United States District Court, E.D. Virginia,

Alexandria Division.

MONTANILE, Plaintiff,

v.

BOTTICELLI, et al., Defendants.

No. 1:08cv716 (JCC).

Jan. 26, 2009.

Sol Z. Rosen, Washington, DC, for Plaintiff.

Damon William Wright, Venable LLP, Marianne Roach Casserly, Alston & Bird LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter is before the Court on Plaintiff Denise Montanile’s (“Montanile’s”) Motion to Dismiss the Counterclaims brought by Defendant Tom Botticelli (“Botticelli”). For the following reasons, the Court will deny Plaintiff’s Motion.

I. Background

Montanile brought suit against Botticelli and Defendant United Parcel Service, Inc. (“UPS”) (collectively, “Defendants”) for events originating with Botticelli’s unsuccessful attempt to purchase vintage baseball cards from Montanile. Montanile’s complaint (the “Complaint”), filed in July 2008, claimed that Botticelli had her falsely arrested and then maliciously prosecuted her. The Complaint accused UPS of negligence and breach of contract. After briefing and oral argument, the Court dismissed the claim against Botticelli for false arrest but denied his motion to dismiss the malicious prosecution claim. The Court also dismissed the claims against UPS. The Court’s Order gave Montanile leave to amend her Complaint. She did so in December 2008. The allegations in the Amended Complaint-substantially the same as those in the original Complaint-are as follows.

On or about July 16, 2006, Botticelli ordered six vintage baseball cards from Montanile, at the cost of $7,800. Montanile insured and shipped the cards to Botticelli via UPS on the August 30, 2006. Am. Compl. at 2. Botticelli declared that he never received the cards. Montanile alleges that UPS failed to properly deliver the package. Id. She states that she told Botticelli she had filed a claim for the misplaced package with UPS and that “the matter would be settle [sic] civilly by a refund when UPS remitted the funds.”Id. at 3.

Botticelli met with the police department in Fairfax County, Virginia and secured a warrant for Montanile’s arrest. He accused Montanile of obtaining money by false pretenses in violation of Va.Code Ann. § 18.2-178. Id. at 2. Montanile was subsequently arrested, jailed for two weeks in New Jersey, and then extradited to Virginia, where she was released after posting bail. Id. The charges against her were ultimately dismissed after a filing of Nolle Prosequi by the office of the Commonwealth’s Attorney in Fairfax County. Id. at 3. Montanile seeks $5 million in compensatory damages and $5 million in punitive damages for each claim against Botticelli.

Montanile bases her claim against UPS, brought pursuant to the Carmack Amendment, 49 U.S.C. § 14706, on the same facts. She alleges that the malicious prosecution was a direct result of UPS’s negligence in not delivering the package properly; she also implies that UPS breached a contract with her.

After paying the shipping fee, which included the cost of insurance, Montanile was given a receipt by UPS. Id. at 5. UPS, she claims, breached its duty to deliver the package to Botticelli and obtain his signature acknowledging receipt. Instead, UPS left the package at Botticelli’s address. Montanile suggests that the package was “allegedly not received” by Botticelli. Id. at 6. Later in the Amended Complaint, Montanile states that UPS “merely left the parcel at some address and departed.”Id. at 7. UPS then refused to pay Montanile’s claim for insurance coverage. Montanile seeks statutory damages and “the full benefits of her contract including the insurance proceeds she contracted for.”Id. at 7.

On December 18, 2008, Botticelli submitted an Answer and a Counterclaim against Montanile (the “Counterclaim”), requesting specific performance of their agreement and alleging that Montanile’s actions violated the Virginia Consumer Protection Act. The Counterclaim alleges that around July 16, 2006, Montanile paid Botticelli for the six baseball cards with a check in the amount of $7,820, which Montanile cashed. Countercl. at ¶ 2. For weeks, Botticelli did not receive the cards. He e-mailed Montanile numerous times and requested a tracking number for the shipment. Montanile responded first by telling Botticelli that his shipment was still being processed, then that the package was scheduled to ship later in the week, and later, when Botticelli threatened to ask for a refund, that she was waiting “for payments to clear our bank” and that the package should have been on its way. Id. at ¶¶ 3-5.

When, approximately six weeks after ordering the baseball cards, Botticelli told her that he was planning to meet with the police because he had not received the cards and Montanile was ignoring his e-mails and phone calls, Montanile told him that the package had not yet shipped because she was still waiting for one card to arrive. Id. at ¶ 6. The next day, August 30, 2006, Montanile e-mailed Botticelli to tell him that the package had shipped. The following day, Botticelli received a sealed, empty box. He e-mailed Montanile to request an immediate refund. Montanile never delivered the baseball cards and did not refund the $7,820. Botticelli alleges that Montanile never actually possessed the baseball cards. Id. at ¶ 8.

Botticelli’s claim for specific performance requests the tender of the six rare baseball cards he ordered in the condition in which they were advertised at the time of sale. His claim under the Virginia Consumer Protection Act asks for damages and attorney’s fees pursuant to Va.Code Ann. § 59.1-204.

Montanile moved to dismiss the Counterclaim on December 30, 2008. Botticelli opposed the motion on January 14, 2009. This motion is before the Court.

II. Standard of Review

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint, see Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). In deciding a motion to dismiss, “the material allegations of the complaint are taken as admitted.” Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (citations omitted). Moreover, “the complaint is to be liberally construed in favor of plaintiff.”Id. In addition, a motion to dismiss must be assessed in light of Rule 8’s liberal pleading standards, which require only “a short and plain statement of the claim showing that the pleader is entitled to relief.”Fed.R.Civ.P. 8. While Rule 8 does not require “detailed factual allegations,” a plaintiff must still provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007) (citation omitted).

III. Analysis

Montanile moves to dismiss both counterclaims for failure to state a cause of action under Rule 12(b)(6). The Court will address each counterclaim in turn.

A. Counterclaim I: Specific Performance

Botticelli’s first counterclaim requests specific performance of the agreement that he and Montanile reached: that he would pay $7,820 for six vintage baseball cards. He claims to have no adequate remedy at law because the baseball cards are rare, highly unique, and specialized goods. Countercl. at ¶ 14. Botticelli requests “specific performance of the agreement … that Plaintiff tender the six rare baseball cards in the condition advertised at the time of sale.”Id. at ¶ 15.

In Virginia, specific performance is an equitable remedy that may be considered “where the remedy at law is inadequate and the nature of the contract” would allow specific enforcement without “great practical difficulties.” Chattin v. Chattin, 245 Va. 302, 427 S.E.2d 347, 350 (Va.1993) (citation omitted).“A remedy at law is not adequate if it is partial”; instead, an adequate remedy at law must “ ‘reach the end intended, and actually compel a performance of the duty in question.’ “ Id. at 351 (quoting Buchanan v. Buchanan, 174 Va. 255, 6 S.E.2d 612, 620 (Va.1940). Specific performance is “addressed to the reasonable and sound discretion of the court.” Seaboard Ice Co. v. Lee, 199 Va. 243, 99 S.E.2d 721, 726-27 (Va.1957). “A contract must be complete and certain and … the essential elements of price and terms of sale must have been agreed upon before a court of equity will specifically enforce the contract.” Rolfs v. Mason, 202 Va. 690, 119 S.E.2d 238, 240 (Va.1961) (citation omitted).

Here, Botticelli has alleged that the parties entered into a “valid and enforceable agreement for the sale, delivery and purchase of the six rare baseball cards,” that he performed by paying for the cards, and that Montanile failed to perform by never sending him the cards. Countercl. at ¶¶ 10-13. Looking at the face of the Counterclaim, it appears that Botticelli has pled a claim for specific performance.

Montanile does not argue that any infirmity in pleading should lead to dismissal. Instead, she suggests that the issue is “moot” because she will reimburse the defendant as soon as UPS pays her the insurance proceeds for the lost baseball cards. Pl.’s Mot. at 1.

Montanile’s promise that she will refund Botticelli’s money at some point in the future does not serve to make the issue of specific performance moot. First, Botticelli’s claim requests specific performance, not a refund. Second, he has pled facts sufficient to allege that Montanile did not perform the contract. Montanile’s statement that she will refund the payment at some indefinite point in the future-depending on the outcome of a pending insurance dispute-has no bearing whatsoever on the merits of Botticelli’s claim, which alleges that a breach of contract has already occurred. Montanile’s statement that Botticelli will be reimbursed after UPS pays her does not make Botticelli’s claim against her-which is a live controversy-moot. The Court will not dismiss the claim for specific performance.

B. Counterclaim II: Virginia Consumer Protection Act

Botticelli’s second counterclaim requests relief pursuant to the Virginia Consumer Protection Act, Va.Code Ann. §§ 59.1-196 to 59.1-207 (the “VCPA” or the “Act”). The VCPA makes unlawful a number of fraudulent acts and practices having to do with the sale of goods. Id. at § 59.1-200. The acts, when committed by a “supplier,” in connection with a “consumer transaction,” subject the “supplier” to civil prosecution and to private recovery actions. Id. at §§ 59.1-200, 59.1-201 to 59.1-204. The law provides for the recovery of actual damages and attorney’s fees; willful violations allow a court to impose up to treble damages. Id. at § 59.1-204(A)-(B).

The VCPA defines “goods” as “all real, personal or mixed property, tangible or intangible.”Id. at § 59.1-198. It defines a “consumer transaction” as, inter alia,“[t]he advertisement, sale, lease, license or offering for sale, lease or license, of goods or services to be used primarily for personal, family or household purposes.”Id. A “supplier” is “a seller, lessor or licensor who advertises, solicits or engages in consumer transactions ….“. Id.Botticelli alleges that, under the VCPA, (1) the baseball cards are “goods,” (2) Montanile was a “supplier,” and (3) he and Montanile engaged in a “consumer transaction.” Countercl. at ¶ 17.

Botticelli alleges that a number of actions on Montanile’s part violated the VCPA, including the Act’s proscriptions on “[m]isrepresenting the source … of goods,”“[m]isrepresenting that goods or services are of a particular standard, quality, grade, style, or model,”“[a]dvertising goods … with intent not to sell them as advertised,” and “[u]sing any other deception, fraud, false pretense, false promise or misrepresentation in connection with a consumer transaction.”Va.Code Ann. §§ 59.1-200(2), (5), (8), (14).

Montanile suggests that Botticelli’s allegations pursuant to the VCPA are “merely speculative” in that they “cite sections to a statute but do not allude to the nature of the illegal conduct alleged.”Pl.’s Mot. at 1.

The Court finds that Botticelli has properly pled a VCPA claim. The facts alleged in the Counterclaim are more than sufficient to make plausible the allegation that Montanile used “deception, fraud, false pretense, false promise or misrepresentation” in connection with the “consumer transaction” she entered into with Botticelli. The Counterclaim clearly alleges that Montanile entered into an agreement with Botticelli, took his money, and then failed to deliver either the baseball cards or a refund. The Counterclaim also alleges that, “on information and belief, [Montanile] never actually possessed the cards.”Countercl. at ¶ 8. One who advertises goods one does not possess (and so does not, in good faith, intend to sell) may be subject to liability under the VCPA. The Court will not dismiss Botticelli’s second counterclaim.

IV. Conclusion

For the foregoing reasons, the Court will deny Plaintiff’s Motion to Dismiss Defendant’s Counterclaims.

An appropriate Order will issue.

E.D.Va.,2009.

Montanile v. Botticelli

Slip Copy, 2009 WL 196423 (E.D.Va.)

END OF DOCUMENT

United States District Court,

S.D. New York.

METEOR AG, Plaintiff,

v.

FEDERAL EXPRESS CORPORATION d/b/a Fedex Express, Defendant.

No. 08 Civ. 3773(JGK).

Jan. 30, 2009.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

The plaintiff, Meteor AG, brings this action against the defendant, Federal Express Corporation d/b/a FedEx Express (“FedEx”), for water damage in the amount of $58,828.40 to a coil winding machine allegedly damaged during shipment from Basle, Switzerland to El Paso, Texas while it was in the defendant’s charge. The defendant moves for summary judgment.

The plaintiff purports to assert its claim under the Warsaw Convention,  a multilateral treaty regulating international air commerce. However, the plaintiff’s claim is actually governed by the Montreal Convention, a more recent treaty that “unifies and replaces the system of liability that derives from the Warsaw Convention.” Ehrlic v. Am. Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir.2004); see also Vigilant Ins. Co. v. World Courier, Inc., No. 07 Civ. 194, 2008 WL 2332343, at(S.D.N.Y. June 4, 2008). The applicability of the Montreal Convention, rather than the Warsaw Convention, does not change the analysis in this case.

Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000 (1934), 137 L.N.T.S. 11,reprinted in note following49 U.S.C. § 40105.

Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 (2003), Treaty Doc. No. 106-45, at 27, 2242 U.N.T.S. 350,reprinted in 1999 WL 33292734 (2000).

I

The following facts are undisputed unless otherwise noted.

On or around June 27-28, 2006, the plaintiff, a business located in Switzerland and existing under foreign law, shipped a coil winding machine from Basle, Switzerland to El Paso, Texas. (Defendant’s Local Rule 56.1 Statement of Undisputed Material Facts (“Deft.’s 56.1 Stmt.”) ¶¶ 2, 3, 6; Plaintiff’s Local Rule 56.1 Statement of Undisputed Material Facts (“Pl.’s 56.1 Stmt.”) ¶¶ 2, 3, 6.) The defendant, a federally certified all-cargo air carrier based in the United States and operating under authority granted to it by the Federal Aviation Administration, transported the shipment from Basle, Switzerland to Dallas-Fort Worth, Texas. (Deft.’s 56.1 Stmt. ¶¶ 1, 4; Pl.’s 56.1 Stmt. ¶ 4.) After the shipment cleared Customs, another transportation company was responsible for its carriage to El Paso, Texas. (Deft.’s 56.1 Stmt. ¶ 5; Pl.’s 56.1 Stmt. ¶ 5.)

According to the plaintiff, the coil winding machine suffered water damage during shipment for which the defendant is liable in contract and tort. On July 13, 2006, the plaintiff, through Eunsuk Won, the import/export manager for TNT Freight Management (USA) Inc., (see Won Decl. ¶¶ 1, 4), sent written notice of a damage claim to a street address for a FedEx facility at the Dallas-Fort Worth Airport. The document, entitled “Preliminary Claim,” was addressed to “FED-EX; DFW Airport, Texas; ATTN-CLAIM DEPARTMENT.”(Deft.’s 56.1 Stmt. ¶¶ 7-8; Pl.’s 56.1 Stmt. ¶¶ 7-8.)

According to the defendant, it never received the “Preliminary Claim” document because it did not receive any mail at the street address for its Dallas-Fort Worth facility, although the plaintiff denies that allegation. (Deft.’s 56.1 Stmt. ¶¶ 9-10; Pl.’s 56.1 Stmt. ¶¶ 9-11.) The defendant represents that it maintained a claims department in Pittsburgh, Pennsylvania where FedEx customers could send their claims with respect to international shipments, and that the address for the claims department was listed in the terms and conditions of the defendant’s Service Guide. Those terms and conditions were also available online through the defendant’s website, at www.fedex.com/us/services/terms. (Deft.’s 56.1 Stmt. ¶¶ 12-13.)

The plaintiff does not dispute that the defendant maintained a claims department in Pittsburgh where customers could send their claims, or that the address for the claims department was listed in the defendant’s Service Guide and online at www.fedex.com/us/services/terms, but the plaintiff disputes the legal significance of those facts. (Pl.’s 56.1 Stmt. ¶¶ 12-13.) The plaintiff also alleges in its opposition papers that in addition to sending written notice of the damage claim to the Dallas-Forth Worth address, Mr. Won emailed notice of the claim by the plaintiff to Vanessa Whiten, an employee in the defendant’s sales department. The defendant acknowledges this email in its reply papers. On July 24, 2006, Ms. Whiten responded to Mr. Won’s email by instructing him to call a certain hotline telephone number if he wished to initiate a claim. She provided the telephone number in her response. (See Pl.’s Ex. C.)

II

A

The standard for granting summary judgment is well established. Summary judgment may not be granted unless “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P’ship, 22 F .3d 1219, 1223 (2d Cir.1994).“[T] he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and “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 (1986).

Summary judgment is appropriate if it appears that the nonmoving party cannot prove an element that is essential to the nonmoving party’s case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir.2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with “specific facts showing a genuine issue for trial.”Fed.R.Civ.P. 56(e)(2). The nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998); Singh v. New York City Off-Track Betting Corp., No. 03 Civ. 5238, 2005 WL 1354038, at(S.D.N.Y. June 8, 2005).

B

As noted above, the plaintiff’s claim is governed by the Montreal Convention, because the Montreal Convention replaced the Warsaw Convention as the treaty governing international carrier liability, and both the United States and Switzerland are signatories to the Montreal Convention.However, the Montreal and Warsaw Conventions are often referred to interchangeably by courts, see Sobol v. Continental Airlines, No. 05 Civ. 8992, 2006 WL 2742051, atn. 2 (S.D.N.Y. Sept. 26, 2006), and “the case law regarding a particular provision of the Warsaw treaty applies with equal force regarding its counterpart in the Montreal treaty.” Best v. BWIA West Indies Airways Ltd., 581 F.Supp.2d 359, 362 n. 1 (E.D.N.Y.2008); see also Paradis v. Ghana Airways Ltd., 348 F.Supp.2d 106, 111 (S.D.N.Y.2004) (finding that Montreal Convention enjoys substantially the same preemptive effect as Warsaw Convention). For purposes of the analysis in this case, there is no meaningful difference between the governing provision of the Montreal Convention (Article 31) and its counterpart in the Warsaw Convention (Article 26). Therefore, the Court treats the Conventions interchangeably and applies the case law regarding Article 26 of the Warsaw Convention to Article 31 of the Montreal Convention.

The list of signatories to the Montreal Convention is available at http://www.i.cao.int/icao/en/leb/mtl99.pdf.

As a treaty of the United States, the Montreal Convention is considered federal law for subject matter jurisdiction purposes and is the supreme law of the land. See Best, 581 F.Supp.2d at 362. Where applicable, the Montreal Convention preempts any federal or state common law that may typically apply. See Sysco Food Servs. of Hampton Roads, Inc. v. Maersk Logistics, Inc., No. 03 Civ. 7384, 2006 WL 2506437, at(S.D.N.Y. Aug. 29, 2006). However, parties are free to fill in gaps in the Montreal Convention by contract. See Montreal Convention, Article 27 (“Nothing contained in this Convention shall prevent the carrier from … laying down conditions which do not conflict with the provisions of this Convention.”); cf. Zicherman v. Korean Airlines Co., Ltd., 516 U.S. 217, 226-27 (1996) (holding that domestic law applied to certain question of damages where Warsaw Convention was silent and behavior of contracting parties indicated understanding that domestic law would apply).

The provision of the Montreal Convention that governs damage claims is Article 31. Article 31 provides, in relevant part:

2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within … fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

3. Every complaint must be made in writing and given or dispatched within the times aforesaid.

4. If no complaint is made within the times aforesaid, no action shall lie against he carrier, save in the case of fraud on its part.

Article 31 is silent as to how notice of a damage claim should be given or dispatched, aside from the requirements that it be made in writing and submitted within the given time period. However, the defendant’s relevant terms and conditions of carriage are plainly set out in its Service Guide under the caption: “FedEx Express Terms and Conditions, International Shipments (U.S.Edition): Claims.”Those conditions, which were also available online, provided a specific process for dispatching notice of damage claims. The process was as follows:

K. Written claims must be sent (via U.S. Postal Service) to:

FedEx Cargo Claims Department

P.O. Box 256

Pittsburgh, PA 15230

(See Nov. 5, 2008 Bridwell Decl. Ex. C; Deft.’s 56.1 Stmt. ¶ 13.)

The website at which the defendant’s terms and conditions of carriage were available, www.fedex.com/us/services/terms, currently also provides a customer service number that putative claimants can call if they wish to initiate a claim. There is no indication on the record, however, whether the customer service number was posted on the website in July 2006 when the plaintiff attempted to dispatch notice of its claim.

The parties in this case used an air waybill to describe their shipping arrangement. “An air waybill is a written document describing the shipping arrangement between the air carrier and the shipper.” Tai Ping Ins. Co., Ltd. v. Nw. Airlines, Inc., 94 F.3d 29, 30 n. 1 (2d Cir.1996); see also Travelers Indem. Co. v. AMR Servs. Corp., 921 F.Supp. 176, 179 n. 3 (S.D.N.Y.1996) (“[a] n ‘air waybill’ is essentially a contract of carriage ….”). The air waybill in this case incorporated the defendant’s “conditions of carriage” into the shipping contract. The air waybill provided:

2.2 To the extent not in conflict with the foregoing, carriage and other related services performed by each Carrier are subject to:

….

2.2.2 provisions contained in the air waybill, Carrier’s conditions of carriage and related rules, regulations, and timetables, and applicable tariffs of such Carrier, which are made part hereof, and which may be inspected at any airports or other cargo sales offices from which it operates regular services. When carriage is to/from the USA, the shipper and the consignee are entitled, upon request, to receive a free copy of the Carrier’s conditions of carriage.

(Dec. 18, 2008 Bridwell Decl. Ex. A.)

III

The defendant argues that the plaintiff failed to provide timely notice of its claim under Article 31 of the Montreal Convention because it did not dispatch notice to the department within FedEx that was authorized to receive notice-namely, the claims department. Rather, the plaintiff mailed notice to a street address for a FedEx facility in Dallas-Forth Worth and emailed notice to an employee in the FedEx sales department, Ms. Whiten. The defendant also argues that irrespective of when the plaintiff dispatched notice of its claim, it was untimely because the defendant did not actually receive such notice.

The plaintiff argues that because the Montreal Convention does not specify that a claimant must confirm where to send notice of a claim against the carrier, its dispatch of notice to the Dallas-Forth Worth address and to a sales employee via email, instead of to the defendant’s claims department, was sufficient to fulfill the timely notice requirement in Article 31 of the Montreal Convention. The plaintiff also argues that only dispatch of notice by the claimant, rather than receipt of notice by the carrier, is required for timely notice under the Montreal Convention.

Article 27 of the Montreal Convention allows parties to fill in gaps in the Convention by contract. That is precisely what the parties did in this case. In its terms and conditions of carriage, the defendant specified how to dispatch notice of a damage claim, a subject on which the Montreal Convention is silent. A putative claimant was required to send notice of its claim by mail to the defendant’s claims department in Pittsburgh. It is also apparent, from Ms. Whiten’s response to Mr. Won’s email, that the defendant maintained a telephone hotline that a putative claimant could consult for instructions concerning dispatching notice of its claim. In light of Ms. Whiten’s response, there is every reason to believe that a putative claimant not knowing how or where to send notice of its claim could find out simply by calling the defendant and asking for instructions. The plaintiff does not suggest otherwise.

It was eminently reasonable for the defendant to channel damage claims against it to a specific department. The defendant is a large company that operates in over 220 countries and employs over 143,000 personnel. (See Dec. 18, 2008 Bridwell Decl. ¶ 5.) The alternative to channeling damage claims-allowing notice of a claim provided to any employee or any department to suffice as notice to the defendant of that claim-would make it difficult to keep track of claims in an organized fashion.

The plaintiff argues that because the Montreal Convention “makes [no] mention of checking with the carrier’s website as a prerequisite to ‘dispatching’ timely, written notice,” the plaintiff cannot be held to the process provided for in the terms and conditions of carriage set forth in the defendant’s Service Guide and available online at www.fedex.com/us/services/terms. This argument is unavailing. There was no need to check the defendant’s website to ascertain how to dispatch notice of a claim. Rather, the provision for dispatching notice of a claim was listed in the defendant’s Service Guide, a free copy of which was offered to the plaintiff upon request. The plaintiff asserts that “the terms and conditions of the Federal Express Service Guide ha [ve][no] bearing on this motion for summary judgment.”(Pl.’s 56.1 Stmt. ¶¶ 12, 13.) But it is perfectly acceptable for parties to incorporate the terms of external documents, including a carrier’s Service Guide, into a contract by referring to those documents in the air waybill. See, e.g., Brink’s Ltd. v. S. African Airways, 93 F.3d 1022, 1035 (2d Cir.1996) (air waybill can incorporate “readily available” timetables by reference); Levy v. Delta Airlines, No. 02 Civ. 477, 2004 WL 2222149, at(S.D.N.Y. Sept. 30, 2004) (“Delta provided a notice that published tariffs were incorporated by reference into the contract of carriage. This means that Delta’s Tariff Rule 45 was part of the contract of carriage ….”); Samtech Corp. v. Federal Express Corp., No. 03 Civ. 0024, 2004 U .S. Dist. LEXIS 27123, at (S.D.Tex. May 28, 2004) (“A carrier may supplement the airbill’s terms by incorporating other documents, such as a service guide, by reference. FedEx’s Service Guide [was] incorporated into the contract of carriage with Samtech by reference in the airbill ….”) (internal citations omitted); Williams v.. Federal Express Corp., No. 99 Civ. 6252, 1999 U.S. Dist. LEXIS 22758, at(C.D.Cal. Oct. 4, 1999) (“The contract of carriage consists of a FedEx Airbill and the June 1995 FedEx Service Guide incorporated therein.”). In this case, the air waybill explicitly referred to the defendant’s “conditions of carriage,” which were contained in the terms and conditions of the Service Guide. The defendant made the terms and conditions of the Service Guide available to the plaintiff by offering the plaintiff a free copy. Therefore, the air waybill incorporated by reference the terms and conditions of the Service Guide.

It is irrelevant that the air waybill never used the words “Service Guide” in referring to the contents of that document. The plaintiff has not asserted any confusion as to whether the “conditions of carriage” incorporated by the air waybill referred to the terms and conditions of the Service Guide. Indeed, at oral argument, counsel for the plaintiff conceded that there were no conditions of carriage other than those contained in the Service Guide, and that it was therefore clear that the air waybill was referring to the Service Guide. No magic words are needed to incorporate a document into a contract by reference. See, e.g., Lowry & Co. v. S.S. Le Moyne D’Iberville, 253 F.Supp. 396, 398 (S .D.N.Y.1966) (Weinfeld, J.) (“It is not necessary, in order to incorporate by reference the terms of another document, that such purpose be stated in haec verba or that any particular language be used …. [I]t is settled doctrine that a reference in a contract to another writing, sufficiently described, incorporates that writing.”). The air waybill sufficiently described the Service Guide, because the waybill referred to the defendant’s “conditions of carriage” and offered the plaintiff a free copy of those conditions of carriage, which were contained in the Service Guide.

This case is distinguishable from Sotheby’s v. Federal Express Corp., 97 F.Supp.2d 491 (S.D.N.Y.2000), in which Judge Chin held that an air waybill referring to the carrier’s “conditions of carriage” had not incorporated the carrier’s Service Guide. Id. at 500.In Sotheby’s the condition of the Service Guide that the carrier sought to enforce was in direct conflict with the face of the air waybill. See id. at 499.In this case, the terms and conditions in the Service Guide filled in a gap in the waybill and did not contradict it. Moreover, the waybill specifically referred to the conditions of carriage which were freely available to the shippers. There is no reasonable dispute that those conditions of carriage were the terms and conditions included in the Service Guide and available online. (See Nov. 5, 2008 Bridwell Decl. ¶¶ 7-8.)

In sum, the gap in the Montreal Convention with respect to how notice of a damage claim should be dispatched did not give the plaintiff the right to dispatch such notice however it saw fit. The parties permissibly contracted to fill the gap in the Convention by providing for a specific process for dispatching notice of a damage claim. The plaintiff failed to follow that process, which simply involved sending notice of the claim to the defendant’s claims department, and thus failed to provide notice of its claim in a manner contemplated by the parties. Therefore, the plaintiff failed to dispatch timely notice of its claim under Article 31 of the Montreal Convention, and “no action shall lie against the carrier.”Montreal Convention Article 31. Summary judgment with respect to the plaintiff’s claim is thus warranted, and it is unnecessary to address the parties’ arguments as to whether a claim must merely be dispatched, or must also be received, in order to achieve timely notice under the Montreal Convention.

CONCLUSION

For all of the foregoing reasons, the motion for summary judgment dismissing the Complaint against defendant Federal Express Corporation is granted. The Clerk is directed to close Docket No. 21.

SO ORDERED.