Starr Indemnity & Liability Company v. Abf Logistics, Inc.

MOTION for Partial Summary Judgment

W.D. Ark.September 16, 2016

1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION STARR INDEMNITY & LIABILITY COMPANY & DRESSER-RAND GROUP, INC. PLAINTIFF Case No.: 2:16-CV-2029-TLB VS. ABF LOGISTICS, INC., D/B/A ABF MULTIMODAL, INC. DEFENDANT MOTION FOR PARTIAL SUMMARY JUDGMENT Comes the defendant, ABF Logistics, Inc. d/b/a ABF Multimodal, Inc. (“ABF Logistics”), and for its motion for partial summary judgment, states: 1. As to the following threshold issues involving the Carmack Amendment, 49 U.S.C. § 14706, there are no genuine issues of material fact and ABF Logistics is entitled to judgment as a matter of law: (a) ABF Logistics acted as a broker within the meaning of 49 U.S.C. § 13102(2) in the transaction at issue in the Second Amended and Substituted Complaint filed by the plaintiffs. Therefore, the Carmack Amendment is not applicable to ABF Logistics. Zumba Fitness, LLC v. ABF Logistics, Inc., No. 2:15-cv-02151, 2016 U.S. Dist. LEXIS 116298 (W.D. Ark. Aug. 30, 2016); (b) Assuming for purposes of argument that the Court were to find that there is a genuine issue of material fact as to whether ABF Logistics was acting as a broker with respect to Dresser’ Rand’s shipment, there is no genuine issue of material fact that ABF Logistics has effectively limited its liability to $100,000 pursuant to 49 U.S.C. § 14706(c)(1)(A). See Kelly Aerospace Case 2:16-cv-02029-TLB Document 29 Filed 09/16/16 Page 1 of 3 PageID #: 138 2 Thermal Systems, LLC v. ABF Freight System, Inc., No. 15-12227, 2016 U.S. Dist. LEXIS 75141 (E.D. Mich. June 9, 2016);1 and (c) Assuming for purposes of argument that the Carmack Amendment applies to ABF Logistics, the Carmack Amendment preempts the plaintiffs’ breach of contract claim as a matter of law. See Hughes Aircraft v. North American Van Lines, 970 F.2d 609, 613 (9th Cir. 1992); Ameriswiss Tech., LLC v. C.H. Robinson Worldwide, Inc., 888 F. Supp. 2d 197 (D.N.H. 2012). 2. This motion is supported by ABF Logistics’ Rule 56.1 Statement of Material Facts as to Which There is No Genuine Issue to be Tried and the exhibits thereto. This motion is also supported by ABF Logistics’ memorandum brief filed contemporaneously with the motion. WHEREFORE, ABF Logistics moves the Court to enter summary judgment as follows: (a) that ABF Logistics acted as a broker in the transaction at issue in the Second Amended and Substituted Complaint within the meaning of 49 U.S.C. § 13102(2) and, therefore, the Carmack Amendment is not applicable to ABF Logistics; (b) Alternatively, assuming for purposes of argument that the Court were to find that there is a genuine issue of material fact as to whether ABF Logistics was acting as a broker with respect to Dresser-Rand’s shipment, that there is no genuine issue of material fact that ABF Logistics has effectively limited its liability to $100,000 pursuant to 49 U.S.C. § 14706(c)(1)(A); and (c) Alternatively, assuming for purposes of argument that the Court were to find that the Carmack Amendment applies to ABF Logistics, that the Carmack Amendment preempts the plaintiffs’ breach of contract claim as a matter of law. 1 The issue of the limitation of liability as applied to the plaintiffs’ state law breach-of-contract claim is not addressed here because it is not a threshold issue involving the Carmack Amendment. ABF Logistics reserves that issue for later argument as necessary. Case 2:16-cv-02029-TLB Document 29 Filed 09/16/16 Page 2 of 3 PageID #: 139 3 /s/ William A. Waddell, Jr. ______ WILLIAM A. WADDELL, JR. ARK. BAR ID NO. 84154 FRIDAY, ELDREDGE & CLARK, LLP 400 West Capitol Avenue, Suite 2000 Little Rock, AR 72201 (501) 370-1510 (telephone) (501) 244-5342 (facsimile) waddell@fridayfirm.com Attorney for ABF Logistics, Inc. CERTIFICATE OF SERVICE I hereby certify that on September 16, 2016, I served the foregoing document via the Court’s electronic /ECF System, which will send notification of such filing to the following: Joshua West Josh Sanford SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 west@sanfordlawfirm.com josh@sanfordlawfirm.com James F. Sweeney, III Carole A.R. Rouffet NICOLETTI HORNIG & SWEENEY Wall Street Plaza 88 Pine Street, Seventh Floor New York, NY 10005-1801 jsweeney@nicolettihornig.com crouffet@nicolettihornig.com /s/ William A. Waddell, Jr. ____ WILLIAM A. WADDELL, JR. Case 2:16-cv-02029-TLB Document 29 Filed 09/16/16 Page 3 of 3 PageID #: 140