2021 WL 3578731

United States District Court, S.D. Illinois.
EASTERN EXPRESS, INC., Plaintiff,
v.
PETE RAHN CONSTRUCTION COMPANY, Defendant.
Case No. 21–CV–00333–JPG
|
08/13/2021

J. PHIL GILBERT, UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER
*1 This is a breach of contract and indemnity suit. Before the Court are Plaintiff Eastern Express, Inc.’s (“Eastern’s”) Motion for Remand and Attorneys’ Fees, (ECF No. 23), and its Memorandum in Support, (ECF No. 24). Defendant Pete Rahn Construction Company (“Rahn”) responded. (ECF No. 27). For the reasons below, the Court GRANTS IN PART AND DENIES IN PART Eastern’s Motion and REMANDS to Illinois’s Twentieth Judicial Circuit Court in Randolph County.

I. PROCEDURAL AND FACTUAL HISTORY
According to the Complaint, Eastern is a “broker that arranges for the motor transportation of property” across the country. (Compl. at 1, ECF No. 1-1). Rahn is a company that provides such transportation. (Id.).

In 2018, Eastern and Rahn “entered into a written contract…to transport cargo belonging to U.S. Steel Corporation….” (Id. at 2). The contract was made under the Carmack Amendment, 49 U.S.C. § 14101, which regulates the relationship between shippers and motor carriers. (See Broker/Motor Carrier Agreement ¶3, ECF No. 1-2). Section 14101 of the Carmack Amendment makes it “[t]he exclusive remedy for any alleged breach of contract” unless “the shipper and carrier, in writing, expressly waive any or all rights and remedies…for the transportation covered by the contract….” To that end, Section 14706 (in Chapter 147) allows for suits “brought against the carrier alleged to have caused…loss or damage…in a United States district court….”

With that in mind, the litigants “expressly waive[d] all provisions of” Chapter 147 “to the extent that such provisions are in conflict with the express provisions of” their contract. (Broker/Motor Carrier Agreement ¶3). Even so, Rahn agreed that it could “assume[ ] liability for any cargo damage, loss, or theft from any cause…as determined under” Section 14706. (Id. ¶5). Rahn also “agree[d] to indemnify and hold harmless [Eastern] from any against any and all claims of any nature whatsoever arising out of [Rahn’s] actions, omissions, or negligence as to” all loss of the cargo. (Id. ¶7).

In the end, the property that Eastern contracted with Rahn to ship never arrived. (Compl. at 2). Its whereabouts, “valued at $21,552.60 is unknown.” (Id.). As a result, Eastern was forced to reimburse U.S. Steel for the value of the lost goods. (Id. at 3).

Eastern sued Rahn in Illinois’s Twentieth Judicial Circuit Court in Randolph County. (See id. at 1). It raised state-law claims for breach-of-contract and indemnity. (Id. at 1–4).

Rahn removed the action to this Court based on federal-question jurisdiction, 28 U.S.C. § 1331. (See Not. of Removal at 1, ECF No. 1). In brief, it stated that Eastern’s state-law claims “are really Carmack Amendment claims and are” thus completely preempted, raising a federal question. (Id. at 2).

Finally, Eastern moved to remand, arguing that the litigants expressly waived the application of the Carmack Amendment in Paragraph 3 of their contract. (See Eastern’s Mem. in Support at 2).

II. LAW AND ANALYSIS
“A civil action filed in a state court may be removed to federal court if the claim is one ‘arising under’ federal law.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003) (citing 28 U.S.C. § 1441). And a civil action arises under federal law when federal law is present in the original cause of action. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 153 (1908); § 1331. In other words, “absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Anderson, 539 U.S. at 6. This well-pleaded complaint rule embodies the “paramount policies…that the plaintiff is master of the complaint…and that the plaintiff may, by eschewing claims based on federal law, choose to have the case heard in state court.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 389–99 (1987).

*2 With that in mind, the complete-preemption doctrine is an exception to the well-pleaded complaint rule: “[W]here Congress has completely preempted a given area of state law, a plaintiff’s state law claim will be ‘recharacterized’ as a federal claim so that removal becomes proper.” Hart v. Wal-Mart Stores, Inc. Assocs.’ Health & Welfare Plan, 360 F.3d 674, 678 (7th Cir. 2004). Thus “if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 24 (1983).

Relevant here, “[t]he Carmack Amendment…preempts all state or common law remedies available to a shipper against a carrier for loss or damage to interstate shipments.” N. Am. Van Lines, Inc. v. Pinkerton Sec’y Sys., Inc., 89 F.3d 452, 456 (7th Cir. 1996); 49 U.S.C. § 14101. The congressional intent behind this preemption was to address “the disparate schemes of carrier liability that existed among the states, some of which allowed carriers to limit or disclaim liability, others that permitted full recovery….To solve this problem, the Carmack Amendment ‘created a nationally uniform rule of carrier liability concerning interstate shipments.’ ” REI Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008) (quoting N. Am. Van Lines v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 454 (7th Cir. 1996)).

That said, the Carmack Amendment also allows parties to a contract to forgo its application through an express written waiver. 49 U.S.C. § 14101. The question now before the Court is whether Paragraph 3 of the litigants’ contract constitutes such a waiver, thus negating the Carmack Amendment’s preemptive effect and requiring remand.

Paragraph 3 states as follows:
All services provided by CARRIER under this Agreement shall be rendered as contract carriage within the meaning of 49 U.S.C. §§ 13104(4)(b) and 14101(b). In connection with such contract carriage services, BROKER and CARRIER hereby expressly waive all provisions of Chapters 137 and 147, and any other provisions of 49 U.S.C. Subtitle IV, Part B, to the extent that such provisions are in conflict with the express provisions of this Agreement. BROKER and CARRIER do not, however, waive the provisions of that Subtitle relating to registration, insurance, or safety fitness.
(Broker/Carrier Agreement ¶3).

Rahn argues that Paragraph 3 is not a valid waiver of the Carmack Amendment for two reasons. First, pointing to the statutory language, it says that only “shippers” and “carriers” can forgo application of the Carmack Amendment; yet Eastern is a broker, not a shipper. True enough, the text says, “If the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract, the transportation provided under the contract shall not be subject to the waived rights and remedies….” 49 U.S.C. § 14101 (emphasis added). But Eastern, as a broker, acted as a conduit for the shipper, U.S. Steel. Indeed, the first line of Paragraph 3 confirms that the contract is a “contract carriage within the meaning of” Section 14101(b); and Section 14101(b) is captioned, “Contracts with shippers.” At bottom, breach-of-contract claims by a carrier against a broker fall under the Carmack Amendment’s “preemptive sweep.” See REI Transport, Inc., 519 F.3d at 697. The Court is therefore unmoved by Rahn’s contention that brokers cannot invoke the Carmack Amendment’s waiver provision.

*3 Rahn also argues that the “waiver” in Paragraph 3 is ambiguous and should therefore be “knocked out.” The litigants cite the same District of Arizona case for conflicting propositions, and only one is right. In Smithfield Beef Group-Tolleson, Inc. v. Knight Refrigerated, LLC, a beef processor hired a transportation company to ship its goods. No. CV 08-1929-PHX-MHM, 2009 WL 1651389, at *1 (D. Ariz. June 12, 2009). The transportation company failed to deliver the property on time, so the processor sued. Id. Their contract contained many similarities to the one in this case. For one, it contained a waiver provision stating, “WHEREAS, the parties hereto expressly waive any and all rights and remedies…for the transportation provided hereunder pursuant to 49 U.S.C. § 14101(b)(1).” Id. at *2. The district court found this language to be enough: “The parties clearly expressly agreed to waive the Carmack Amendment at the beginning of the contract.” Id. But like Rahn, the carrier argued that because “the parties also reference[d] the Carmack Amendment throughout the agreement in at least five other places,” it had “the effect of ‘reviving’ the Carmack Amendment and making the initial waiver of it ineffective.” Id. The district court saw it differently: “[T]he parties agreed to waive the Carmack Amendment as a whole, but chose to selectively incorporate certain aspects of it back into their agreement without adopting it as a whole.” Id. This was “the most reasonable explanation, particularly given the general rule that a contract must be interpreted to give meaning to all of its terms, presuming that every provision was intended to accomplish some purpose, and that none are deemed superfluous.” Id. at *3. In other words, Rahn’s assertion that Smithfield Beef Group-Tolleson, Inc. means multiple references to the Carmack Amendment in a contract “should knock each other out” is unsupported.

Several other courts have cited Smithfield Beef Group-Tolleson, Inc. when finding express waivers of the Carmack Amendment. In Aviva Trucking Special Lines v. Ashe, for example, the district court considered a contract provision that said, “This contract service is designed to meet the distinct needs of the customer and the parties expressly waive all rights and obligations allowed by 49 U.S.C. § 14101 to the extent [they] conflict with the terms of this contract.”400 F. Supp. 3d 76, 80 (S.D.N.Y. 2019). This language, the court said, made it “plain” that the litigants “expressly waive[d] the Carmack Amendment….” Id. Similarly, in Safoni-Aventis U.S., LLC v. Great American Lines, Inc., the district court considered a contract provision that said, “Pursuant to 49 U.S.C. § 14101(b)(1), the parties expressly waive any and all provisions under the [Carmack Amendment] and the regulations thereunder to the extent that such provisions conflict with the terms of the [contract] or the parties’ course of performance hereunder.” No. 10-2023, 2016 WL 4472949, at *2 (D.N.J. Aug. 22, 2016). Again, citing Smithfield Beef Group-Tolleson, Inc., the district court determined that the litigants “effectively waived Carmack Amendment claims as they [were] entitled to pursuant to § 14101(1).” Id. The court also noted that other references to the Carmack Amendment in the contract did not make the waiver ambiguous: “[T]he reasonable explanation for the limiting language in the waiver—‘to the extent that such provisions conflict’— is that [the litigants] agreed to waive the Carmack Amendment as a whole, but wanted to make clear that any of the default rules of the Carmack Amendment that they wrote specifically into the [contract] should not be disturbed.” Id. Eastern pointed to each of these cases to support its claim of waiver, but Rahn ignored them.

The Court agrees with the several district courts considering similar contract language that Paragraph 3 was an express waiver of the Carmack Amendment. It states unambiguously that the litigants “expressly waive all provisions of Chapters 137 and 147, and any other provisions of 49 U.S.C. Subtitle IV, Part B, to the extent that such provisions are in conflict with the express provisions of” the contract. Chapter 147 includes Section 14706, the preemption provision. Indeed, Section 14101 also allows parties to waive the Carmack Amendment’s application altogether. And other references to the Carmack Amendment in the contract do not make it so ambiguous that Paragraph 3 should be knocked out. See Herbert Shaffer Assocs., Inc. v. First Bank of Oak Park, 332 N.E.2d 703, 708 (1975) (“Where possible, all provisions of the contract are to be construed harmoniously. All phrases and clauses are presumed to have been inserted deliberately and for a purpose.”).

*4 Finally, Rahn argues that even if the waiver applies and Eastern’s claims remain under state law, the Court should still find that subject-matter jurisdiction exists because the contract says that liability will be “determined under the Carmack Amendment.” This assertion is rooted in the doctrine of nesting jurisdiction acknowledge by the Supreme Court in Smith v. Kansas City Title & Trust Co., 255, U.S. 180 (1921). In brief, although state law may provide a cause of action, federal-question jurisdiction may exist when it “appears from the [complaint] that the right to relief depends upon the construction or application of [federal law].” Id. at 199. “That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013).

Under Illinois law, “[t]he essential elements of a breach of contract claim are: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) resultant injury to the plaintiff.” Pepper Const. Co. v. Palmolive Tower Condos., LLC, 59 N.E.3d 41, 66 (Ill. App. Ct. 2016).

Rahn argues that proving breach will necessarily depend on “the application and construction of the Carmack Amendment.” (Rahn’s Resp. at 6). The Court disagrees. True enough, the contract states that Rahn would “assume[ ] liability for any cargo damage, loss, or theft from any cause as an interstate motor carrier, as determined under the Carmack Amendment (49 U.S.C. § 14706)….” (Broker/Carrier Agreement ¶5) (emphasis added). But the relevant portion of Section 14706 simply reiterates that a motor carrier can be held liable “for the actual loss or injury to the property….” Yet for an issue to be substantial, it must be important “to the federal system as a whole,” not just “to the particular parties in the immediate suit.” Gunn, 568 U.S. at 260. Ultimately, liability will turn on state common law; and “it takes more than a federal element to open the ‘arising under’ door.” Empire Healthcare Assurance, Inc. v. McVeigh, 547 U.S. 677, 701 (2006) (cleaned up). In other words, the application of the Carmack Amendment to Eastern’s breach of contract claim will be minimal, not substantial.

For all that, attorneys’ fees are unwarranted. To be sure, the Court “may require payment of just costs and any actual expense, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). But the Court may only do so “where the removing party lacked an objectively reasonable basis for seeking removal.” Lott v. Pfizer, Inc., 492 F.3d 789, 791 (7th Cir. 2007). That is not the case here. While the Court is unpersuaded by Rahn’s basis for removal, it is not so hollow as to lack legal justification. And “if clearly established law did not foreclose a defendant’s basis for removal, then a district court should not award attorneys’ fees.” Id. The litigants will go on to state court bearing their own costs.

III. CONCLUSION
The Court GRANTS IN PART AND DENIES IN PART Plaintiff Eastern Express Inc.’s Motion for Remand and Attorneys’ Fees and REMANDS to Illinois’s Twentieth Judicial Circuit Court in Randolph County.

IT IS SO ORDERED.

Dated: Friday, August 13, 2021

S/J. Phil Gilbert

J. PHIL GILBERT

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2021 WL 3578731

2021 WL 3510426

United States District Court, W.D. Washington,
at Tacoma.
Eric A. WATSON and Sarah M. Watson, and their marital community, Plaintiff,
v.
Warren MOGER, and Jane Doe Moger, and their marital community d/b/a Moger Yacht Transport, Warren Moger, and Jane Doe Moger, and their marital community d/b/a Moger Yacht Transport, Defendants.
CASE NO. 20-5344 RJB
|
Signed 08/10/2021
Attorneys and Law Firms
Jordan E. Jones, Marianne K. Jones, Smythe & Jones PLLC, Bellevue, WA, for Plaintiff Eric A. Watson.
Jordan E. Jones, Marianne K. Jones, Smythe & Jones PLLC, Bellevue, WA, for Plaintiff Sarah M. Watson.
Eric A. Watson, Graham, WA, Pro Se.
Sarah M. Watson, Graham, WA, Pro Se.
Keith Marc Hayasaka, Michael Anthony Jaeger, Lewis Brisbois Bisgaard & Smith LLP, Seattle, WA, for Defendants.

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ROBERT J. BRYAN, United States District Judge
*1 This matter comes before the Court on Defendants’ Motion for Summary Judgment (Dkt. 51) and Defendants’ Motion to Strike (Dkt. 55). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

Originally filed on April 9, 2020, this case arises from damage sustained to a boat which was transported over land for the Plaintiffs by the Defendants from California to Oregon. Dkt. 1. The Second Amended Complaint makes claims pursuant to the Carmack Amendment, 49 U.S.C. § 14706(a)(1). Dkt. 37. The Plaintiffs’ counsel were permitted to withdraw on March 12, 2021. Dkt. 41. The Plaintiffs are now proceeding pro se.

The Defendants now move for summary judgment arguing that the Plaintiffs’ claims under the Carmack Amendment, 49 U.S.C. § 14706, et. seq., fail because the Plaintiffs failed to file written notice of their claim. Dkt. 51. The Defendants further maintain that the claims are contractually barred by the Wood Boat / Hull Release. Id. On July 14, 2021, the undersigned issued a notice to the Plaintiff regarding the summary judgment pursuant Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998).

The Plaintiffs filed their response (Dkts. 54 – 54-27) to the motion for summary judgment under oath; accordingly, factual assertions in their response will be treated as declarations. They appeared to have some difficulty – each page of the response has a different number in the CM-ECF system. The Defendants move to strike various portions of the response. Dkt. 55. In the interest of fully considering all the pro se Plaintiffs’ assertions and arguments, the Motion to Strike (Dkt. 55) should be denied. No further analysis on that motion is required and the facts below include Plaintiffs’ factual assertions from their response.

I. FACTS
In the spring of 2019, Defendants Warren Moger, Sr. and Warren Moger, Jr., the owner of Moger Yacht Transport, were contacted to pick up Plaintiff Eric Watson’s 1962 45’ Chris Craft boat for transport over land from Anacapa Boatyard in Oxnard, California to Washington state, but later agreed that it could be taken to Portland, Oregon. Dkt. 52, at 2.

Around April 3, 2019 or April 4, 2019, the boat was removed from the water. Dkts. 52 and 54. According to Defendant Moger, Jr. “it appeared the boat was waterlogged and epoxy had been used extensively on the hull as an attempt to patch pre-existing damage.” Id., at 2. Defendant Moger, Jr. states that the Plaintiff was not present when the boat was removed from the water. Id. According to Plaintiff Eric Watson, he was present and “the epoxy was paint, as [the boat] had a new paint job done in January 2019 … [t]here was no patching for a pre-damage repair done.” Dkts. 54-5 and 54-6. Plaintiff Eric Watson states that at that time, he indicated that “the 8”x10” pads on ball swivels were too small for the boat as they would punch right through the hull and asked Warren to add 2x10s or 2x12s the length of the trailer so it would not stress the hull.” Dkt. 54-6. According to Plaintiff Eric Watson, “Warren refused.” Dkt. 54-6.

*2 On, April 3, 2019, the Plaintiff executed a Bill of Lading and Acknowledgement of Shipper’s Responsibilities. Dkt. 52, at 5-6. The Bill of Lading provides that “[c]arrier is not responsible for damage caused by loading, unloading, or due to cradles, trailers, or other carrying devices provide by or on behalf of the shipper.” Dkt. 52, at 5. According to Defendant Moger, Jr., “[d]ue to the extensive damage to the boat’s hull, prior to transport, we tried to convince [the Plaintiff] that the boat was not suitable for transport and to not transport the boat.” Id., at 2. Plaintiff Eric Watson denies that the either of the Moger Defendants made these statements. Dkt. 54-6. Defendant Moger, Jr. states that the Plaintiff Eric Watson insisted that they move the boat, so they requested that he sign a wooden boat release. Dkt. 52, at 2. Accordingly, on April 3, 2019, a “Wood Boat / Hull Release,” (“release”) was sent to Defendants which provided:
I, Eric Watson, understand that my boat is used and may have latent or obvious defects. These defects may cause damage to my boat a 1962 Chris Craft originally 45 foot with add on boat anchor and swim deck that makes it 50 ft.
I therefore hold Moger Yacht Transport and its assigns harmless from damages attributable to these latent or obvious defects. I relieve Moger Yacht Transport of any liability or responsibility for damages that may result from the transport of my boat from time of loading to time of unloading on April 4, 2019.
Dkt. 52, at 18. A signature for Eric Watson is on this document and it is dated April 3, 2019. Id. Plaintiff Eric Watson states that he did not sign it; his wife, Plaintiff Sarah Watson, signed it for him. Dkt. 54-7.

On April 10, 2019 the boat arrived in Portland, Oregon. Dkt. 37. The Plaintiffs maintain that the Portland boat yard told Plaintiff Eric Watson that they could not launch the boat because it had “holes in the bottom and would sink.” Dkt. 37, at 4. The boat yard would not take the boat, so Plaintiffs had the Defendants took the boat to another location. Id., at 4-5.

According to Defendant Moger, Jr., he was made aware of the Plaintiff’s claim against Moger Yacht Transport “through verbal communication from Mr. Watson and from Moger Yacht Transport’s insurance company.” Dkt. 52, at 3. Defendant Moger, Jr. states that he does not have record of any written communication from the Plaintiffs between the time the boat was delivered in Oregon on April 10, 2019 and the following nine months “that contains any written claim asserting liability against Moger Yacht Transport for any specified amount of money for the subject boat.” Id.

The Plaintiffs assert that they “have called numerous times to Warren Moger, Jr.” and claim that he would not call them back. Dkt. 54-3. They assert that they text messaged him and maintain that he did not respond. Id. Plaintiff Eric Watson states that he “sent a letter to Moger Yacht Transport asking to resolve the damage since the insurance company closed the claim, then directed Defendants to write and communicate with Moger Yacht Transport and not to contact them again.” Id. Plaintiff Eric Watson maintains that Defendants did not respond to his letter. Id. The record does not contain this letter.

In response to the motion for summary judgment, the Plaintiffs assert that they have not received all the discovery that they are due, which they contend makes it difficult to respond to the motion. Dkt. 54. In any event, the Plaintiffs argue that they sent sufficient written notice of their Carmack claim to the Defendants and maintain that the release did not relieve the Defendants from ordinary negligence or gross negligence, but only applies to a damage from latent or obvious defects. Id.

This opinion will first provide the standard for a motion for summary judgment, then address the Plaintiffs’ contention that they did not receive all the discovery they are due to respond to the motion for summary judgment, which should be construed as a motion pursuant to Fed. R. Civ. P. 56(d), and then will address the Defendants’ motion for summary judgment.

II. DISCUSSION

A. MOTION FOR SUMMARY JUDGMENT STANDARD
*3 Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt.”). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at, which is a preponderance of the evidence in most civil cases. Anderson, at 254; T.W. Elect., at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect., at 630 (relying on Anderson, 477 U.S. 242). Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-889 (1990).

B. PLAINTIFFS’ RULE 56(d) MOTION
Under Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” A party requesting relief pursuant to Rule 56(d) “must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). “The facts sought must be essential to the party’s opposition to summary judgment and it must be likely that those facts will be discovered during further discovery.” Sec. Exch. Comm’n v. Stein, 906 F.3d 823, 833 (9th Cir. 2018)(internal quotation marks and citations omitted).

To the extent the Plaintiffs move for relief pursuant to Rule 56(d), their motion (Dkt. 54) should be denied. While the Plaintiffs point to several interrogatory questions they assert were not answered and items they maintain have not been turned over in discovery, they fail to explain why those items would yield “facts [that] would preclude summary judgment.” Tatum, at 1100. They fail to demonstrate that these facts are “essential” to their opposition to the summary judgment or that it is likely “that those facts will be discovered during further discovery.” Stein, at 833. Moreover, discovery in this case has closed. The deadline for discovery related motions and dispositive motions has passed. Trial is set to begin on October 4, 2021. Dkt. 14. The summary judgment motion should be decided.

C. CARMACK AMENDMENT CLAIM – RELEASE
“It is well settled that the Carmack Amendment is the exclusive cause of action for interstate-shipping contract claims alleging loss or damage to property.” Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 688 (9th Cir. 2007). Under the Carmack Amendment, a carrier may:
*4 establish rates for the transportation of property … under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.
49 U.S.C. § 14706(c)(1)(A). To limit its liability under the Carmack Amendment, a carrier must: (1) “at the shipper’s request, provide the shipper with a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based,” (2) “give the shipper a reasonable opportunity to choose between two or more levels of liability;” (3) “obtain the shipper’s agreement as to [their] choice of carrier liability limit;” and (4) “issue a bill of lading prior to moving the shipment that reflects any such agreement.” OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092, 1099 (9th Cir. 2011)(internal quotation marks and citations omitted). The carrier has the burden to prove that it has complied with these requirements. Id.

The Defendants’ motion for summary judgment on the Plaintiffs’ Carmack claims should be granted and the claims dismissed.

The Defendants have shown that they have complied with the requirements to limit their liability here. There is no evidence that the Defendants failed to, at the Plaintiffs’ request, “provide them with a copy of the rate … applicable to a shipment, or agreed between the shipper and carrier, is based.” They have shown that they indicated to the Plaintiffs that they would not ship the boat absent execution of the release, and so gave the Plaintiffs “a reasonable opportunity to choose between two or more levels of liability.” The Plaintiffs do not dispute that the release was executed (even though by Plaintiff Sarah Watson, it was done for Plaintiff Eric Watson, at his direction), obtaining their “agreement as to their choice of carrier liability limit.” Lastly, the Defendants have shown that they “issued a bill of lading prior to moving the shipment that reflects any such agreement.” The Bill of Lading reflects the Release’s limitation of liability. The Bill of Lading provided that “[c]arrier is not responsible for damage caused by loading, unloading, or due to cradles, trailers, or other carrying devices …” Dkt. 52, at 5. The Defendants properly limited their liability under the Carmack Amendment.

The Plaintiffs contend that the release does not relieve the Defendants from liability here. Dkts. 54-15 – 54-16. They maintain that it is a release from “latent or obvious defects” and does not release the Defendants “from ordinary negligence or gross negligence, including failing to exercise [their] duty of care to avoid foreseeable risks, harms, and the damage which might result.” Dkt. 54-15. The Plaintiffs assert that the damage had nothing to do with a latent or obvious defect in the boat, but with Moger’s refusal to use larger pads. Id. The Plaintiffs also contend that the Defendants were in “sole control of the unloading equipment that caused the harm, so the facts also give rise to the issue of res ipsa loquitur …” Id.

Contrary to the Plaintiffs’ assertions, the release limits the Defendants’ liability from the damages here. While the release holds Moger Yacht Transport “harmless from damages attributable” to “latent or obvious defects,” and also agrees to “relieve Moger Yacht Transport of any liability or responsibility for damages that may result from the transport of the boat from time of loading to time of unloading.” Dkt. 52, at 18. The plain language of the release encompasses the asserted “negligence or gross negligence” and damages here. Further, because “[r]es ipsa loquitur is a form of circumstantial evidence that permits an inference of negligence to be drawn from a set of proven facts,” Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437 (9th Cir. 1983), and the release covers acts of negligence, application of the doctrine is not helpful to the Plaintiffs here.

*5 Based on the above analysis on the release, the motion for summary judgment should be granted and the Plaintiffs’ claims dismissed. The Court need not reach the Defendants’ other grounds for dismissal of this case.

III. ORDER
Therefore, it is hereby ORDERED that:
• The Defendants’ Motion to Strike (Dkt. 55) IS DENIED;
• To the extent the Plaintiffs move for relief under Fed. R. Civ. P. 56(d), that motion (Dkt. 54) IS DENIED;
• Defendants’ Motion for Summary Judgment (Dkt. 51) IS GRANTED;
• The Plaintiff’s claims ARE DISMISSED.

All Citations
Slip Copy, 2021 WL 3510426