Air Liquide Mexico S. De R.L. De C.V. v. Talleres Willie, Inc.
| Decision Date | 31 July 2015 |
| Docket Number | CIVIL ACTION NO. H-14-211 |
| Court | U.S. District Court — Southern District of Texas |
| Parties | AIR LIQUIDE MEXICO S. de R.L. de C.V. and AIR LIQUIDE PROCESS AND CONSTRUCTION, INC., Plaintiffs, v. TALLERES WILLIE, INC., BERNARDO AINSLIE, FELIX NINO LEIJA, TRAILBLAZER PILOT CAR SERVICES, LLC, CLAUDE JOSEPH KIMMEL d/b/a FREEDOM PILOT CAR SERVICES, CHARLES VAN KIRK d/b/a SLINGSHOT PILOT ESCORT SERVICES, WHEELING EQUIPMENT COMPANY, INC., GEORGE ORTIZ, and CONTRACTORS CARGO COMPANY, Defendants. |
Pending are Plaintiffs' Motion for Reconsideration Regarding Trailblazer Pilot Car Services, LLC, and Motion for Leave to File Third Amended Complaint (Document No. 85); Defendant Contractors Cargo Company's Motion for Entry of Final Judgment (Document No. 86), in which Defendant Trailblazer Pilot Car Services, LLC has joinied;1 Defendants Wheeling Equipment Company, Inc. and George Ortiz's Joint Motion to Dismiss the Second Amended Complaint Pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) (Document No. 91), in which Defendants Charles Van Kirk d/b/a Slingshot PilotCar Services ("Van Kirk") and Claude Joseph Kimmel d/b/a Freedom Pilot Car ("Kimmel") join;2 Plaintiffs' Motion for Summary Judgment Regarding Limitation of Liability (Document No. 93); Defendants Van Kirk and Kimmel's Third Motion to Dismiss, with Prejudice (Document No. 96); Defendants Van Kirk and Kimmel's Counter-Motion for Summary Judgment (Document No. 113); Plaintiffs' Motion to Strike Counter-Motion for Summary Judgment as Untimely (Document No. 116); Plaintiffs' Opposed Objections and Motion to Strike Certain Summary Judgment Evidence Relied Upon by Pilot Cars Defendants and Talleres Willie Defendants (Document No. 117); and Defendants Van Kirk and Kimmel's Supplement to Third Motion to Dismiss under FRCP 12(b)(1) (Document No. 126).3 After carefully considering the motions, responses, replies, and the applicable law, the Court concludes as follows.
Plaintiffs Air Liquide Mexico S. de R.L. de C.V. ("Air Liquide Mexico") and Air Liquide Process and Construction, Inc. ("AirLiquide Process," and together with Air Liquide Mexico, "Plaintiffs") purchased a purification skid, which is a specialized piece of refinery processing equipment, to be used in Air Liquide Mexico's facilities in Mexico.4 The purification skid (sometimes referred to in the record as the APU skid) was more than 60 feet long, over 15 feet tall, over 15 feet wide, weighed approximately 63 tons, and was valued at more than $1 million.5 Plaintiffs contracted with Hansa Meyer Global Transport USA, LLC ("Hansa Meyer") to ship the purification skid from India to the Port of Houston, and from there to transport it by tractor trailer overland to Mexico.6
Hansa Meyer in turn hired Contractors Cargo Company ("Contractors Cargo") to arrange for the overland transportation ofthe purification skid.7 Contractors Cargo constructed a 140 foot long custom-made lowboy trailer for the purification skid and then, acting as a broker, contracted with Defendant Talleres Willie, Inc. ("Talleres Willie") to transport the trailer and the purification skid to Mexico.8 Talleres Willie supplied the tractor, driver (Defendant Felix Nino Leija ("Leija")), and other crew members (including Defendant Bernardo Ainslie ("Ainslie")) to transport the purification skid.9 Contractors Cargo also contracted with Defendant Wheeling Equipment Company, Inc. ("Wheeling") to provide a bucket truck driver, Defendant George Ortiz ("Ortiz"), and with Defendant Trailblazer Pilot Car Services, LLC ("Trailblazer"), which in turn selected and hired pilot car escorts--Defendants Van Kirk and Kimmel--for the transportation of the purification skid.10
On March 4, 2013, a train hit the trailer, which was stalled across the tracks at a railroad crossing in Magnolia, Texas, severely damaging the purification skid.11 Plaintiffs allege that Defendants improperly attempted to cross the railroad crossing atan angle from the left side of the street, and then abandoned the trailer when it became stuck.12 Plaintiffs further allege that this accident was the result of a host of careless acts by Defendants, including most significantly their failure to inform the railroad of their crossing.13
Plaintiffs brought suit in state court and Contractors Cargo14 timely removed the suit.15 The Court on February 18, 2015 held that Plaintiffs' state law claims against Talleres Willie, Ainslie, Van Kirk, Kimmel, Trailblazer, and Contractors Cargo were completely preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, and accordingly dismissed those claims with prejudice, but granted Plaintiffs leave to amend their pleading to allege against Ainslie, Leija, Kimmel, and Van Kirk claims under the Carmack Amendment.16 Plaintiffs then filed their Second Amended Complaint, alleging a single claim for violation of the Carmack Amendment against Ainslie, Leija, Kimmel, Van Kirk, Wheeling, andOrtiz.17 Plaintiffs also move for reconsideration of the Court's dismissal of Plaintiffs' claims against Trailblazer, seeking leave to file a Third Amended Complaint adding claims against Trailblazer based on new evidence.18 Contractors Cargo and Trailblazer move for entry of final judgment based on the Court's dismissal of Plaintiffs' claims against them.19 Van Kirk and Kimmel move to dismiss the case under Rule 12(b)(1), and Wheeling, Ortiz, Van Kirk, and Kimmel move to dismiss the claims against them under Rule 12(b)(6).20 Plaintiffs and Van Kirk and Kimmel have filed cross-motions for summary judgment regarding the applicability of a limitation of liability provision in the contract between Contractors Cargo and Hansa Meyer.21 Finally, Plaintiffs move to strike various motions and evidence, and seek Rule 11 sanctions against Van Kirk and Kimmel.22
Plaintiffs move under Rule 59(e) for reconsideration of the Court's dismissal of their state law claims against Trailblazer based on "additional evidence previously unknown to Plaintiffs showing that Trailblazer was far more involved with the transport than Plaintiffs knew when they filed their First Amended Complaint," and seek leave to file a Third Amended Complaint to assert claims against Trailblazer.23
"A FRCP 59(e) motion to reconsider should not be granted unless there is: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; [or] (3) the need to correct a clear error of law or fact or to prevent a manifest injustice." Brown v. Mississippi Co-op Extension Serv., 89 F. App'x 437, 439 (5th Cir. 2004) (citations omitted). Where, as here, the motion to reconsider is based on an alleged discovery of new evidence, it should be granted only if (1) the facts discovered are of such a nature that they would probably change the outcome, (2) the facts alleged are actually newly discovered and could not have been discovered earlier by proper diligence, and (3) the facts are not merely cumulative or impeaching. Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010) (citation omitted).
The "newly discovered evidence" on which Plaintiffs rely consists of testimony of Jake Kimmel (the cousin of Defendant Claude Joseph Kimmel) given at his deposition on November 24, 2014.24 The Court's Memorandum and Order dismissing Plaintiffs' claims against Trailblazer was not entered until February 18, 2015, almost three months later.25 Thus, the evidence was not newly discovered after entry of the Court's Order, and is not a proper basis for reconsideration under Rule 59(e).26 See Pejouhesh v. Capital One Bank, No. CIV.A. H-14-2060, 2015 WL 539549, at *2 (S.D. Tex. Feb. 9, 2015) (Rosenthal, J.) () (citing Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003)).
In the alternative, Plaintiffs seek leave to file a new Carmack Amendment claim based on the "newly discovered evidence," which purportedly shows "that Trailblazer supplied equipment and services for this transport thereby making Trailblazer a 'carrier' under the Carmack Amendment."27 Plaintiffs' proposed Carmack Claim alleges that:
Defendant Trailblazer supplied its transportation services in the form of instructions and advice to its pilot car drivers during the transport of the APU skid. Defendant Trailblazer also supplied equipment such as a cell phone, orange flags, and 'oversized' signs to Defendant Claude Kimmel. Therefore, to the extent Defendant Trailblazer can be considered a 'carrier,' Plaintiffs alternatively assert a Carmack Amendment claim against Defendant Trailblazer.28
Assuming that the advice and supplies provided by Trailblazer were used by persons engaged in the carriage of the purification skid, which Trailblazer questions,29 Plaintiffs cite to no authority holding that such a de minimis contribution as the provision of advice, a cell phone, flags, and signs is sufficient to establish liability as a "carrier" under the Carmack Amendment.30 See Fomanv. Davis, 83 S. Ct. 227, 230 (1962) (). Because such an amendment would be futile, and because Plaintiffs base their motion on evidence that was known to Plaintiffs before the Court dismissed their claims against Trailblazer, Plaintiffs' motion to reconsider and for leave to file a Third Amended Complaint is denied.
Contractors Cargo moves under Rule 54(b) for entry for final judgment in its favor, which motion Trailblazer adopts and joins.31 Although Plaintiffs have filed no response to the motion, Rule 54(b) motions are disfavored and should be granted only "when there exists some danger of hardship or injustice through delay whichwould be...
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