Berlanga v. Terrier Transp., Inc., No. 3:00-CV-2334-P.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtSolis
Citation269 F.Supp.2d 821
PartiesOctavio BERLANGA and Marisa Berlanga, Plaintiffs, v. TERRIER TRANSPORTATION, INC., Transportes Tres Banderas a/k/a Three Flags Transportation Services, Ram Transportation, S.A. de C.V., and Pedro Fernandez, Defendants.
Docket NumberNo. 3:00-CV-2334-P.
Decision Date07 April 2003
269 F.Supp.2d 821
Octavio BERLANGA and Marisa Berlanga, Plaintiffs,
v.
TERRIER TRANSPORTATION, INC., Transportes Tres Banderas a/k/a Three Flags Transportation Services, Ram Transportation, S.A. de C.V., and Pedro Fernandez, Defendants.
No. 3:00-CV-2334-P.
United States District Court, N.D. Texas, Dallas Division.
April 7, 2003.

Page 822

Stephen L. Enda, Weiner, Glass & Reed, Dallas, TX, for Plaintiffs.

M. David Frock, Frock & Broussard, Houston, TX, for Terrier Transportation, Inc. and Pedro Fernandez.

Jack Lawson Coke, Jr., Law Office of Jack L. Coke, Jr., Dallas, TX, for Transportes Tres Banderas, Ram Transportation, and S.A. de C.V.

MEMORANDUM OPINION AND ORDER

SOLIS, District Judge.


Plaintiff Octavio Berlanga contracted with Defendants Transportes Tres Banderas a/k/a Three Flags Transportation ("Three Flags") and Ram Transportation, S.A. de C.V. ("Ram") to transport his family's household belongings from Mexico City, Mexico, to Piano, Texas. These defendants transported the goods to Nuevo Laredo, Mexico. After the goods passed through customs, Defendant Pedro Fernandez ("Fernandez"), a contractor for Defendant Terrier Transportation, Inc. ("Terrier"), transported the Berlangas' property from Laredo to Piano. When the truck arrived in Piano, Plaintiff opened the trailer to find items strewn about, broken, crushed or otherwise damaged. Plaintiffs brought suit in federal court under Title 49 of the United States Code and, pleading diversity jurisdiction, asserted claims based on Texas common law and the Texas Deceptive Trade Practices Act.

Defendants Terrier and Fernandez now move for summary judgment on grounds that Plaintiffs' state-law claims are preempted by the Carmack Amendment; alternatively, they aver that there is no evidence to support essential elements of Plaintiffs' claims against them. Plaintiff has also moved for summary judgment based on the Carmack Amendment. After reviewing the pleadings, the motions, the briefing, the summary-judgment evidence, the objections to evidence, and the applicable

Page 823

statutory and case law, the Court GRANTS Defendants Terrier and Fernandez's Motion for Summary Judgment and DENIES Plaintiffs' Motion for Summary Judgment. The case shall proceed to trial.

I. Factual Background

In October 1998, Plaintiff Octavio Berlanga contacted an office of Three Flags/Ram in Mexico City for a quote on the cost of transporting his household goods from Mexico City to Piano, Texas. The bid contemplated a two-phase shipment. The first leg, from Mexico City to Nuevo Laredo, would be handled by Three Flags/Ram, and would cost Plaintiffs about U.S.$1,200.00. Once the goods cleared U.S. Customs, the second leg would be handled by Terrier at a cost of U.S. $495.00. A representative of Three Flags/Ram purportedly told Plaintiffs that Defendants would pack and load the trailer and that Terrier would provide the trailer and assistance with the shipment. In a letter dated October 8, 1998, Defendants stated that they had the knowledge and experience necessary to perform moving services.

Plaintiffs allege that their "household goods were loaded by Defendants" onto a truck provided by Terrier. Specifically, both plaintiffs avow in sworn affidavits that, on October 15, 1998, the driver, one Honorio Cruz, brought to the Berlangas' home workers who packed and loaded their household belongings onto the truck supplied by Terrier. They further avow that Mr. Cruz at one point brought additional workers to the house to help complete the job. By affidavit, Plaintiffs assert that their belongings were in good condition when they were delivered to Defendants.

Defendants deny that any employee or agent of any defendant packed or loaded Plaintiffs' belongings onto the truck. Rather, they contend that Three Flags/Ram, per Plaintiffs' instructions, "dropped the empty van at the Plaintiffs['] Mexico City residence for the Plaintiffs to load" and that Plaintiffs did indeed pack and load the van themselves. Defendants further contend that the truck was padlocked when it was delivered to the driver, who had no opportunity to inspect the belongings, the condition of the items, or the manner in which the belongings were secured.

Defendants issued a Mexican through bill of lading, which purported to cover shipping over the entire route.1 When the trailer arrived at the border, Plaintiffs asked that the trailer be opened so that some suitcases (which had been in the family's minivan) could be transported in the trailer. Defendants contend that Plaintiffs loaded a substantial number of wet cartons and other unknown items (apparently not suitcases) into the trailer at the border. Mr. Berlanga avows that he visually inspected the interior of the trailer at that time and did not notice anything amiss. Defendants Terrier and Fernandez contend that the trailer was not opened or in any way inspected or inventoried by any agent, employee, or representative of Terrier while in the custody of Mr. Fernandez.

The trailer cleared U.S. customs on October 23, 1998. The customs agent did not indicate that Plaintiffs' belongings were damaged or otherwise not in good condition. Mr. Fernandez hitched his tractor to the trailer at the border and drove it from Laredo to Piano.2 There is no evidence

Page 824

that a domestic bill of lading was issued for the domestic leg of this shipment. It is not clear when Mr. Fernandez departed Laredo.

When Mr. Fernandez and the trailer arrived in Piano on October 26, Mr. Berlanga broke a seal marked "Transmaritime, Inc." and opened the trailer. "I immediately noticed that my property was strewn and scattered about the trailer and that many items were broken, crushed or damaged." He notified his wife, who came outside to look at the trailer and the damaged property.

Mr. Fernandez purportedly stated that he would call his boss about the matter, that he was very tired, that he had driven to Laredo following another long haul, that he had driven all the way from Laredo to Piano without sleep, and that he had caused an accident in San Antonio. Both plaintiffs avow that Defendant Fernandez appeared "physically exhausted." Defendants Terrier and Fernandez deny there was any accident or unusual event during the drive from Laredo to Piano.

An agent of Defendant Terrier inspected the property at their Piano residence. Plaintiffs gave Defendant Terrier written notice of their claim by letter dated July 6, 1999, but it was not accepted. Plaintiffs contend that the damage to their property amounts to U.S.$127,660.00. Defendants estimate the damage to Plaintiffs' property to be valued at about U.S. $5,720.00.

II. Procedural Background

Plaintiffs filed a Complaint in federal court on October 23, 2000. Plaintiffs claimed that jurisdiction and venue in this Court were proper "pursuant to the provisions of the Transportation Code, Title 49, United States Code Annotated as well as diversity of jurisdiction and the amount in controversy." Compl. ¶. The Complaint claims a right to recover under the following legal theories: negligence, breach of implied warranty, and deceptive trade practices (via the Texas Deceptive Trade Practices Act or DTPA, TEX. BUS. & COM. CODE § 17.41 et seq.). Plaintiffs also invoke the doctrines of res ipsa loquitur, joint and several liability, and agency. They seek to recover damages of at least $127,660.00, additional damages as allowed under the DTPA, punitive damages as allowed by law, reasonable and necessary attorneys' fees, court costs, pre- and post-judgment interest, and such other and further relief to which Plaintiffs might justly be entitled.

The matter was scheduled for trial in July 2002, but the Court granted a continuance on June 4, 2002, at the request of the parties. A new scheduling order, entered July 9, 2002, established an August 23, 2002, deadline for amending the pleadings. Discovery was to end December 13, 2002. Dispositive motions were to be filed by January 13, 2003.

Defendants Terrier and Fernandez filed a Motion for Summary Judgment on September 10, 2002. By leave of the Court, Plaintiffs responded on February 26, 2003. Defendants replied on March 4, 2003. In this motion, Defendants Terrier and Fernandez ask this Court to grant summary judgment in their favor as to all of Plaintiffs' state-law claims on grounds that they are preempted by the Carmack Amendment, 49 U.S.C. §§ 14706 & 13501. Alternatively, they contend that there is no evidence as to when Plaintiffs' household belongings were damaged, that Defendants Terrier or Fernandez were negligent, that the trailer was defective, that Mr. Fernandez did or failed to do anything that caused damage to Plaintiffs' property, or that Defendants! Terrier or Fernandez made any warranties or representations.

Page 825

Plaintiffs filed a Motion for Summary Judgment on January 13, 2003. By leave of the Court, Defendants Three Flags and Ram responded on February 26, 2003, while Defendants Terrier and Fernandez responded on March 3, 2003. Plaintiffs filed their replies on March 5, 2003. By this motion, Plaintiffs contend that the evidence demonstrates a prima facie case under the Carmack Amendment and that Defendants have produced no evidence that would except them or otherwise provide a defense to liability. Plaintiffs also move for summary judgment on their state law claims.

III. Standard for Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of informing the district court of the basis for their belief that there is an absence of a genuine issue for trial, and pointing out those...

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5 practice notes
  • Sompo Japan Ins. v. Union Pacific, Docket No. 04-4066-CV.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 10, 2006
    ...Cir.2000); Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 698-700 (11th Cir.1986); Berlanga v. Terrier Transp., Inc., 269 F.Supp.2d 821, 829-30 (N.D.Tex.2003); Canon USA, Inc. v. Nippon Liner Sys., Ltd., No. 90-C-7350, 1992 WL 82509, at *6-8 (N.D.Ill.1992), with Shao, 986 ......
  • Sec. USA Servs., Inc. v. United Parcel Serv., Inc., 1:18-cv-00264-JCH-KRS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 5, 2019
    ...liability to actual damages. Id. at 920-921. Other federal district courts are in accord. See e.g. Berlanga v. Terrier Transp., Inc. , 269 F.Supp.2d 821, 830 (N.D. Tex. 2003).5 Accordingly, granting Plaintiff leave to amend its complaint to add state statutory violations of the UPA and UIPA......
  • Hilgers v. VIP Moving & Storage Inc., CIVIL ACTION NO. 3:19-CV-1472-S
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 2, 2020
    ...is well-settled that the Carmack Amendment does not apply to transport that is wholly intrastate, Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 826 (N.D. Tex. 2003) (citing 49 U.S.C. § 13504), the Fifth Circuit has found that a carrier is engaged in interstate commerce when carryi......
  • Seinfeld v. Allied Van Lines, Inc., CIVIL ACTION NO. 3:19-CV-0849-S
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 27, 2020
    ...(a) delivery in good condition, (b) arrival in damaged condition, and (c) the amount of damages."2 Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 831-32 (N.D. Tex. 2003) (citing Accura Sys., Inc. v. Watkins Motor Lines, 98 F.3d 874, 877 (5th Cir. 1996)). At a minimum, such a filing......
  • Request a trial to view additional results
5 cases
  • Sompo Japan Ins. v. Union Pacific, Docket No. 04-4066-CV.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 10, 2006
    ...Cir.2000); Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 698-700 (11th Cir.1986); Berlanga v. Terrier Transp., Inc., 269 F.Supp.2d 821, 829-30 (N.D.Tex.2003); Canon USA, Inc. v. Nippon Liner Sys., Ltd., No. 90-C-7350, 1992 WL 82509, at *6-8 (N.D.Ill.1992), with Shao, 986 ......
  • Sec. USA Servs., Inc. v. United Parcel Serv., Inc., 1:18-cv-00264-JCH-KRS
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 5, 2019
    ...liability to actual damages. Id. at 920-921. Other federal district courts are in accord. See e.g. Berlanga v. Terrier Transp., Inc. , 269 F.Supp.2d 821, 830 (N.D. Tex. 2003).5 Accordingly, granting Plaintiff leave to amend its complaint to add state statutory violations of the UPA and UIPA......
  • Hilgers v. VIP Moving & Storage Inc., CIVIL ACTION NO. 3:19-CV-1472-S
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 2, 2020
    ...is well-settled that the Carmack Amendment does not apply to transport that is wholly intrastate, Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 826 (N.D. Tex. 2003) (citing 49 U.S.C. § 13504), the Fifth Circuit has found that a carrier is engaged in interstate commerce when carryi......
  • Seinfeld v. Allied Van Lines, Inc., CIVIL ACTION NO. 3:19-CV-0849-S
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • March 27, 2020
    ...(a) delivery in good condition, (b) arrival in damaged condition, and (c) the amount of damages."2 Berlanga v. Terrier Transp., Inc., 269 F. Supp. 2d 821, 831-32 (N.D. Tex. 2003) (citing Accura Sys., Inc. v. Watkins Motor Lines, 98 F.3d 874, 877 (5th Cir. 1996)). At a minimum, such a filing......
  • Request a trial to view additional results

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