Neutral As of: May 28, 2018 4:31 PM Z
Skanes v. FedEx
United States Court of Appeals for the Eleventh Circuit
May 14, 2018, Decided
No. 16-16499, Non-Argument Calendar

Reporter
2018 U.S. App. LEXIS 12638 *; 2018 WL 2189454
DEBRA SKANES, Plaintiff-Appellant, versus FEDEX, Defendant, FEDEX GROUND PACKAGE SYSTEM, INC., Intervenor Defendant-Appellee.
Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
Prior History: [*1] Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket No. 2:15-cv-00134-WKW-SRW.

Skanes v. FedEx Ground Package Sys., 2016 U.S. Dist. LEXIS 132912 (M.D. Ala., Sept. 28, 2016)
Skane v. FedEx, 2016 U.S. Dist. LEXIS 10484 (M.D. Ala., Jan. 29, 2016)
Disposition: AFFIRMED.

PER CURIAM:
Debra Skanes, proceeding pro se, appeals from the district court’s grant of summary judgment in favor of FedEx Ground Package System, Inc., on her Carmack Amendment claim, 49 U.S.C. § 14706. Skanes raises two issues on appeal. First, she asserts that FedEx Ground should not have been permitted to amend its motion for summary judgment. Second, on the merits, she contends that FedEx Ground was not entitled to summary judgment on her Carmack Amendment claim.

I
Skanes first asserts that the district court erred when it adopted the magistrate judge’s report and recommendation allowing FedEx Ground to amend its summary judgment motion—in particular, to substitute a copy of the “tariff” that governed her particular [*2] shipment, in place of the one originally submitted, which post-dated her shipment. We disagree.
HN1[ ] Federal Rule of Civil Procedure 56(e)(1) states that “if a party fails to properly support an assertion of fact,” among other options “the court may give an opportunity to properly support or address the fact ….” Fed. R. Civ. P. 56(e)(1). Here, the magistrate judge recommended that the district court permit FedEx Ground to make the substitution and notified the parties that any objections to its recommendation should be filed within 14 days. It is undisputed that Skanes failed to timely object. Instead, three days after the deadline, Skanes filed an objection asserting that she would suffer prejudice if the amendment was permitted. Skanes’s belated objection is unavailing for two reasons. First, by failing to timely object to the magistrate judge’s recommendation, she waived her right to appeal the substitution issue. See, e.g., Fed. R. Civ. P. 72(a); Smith v. School Bd. of Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007). Second, and in any event, she failed to provide any clear explanation of the supposed prejudice, and it is difficult to see what that prejudice might be, as it is undisputed that that both versions of the tariff contained the same terms, conditions, provisions, and limitations.
The district court did not err in permitting [*3] the FedEx Ground to amend its summary judgment motion.

II
Skanes next contends, on the merits, that the district court erred in granting FedEx Ground summary judgment. HN2[ ] We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Johnson v. Governor of Fla., 405 F.3d 1214, 1217 (11th Cir. 2005). Summary judgment should be granted only when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). In reviewing orders granting summary judgment, we resolve all reasonable doubts about the facts in favor of the non-movant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “[M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
HN3[ ] “The Carmack Amendment creates a uniform rule for carrier liability when goods are shipped in interstate commerce.” Smith v. United Parcel Serv., 296 F.3d 1244, 1246 (11th Cir. 2002). To accomplish uniformity, the Carmack Amendment pre-empts state law claims arising from failures in both the transportation and delivery of goods. Id. at 1247-48 (determining that the plaintiffs’ claims of fraud, negligence, and willfulness were pre-empted by the Carmack Amendment because the claims clearly related to the delivery of goods under a contract of carriage). The pre-emptive effect of the Carmack Amendment is broad and embraces [*4] “all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation.” Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196, 36 S. Ct. 541, 60 L. Ed. 948 (1916).
HN4[ ] Under the Carmack Amendment, a carrier is generally responsible “‘for the actual loss or injury to the property caused by’ the carrier.” UPS Supply Chain Sols., Inc. v. Megatrux Transp., Inc., 750 F.3d 1282, 1286 (11th Cir. 2014) (citing 49 U.S.C. § 14706(a)(1)). However, the carrier may limit its liability ‘”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.'” Id. (citing 49 U.S.C. § 14706(c)(1)(A)). In addition to a declaration or agreement, the carrier must, upon request of the shipper, provide “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.” Id. (citing 49 U.S.C. § 14706(c)(1)(B)).
HN5[ ] We use a four-step inquiry to determine whether the carrier has effectively limited its liability under the Carmack Amendment. Id. A carrier must:
(1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission;1 (2) give the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtain the shipper’s agreement as to the choice of [*5] liability; and (4) issue a receipt or bill of lading prior to moving the shipment.
Id.
Additionally—and importantly here—the Carmack Amendment provides that a carrier may impose a time limit on the filing of claims against it, so long as the limit is not less than nine months. 49 U.S.C § 14706(e)(1); see also Siemens Power Transmission & Distribution, Inc. v. Norfolk S. Ry. Co., 420 F.3d 1243, 1248 (11th Cir. 2005) (stating that a shipper must file with the carrier a notice of claim that provides the carrier notice of the claim before filing suit under the Carmack Amendment).
Under the applicable tariff here, before instituting a lawsuit due to a delayed shipment, a complaining party must first file a written claim with FedEx Ground within nine months of the date of delivery. It is undisputed that Skanes did not file a claim with FedEx—within nine months or ever—before instituting her lawsuit. Accordingly, Skanes’s Carmack Amendment claim is barred.
AFFIRMED.

2018 WL 1990030

United States District Court, D. Minnesota.
Stergios ROUMELIOTIS, Plaintiff,
v.
J.B. HUNT TRANSPORT, INC., Defendant.
Civil No. 16–1879 WMW/FLN
|
Signed 04/26/2018
|
Filed 04/27/2018
Attorneys and Law Firms
Jacob Jagdfeld for Plaintiff.
Jerome Feriancek for Defendant.

ORDER
FRANKLIN L. NOEL, United States Magistrate Judge
*1 THIS MATTER came before the undersigned United States Magistrate Judge on February 26, 2018, on Defendant’s motion to transfer venue (ECF No. 43). For the reasons set forth below, Defendant’s motion (ECF No. 43) is DENIED.

I. STATEMENT OF FACTS
Plaintiff Stergios Roumeliotis alleges that on June 23, 2014, as he was riding a bicycle through the intersection of Fifteenth Avenue Southeast and Fifth Street Southeast, in Minneapolis, Minnesota, a commercial tractor-trailer being operated by an employee of Defendant J. B. Hunt Transport, Inc., abruptly lurched in front of him and caused him to crash. ECF No. 1 at 3. Plaintiff claims that the crash was caused by the negligence, carelessness, and unlawful conduct of Defendant and its employee. Id.

This matter was originally filed in Hennepin County District Court, in Minneapolis Minnesota, but was removed to the District of Minnesota, pursuant to 28 U.S.C. §§ 1332 and 1446. Id. at 1–2. Defendant is a Georgia corporation, with its principle place of business in Arkansas. Id. This case has been assigned to the Honorable Wilhemina M. Wright, chambered in St. Paul, Minnesota. See ECF No. 3.

II. CONCLUSION OF LAW
Defendant moves the Court, pursuant to 28 U.S.C. § 1404(a), to transfer venue from Saint Paul, Minnesota, to Duluth, Minnesota. See ECF No. 43. According to Defendant, on November 26, 2017, Hernandez Solano was fatally struck by a Sport Utility Vehicle at the intersection of West Seventh Street and Grand Avenue in Saint Paul. ECF No. 45 at 1. Based on the amount of publicity surrounding the Solano accident, the amount of support the Solano family received from the community, and the vilification of the driver in the Solano matter, Defendant believes that venue in Saint Paul risks the likelihood of a biased jury pool, and unfair prejudice to the Defendant. Id. at 1–2. Plaintiff opposes Defendant’s motion to transfer venue, and asserts that Plaintiff has failed to establish any basis for transferring the case from Saint Paul to Duluth. See ECF No. 49. This Court agrees.

“For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought ….” 28 U.S.C. § 1404(a). In considering a motion to transfer under § 1404(a), the court must consider: “(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice.” Terra Int’l., Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997). The court’s determination, however, is not limited to these factors but “require[s] a case by case evaluation of the particular circumstances at hand and a consideration of all relevant factors.” Id. “[T]he party seeking a transfer under section 1404(a) typically bears the burden of proving that a transfer is warranted.” Id. at 695. The moving party must “show that the balancing of the … factors strongly favors transfer.” Brockman v. Sun Valley Resorts, Inc., 923 F. Supp. 1176, 1179 (D. Minn. 1996). Transfer “should not be freely granted.” In re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir. 1982). “Merely shifting the inconvenience from one side to the other … is not a permissible justification for a change of venue.” Terra Int’l Inc., 119 F. 3d at 696–97.

A. Convenience of the parties
*2 “In evaluating the convenience of the parties, courts may consider the location of the two courthouses and the travel expenses that the parties ‘would likely incur … for airfare, meals, and lodging, and losses in productivity from time spent away from work.’ ” Oien v. Thompson, 824 F. Supp. 2d 898, 903 (D. Minn. 2010) (quoting In re Apple Inc., 602 F.3d 909, 913 (8th Cir. 2010) ). “However, it is axiomatic that convenience to [the defendant’s] counsel ‘is not a factor to be considered in deciding the propriety of transfer.” Nelson v. Soo Line R. Co., 58 F. Supp. 2d 1023, 1027 (D. Minn. 1999) (quoting Hoppe v. G.D. Searle & Co., 683 F. Supp. 1271, 1276 (D. Minn. 1988) ).

In the present case, Plaintiff is a professor at the University of Minnesota, and is currently in California on a two-year contract with Google. ECF No. 49 at 2. Defendant is a corporation headquartered in Arkansas. See ECF No. 45 at 5. Defendant argues that any inconvenience to the parties based on venue being in Duluth as opposed to Saint Paul is minimal. Id. Plaintiff disagrees, noting that travel to Duluth for out of state parties and witnesses is more expensive as there are fewer flights traveling to Duluth than to the Minneapolis–Saint Paul International Airport. See ECF No. 49 at 10. Because Defendant has not offered any reason that it would be more convenient for it to litigate in Duluth, and because Plaintiff has made a good showing that travel to Duluth would be more expensive, the Court finds that the first factor, the convenience of the parties, weighs in favor of not transferring.

B. Convenience of the Witnesses
In analyzing the convenience of the witnesses, relevant considerations “include the number of essential non-party witnesses, their location and the preference of courts for live testimony as opposed to depositions.” Graff v. Qwest Commc’n Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn. 1999). “In determining this factor, the court must examine the materiality and importance of the anticipated witnesses’ testimony and then determine their accessibility and convenience to the forum.” Id. at 1122. Here, Plaintiff argues that transferring venue to Duluth would inconvenience the one key independent witness, Matthew Carlson, who lives in Minneapolis. ECF No. 49 at 10. Additionally, Plaintiff argues that the University of Minnesota Police Officer who investigated the incident would also be inconvenienced if the matter was transferred to Duluth. Id. While Defendant does not dispute that Mr. Carlson would be inconvenienced by having to travel to Duluth, it states that the “two-and-a-half-hour drive should not be an insurmountable distance, and there is no present indication that this witness intend[s] to appear live for the trial.” ECF No. 45 at 5. Based on the preference for live testimony, and the location of the key witness in this matter, it is clear that Saint Paul would more convenient than Duluth for the witnesses. Therefore, this factor also weighs against transfer.

C. Interests of Justice
Lastly, this Court must evaluate the venue that will best promote the interests of justice. See Graff, 33 F. Supp. 2d at 1122. Factors courts generally consider in evaluating the interests of justice are: “(1) judicial economy, (2) the plaintiff’s choice of forum, (3) the comparative costs to the parties of litigating in each forum, (4) each party’s ability to enforce a judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the advantages of having a local court determine questions of local law.” Terra Int’l Inc., 119 F.3d at 696.

*3 Defendant asserts that because it removed the matter to federal court, Plaintiff did not choose the forum, and having the case heard in Duluth would not interfere with Plaintiff’s choice of forum. ECF No. 45 at 6. Further, while the cost of litigating this matter in Duluth would increase minimally, this is outweighed by the interest of Defendant having a fair trial and an impartial jury. Id. Defendant believes that due to the “sympathetic climate for bicyclists in Saint Paul,” allowing the case to move forward in Saint Paul would unfairly prejudice the Defendant and risk its ability to impanel an impartial jury. See id. at 6–8. Plaintiff counters that transferring the trial to Duluth would impede judicial economy, as Judge Wright would need to travel to Duluth to try the case. ECF No. 49 at 11.

There is no evidence that Saint Paul is more sympathetic to bicyclists than Duluth. Further, judicial economy, and the comparative costs to the parties to litigate in each forum favor not transferring this case. Therefore, because Defendant has not shown that any of the factors weigh in favor of transferring venue to Duluth, Defendant’s motion to transfer is denied.

III. ORDER
Based upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant’s motion to transfer venue (ECF No. 43) is DENIED.

All Citations
Slip Copy, 2018 WL 1990030