United States District Court,

W.D. Texas, San Antonio Division.

Martin SEIDLER Plaintiff,

v.

UNITED PARCEL SERVICE, INC. Defendant.

March 29, 2005.

ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

 

FURGESON, J.

Before the Court are Defendant’s Motion for Partial Summary Judgment (Docket No. 19), Plaintiff’s Response, and Defendant’s Reply. Having considered the written briefs and the evidence submitted, the Court finds that Plaintiff has been unable to adduce evidence of a genuine issue of material fact as to his claim for attorney’s fees. Accordingly, Defendant’s Motion for Partial Summary Judgment is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

As discussed in this Court’s Order Denying Plaintiff’s Motion to Remand, this case arises from Plaintiff’s purchase of a rare firearm from a seller in Springfield, Illinois and shipment on November 24, 2003, via United Parcel Service (“UPS”) overnight delivery, to his local firearms dealer in Helotes, Texas. Plaintiff allegedly insured the package through UPS for $10,000.00 prior to shipment. Plaintiff claims that UPS damaged the firearm in the course of the shipment and caused it to be unserviceable. Plaintiff alleges that he met with Defendant’s representatives to recover for the damaged property, but the parties were unable to resolve the dispute.

Plaintiff filed this cause of action on April 5, 2004 in the 408th Judicial District of Bexar County Court in Texas. On May 4, 2004, Defendant removed the suit to this Court pursuant to the provisions of 28 U.S.C. § § 1441 and 1446, claiming original jurisdiction based on 28 U.S.C. § 1331. Plaintiff filed a Motion to Remand on June 2, 2004, and this Court denied the Motion upon its determination that all of Plaintiff’s claims either arose under federal common law or were preempted by the Airline Deregulation Act .

FN1. Pub.L. No. 95-504, 92 Stat. 1705, (codified as amended in various sections of 49 U.S.C.).

Defendant’s Motion for Partial Summary Judgment now before the Court moves to dismiss Plaintiff’s claims for attorney’s fees. Defendant contends that the parties are required to bear their own attorney’s fees because this action arises under federal common law and there is no explicit statutory authority awarding such fees. In response, Plaintiff asserts that attorney’s fees are recoverable based on a number of federal and state laws.

STANDARD OF REVIEW

Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party’s claim.The nonmoving party must then “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial.” To prevail on summary judgment, the moving party need only demonstrate that “there is an absence of evidence to support the nonmoving party’s case.” Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.

FN2. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FN3. Celotex, 477 U.S. at 323-24.

FN4. Id. at 324.

FN5. Id. at 325.

FN6. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

Based on this Court’s Order Denying Plaintiff’s Motion to Remand, Plaintiff’s claims for breach of contract and violation of the Texas Deceptive Trade Practices Act (“DTPA”) are preempted by the Airline Deregulation Act and Plaintiff’s causes of action for negligence and conversion under federal common law remain pending. In Buckhannon Board & Care Home, Inc. v. West Va. Dep’t of Health & Human Services, the U.S. Supreme Court recognized that U.S. courts follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Under this “American Rule,” “parties are ordinarily required to bear their own attorney’s fees.”

FN7. 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

FN8. Id. at 602 (quoting Key Tronic Corp. v. U.S., 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994).

FN9. Id.

Plaintiff identifies a number of state and federal statutes that he argues provide adequate authority for awarding attorney’s fees. Upon detailed review, the Court finds that none of the provisions Plaintiff identifies authorize the award of such fees. The Texas statutes Plaintiff identifies either are preempted by the Airline Deregulation Act or do not pertain to claims against a carrier arising from air shipment. Similarly, the federal statutes Plaintiff identifies either are no longer in effect or pertain to the Carmack Amendment, which governs carriers transporting goods by rail or motor carriage rather than air shipments. Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to Plaintiff, the Court finds that Plaintiff has been unable to raise a genuine issue of material fact concerning statutory authority that would allow parties to recover attorney’s from one another based on the federal common claims of negligence and conversion.

FN10. See, e.g., TEX. BUS. AND COMM.CODE, Art. 17.50 (Vernon 2004).

FN11. See, e.g., TEX. CIV. PRACT. AND REM.CODE, Chpt. 135.005 (Vernon 2004).

FN12. See, e.g., 49 U.S.C. § 11711.

FN13. See, e.g., 42 U.S.C. § 11706.

CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements his claim for attorney’s fees.

IT IS ORDERED, therefore, that Defendant’s Motion for Partial Summary Judgment (Docket No. 19) be GRANTED.