MOTOR CARRIER AUDIT & COLL. v. Family Dollar Stores

• Decision Date: 14 September 1987
• Docket Number: No. C-C-86-415-P.,C-C-86-415-P.
• Citation: 670 F. Supp. 644
• Court: U.S. District Court — Western District of North Carolina
• Parties: MOTOR CARRIER AUDIT & COLLECTION CO., Plaintiff, v. FAMILY DOLLAR STORES, INC., Defendant.

670 F. Supp. 644

MOTOR CARRIER AUDIT & COLLECTION CO., Plaintiff, v. FAMILY DOLLAR STORES, INC., Defendant.

No. C-C-86-415-P.

United States District Court, W.D. North Carolina, Charlotte Division.

September 14, 1987.

Lawrence A. Winkle, Winkle & Wells, Dallas, Tex., Robert Walker, Sims, Walker & Steinfeld, Washington, D.C., for plaintiff.

Patricia Hummel Seifert, Gardere & Wynne, Dallas, Tex., William P. Farthing, Jr., Parker, Poe, Thompson, Bernstein, Gage & Preston, Charlotte, N.C., for defendant.

MEMORANDUM AND ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on Defendant's, Family Dollar Stores, Inc. ("Family Dollar"), Motion to stay the present suit and to refer it to the Interstate Commerce Commission ("ICC"). For the reasons stated below, Defendant's Motion will be granted.

BACKGROUND FACTS

Sometime before April 1983, a sales representative and regional manager for RTC Transportation, Inc. ("RTC") approached Family Dollar about providing RTC's transportation services to Defendant. RTC's agents prepared a written rate schedule, and submitted it to the Defendant. Defendant alleges that RTC's agents represented to Defendant that (1) the rates contained in the schedule were "protected," (2) that they were effective for all shipments tendered to RTC, and (3) that shipments under these rates could begin immediately. Defendant did use RTC's transportation services, and it allegedly did so solely upon RTC's agents' assurances that the rates presented were then effective. There is no evidence or allegation that such services were provided under a written contract. In addition, there is nothing before the Court indicating that RTC was a "contract carrier" granted relief by the ICC from complying with the requirement that tariff rates be filed.

RTC provided transportation services for Defendant and billed Defendant for the shipments based upon the rates contained in the schedule presented to Defendant. Defendant paid these bills. RTC never demanded further payment, nor sent corrected freight bills for any services provided to Defendant.

After these shipments were made and paid for, RTC assigned its freight bills and accounts receivable to Plaintiff, Motor Carrier Audit and Collection Company, a division of Delta Traffic Services, Inc. ("Motor Carrier"). Thereafter, approximately three years after the shipments, Plaintiff informed Defendant that it had been undercharged for the shipments RTC made in April 1983. RTC had failed to file with the ICC the rate schedule it had shown to Defendant and used when billing Defendant. RTC's proposed rate schedule, which was used in calculating Defendant's orders, did not become an effective published tariff until June 1983.

On April 2, 1986, Plaintiff filed a Complaint in the United States District Court for the Northern District of Texas. In its Complaint, Plaintiff alleged that the shipments made prior to June 1983 were subject to the tariff on file with the ICC at that time, and therefore, Defendant is liable for undercharges: The rates in the tariff existing before June 1983 were higher than those in RTC's proposed rate schedule. In addition, the stop-off charge was higher, and double-billing was allowed on some loads because of stop-offs. Plaintiff is seeking to recover $13,213.90 — the difference between the freight bills Defendant paid and the freight bills as they would be calculated using the higher filed rates and billing procedures as they appeared in the published tariff in effect in April 1983 __, plus interest from and after the date of demand for payment. Plaintiff is also seeking costs incurred and expended in the present suit, and for other and further relief as the Court may order.

On August 25, 1986, pursuant to Section 1391, Title 28 U.S.C., this case was transferred from the Northern District of Texas to this Court. At the time the case was transferred, the district court had pending before it Defendant's Motion to Dismiss or to Stay Proceedings and to Refer to the ICC. On August 31, 1987 the parties presented oral arguments on that Motion to this Court, and it is that Motion which this Court now considers.

THE MOTION AND THE APPLICABLE LAW

This Court's jurisdiction is based on Section 1337(a), Title 28 U.S.C., since Plaintiff's claim arises under Section 10761(a), Title 49 U.S.C. Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 534-35, 103 S.Ct. 1343, 1344, 75 L.Ed.2d 260 (1983) (per curiam); Louisville & Nashville R.R. Co. v. Rice, 247 U.S. 201, 38 S.Ct. 429, 62 L.Ed. 1071 (1918); Kansas City Terminal Ry. Co. v. Jordan Mfg. Co., 750 F.2d 551, 552 (7th Cir.1984). Section 10761(a) states in pertinent part that

a carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device.

49 U.S.C.A. § 10761(a) (West Supp.1987) (emphasis added). Plaintiff bases his claim on both the above-quoted section and the "filed rate" doctrine which has emerged from prior administrative and judicial precedents. Seaboard System R.R., Inc. v. United States, 794 F.2d 635, 638 (11th Cir. 1986) ("The statute does not say what remedy is available if less than the tariff rate has in fact been charged and paid for past shipments. That has been worked out by ICC and judicial decision."). Plaintiff is suing under this section because its predecessor in interest, RTC, was a common carrier governed by Section 10761(a).

The "filed rate" doctrine is simply a rule of law that requires carriers subject to the Interstate Commerce Act ("the Act"), such as RTC, to collect, and for their shippers to pay, all lawful charges set forth in the applicable tariffs. Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915) ("the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext"). The purpose of the "filed rate" doctrine is to prevent carriers from giving by secret agreements discriminatory preferences to large volume shippers. See Armour Packing Co. v. United States, 209 U.S. 56, 81, 28 S.Ct. 428, 435, 52 L.Ed. 681 (1908). The United States Supreme Court has adhered to the "filed rate" doctrine many times. See, e.g., Thurston Motor Lines v. Jordan K. Rand, Ltd., 460 U.S. 533, 534-35, 103 S.Ct. 1343, 1344, 75 L.Ed.2d 260 (1983) ("A carrier's claim is, of necessity, predicated on the tariff — not an understanding with the shipper."); Southern Pac. Transp. Co. v. Commercial Metal Co., 456 U.S. 336, 352, 102 S.Ct. 1815, 1825, 72 L.Ed.2d 114 (1982) (carrier's violation of ICC credit regulations cannot be raised as an affirmative equitable defense to carrier's claim for undercharges); Louisville & Nashville R.R. v. Central Iron & Coal, 265 U.S. 59, 65, 44 S.Ct. 441, 442, 68 L.Ed. 900 (1924); Louisville & Nashville R.R. v. Rice, 247 U.S. 201, 202, 38 S.Ct. 429, 62 L.Ed. 1071 (1918) (reaffirmed in Thurston Motor Lines, 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983)); Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915).

Defendant in the present Motion argues, however, that this Court should not blindly follow the "filed rate" doctrine. Instead, Defendant urges this Court to stay the proceedings and to refer the Plaintiff's claim to the ICC.

When a party requests that a matter in a lawsuit pending before the Court be referred to an administrative agency, that party is asserting that the agency has "primary jurisdiction." As the United States Supreme Court stated:

"Primary jurisdiction" ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.

United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-65, 1 L.Ed.2d 126 (1956) (citing General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 331, 84 L.Ed. 361 (1940)). Section 1336(b) of Title 28 U.S.C.A. anticipates that the district courts may refer questions and issues to the ICC and provides that:

When a district court ... refers a question or issue to the ICC for determination, the court which referred the question or issue shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the ICC arising out of such referral.

28 U.S.C.A. § 1336(b) (West Supp.1987).

Defendant argues that the present case is an appropriate one to refer to the ICC because only that administrative agency can make a valid determination as to whether Plaintiff's attempt to collect the alleged undercharges should be barred as an "unreasonable practice." See 49 U.S.C. A. § 10701(a) (West Supp.1987) (A "practice related to transportation or service provided by a carrier subject to the jurisdiction of the ICC ... must be reasonable."); id. §§ 10101(b), 10321, 10704 (sections of the Act that together provide for the ICC's unreasonable practice jurisdiction); National Indus. Transp. League — Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates: Ex Parte No. MC-177. 1986 Fed.Carr.Cas. (CCH) ¶ 37,284, at 47,348, 47,351 (1986) hereinafter NITL — Petition to Institute Rulemaking ("in the highly competitive motor carrier industry and economy in general, equitable defenses to rigid application of filed tariff rates should be available on a case-by-case basis and the ICC's unreasonable practice jurisdiction authorizes such an approach.").

Defendant's Motion to Stay...