Motor Carrier Audit & Coll. Co. v. Lighting Prod.

• Decision Date: 26 October 1989
• Docket Number: No. 89 C 4846.,89 C 4846.
• Citation: 113 BR 424
• Court: U.S. District Court — Northern District of Illinois
• Parties: MOTOR CARRIER AUDIT AND COLLECTION COMPANY, A DIVISION OF DELTA TRAFFIC SERVICE, INC., Plaintiffs, v. LIGHTING PRODUCTS, INC. Defendant.

113 B.R. 424 (1989)

MOTOR CARRIER AUDIT AND COLLECTION COMPANY, A DIVISION OF DELTA TRAFFIC SERVICE, INC., Plaintiffs, v. LIGHTING PRODUCTS, INC. Defendant.

No. 89 C 4846.

United States District Court, N.D. Illinois, E.D.

October 26, 1989.

Joel H. Steiner, Paul A. Gajewski, Axelrod, Goodman, Steiner & Bazelon, Chicago, Ill., for plaintiffs.

Thomas J. Dillon, Tyrrel J. Penn, Schuyler, Roche & Zwirner, Chicago, Ill., for defendant.

ORDER

NORGLE, District Judge.

Before the court is the motion of defendant, LPI Limited Partnership, incorrectly named in the complaint as Lighting Products, Inc., pursuant to Fed.R.Civ.P. 12(b)(6), to strike and dismiss certain claims made in the complaint of plaintiff, Motor Carrier Audit and Collection Company, a division of Delta Traffic Service, Inc. ("MCACC").

MCACC alleges that it is "the purchaser and/or assignee of the freight bill claims and accounts receivable of BRINKE TRANSPORTATION CORP., a common carrier of property by motor vehicle, conducting operations in interstate and foreign commerce pursuant to Certificates of authority issued to it by the Interstate Commerce Commission." Complaint at ¶ 4. Brinke has filed a petition under Chapter 7 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., with the United States Bankruptcy Court for the District of New Jersey. MCACC further alleges that Brinke provided certain transportation services for LPI during an unspecified period of time. MCACC seeks recovery from LPI of $7,178.65 in allegedly unpaid charges for transportation services pursuant to the Interstate Commerce Act. LPI moves to strike and dismiss certain claims contained in the complaint on the grounds that they are barred by the statute of limitations set forth in the Interstate Commerce Act. 49 U.S.C. § 11706.

Dismissal is proper, pursuant to Fed.R.Civ.P. 12(b)(6), if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Horwitz v. Alloy Automotive, Co., 656 F.Supp. 1039, 1041 (N.D.Ill.1987). The defense of statute of limitations may be raised in a motion to dismiss if the time alleged in the complaint shows clearly that the cause of action has not been brought within the appropriate statute of limitations. Harris v. WGN Continental Broadcasting Co., 650 F.Supp. 568, 572 (N.D.Ill.1987).

§ 11706(a) of the Interstate Commerce Act, entitled "Limitation on actions by and against carriers" provides that:

a common carrier providing transportation or service subject to the jurisdiction of the Interstate Commission under chapter 105 of this title or a freight forwarder must begin a civil action to recover charges for transportation or service provided by the carrier or freight forwarder within three years after the claim accrues. (emphasis added).

While the Complaint does not specify the dates upon which the services for which payment is sought were rendered, the dates upon which the claims accrued may be determined by reference to a printout, attached as an exhibit to the Complaint, which enumerates a series of waybill numbers, dates and amounts representing each claim. See Chicago and North Western Transportation Company v. Atchinson, Topeka, and Sante Fe Railway Co., 609 F.2d 1221, 1226 (7th Cir.1979); Puerto Rico Marine Management v. El Verde Poultry Farms, Inc., 590 F.Supp. 1174, 1176 (D.P.R.1984) (both courts considered claim to have accrued when transportation services were rendered).

The parties agree that, based upon this printout, all but one of the claims asserted by MCACC would be barred by the three year statute of limitations as of the date MCACC filed its complaint — June 16, 1989. However, MCACC asserts that the three year statute of limitations is extended for an additional two years under 11 U.S.C. § 108(a) of the Bankruptcy Code and has attached to its response an Agreement which it asserts entitles it to take advantage of this extension of the limitations period. If § 108 is applicable, then all of MCACC's claims are timely brought.

§ 108 provides:

(a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of —

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) two years after the order for relief.

Since § 11706, "fixes a period within which a debtor may commence an action," § 108(a) is applicable to extend the period. However, the real issue is whether MCACC may properly invoke the benefits of § 108(a).

The courts have construed § 108 such that, in addition to the trustee, a debtor-in-possession in a chapter 11 case, which has all of the powers and duties of a trustee, 11 U.S.C. § 1107(a), may take advantage of the two year extension in limitations periods. See Cunningham v. Healthco, 824 F.2d 1448, 1459-60 (5th Cir. 1987); Wood & Locker, Inc. v. Doran and Associates, 708 F.Supp. 684, 686-87 (W.D. Penn.1989); Seawinds Limited v. Nedlloyd Lines B.V., 80 B.R. 181, 187 (N.D. Cal.1987); In re T.C.I. Ltd, 21 B.R. 876, 878 (Bankr.N.D.Ill.1982). However, a debtor, such as Brinke, may not. See Cunningham, 824 F.2d at 1460; In re Lawler, 53 B.R. 166, 172 (Bankr.N.D.Tex.1985); In re Dohm, 14 B.R. 701, 702 (Bankr.N.D.Ill. 1981); In re Craig, 7 B.R. 864, 865-66 (Bankr.E.D.Tenn.1980).

Furthermore, while an agent of the trustee or of the debtor-in-possession may, on behalf of its principal, invoke § 108, there is no precedent for, and it would be inconsistent with the plain language of the Bankruptcy Code, to allow a mere purchaser or assignee of a Chapter 7 debtor's claims to take advantage of § 108. Admittedly, allowing the trustee to assign his rights under § 108(a), along with the claims of the estate, would increase the value of certain claims,...