Opinion
Nos. 89-35115, 89-35121 and 89-35167.
Argued and Submitted October 3, 1989.
Filed January 4, 1990. Opinion Vacated August 30, 1990. Decided August 30, 1990.
Miles L. Kavaller, Beverly Hills, Cal., for plaintiffs-appellants Delta Traffic Service, Inc., and West Coast Truck Lines, Inc.
William N. Mehlhaf, Case, Dusterhoff Mehlhaf, Portland, Or., for defendants-appellees Weyerhaeuser Co. and Marine Lumber Co.
Cecelia E. Higgins, Washington, D.C., for intervenor, I.C.C.
Paul Gary Sterling and Mary Kay Reynolds, Meadows, Smith, Lenker, Sterling Davis, Long Beach, Cal., for amicus curiae The Shippers Nat. Freight Claim Council, Inc.
Appeal from the United States District Court for the District of Oregon.
Before WALLACE, PREGERSON and ALARCON, Circuit Judges.
ORDER AND OPINION
The petition for rehearing is GRANTED. The opinion filed January 4, 1990 is withdrawn.
In West Coast Truck Lines, Inc. v. Weyerhaeuser, 893 F.2d 1016 (9th Cir. 1990), we determined that an unreasonable practices defense could be asserted to prevent application of the filed rate doctrine in an action to collect motor common carrier undercharges. Based upon this conclusion, we affirmed the district court's order granting summary judgment in favor of Weyerhaeuser Co. and Marine Lumber Co.
In Maislin Industries v. Primary Steel, Inc., ___ U.S. ___, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990), the Supreme Court concluded that an unreasonable practices defense cannot be asserted to prevent the application of the filed rate doctrine in an action to collect motor common carrier undercharges. Id. ___ U.S. at ___, 110 S.Ct. at 2766-68. Maislin Industries controls our disposition of this case. Therefore, we vacate our earlier opinion in this case, reported at 893 F.2d 1016, reverse the district court's order granting summary judgment to Weyerhaeuser Co. and Marine Lumber Co., 705 F. Supp. 513, and remand for further proceedings.
REVERSED AND REMANDED.