “properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” See Ch. 229, § 3(2), 49 Stat. 1208 (1936). Perhaps not surprisingly, “[o]ften when the status of an intermediary as NVOCC or freight forwarder is disputed, the intermediary argues for freight forwarder status and its limited liability, while the plaintiff argues for NVOCC status and increased liability arising from the bill of lading.” M/V Kitano, 362 F.Supp.2d at 458.

 

With this rudimentary primer on multimodal transport and ocean carriage in mind, the Court turns to the facts of the instant case.

 

B. Facts

This case arises out of the shipment of 802 boxes of optical devices, which were supposed to be shipped from Beihai, Guangxi, China to Buffalo, New York. FN2 On June 28, 2011, their journey to Buffalo was cut short when the truck carrying the 802 boxes from the Port of New York to Buffalo was stolen from a parking lot in New Jersey. The journey began more hopefully some six weeks earlier, half a world away in China.

 

FN2. The following facts are drawn from the Plaintiffs’ Rule 56.1 Statement (Doc. No. 46–47) (“Pls.56.1”), Evans’s Rule 56.1 Statement (Doc. No. 39) (“Evans 56.1”), OHL International’s counter-designations to both (respectively, Doc. No. 70 and Doc. No. 71) (respectively, “OHL–Pls. 56.1” and “OHL–Evans 56.1”), and the exhibits and declarations attached thereto. In deciding these motions, the Court also considered the parties’ pleadings, as well as the parties’ briefs in connection with these motions.

 

The Court notes that portions of Plaintiffs’ Rule 56.1 Statement do not comport with Local Rule 56.1(d), which requires that “[e]ach statement by the movant … must be followed by citation to evidence which would be admissible … as required by Fed.R.Civ.P. 56(c).” Because the authenticity of the evidence at issue does not affect the outcome of Plaintiffs’ summary judgment motion, the Court treats Plaintiffs’ factual assertions as mere context. Of course, at trial the parties must properly introduce admissible evidence.

 

On May 12, 2011, Yvonne Li (“Li”), an employee of the Lite–On family of companies with responsibility for arranging export shipments of Lite–On goods from China, emailed Cecilia Shih (“Shih”), an employee of OHL (Taiwan) Limited (“OHL Taiwan”), to “help book” the subject shipment from China to Buffalo, New York. (Pls. 56.1 ¶ 2–3; Decl. of Yvonne Li, dated July 6, 2013, Doc. No. 48, (“Li Decl.”) ¶¶ 4–5, Ex. 1.) OHL Taiwan, as well as BarthcoDart Global Logistics (Xiamen) Co., Ltd. (“OHL Xiamen”), are affiliates of OHL International, and, in at least some circumstances, are authorized to act as OHL International’s agents. (Pls. 56.1 ¶ 2; Dep. Excerpts of Randy Briggs (Part I), dated Dec. 5, 2012, id. at Ex. 27, at 115.) In the days that followed, OHL Taiwan coordinated the shipment with OHL Xiamen. (Evans 56.1 ¶ 24; Dep. Excerpts of Randy Briggs (Part II), dated Dec. 5, 2012, id. at Ex. D (“Briggs Dep. Excerpts II”), at 43.) Thereafter, on behalf of OHL Taiwan, Shih responded to Li in an email dated May 17, 2011, which attached a shipping order confirmation that referenced the shipment to Buffalo. (Pls. 56.1 ¶ 14; Li Decl. ¶ 6, Exs. 1, 2.) The shipping order confirmation indicated that COSCO would serve as the ocean common carrier, meaning COSCO was hired to perform the ocean carriage of the cargo. (Id.)

 

*3 Thereafter, OHL Xiamen issued a so-called “house” bill of lading to cover the subject shipment, which designated LET (HK), a Lite–On company, as “shipper,” and listed OHL International “as carrier” and OHL Xiamen “as agent for carrier.” (Pls. 56.1 ¶ 15; Li Decl., Ex. 3 (“OHL House Bill of Lading”).) Clause 6.1 of the OHL House Bill of Lading provided in relevant part that “[c]arrier shall be liable [to the shipper] for loss of or damage to the goods occurring between the time when it takes goods into its custody and the time of delivery but shall not be liable for any consequential or special damages arising from such loss or damage.” (OHL House Bill of Lading.)

 

In addition to the OHL House Bill of Lading, OHL Xiamen also prepared a pro forma COSCO bill of lading covering the goods shipped. (OHL–Evans 56.1 ¶ 30.) That bill of lading, which OHL Xiamen provided to COSCO, identified LET (HK) as “shipper” and COSCO as “Carrier.” (Evans 56.1 ¶¶ 30–31; Briggs Dep. Excerpts II, Ex. H (“Pro Forma Bill of Lading”).) Based on the Pro Forma Bill of Lading, COSCO issued its own bill of lading (the “COSCO Bill of Lading”) in connection with the subject shipment. (OHL–Pls. ¶ 17; Evans 56.1 ¶ 32; Briggs Dep. Excerpts II, Ex. I (“COSCO Bill of Lading”).)

 

The face of the COSCO Bill of Lading stated that “[t]he merchants agree to be bound by the terms and conditions of this Bill of Lading as if each had personally signed this Bill of Lading.” (COSCO Bill of Lading.) The COSCO Bill of Lading also provided definitions of key terms, including:

 

“Carrier” means COSCO container lines company limited.

 

“Merchant” includes the consignor, the shipper, … the consignee, the owner of the Goods … or anyone authorized to act on behalf of any of the foregoing.

 

…

“Sub-contractor” includes … any independent contractor employed by the Carrier in the performance of the carriage….

(Id.) The reverse side of COSCO’s Bill of Lading set forth COSCO’s standard bill of lading terms and conditions, including the following forum selection clause:

 

26. LAW AND JURISDICTION

 

(1) This Bill of Lading is governed by the laws of the People’s Republic of China. All disputes arising under or in connection with this Bill of Lading shall be determined by the laws of the People’s Republic of China and any action against the Carrier shall be brought before the Shanghai Maritime Court or other maritime courts in the People’s Republic of China, as the case may be.

 

(Id.) The COSCO Bill of Lading also included a covenant not to sue, which provided:

3. SUB–CONTRACTING, INDEMNITY AND CERTAIN DEFENSES, EXEMPTIONS AND LIMITATIONS

 

…

(2) The Merchant undertakes that no claim or legal action whatsoever shall be made or brought against any person by whom the carriage is performed or undertaken (including, but not limited to, the Carrier’s servants, agents or Sub-contractors), other than the Carrier, which imposes or attempts to impose … any liability whatsoever in connection with the Goods [here, the lost cargo at issue] or the carriage thereof whether or not arising out of negligence on the part of such person.

*4 (Id.)

 

From Beihai, China, the goods were transported by ocean vessel to the Port of New York. (Evans 56.1 ¶ 38.) Somewhere along the line, COSCO sub-contracted with Evans, a trucking company, to perform the inland portion of the carriage from the discharge port of New York to Buffalo. (Id. ¶ 39.) Evans picked up the subject container from the Maher Terminal in New Jersey for delivery to Buffalo on June 28, 2011. (Id. ¶ 40.) That evening, during the inland leg of the shipment, the truck and container carrying the cargo were stolen while the truck was parked overnight at a towing yard in Keasby, New Jersey. (Id. ¶ 41.) The cargo was never recovered. (Id. ¶ 42.)

 

C. Procedural History

On June 27, 2012, Plaintiffs commenced this action by filing the Complaint against Defendants OHL International and Evans, asserting a single cause of action for breach of contract of carriage and seeking $344,420.52 in damages. (Doc. No. 1.) In essence, Plaintiffs allege that OHL International, as an NVOCC, and Evans, as a sub-contractor of COSCO, breached their duties under COGSA and the OHL and COSCO bills of lading to deliver the cargo to Buffalo. (Id .) On July 20, 2012, Evans filed an Answer to Plaintiffs’ Complaint. (Doc. No. 6.)

 

On July 18, 2012, OHL International filed a document containing its Answer, Cross–Claims against Evans, and Third–Party Complaint (“TPC”) against COSCO. (Doc. No. 2.) The cross-claims against Evans alleged negligence, citing Evans’s failure, inter alia, to take reasonable precautions to ensure that the goods in its possession would not be stolen, and sought indemnity and contribution. (Id.) The TPC against COSCO also alleged negligence, citing COSCO’s failure to use due care when it hired Evans to transport the cargo from New York to Buffalo, and likewise sought indemnity and contribution. (Id.)

 

On June 27, 2013, Evans filed its motion for summary judgment on Plaintiffs’ claim (which Plaintiffs do not oppose) and OHL International’s cross-claims. (See Doc. Nos. 37–39.) On July 2, 2013, COSCO filed its motion to dismiss the TPC on two grounds: (1) forum non conveniens based on the forum selection clause in the COSCO Bill of Lading, and (2) insufficient service of process. (See Doc. Nos. 40–42.) The next day, Plaintiffs filed a motion for summary judgment on their claim against OHL International. (Doc. Nos.44–50.) Shortly thereafter, OHL International and Evans sought leave to file a motion pursuant to Federal Rule of Civil Procedure 37(b) to strike three declarations made in support of Plaintiffs’ motion for summary judgment, which the Court deemed made and denied on July 30, 2013. (Doc. No. 53.) Thereafter, Plaintiffs sought leave to file a motion to strike the declaration of Steve Ferreira, dated August 13, 2013, which was submitted as part of OHL International’s briefing. (Doc. Nos.56, 61, 66.) The Court deemed the motion made and set a briefing schedule parallel to the other pending motions. (Doc. No. 72.) All motions were fully submitted on September 12, 2013.

 

*5 The Court will first address COSCO’s motion to dismiss the TPC before turning to the summary judgment motions and the motion to strike.

 

II. COSCO’S MOTION TO DISMISS THE TPC

A. Legal Standard

COSCO’s motion to dismiss based on the COSCO Bill of Lading was initially filed pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and pursuant to 28 U.S.C. § 1406. See Fed.R.Civ.P. 12(b)(3); see also 28 U.S.C. § 1406. At the time of filing, there was “no consensus as to the proper procedural mechanism to request dismissal of a suit based upon a valid forum selection clause[.]” New Moon Shipping Co. v. Man B & W Die sel AG, 121 F.3d 24, 28 (2d Cir.1997). After COSCO’s motion was fully briefed, the Supreme Court issued its ruling in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 134 S.Ct. 568, (Dec. 3, 2013), holding that a mandatory forum selection clause should be enforced through a motion to transfer under 28 U.S.C. § 1404(a) if the clause designates a federal forum, and through a motion to dismiss for forum non conveniens (rather than a motion to dismiss pursuant to Rule 12(b)(3)) if the clause designates a nonfederal forum. See Atlantic Marine, 134 S.Ct. at 580. Accordingly, the Court treats COSCO’s motion to enforce the forum selection clause as a motion to dismiss for forum non conveniens.

 

In admiralty law, federal law governs the enforceability of a forum selection clause. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590 (1991). Under the doctrine of forum non conveniens, a valid forum selection clause requiring suit in a foreign forum must be given “controlling weight in all but the most exceptional cases.” Atlantic Marine, 134 S.Ct. at 579 (internal citations and quotation marks omitted). In M/S Bremen v. Zapata Off–Shore Co., the Supreme Court set out the analysis regarding the enforceability of forum selection clauses in the admiralty context, holding that forum selection clauses “are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” 407 U.S. 1, 10 (1972); see also Am. Int’l Grp. Europe S.A. (Italy) v. Franco Vago Int’l, Inc., 756 F.Supp.2d 369, 376 (S.D.N.Y.2010).

 

To determine whether a forum selection clause is enforceable, the Court must consider, first, whether the clause is valid and, second, whether public interest factors nevertheless counsel against its enforcement. See Atlantic Marine, 134 S.Ct. at 581–82. In this circuit, the validity of a forum selection clause is determined under a four-part analysis, based on Bremen and articulated in Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir.2007). According to that standard, the Court must determine: (1) whether the clause was “reasonably communicated to the party resisting enforcement,” (2) whether the clause is “mandatory or permissive,” and (3) whether “the claims and parties involved in the suit are subject to the forum selection clause.”   Phillips, 494 F.3d at 383. If the Court finds that the clause was reasonably communicated, mandatory, and applicable, then the clause is presumptively enforceable unless the party resisting enforcement can show (4) that “enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Id at 383–84. (internal citations and quotation marks omitted).

 

*6 Once the Court determines that a forum selection clause is valid and applicable, the only remaining inquiry involves determining whether there are public interest considerations-such as the desire to avoid court congestion or the preference for adjudicating local controversies locally-that weigh against its enforcement. Atlantic Marine, 134 S.Ct. at 581–82, 581 n. 6.FN3 Importantly, the plaintiff’s choice of forum and the private interests of the parties are accorded no weight. Id. at 581–82. As the Supreme Court has recognized, public interest “factors will rarely defeat a transfer motion [or a motion to dismiss under forum non conveniens],” and thus “the practical result is that [forum selection] clauses should control except in unusual circumstances.” Id. at 282.

 

FN3. Although the discussion in Atlantic Marine is addressed primarily to analysis of a motion to transfer under 28 U.S.C. § 1404(a), it is equally applicable to motions to dismiss under forum non conveniens. See 134 S.Ct. at 583 n. 8 (“For the reasons detailed above … the same standards should apply to motions to dismiss for forum non conveniens in cases involving valid forum selection clauses pointing to state or foreign forums.”).

 

B. Discussion

OHL International alleges negligence on the part of COSCO and seeks indemnity and contribution if OHL International is held liable for the stolen cargo. In response, COSCO argues that to the extent OHL International alleges a duty owed by COSCO, as it must to make a negligence claim, OHL International is bound by the terms of the COSCO Bill of Lading, including the forum selection clause (“Term 26”). The Court agrees, and finds that the forum selection clause is enforceable against OHL International.

 

The first inquiry under Phillips is whether the forum selection clause was “reasonably communicated to the party resisting enforcement.” 494 F.3d at 383. As OHL International is the party resisting enforcement, COSCO must demonstrate that Term 26 was reasonably communicated to OHL International. In its TPC, OHL International alleges that “[OHL Xiamen], an affiliate of [OHL International], acting as agent for [Lite–On], pursuant to the shipper’s instructions, arranged for the transportation of goods from China to Buffalo, New York by COSCO[.]” (TPC ¶ 5.) OHL International’s pleadings also acknowledge that OHL Xiamen “served as an ocean forwarder, acting as the agent of the shipper, for the shipment in question….” (Answer ¶ 1.) FN4 As an entity authorized to act on behalf of the shipper and owner of the cargo, OHL Xiamen qualified as a “Merchant” as defined under the COSCO Bill of Lading. (See COSCO Bill of Lading (defining “Merchant” as including anyone authorized to act on behalf of the shipper or the owner of the cargo).) It is undisputed that, in arranging for the shipment of the cargo, OHL Xiamen prepared the Pro Forma COSCO Bill of Lading and provided it to COSCO. (OHL–Evans 56.1 ¶ 30.) It is also undisputed that COSCO subsequently issued the actual COSCO Bill of Lading containing the information provided in the Pro Forma Bill of Lading. (Id. ¶ 32.) The Pro Forma Bill of Lading clearly states “[t]he merchants agree to be bound by the terms and conditions of this Bill of Lading as if each had personally signed this Bill of Lading” (see Pro Forma Bill of Lading (emphasis added)), and this statement is replicated on the COSCO Bill of Lading (COSCO Bill of Lading). Term 26, the forum selection clause at issue, was one of the terms and conditions contemplated by this statement. Accordingly, the Court has little difficulty concluding that Term 26 was reasonably communicated to OHL International through its affiliate and agent OHL Xiamen.

 

FN4. In its brief in opposition to COSCO’s motion to dismiss, OHL International curiously asserts that “[u]nder well-established precedent, a freight forwarder is not the agent of the shipper….” See OHL Opp., Doc. No. 64, at 10 n. 1 (citing Koninklijke Nedlloyd BV v. Uniroyal, Inc., 433 F.Supp. 121, 128 (S.D.N.Y 1977)). In fact, the case cited by OHL International carefully hedges its holding, stating that “[t]he precise status of a forwarder is a matter which is not free from doubt, and it would serve no useful purpose to attempt here to reconcile all of the conflicting cases.” Koninklijke, 433 F.Supp. at 128. In the intervening 35 years, courts in this district have refined their analysis on this point, holding that a freight forwarder typically is an agent of the cargo owner, who is often the shipper. See, e.g., A.P. Moller–Maersk A/S v. Ocean Express Miami, 550 F.Supp.2d 454, 465 (S.D.N.Y.2008) (“The ‘normal commercial role’ of an NVOCC or freight forwarder is agent of the cargo owner when it accepts a bill of lading.” (citing Delphi–Delco Elecs. Sys. v. M/V Nedlloyd Europa, 324 F.Supp.2d 403, 419–20 (S.D.N.Y.2004))).

 

*7 The second part of the Phillips inquiry is whether the forum selection clause is mandatory or permissive. 494 F.3d at 383. Here, neither party disputes that the language of Term 26 is mandatory, as it provides, in relevant part, that “[a]ll disputes arising under or in connection with this Bill of Lading shall be determined by the laws of the People’s Republic of China and any action against the carrier shall be brought before the Shanghai Maritime Court or other maritime courts in the People’s Republic of China….” (COSCO Bill of Lading.) The COSCO Bill of Lading contemplates exclusive jurisdiction in China’s maritime courts, thereby making the forum selection clause mandatory rather than permissive.

 

The third inquiry under Phillips is whether the forum selection clause applies to the claims and parties in the instant action. 494 F.3d at 383. As previously discussed, Term 26 applies to “[a]ll disputes arising under or in connection with” the COSCO Bill of Lading. (COSCO Bill of Lading.) Thus, Term 26 clearly governs OHL International and its claims, which allege that COSCO failed to use due care when it hired Evans. (See TPC ¶ 13.)

 

Because the forum selection clause was reasonably communicated, mandatory, and applicable to OHL International and its claims, it is presumptively enforceable and must be given effect unless OHL International can show that “enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Phillips, 494 F.3d at 384 (internal citation and quotation marks omitted). On this point, OHL International basically argues that it had nothing to do with the subject shipment, and thus, it could not have possibly assented to the forum selection clause. But there’s the rub. In order for OHL International to prevail on its claims against COSCO, OHL International must establish-at a minimum-the existence of a duty owed by COSCO to OHL International. See, e.g., 1 Schoenbaum § 5–2 (“The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law…. [The first element is t]he existence of a duty required by law which obliges the person to conform to a certain standard of conduct….”) To the extent that OHL International alleges that it had no connection to this shipment, see, e.g., OHL–Pls. 56.1 ¶ 15, then it follows that COSCO owed OHL International no duty whatsoever, in which case OHL International’s claims must be dismissed outright. To the extent that OHL International has alleged the existence of a duty, the only conceivable duty owed by COSCO to OHL International must stem from the nature of their relationship to each other, since there is no applicable general common law duty. The existence of this relationship thus hinges on the proposition that OHL International was indeed involved in this shipment by virtue of its agents, OHL Xiamen and OHL Taiwan. Put simply, OHL International can’t have it both ways, alleging the existence of such a relationship for purposes of its cause of action, but denying it for purposes of avoiding the forum selection clause.

 

*8 The fact that neither OHL International nor any affiliate of OHL International signed or is identified on the COSCO Bill of Lading is of no moment. The COSCO Bill of Lading clearly states that merchants-such as OHL International-“agree to be bound by the terms and conditions of this Bill of Lading as if each had personally signed this Bill of Lading.” (COSCO Bill of Lading (emphasis added).) Furthermore, “bills of lading are not typically signed by the shipper or holder; rather, only the carrier signs the document and when it is accepted by the shipper, it constitutes a contract of carriage.” Farrell Lines Inc. v. Columbus Cello–Poly Corp., 32 F.Supp.2d 118, 125 (S.D.N.Y.1997), aff ‘ d sub nom. Farrell Lines Inc. v. Ceres Terminals Inc., 161 F.3d 115 (2d Cir.1998). As a result, it is no surprise that “courts have enforced forum selection clauses in bills of lading against the owner, shipper or insurer of cargo even though those parties did not sign or negotiate the bills of lading.” Id. at 126 (collecting cases).

 

Once again, assuming the existence of a duty between OHL International and COSCO, as the causes of action in the TPC necessarily require, the “reasonable communicat[ion]” of the COSCO Bill of Lading to OHL International cannot be disputed. Accordingly, Term 26 must be enforced unless it is overridden by public interest factors. Atlantic Marine, 134 S.Ct. at 581–82. These public interest factors include considerations like “the administrative difficulties flowing from court congestion[,] the local interest in having localized controversies decided at home[, and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Id. at 581 n. 6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981)). As the Supreme Court noted, such factors “will rarely” justify non-enforcement of a valid clause. Id. at 582. Indeed, no public interest considerations have been raised by the parties, and, in the Court’s view, such considerations carry no weight here.

 

For the reasons set forth above, the Court concludes that the forum selection clause in the COSCO Bill of Lading is enforceable and grants COSCO’s motion to dismiss for forum non conveniens.FN5

 

FN5. Because the Court finds that the TPC must be dismissed for forum non conveniens, it need not consider COSCO’s second ground for dismissal – ineffective service of process.

 

III. SUMMARY JUDGMENT MOTIONS

A. Legal Standard

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered “if the movant shows 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). There is “no genuine dispute as to any material fact” where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable factfinder could never accept the nonmoving party’s version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party’s version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

 

*9 The moving party bears the burden of showing that it is entitled to summary judgment. Id. at 256. If the moving party meets this initial burden, the nonmoving party must then “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal citation and quotation marks omitted). In a case where the nonmoving party would bear the burden of persuasion at trial, the moving party may discharge its burden by “either identifying the portions of the record ‘which it believes demonstrate the absence of a genuine issue of material fact’ or ‘pointing out … that there is an absence of evidence to support the nonmoving party’s case.’ “ Golden Pac. Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir.2004) (quoting Celotex, 477 U.S. at 325).

 

B. Discussion

1. Evans’s Summary Judgment Motions

Evans seeks summary judgment on Plaintiffs’ claim and OHL International’s cross-claims, arguing that Plaintiffs and OHL International are bound by the covenant not to sue COSCO’s sub contractors as set forth in the COSCO Bill of Lading. Plaintiffs acknowledge that Evans is a COSCO sub-contractor and do not oppose the enforceability of the covenant against them. By contrast, OHL International asserts that the covenant is unenforceable against it because OHL International did not assent to it. This argument is similar to OHL International’s forum selection clause argument, and is similarly unavailing. The Court will address each motion in turn.

 

a. Motion for Summary Judgment Against Plaintiffs

Evans moves for summary judgment on Plaintiffs’ claim for breach of contract of carriage on the ground that Plaintiffs are bound by the terms of COSCO’s Bill of Lading. Plaintiffs, as the cargo owner and its subrogated insurers, are “merchants” pursuant to the COSCO Bill of Lading, and as such are barred from suing Evans by the COSCO Bill of Lading’s covenant not to sue.

 

Courts in this circuit and elsewhere acknowledge that a party suing on a bill of lading consents to the terms of that bill of lading. See, e.g., A.P. Moller–Maersk A/S v. Comercializadora de Calidad S.A., 429 F. App’x 25, 28 (2d Cir.2011) (“[A] cargo owner ‘accepts’ a bill of lading to which it is not a signatory by bringing suit on it.” (quoting Kukje Hwajae Ins. Co., v. M/V Hyundai Liberty, 408 F.3d 1250, 1254 (9th Cir.2005))); M/V Hyundai Liberty, 408 F.3d at 1254 (“At the very least, Plaintiffs’ initiation of this suit constituted acceptance of the terms of the … bills of lading under the usual rule that a party may accept a contract by filing suit on the contract.” (internal citation and quotation marks omitted)); Farrell Lines Inc., 32 F.Supp.2d at 125 (“[D]efendants have filed suit on the Bill of Lading, and thereby accepted its terms.”). Here, Plaintiffs’ suit against Evans is premised on the COSCO Bill of Lading, and it cannot be reasonably disputed that Plaintiffs’ pleadings rely on the existence and breach of the COSCO Bill of Lading. By dint of Plaintiffs’ own pleadings, they are bound by the COSCO Bill of Lading and its terms and conditions, including the covenant not to sue.

 

*10 Accordingly, the Court grants Evans’s unopposed motion for summary judgment and dismisses Plaintiffs’ claim for breach of contract of carriage with prejudice.

 

b. Motion for Summary Judgment Against OHL International

Evans also moves for summary judgment on OHL International’s cross-claims for negligence, indemnity, and contribution.

 

Like OHL International’s claims against COSCO, OHL International’s cross-claims against Evans hinge on a duty owed by Evans to OHL International, either in tort or in contract. In other words, OHL International’s claims against Evans presume the existence of a duty that itself stems from OHL International’s role as intermediary on the shipment. Absent that relationship between OHL International as intermediary and COSCO as ocean common carrier-a relationship that is governed by the COSCO Bill of Lading–Evans would owe no duty whatsoever to OHL International. Once again, OHL International has pleaded itself into a corner, since the absence of a duty means that OHL International’s claims must fail as a matter of law, while the assertion of such a duty means that OHL International is subject to the COSCO Bill of Lading and its covenant not to sue sub-contractors like Evans. Either way, OHL International’s cross-claims against Evans are barred. Accordingly, the Court grants Evans’s motion for summary judgment and dismisses OHL International’s cross-claims with prejudice.FN6

 

FN6. In each of its submissions, OHL International dedicates an inordinate amount of space arguing that a service contract between Lite–On and COSCO-not the COSCO Bill of Lading-governs the subject shipment. In light of the fact that OHL International mischaracterizes the service contract, and is itself not even referenced in it, the Court finds that the existence of the service contract does not alter the Court’s analysis here.

 

2. Plaintiffs’ Motion for Summary Judgment

Plaintiffs seek summary judgment against OHL International for breach of contract of carriage for failure to deliver a shipment of goods from China to Buffalo, New York. In order to establish carrier liability for lost cargo under COGSA, a plaintiff-shipper must establish that the cargo was damaged while in the defendant-carrier’s custody. A plaintiff can meet this burden by proving that (1) the cargo was delivered to the carrier in a good condition; and (2) that the cargo was discharged by the carrier in a damaged (or here, stolen) condition. See Transatlantic Marine Claims Agency, Inc. v. M/V OOCL Inspiration, 137 F.3d 94, 98 (2d Cir.1998); see also Ch. 229, § 3–4, 49 Stat. 1208–11 (1936); 1 Schoenbaum § 10–23. Here, whether Plaintiffs have made out a prima facie case turns on disputed issues of fact.

 

Plaintiffs assert that the issuance of the OHL International House Bill of Lading is conclusive proof of OHL International’s role as an NVOCC. (Pls. 56.1 ¶¶ 6, 14, 15–16.) In stark contrast, OHL International repeatedly argues that it had nothing to do with the shipment, and was not made aware of it until after the cargo was stolen. For example, OHL maintains that “[t]his [OHL House Bill of Lading] should not have been issued because OHL [International] was not acting as a carrier in this case. Indeed, OHL [International] had no involvement whatsoever with this shipment.” (OHL–Pls. 56.1 ¶ 15; Shih Decl. ¶ 15; Decl. of Randy Briggs, dated Aug. 14, 2013, Doc. No. 57 (“Briggs Decl.”), ¶ 18–19.)

 

*11 Plaintiffs’ argument-that OHL International, by virtue of OHL Xiamen issuing a “house” bill of lading, acted as an NVOCC as a matter of law-misses the point because OHL International is contesting the circumstances of the issuance and the validity of the bill of lading itself. Although OHL Xiamen sometimes acts as OHL International’s agent, OHL International argues that OHL Xiamen’s issuance of the OHL House Bill of Lading was outside the scope of OHL Xiamen’s authority. (Evans 56.1 ¶ 29 (“[OHL International] contends that OHL Xiamen issued the OHL Bill of Lading by mistake and was not authorized to issue Bills of Lading for shipments that were not consigned to [OHL International] and, thus, not within the OHL network.”).) OHL International asserts that a freight forwarder certificate, not a house bill of lading, should have been issued in connection with the shipment. (OHL–Pls. 56.1 ¶¶ 14–15; Shih Decl. ¶ 16.)

 

At the summary judgment stage, the Court cannot credit one version of facts over another to determine the nature of OHL International’s role in the subject shipment. See Transatlantic Marine, 137 F.3d at 101 (“[T]he treatment of a summary judgment motion under COGSA is no different from the way similar motions are dealt with in any other litigation…. [A] district court sitting in admiralty will, as courts regularly do, simply determine the existence of genuine issues of material fact.”). Accordingly, Plaintiffs’ motion for summary judgment against OHL International is denied.

 

IV. Motion to Strike

Plaintiffs also move to strike the Ferreira Declaration, submitted as part of OHL International’s opposition to Plaintiffs’ motion for summary judgment. Because the Court denies Plaintiffs’ motion for summary judgment without relying on the contested Ferreira Declaration, Plaintiffs’ motion to strike is denied as moot.

 

V. Conclusion

For the reasons stated above, the Court GRANTS COSCO’s motion to dismiss OHL International’s TPC, GRANTS Evans’s motion for summary judgment on Plaintiffs’ claims, GRANTS Evans’s motion for summary judgment on OHL International’s cross-claims, DENIES Plaintiffs’ motion for summary judgment against OHL International, and DENIES Plaintiffs’ motion to strike the Ferreria Declaration as moot. The Clerk of the Court is respectfully directed to terminate the motions pending at docket numbers 37, 40, and 44.

 

With respect to Plaintiffs’ surviving claim against OHL International, IT IS HEREBY ORDERED THAT this case shall proceed to trial on June 2, 2014 at 9:30 a.m. in Courtroom 905 of the Thurgood Marshall United States Courthouse. IT IS FURTHER ORDERED THAT, by April 14, 2014, the Plaintiffs and OHL International shall submit a joint letter proposing a pretrial schedule. The joint letter should also confirm whether the trial should proceed as a bench trial.

 

SO ORDERED.