Cash America Pawn, L.P. v. Federal Exp. Corp.

• Decision Date: 05 May 2000
• Docket Number: No. 4:98-CV-982-E.,4:98-CV-982-E.
• Citation: 109 F.Supp.2d 513
• Parties: CASH AMERICA PAWN, L.P. v. FEDERAL EXPRESS CORPORATION.
• Court: U.S. District Court — Northern District of Texas

109 F.Supp.2d 513

CASH AMERICA PAWN, L.P. v. FEDERAL EXPRESS CORPORATION.

No. 4:98-CV-982-E.

United States District Court, N.D. Texas, Fort Worth Division.

May 5, 2000.

Hal R. Ray, Jr., Gregory Wayne Higgins, Pope Hardwicke Christie Harrell, Schell & Kelly, Fort Worth, TX, for plaintiff.

Christopher L. Kurzner, Godwin White & Gruber, Dallas, TX, Stephen R. Cochell, Federal Express Corporation, Memphis, TN, for defendant.

MEMORANDUM OPINION AND ORDER

MAHON, District Judge.

Now before the Court are cross motions for summary judgment filed by Defendant Federal Express Corporation and Plaintiff Cash America Pawn, L.P., respectively. In addition to its motion for summary judgment, Defendant Federal Express Corporation has filed a motion to dismiss Plaintiff's state law claims of conversion and negligence pursuant to Fed.R.Civ.P. 12(b)(6). The motions have been fully briefed. After reviewing the record in this matter, the submissions of the parties, and the applicable law, the Court determines that Defendant's motion for summary judgment should be granted and, moreover, that Defendant's motion to dismiss Plaintiff's remaining claims pursuant to Fed.R.Civ.P. 12(b)(6) should also be granted. Having determined that Defendant's motion for summary judgment and motion to dismiss claims should be granted, the Court need not address the arguments raised in Plaintiff's motion for summary judgment.

I. BACKGROUND

Plaintiff Cash American Pawn, L.P. ("Cash America"), a limited partnership formed under the laws of Delaware and having its principal place of business in Texas, conducts business in Texas under its own name and under the assumed names "Cash America Trading Company" and "CATCO". As part of Cash America's business operations, and under the assumed name "CATCO," Cash America refurbishes jewelry and other items in Fort Worth, Texas and ships such items to locations throughout Texas and the United States.

Defendant Federal Express Corporation ("FedEx") is a corporation organized and existing under the laws of Delaware and is authorized to conduct business in Texas. Federal Express is a federally certificated all-cargo air carrier operating under authority granted to it by the Federal Aviation Administration.

Cash America has utilized the services of Federal Express to ship refurbished items of jewelry for a number of years. Cash America has maintained a Federal Express shipping account since April 1996. During the 12 months prior to the initiation of this lawsuit, Cash America shipped approximately 23,363 packages on their account.

During the course of 1996 to 1998, approximately, Cash America maintained a Federal Express Powership system on its business premises. A Powership is a computer, also referred to as a meter, which allows a shipper who maintains a minimum daily package volume to self-invoice and generate its own shipping labels. The shipping labels, which are identified by tracking numbers utilized by Federal Express, are created by entering certain information into the system. This information includes, among other things, a declared value for the package shipment, the Federal Express service desired (i.e., Priority Overnight, etc.), the number and weight of the packages, and the package recipient's name and address.

Beginning in or about October 1996 and continuing until approximately July 1998, Cash America shipped packages via Federal Express for delivery throughout the United States. Cash America alleges that during this period of time thirty-nine (39) of its packages shipped via Federal Express (hereinafter the "Lost Shipments") either completely failed to arrive at their intended destinations or arrived at their intended destinations but with a portion of the shipment contents missing, also known as "shortage". The bills of lading for these 39 Lost Shipments were prepared by Cash America through its Powership meter and the packages then allegedly tendered to Federal Express for pick-up and shipment. Although not delineated in its complaint, Cash America has identified these Lost Shipments at issue in this lawsuit by date and airbill number in a list provided to Federal Express as part of these proceedings.

Plaintiff claims that in some instances of "shortage" in the Lost Shipments, the packaging had been crudely resealed and delivered to intended destination. Plaintiff alleges that it properly and timely informed Defendant each time a package or items from a package failed to arrive at its destination. On many such occasions, Defendant conceded its liability and tendered a check in the amount of $100 per Lost Shipment to Cash America. Because of the frequency of "shortage" and missing packages among the Lost Shipments, Plaintiff alleges that it became concerned that Defendant and its employees were targeting packages sent by Cash America for the items of jewelry contained therein. Plaintiff voiced its concerns to Federal Express and Federal Express ultimately agreed to investigate the matter. Based upon information and belief, Plaintiff contends that Federal Express learned that its agents and/or employees were stealing Plaintiff's packages or items therefrom. Moreover, Plaintiff contends that Federal Express failed to take the action necessary to stop the theft of its shipments, despite Federal Express' alleged knowledge of the conduct and theft of its employees. Therefore, Plaintiff brought this cause of action against Federal Express, asserting claims for breach of contract, conversion and negligence.¹ Plaintiff's complaint seeks relief in the amount of $170,000 in damages for the 39 Lost Shipments.

Although Plaintiff Cash America's cause of action alleges that Federal Express is liable for 39 Lost Shipments, Federal Express contends that its records demonstrate that Cash America only tendered 34 of the 39 Lost Shipments identified in this cause of action. Of the 34 Lost Shipments Federal Express claims Cash America tendered, Federal Express contends that Cash America only filed claims in connection with the non-delivery or "shortage" of 33 of the 34 Lost Shipments tendered to Federal Express. Thus, Federal Express claims it has no liability for the lone package tendered to Federal Express but for which Cash America did not filed a claim. As to the 33 claims filed by Cash America, it is undisputed that Federal Express processed these 33 claims and tendered checks in the amount of $100 per shipment, its contractual limit of liability under the Service Guide, to Cash America, in addition to refunding the shipping charges for these shipments to Cash America's account.

As to the five outstanding shipments among the 39 Lost Shipments, Federal Express asserts that three of the airbills identified among the 39 Lost Shipments were for packages containing claims checks shipped to Cash America by the Federal Express Claims Department. Further, Federal Express alleges that it has no record of the two remaining airbills identified on the Cash America list ever being tendered to Federal Express.

Defendant Federal Express seeks summary judgment and a finding that Federal Express' liability is limited in this case to $100 per shipment as per its contractual agreement.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when the record establishes that no genuine issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Hill v. London, Stetelman, & Kirkwood, Inc., 906 F.2d 204, 207 (5th Cir.1990). The evidence in the record is to be viewed in the light most favorable to the nonmoving party. Newell v. Oxford Management Inc., 912 F.2d 793, 795 (5th Cir.), reh'g denied, 918 F.2d 484 (1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir.1989).

In order to prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988); Thibodeaux v. Torch, Inc., 858 F.2d 1048, 1050 (5th Cir.1988); Fed. R.Civ.P. Rule 56(c). The party moving for summary judgment need not produce evidence showing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Rather, the party moving for summary judgment need only show that the party who bears the burden of proof has adduced no evidence to support an element essential to his case. Celotex, supra; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir.1988). If the movant bears the burden of proof on a claim or defense, he must establish all elements of the claim or defense to prevail on summary judgment. Western Fire Ins. Co. v. Copeland, 651 F.Supp. 1051, 1053 (S.D.Miss.1987), aff'd, 824 F.2d 970 (5th Cir.1987).

Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 257, 106 S.Ct. 2505. In order to avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Federal Rules of Civil Procedure Rule 56(e) requires that the nonmoving party "set forth specific facts showing that there is a genuine issue for trial." See Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits....