United States District Court,

1. New Jersey.

John SCOTT, Plaintiff,

v.

ESTES EXPRESS LINES, INC., Defendant.

Civil Action No. 17–0963–BRM–TJB

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Signed 09/26/2017

Attorneys and Law Firms

Peter M. Draper, Ronald E. Prusek, Carluccio Leone Dimon Doyle & Sacks LLC, Toms River, NJ, for Plaintiff.

Tricia B. O’Reilly, Eleonore Ofosu–Antwi, Mariel L. Belanger, Walsh Pizzi O’Reilly Falanga LLP, Newark, NJ, for Defendant.

 

 

OPINION

BRIAN R. MARTINOTTI, United States District Judge

*1 Before this Court is Plaintiff John Scott’s (“Plaintiff”) Motion to Remand this action to the Superior Court of New Jersey, Law Division, Ocean County. (ECF No. 7.) Defendant Estes Express Lines, Inc. (“Defendant”) opposes the motion. (ECF No. 9.) Pursuant to Federal Rule of Civil Procedure 78(b), this Court did not hear oral argument. For the reasons set forth herein, Plaintiff’s Motion to Remand is DENIED.

 

 

1. BACKGROUND

On December 15, 2016, Plaintiff filed a complaint in the Superior Court of New Jersey, Ocean County, alleging Defendant is liable for violations of the New Jersey Law Against Discrimination, N.J.S.A. § 10:5–1, et seq. (the “NJLAD”), and violations of the New Jersey’s Conscientious Employee Protection Act, N.J.S.A. § 34:19–1. (Compl. (ECF No. 1–1).) Plaintiff resides in Toms River, New Jersey, and was employed by Defendant as a “pick-up and delivery driver at the Lakewood, New Jersey terminal.” (ECF No. 1–1 ¶ 2 and Answer (ECF No. 4) ¶ 4.) Defendant is a “trucking company engaged in the transportation of freight and related services to the public and private sectors.” (Id. ¶ 3.) It operates trucking terminals in South Plainfield, Lakewood, and Pinebrook, New Jersey. (Id.)

 

On February 13, 2017, Defendant removed the action to this Court. (Not. of Removal (ECF No. 1).) On February 24, 2017, Plaintiff filed a Motion to Remand this matter back to the Superior Court of New Jersey, Ocean County, challenging this Court’s jurisdiction. (ECF No. 7.) Defendant opposes the Motion. (ECF No. 9.)

 

 

1. LEGAL STANDARD

A notice of removal of a civil action must be filed by a defendant within thirty (30) days of receiving the complaint. 28 U.S.C. § 1446(b)(1). However, where it is not evident from the face of the complaint that a case is removable, “a notice of removal may be filed within thirty [ (30) ] days after receipt by Defendants … of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3).

 

Upon the removal of an action, a plaintiff may challenge such removal by moving to remand the case back to state court. Id. § 1447. Grounds for remand include: “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). A motion for remand on the basis of a procedural defect in the removal must be filed within thirty (30) days of the notice of removal, 28 U.S.C. § 1447(c), whereas “a motion to remand based on lack of subject matter jurisdiction may be made at any time before final judgment,” Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1212–13 (3d Cir. 1991) (citing 28 U.S.C. § 1447(c)).

 

“The party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel–Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Federal courts rigorously enforce the congressional intent to restrict federal diversity jurisdiction, and therefore removal statutes are “strictly construed against removal” and “doubts must be resolved in favor of remand.” Id. at 396–403. Additionally, when a case is removed, “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).

 

 

III. DECISION

*2 Plaintiff challenges removal based on lack of subject matter jurisdiction, not on a defect in the removal process. The parties do not dispute that Plaintiff’s claims satisfy the amount in controversy requirement.1 Plaintiff challenges only the citizenship of Defendant, contending it, like Plaintiff, is a citizen of New Jersey.

 

“For the purposes of [28 U.S.C. §§ 1332 and 1441], a corporation shall be deemed to be a citizen of every State … by which it has been incorporated and of the State … where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). The United States Supreme Court adopted a “nerve center” test to identify a corporation’s principal place of business. See Hertz Corp. v. Friend, 559 U.S. 77 (2010). In Hertz, the Supreme Court held a corporation’s principal place of business is “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” Id. at 92–93. The Court went on to state, “in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center,’ and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).” Id. at 93; see also Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013).

 

In support of its Motion, Plaintiff argues Defendant: (1) conducts business in New Jersey, with physical terminals serving four New Jersey locations; (2) is seeking to hire individuals for managerial and executive assistant positions in those New Jersey physical terminal locations; and (3) has a subsidiary company, Estes Forwarding Worldwide, LLC (“EFW”), which maintains a regional corporate office in New Jersey. (ECF No. 7–2 at 3.)

 

In opposition, Defendant submits a declaration from Tracy Hughes (“Hughes”). (ECF No. 9–1.) Hughes is currently employed by Defendant as a Senior Director of Compliance and Employee Relations. (Id. ¶ 2.) Hughes certified Defendant’s “corporate office, headquarters, and principal place of business is located in Richmond, Virginia” and Defendant’s officers are based at the Richmond office. (Id. ¶¶ 3–4.) She further affirmed:

5. [Defendant’s] corporate office houses the company’s human resources, safety, payroll, operations, administrative, fleet services, marketing, accounting, customer service, and information technology departments, as well as line haul trucking central dispatch.
6. From the corporate office, [Defendant’s] senior management directs, controls and coordinates [Defendant’s] corporate activities and establishes and implements [Defendant’s] overall corporate policies and business strategies for the entire company. All company-wide decisions are made and effected from the corporate office.

*3 (Id. ¶¶ 5–6.)

 

The Court finds Hughes sworn declaration demonstrates Defendant’s “nerve center” is located in its corporate office/headquarters in Richmond, Virginia. See Hertz Corp., 559 U.S. at 93 (finding “[a] corporation’s ‘nerve center,’ [is] usually its main headquarters”). Hughes’s declaration establishes that all major strategic decisions (corporate policies and business strategies) for Defendant and most major corporate functions (human resources, accounting, payroll, and marketing) are managed out of Richmond, Virginia, not New Jersey.

 

While Plaintiff raises valid concerns as to Defendant’s citizenship, only one state may constitute a corporation’s principal place of business. See Hertz Corp., 559 U.S. at 93 (finding “[a] corporation’s ‘nerve center’ … is a single place”). Indeed, Defendant operates 152 trucking terminals located in thirty-seven (37) states in the United States, identical to the four it operates in New Jersey, and has various subsidiaries,2 whereas Defendant’s nerve center is Richmond, Virginia. (See ECF No. 9–1 ¶¶ 7–8.) Plaintiff’s allegations to the contrary, are insufficient to undermine Hughes’s declaration. See Maignan v. Precision Autoworks, No. 13–3735, 2014 WL 201857, at *3 (D.N.J. Jan. 15, 2014) (finding that plaintiff’s allegations contained solely within its briefing were unable to challenge the sworn statements in defendant’s declaration establishing that defendant’s center of direction, control and coordination was in Pennsylvania, not New Jersey); Harris v. Bristol–Myers Squibb Co., No. 11–6004, 2012 WL 1243260, at *2 (D.N.J. Apr. 12, 2012) (finding removal to federal court in New Jersey appropriate where defendant’s general counsel certified its headquarters was in New York, listed its New York address on all regulatory filings with the SEC, defendant’s CEO kept his primary office in New York, other members of defendant’s senior leadership kept primary offices in New York, the board of directors met in new York, and defendant maintained its books and records in New York). Therefore, the Court finds Defendant’s principal place of business and nerve center is Richmond, Virginia. Accordingly, Plaintiff’s Motion to Remand is DENIED.

 

 

1. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Remand (ECF No. 7) is DENIED.

 

All Citations

Slip Copy, 2017 WL 4268039

 

 

Footnotes

 

1

“In determining whether the amount in controversy reaches the threshold of $75,000.00, the court generally accepts the plaintiff’s good faith allegations.” McCollum v. State Farm Ins. Co., 376 Fed.Appx. 217, 220 (3d Cir. 2010) (citing Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995)). “A case may be dismissed for failure to meet the amount in controversy requirement only if it appears to a ‘legal certainty’ that the claim is for less than the jurisdictional amount.” Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Dardovitch v. Haltzman, 190 F.3d 125, 135 (3d Cir. 1999)).

2

Hughes’s declaration certifies that EFW’s corporate office and principal place of business is also Richmond, Virginia. Specifically, she affirms EFW’s management team directs its business activities and strategies out of the Richmond, Virginia office. (ECF No. 9–1 ¶ 8 and ECF No. 9 at 8.) Therefore, Plaintiff’s argument that Defendant’s subsidiary obtains “a regional corporate office in New Jersey” is meritless. (See ECF No. 7–2 at 3.)

 

 

N.D. Ohio, Eastern Division.

CARRIER SERVICES GROUP, INC., Plaintiff,

v.

SCHNEIDER LOGISTICS, INC., Schneider Transportation AK Ttransit Corporation, W.W. Rowland Trucking Co. Inc., Cargo Speed Corp., Defendants.

Case No. 4:15–CV–02626–JRA

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Signed 09/26/2017

Attorneys and Law Firms

Randil J. Rudloff, Warren, OH, for Plaintiff.

Scott Wing, Leahy, Monica P. Fazekas, Leahy, Eisenberg & Fraenkel, Chicago, IL, Thomas W. Wright, Matthew P. Baringer, Davis & Young, Cleveland, OH, for Defendants.

 

 

MEMORANDUM OF OPINION AND ORDER

John R. Adams, U.S. DISTRICT JUDGE, UNITED STATES DISTRICT COURT

*1 Defendant W.W. Rowland Trucking Co. Inc. (“Rowland”) seeks summary judgement pursuant to Fed. R. Civ. Pro. 56, asserting that Plaintiff Carrier Services Group, Inc. (“Carrier”) has failed to establish a prima facie case for liability under 49 U.S.C. § 14706 (the “Carmack Amendment”). Doc. 50–1. Carrier has opposed the motion. Doc. 51. For the reasons stated herein, the Court GRANTS IN PART AND DENIES IN PART Rowland’s Motion for Summary Judgment.

 

 

1. FACTS

Carrier is an Ohio corporation engaged in the business of buying and selling new and used telecommunications computer equipment. Doc. 11, p. 3. Carrier purchased thirty-eight pieces of used telecommunications equipment from Austin Tele–Services (“ATS”), a non-party, located in Austin, Texas. The equipment consisted of metal towers, which contained telecommunication related computer components. Carrier paid $25,000.00 for the equipment. Carrier hired Schneider Logistics and Schneider Transportation to arrange for transportation of the order. Schneider Logistics brokered a portion of the load to Rowland. Doc. 50–1 at 2. A Rowland driver arrived at ATS to pick up a portion of the equipment on August 4, 2015. Twenty-five of the thirty-eight pieces of equipment were loaded onto the Rowland truck. The remaining thirteen pieces of equipment were loaded on a separate truck and are not at issue in this case.

 

The twenty-five towers loaded on August 4, 2015, were accompanied by a clean bill of lading. Rowland has a “no touch” policy for their drivers concerning the handling of loads; Rowland drivers are not responsible for loading the shipments onto the truck, nor are the drivers allowed on the loading docks.

 

The Rowland truck arrived at the Carrier warehouse in Warren, Ohio, on August 6, 2015. Doc. 50–1 at 3. When the Rowland truck’s trailer door was opened, Carrier’s Chief Executive Officer, Richard Lee Hartman, testified that some of the equipment towers had fallen over. That day, on the bill of lading, Carrier’s General Manager, Terrence Williams, stated that five of the twenty-five pieces received had fallen over and were damaged. Mr. Hartman later testified that he made the decision that the entire load was “scrap” as soon as the truck was opened. Doc. 50–2 at 64. Although he believed the shipment to be scrap, Hartman spent approximately thirty minutes looking at the equipment the following day. Doc. 50–1 at 6. The equipment was not tested, nor were the individual components examined. All twenty-five pieces of equipment were scanned into Carrier’s computer system as scrap. All twenty-five pieces are currently in storage at Carrier’s warehouse in Leavittsburg, Ohio. Carrier has not produced any material in support of its valuation of the equipment, lost sales, or customers lost due to the alleged damage to the shipment apart from the testimony of Mr. Hartman.

 

 

1. STANDARD OF REVIEW

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Estate of Smithers v. City of Flint, 602 F.3d 758, 761 (6th Cir. 2010). A fact must be essential to the outcome of a lawsuit to be “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment will be entered when a party fails to make a “showing sufficient to establish…an element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). “Mere conclusory and unsupported allegations, rooted in speculation, do not meet [the] burden.” Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003).

 

*2 Summary judgment creates a burden-shifting framework. See Anderson, 477 U.S. at 250. The moving party has the initial burden of showing there is no genuine issue of material fact. Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). When evaluating a motion for summary judgment, the Court construes the evidence and draws all reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party may not simply rely on its pleadings; rather it must “produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1996).

 

 

III. LAW AND ANALYSIS

The Carmack Amendment to the Interstate Commerce Act, codified at 49 U.S.C. § 14706, addresses the liability of common carriers for goods lost or damaged during a shipment under the jurisdiction of the Interstate Commerce Commission. CNA Ins. Co. v. Hyundai Merchant Marine Co., Ltd., 747 F.3d 339, 353 (6th Cir. 2014). The parties agree that the Amendment applies to the shipment at issue here. To establish a prima facie case for liability under the Carmack Amendment, the plaintiff must satisfy three elements:

(1) that the initial (“receiving”) carrier received the cargo in good condition;

(2) that the cargo was lost or damaged; and

(3) the amount of actual loss or damages.

Id. Upon an adequate showing of the three elements, the burden shifts to the defendant to demonstrate that it was not negligent and that the damage was instead due to one of five excepted causes:

(a) an act of God;

(b) an act of terrorism or war;

(c) an act of the shipper itself;

(d) an act of public authority; or

(e) the inherent vice or nature of the goods.

Missouri Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 137–138 (1964). If a defendant-carrier can demonstrate any of the five exceptions, it wins. CNA Ins. Co., 747 F.3d at 353. The Sixth Circuit emphasizes how slight the evidentiary burdens are under the Amendment. If the defendant carrier cannot demonstrate an applicable exception, “then the shipper prevails based on its establishing the—very low threshold—prima facie case.” Id.

 

 

1. Initial Receipt

To satisfy the first element of a Carmack Amendment claim, Carrier must demonstrate that the equipment was in good condition when it was received by Rowland at ATS for delivery. In general, a shipper’s burden to prove that the goods were received by a carrier in good condition may be satisfied by a proffer of a clean bill of lading for the shipment. Sec. Ins. Co. v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2nd Cir. 2004). A bill of lading is the “basic transportation contract between the shipper-consignor and the carrier.” S. Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342 (1982). A “statement in the bill of lading as to ‘apparent good order’ is prima facie evidence only that, as to parts which were open to inspection and visible, the goods were in good order at the point of origin.” Hoover Motor Express Co. v. United States, 262 F.2d 832, 834 (6th Cir. 1959) (internal citation omitted); see also Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 878 (5th Cir. 1996). A “shipper’s burden of proving that the goods were delivered to the carrier in good condition may be satisfied by the proffer of a clean bill of lading for the shipment, provided that the cargo was packaged in a way that permitted its inspection by the carrier.” Sec. Ins. Co., 391 F.3d at 83.

 

*3 Rowland’s 30(b)(6) deponent testified that there was no notation on the bill of lading indicating that there was a problem with the load. Doc. 51–3, p. 35–36. There is no dispute between the parties that the shipment at issue was accompanied by a clean bill of lading. Doc. 50–3, p.1. In addition to the clean bill of lading, Carrier offers the affidavit of Chris Goldstein, the warehouse supervisor of ATS, who averred that the equipment was in good working order and undamaged condition when it was loaded on the Rowland truck. Doc. 51–1. Carrier further notes that Rowland’s drivers are required by company policy to notify their dispatchers of any damage to a cargo on receipt of the cargo. Doc. 51–3, p. 27. Rowland has produced no evidence that such a report was made with regard to this shipment. Doc. 51–3, p. 27. Rowland also has a “no-touch policy” which states drivers are not allowed on the loading dock prior to loading and may not participate in the loading process. Doc. 51–1, p. 8. Rowland contends that its own “no-touch policy” and the fact that the subject equipment towers contained numerous computer components that were not visible unless their doors were opened prevent Carrier from imputing condition from the bill of lading.

 

Rowland offers no legal basis for its theory that a unilateral no-touch policy can extinguish liability under the Carmack Amendment. In support of the argument that the multitude of computer components were not visible to the naked eye, Rowland offers cases in which items were shrink wrapped or sealed in containers. Ohio Star Transp., LLC, v. Roadway Exp., Inc., 2010 WL 3666982 (Sept. 14, 2010) (shrink wrapped computers); A.I.G. v. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 999 (11th Cir. 2003) (Motorola cellphones, in boxes, shrink wrapped on pallets); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2nd Cir. 2004) (packed in containers with numbered seals). Rowland offers nothing to demonstrate that the equipment towers in this instance were shrink wrapped or in sealed containers. The cases cited by Rowland do not stand for the proposition that a carrier must be able to view all computer components to constitute an opportunity to inspect; instead, Ohio Star and A.I.G. turn on the issue of whether the shipper could determine the nature of the shipment with the naked eye. The photographs of the contents of the shipment show the absence of shrink wrap and the fact that the doors of the equipment towers were accessible and unsecured. Nothing in this record suggests that the towers were damaged prior to shipment or that Rowland’s driver was unable to determine the nature of the shipment by observation. In the absence of a legal basis to conclude otherwise, the Court finds the shipment was subject to a clean bill of lading and undamaged on receipt.

 

 

2. Loss or Damage

Although the Carmack Amendment does not explicitly define “damage,” courts have generally found “actual loss or injury,” including a decrease in product value, are sufficient under the “very low threshold” established by the Amendment. Oshkosh Storage Co. v. Kraze Trucking LLC, 65 F. Supp.3d 634, 637 (E.D. Wis. 2014); CNA Ins. Co., 747 F.3d 339 at 353. Under this element, Carrier offers the testimony of Mr. Hartman, who states that when the Rowland truck’s trailer was opened, some of the towers had fallen over and some were still standing. Doc. 50–2, p. 13. Mr. Hartman testified that the towers were loaded with “pallet banding,” which is how they typically receive and ship them. Doc. 50–2, p. 13. Mr. Hartman testified that some of the pallets themselves were broken and sticking into the air. Doc. 50–2, p. 13. Mr. Hartman states that he deemed the entire load to be scrap as soon as the truck was opened and that he confirmed his belief by examining the equipment for approximately thirty minutes the following day. Doc. 50–2, 16–17. However, the bill of lading identified only five of the twenty-five pieces as having fallen over and being consequently damaged. Doc. 50–3, p. 1.

 

None of the twenty-five pieces of equipment were tested. Doc. 50–2, p. 17. Mr. Hartman testified that none of the equipment was tested because the cost of doing so would far exceed the value of the lot. Doc. 50–2, p. 18. According to Mr. Hartman the cost of testing varies depending on the piece of equipment but could cost $2,000.00. Doc. 50–2, p. 18. Mr. Hartman also valued the pieces claimed as damaged between $50.00 and $15,000.00. Doc. 50–2, p. 18. Clearly, for at least a portion of the pieces, the cost of testing would not exceed the value of the piece. Testing even a portion of the pieces would have served as proof of damages, “so long as the sample is sufficient to indicate fairly the quality, condition, and nature of damage to the whole cargo.” Allied Tube & Conduit Corp. v. Southern Pac. Transp. Co., 211 F.3d 367, 372 (7th Cir. 2000). In the absence of testing or any independent verification of Mr. Hartman’s representation that the entire load was “scrap,” this Court is left with the photographs taken of the load when the container was opened and the bill of lading that indicates five of the twenty-five towers were damaged. By Carrier’s own representation, twenty of the twenty-five towers had not fallen and were packed as Carrier expected. Under these circumstances, conclusory statements about the condition of the pieces are insufficient, without further evidence, to establish that the entire shipment was damaged upon delivery.

 

*4 Therefore, Carrier meets its burden under the second element of the Carmack Amendment with regard to the five towers that fell and fails to meet its burden under the second element of the Carmack Amendment with regard to the remaining towers that did not fall.

 

 

3. Value of loss or damage

Under the Carmack Amendment, the amount of damages is limited to “actual loss.” 49 U.S.C. § 14706(a)(1). Actual loss is “ordinarily measured by the reduction in market value at destination or by replacement or repair costs occasioned by the harm.” Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 277 (1st Cir. 2000). Recovery of lost profits is permitted, unless they are speculative. Id. Evidence of past sales for similar equipment has been deemed too speculative to allow for damages in excess of the purchase price. Id. “A damages award must have a rational basis in the evidence.” Id. at 279. The Carmack Amendment further allows for consequential damages to the extent that they are foreseeable. Am. Synthetic Rubber Corp. v. Louisville & N.R. Co., 422 F.2d 462, 466 (6th Cir. 1970).

 

Carrier seeks damages in excess of $160,000.00. Carrier paid $25,000.00 for the total thirty-eight piece order, but only twenty-five pieces of equipment were on the shipment at issue here. Carrier has not produced any evidence of an agreement to sell any of the twenty-five pieces, which were purchased as inventory for Carrier’s system of “predictive analysis.” Doc. 50–2, p. 19, 25. Carrier failed to provide evidence of subsequent demand for the “scrapped” equipment by customers; nothing offered by Carrier indicates a lost sale or customer as a result of the alleged damage. Mr. Hartman’s testimony that Carrier has a history of similar and higher sales compared to what Carrier would have been seeking for the pieces of “scrapped” equipment is, admittedly, speculative: “So I’m buying on futures. If there’s[sic] negatives in the market and here’s some product…I could match these two up. It might not hit for two, three, four, even six months, but I know there’s going to be a shortcoming somewhere on some of these commodities….” Doc. 50–2, p. 25. Damages in excess of the purchase price are not appropriate under these circumstances.

 

As stated, Carrier purchased thirty-eight pieces. Carrier makes a prima facie case for damage to five of the thirty-eight towers. Rowland has not responded with any of the exceptions that excuse liability under the Amendment. Therefore, Carrier has established a prima facie case under the Amendment as to five of the towers.

 

 

1. CONCLUSION

For the reasons stated herein, the Court GRANTS IN PART, with respect to liability, as to twenty of the twenty-five towers in the shipment, and DENIES IN PART, with respect to damages, Rowland’s Motion for Summary Judgment.

 

IT IS SO ORDERED.