Chen v. Mayflower Transit, Inc.

Decision Date12 March 2004
Docket NumberNo. 99 C 6261.,99 C 6261.
Citation315 F.Supp.2d 886
PartiesAngie CHEN, Plaintiff, v. MAYFLOWER TRANSIT, INC., Defendant.
CourtU.S. District Court — Northern District of Illinois

Jose Antonio Isasi, II, Marie Ruth Quinn, Carey L. Bartell, Sachnoff & Weaver, Ltd., Bruce S. Sperling, Steven Craig Florsheim, Sperling & Slater, Chicago, IL, for Plaintiff.

Thomas F. Ging, Marcos Reilly, James Constantine Vlahakis, Hinshaw & Culbertson, Chicago, IL, Louis Joseph Garr, III, Fenton, MO, for Defendant.

MEMORANDUM OPINION AND ORDER

BROWN, United States Magistrate Judge.

Plaintiff Angie Chen ("Chen") filed a Second Amended Complaint against Defendant Mayflower Transit, Inc. ("Mayflower") alleging breach of contract, conversion, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 et seq. [Dkt. 48.] This court previously granted summary judgment in favor of Mayflower on the conversion and negligent infliction of emotional distress counts, and denied summary judgment on the intentional infliction of emotional distress count. [Dkt. 72, 87.] See Chen v. Mayflower Transit, Inc., No. 99 C 6261, 2002 WL 1632412 (N.D.Ill. July 22, 2002) (Brown, M.J.).

Before the court now is Mayflower's motion for summary judgment on the RICO count (Count V). [Dkt. 102.] Also before the court is Mayflower's motion to strike Exhibit 50 to plaintiff's L.R. 56.1 statement [dkt. 113], and Chen's second motion to strike portions of Mayflower's L.R. 56.1 statement and affidavits [dkt. 108]. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Dkt. 11.] For the reasons set forth below, Mayflower's motion for summary judgment is denied, Mayflower's motion to strike is granted, and Chen's second motion to strike is denied as moot.

FACTUAL BACKGROUND1
I. Chen's Move with Mayflower

In 1999, Chen decided to move her furniture and household goods from Atlanta Georgia to Chicago, Illinois. (Def.'s LR Resp. ¶¶ 42, 45.) In late May 1999, Chen contacted AAA Admiral Moving and Storage ("Admiral"), a local moving company affiliated with Mayflower and located in Atlanta. (Id. ¶ 42.) See also Chen, 2002 WL 1632412 at *1; Pl.'s Resp. Def.'s LR Stmt. ¶ 4 [dkt. 78].2

A. The Estimate for Chen's Move

On June 4, 1999, an estimator came to Chen's apartment to inspect her property and determine the cost of her move. See Chen, 2002 WL 1632412 at *1; Pl.'s Resp. Def.'s LR Stmt. ¶ 5 [dkt. 78]. On that same day, Admiral provided Chen with an estimate for the price of her move, which was handwritten on a pre-printed "Estimate/Order for Service" form (the "Handwritten Estimate"). (Pl.'s LR App. Ex. 6, Handwritten Estimate at 1-2.) The Handwritten Estimate contained the handwritten phrase "[g]uaranteed not to exceed $1,741.89." (Id. at 1.) According to the Handwritten Estimate, that amount included "total containers packing and unpacking," "total line haul charges" and certain "other charges," including charges for the fact that there were stairs at the origin and an elevator at the destination. (Id.) Chen testified that prior to her receipt of the Handwritten Estimate, she was asked whether there was an elevator at her destination and whether a moving truck could park near the entrance of her new apartment, but was not asked about any other conditions at the destination. (Pl.'s LR App. Ex. 5, Chen Dep. at 195-196.) Mayflower admits that Chen was orally informed by the Admiral representative that the price of her move "would not go above $1,741.89," and that it could be less. (Def.'s LR Resp. ¶ 43.) Chen testified that she was also told that if she signed the Handwritten Estimate, "Mayflower would get all of [her] stuff from [her] apartment in Atlanta into [her] apartment in Chicago for a price that would not go above $1,741.89." (Chen Dep. at 197-198.)

The Handwritten Estimate stated: "If this shipment is a binding estimate, then this amount covers only the services and quantities shown in the estimate. If items are added to the shipment or additional services are performed, additional cost may result." (Handwritten Estimate at 1.) The Handwritten Estimate also provided: "A Binding Estimate represents the charges for only those services indicated on the Estimated Charges sheet. It does not include charges for services to be performed at destination, unless specifically set forth. Charges for all additional services will be added to your final bill." (Id. at 2.) According to one of Mayflower's representatives, Mayflower's binding estimates typically do not include services required at the destination. (Pl.'s LR App. Ex. 1, Webb Dep. at 84.) That representative also testified that Mayflower does not require its booking agents to inquire into conditions that might lead to additional charges. (Id. at 77-78.)

The Handwritten Estimate was signed by the "Carrier's Representative."3 (Handwritten Estimate at 1.) Chen signed some of the signature blocks on the Handwritten Estimate, including one which stated that she "should sign below only if [she] wish[es] this carrier to perform all the services required." (Id.) Chen included the date June 4, 1999 next to her signature on the Handwritten Estimate.4 She did not sign the signature block stating that she had received the pamphlet "Your Rights and Responsibilities When You Move." (Id.)

The method of payment was not discussed on June 4. Chen, 2002 WL 1632412 at *1 (citing Chen Dep. at 183-84, 187-92.) However, a section of the Handwritten Estimate reads: "Unless credit approval is completed in advance of shipment, all monies must be paid in U.S. funds by cash, cashier's check, certified check or money order at or before the time of delivery." (Handwritten Estimate at 1.) Chen subsequently received a form letter from Admiral confirming June 10 to June 14 for the loading of her goods and June 15 to June 21 for delivery. (Pl.'s LR App. Ex. 7, Admiral Letter to Chen.) That letter also stated: "Payment is due at the time of delivery and can be made in cash, certified check or money order, or a Major Credit Card, or direct billing to company with approved letter of authorization and approved credit check. If you choose to change your payment plan, we ask that you notify our office within 5 working days of your actual move date." (Id.) (emphasis omitted). The letter did not mention any requirement that Chen seek pre-approval for her credit card. (Id.) Chen testified that she believed that the letter granted her the approval to pay for her move by credit card. (Chen Dep. at 206.)

In addition, Chen subsequently signed all of the signature blocks on another estimate. That estimate was typewritten on a pre-printed "Estimate/Order for Service" form that was identical to the Handwritten Estimate form (the "Typed Estimate"). (Def.'s LR App. Ex. A(5), Typed Estimate at 1-2.) Chen included the date of June 15, 1999 next to two of her signatures on the Typed Estimate.5 The Typed Estimate omitted the phrase "guaranteed not to exceed," but stated that the total "bound services" amounted to $1,385.19 and the "total estimate" amounted to $1,741.89. (Id. at 1.) The Typed Estimate stated that it was a "binding estimate" as of June 7, 1999. (Id.)

B. The Loading of Chen's Goods in Atlanta

Chen's move took place on June 10, 1999. (Def.'s LR Resp. ¶ 45.) After Admiral loaded Chen's belongings onto the moving truck, the Admiral representative handed Chen a bill of lading. (Id.; Chen Dep. at 262.)6 The bill of lading stated that Mayflower "publishes tariffs which set forth the terms, conditions and prices for the transportation services it provides" and that "[t]he applicable tariff provisions are incorporated herein by reference." (Def.'s LR App. Ex. A(7), Bill of Lading at 2.) The bill of lading further stated that the tariff may be inspected at Mayflower's offices and that a copy of certain provisions would be provided upon request. (Id.) The bill of lading directed shippers to the "Your Rights and Responsibilities When You Move" pamphlet for more information about the tariff. (Id.) It also noted that "[i]n the event of any conflict between the terms of the Order for Service [presumably the Handwritten Estimate or the Typed Estimate] and Bill of Lading, the document last executed shall control." (Id.)

C. The Delivery of Chen's Goods in Chicago

Chen's property was scheduled to be delivered between June 15 and June 21. (Handwritten Estimate at 1; Typed Estimate at 1; Admiral Letter to Chen.) Her property was to be delivered by Century Moving and Storage ("Century"), another moving company associated with Mayflower which is located in Illinois. (Def.'s LR Resp. ¶ 48; Pl.'s LR App. Ex. 24, Fleming Dep. at 19, 21.) Chen's property did not arrive until June 30, and Chen incurred over $1,100 in expenses for food and lodging while she waited for her shipment to arrive. (Def.'s LR Resp. ¶ 47.)

On the morning of June 30, before her property arrived, Chen received a call from Ann Vinyard, a representative from Century, who informed her that her property would be delivered that day between 11:00 a.m. and 1:00 p.m. (Id. ¶ 49; Chen Dep. at 233-34.) A few minutes later, Vinyard called again and asked Chen whether she had cash or a cashier's check for $1,741.89. (Chen Dep. at 235.) Chen responded that she would be paying by credit card, and that she had been told she had permission to pay by credit card. (Id.) Vinyard advised Chen that she would not be able to pay by credit card and that the driver could not unload her property unless she handed over cash, a cashier's check or a money order. (Id. at 235-36; Def.'s LR Resp. ¶ 49.) Chen told Vinyard that she would try to get a cash advance using her credit card. (Chen Dep. at 237.) Chen then attempted to get...

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