In re Bulldog Trucking, Inc., C-B-90-31936. Adv. No. 92-3100.

Decision Date21 June 1994
Docket NumberNo. C-B-90-31936. Adv. No. 92-3100.,C-B-90-31936. Adv. No. 92-3100.
CourtU.S. District Court — Western District of North Carolina
PartiesIn re BULLDOG TRUCKING, INC., a Delaware Corporation, f/d/b/a Bulldog Trucking of Georgia, Inc., Debtor, I.D. No. 58-0679633. Langdon M. COOPER, Trustee for Bulldog Trucking, Inc., Plaintiff, v. E.I. DU PONT de NEMOURS & CO., Defendant.

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Joseph L. Steinfeld, Jr., Sims Walker & Steinfeld, P.C., Washington, DC, for Langdon M. Cooper.

Langdon M. Cooper, Trustee, Mullen Holland & Cooper, P.A., Gastonia, NC.

Robert H. Pryor, Smith Helms Mulless & Moore, Charlotte, NC, for E.I. DuPont de Nemours & Co.

James Sullivan, Office of U.S. Atty., Charlotte, NC, for U.S.

ORDER AND JUDGMENT

DETERMINING THE INAPPLICABILITY OF THE NEGOTIATED RATES ACT 1993, GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS CLAIMS, DENYING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT, MAKING RULE 54 CERTIFICATION, and STAYING ENFORCEMENT OF JUDGMENT UNDER RULE 62(h)

ROBERT D. POTTER, District Judge.

This matter, which is related to a case under Title 11, is before the Court after notice and a hearing, as that phrase is defined in the Bankruptcy Code, and upon recommendation of the bankruptcy judge under the provisions of 28 U.S.C. § 157(c)(1) for entry of final order and judgment; and after reviewing de novo those matters to which any party has timely and specifically objected, and after due consideration of the bankruptcy judge's proposed order and memorandum decision, which this Court adopts and confirms with approval as the basis for this Order and Judgment; it is hereby

ORDERED AND ADJUDGED that:

1. Section 2 of the Negotiated Rates Act of 1993, signed by the President on December 3, 1993 as Pub.L. No. 103-180 (s. 412), is inapplicable to the Trustee and the bankruptcy estate of Bulldog Trucking, Inc.

2. There is no just cause for delay of the grant and entry of judgment in favor of the Trustee on his interstate freight undercharge claims. Therefore, the Trustee's Motion for Summary Judgment on his claims based on interstate movement is hereby GRANTED as a final judgment in favor of the Trustee against the Defendant in the amount of $1,339,853.30, which includes principal and accrued interest through June 3, 1992, with per diem interest since that date until paid in the amount of $227.22, plus court costs of $120.00. The Clerk of Court is directed to enter this judgment in favor of the Trustee.

3. The cross motion of the Defendant for summary judgment in its favor on the Trustee's claims is hereby DENIED.

4. Enforcement of the judgment in favor of the Trustee as described in decretal paragraph number 2 above is hereby STAYED at least until April 13, 1994, but in any event until the Bankruptcy Court after notice to the Defendant and a hearing determines to terminate or otherwise modify this stay.

RECOMMENDED ORDER AND MEMORANDUM DECISION

— re: inapplicability of NRA

— re: summary judgment for Trustee

— re: Rule 54 certification

— re: stay of execution

MARVIN R. WOOTEN, Bankruptcy Judge.

This matter came on to be heard and was heard on February 1, 1994 at a consolidated hearing in this and numerous other similar pending adversary proceedings on Motion of the Plaintiff, Langdon M. Cooper, Trustee (the "Trustee") for Reconsideration of this Court's prior order denying a Rule 54 certification and immediate entry of summary judgment; and after consideration of the record and the arguments of counsel for the Interstate Commerce Commission (the "ICC"), the Trustee, numerous defendants in the other similar adversary proceedings and E.I. du Pont de Nemours & Co. (the "Defendant"); and after notice and a hearing, this Court finds and concludes as follows1:

This Order and Memorandum Decision determining the inapplicability of the Negotiated Rates Act of 1993, providing for the grant and entry of a final summary judgment in favor of the Trustee on his claims against the Defendant, providing for certification of that judgment under Fed.R.Civ.P. 54(b), and providing for a stay of execution under Fed.R.Civ.P. 62(h) is HEREBY RECOMMENDED to the United States District Court for adoption and entry herein after "notice and a hearing", for the reason that this matter has been determined by the undersigned to be a matter related to a case under Title 11, all in accordance with the provisions of 28 U.S.C. § 157(c)(1).

I. INTRODUCTION

On June 24, 1992 the Trustee moved the Court for summary judgment, and shortly thereafter the Defendant filed a cross motion for summary judgment. On April 13, 1993 this Court granted but did not enter partial summary judgment against the Defendant and in favor of the Trustee. This Order and Memorandum Decision, and the separate Summary Judgment the Court will be entering, will replace and restate that portion of the prior order in which the Court granted the Trustee partial summary judgment. On April 13, 1993 this Court also modified the automatic Stay of 11 U.S.C. § 362 to permit the Defendant to present to the ICC in a reparations action any claim of rate unreasonableness it had, and stayed this adversary proceeding for twelve months for the limited purpose of allowing the Defendant to request from the ICC a determination as to whether Bulldog's applicable published tariff rates are reasonable, and if the ICC determines that those rates are not reasonable for it to determine what is the reasonable rate and then to award reparations in the amount of the difference between the sum of the tariff rates and the sum of the reasonable rates for the shipments. Defendant filed its complaint before the ICC on May 14, 1993.

On October 8, 1993 the Trustee moved this Court to make a Rule 54 certification and enter final summary judgment against the Defendant. On November 1, 1993 this Court in its discretion denied as premature the Trustee's motion for the Rule 54 certification and immediate entry of final judgment.

On January 12, 1994 the Defendant moved the Court to expand its prior modification of the stay to allow it to pursue all remedies afforded under the Negotiated Rates Act of 1993, signed by the President on December 3, 1993 as Pub.L. No. 103-180 (S. 412) (the "NRA"). On January 14, 1994 the Trustee moved this Court to reconsider its order issued from the bench on November 1, 1993 denying the Trustee's earlier motion for a Rule 54 certification and immediate entry of final judgment in favor of the Trustee.

On January 28, 1994 the United States through the Department of Justice filed a Suggestion of Interest pursuant to 28 U.S.C. § 517, together with a brief in support thereof.2 The United States opposed the position of the Trustee.

The Trustee's motion for reconsideration, i.e., in effect his renewed motion for a Rule 54 certification and entry of final judgment on his claims (the "Motion"), is made on the following grounds:

(a) Sections 2(a)-(c) and (e)-(g) of the NRA are ineffective and unenforceable against the Trustee and the bankruptcy estate of Bulldog Trucking, Inc. ("Bulldog") pursuant to Section 9 of the NRA itself and under 11 U.S.C. §§ 541(c)(1), 363(l) and 362(a)(3);
(b) Section 8 of the NRA is ineffective and unenforceable against the Trustee and the bankruptcy estate of Bulldog under Section 9 of the NRA and 28 U.S.C. §§ 1334 and 157; and
(c) The ICC is nevertheless issuing virtually identical orders (decisions) at this time to reopen the record in the reparations and other actions pending before it which were filed by the defendants in this and other similar adversary proceedings so that "the parties (can) submit evidence and argument under the section 2(e) alternative procedure." The ICC states in each order that "(t)he section 2(e) alternative procedure provides that the Commission shall determine whether any particular collection effort is or is not an unreasonable practice." The ICC further directs the parties\' attention to other dispute resolution mechanisms in the NRA, including Section 8.

The Defendant and the United States oppose the Trustee's Motion and argue that: (i) the canons of statutory construction preclude this Court from holding that the NRA is inapplicable to the Trustee because such a result would be absurd since, as the Defendant and the United States contend, it was the intent of Congress in the NRA to resolve the so-called crisis created by bankruptcy trustees and debtors asserting billions of dollars of freight undercharge claims against shippers; (ii) sections 363(l) and 541(c) of the United States Bankruptcy Code (the "Bankruptcy Code") are not applicable to the NRA, which according to the Defendant and the United States permissibly redefined the scope of Bulldog's property rights; (iii) in any event the application of the NRA is not conditioned on a carrier's financial condition; and finally (iv) Rule 54 certification and immediate entry of final judgment against the Defendant is improper.

At the outset this Court must state for the record that if it was the intent of Congress to abolish the filed rate doctrine, it should have done so plainly and unequivocally. If it was the intent of Congress to amend Title 11 or Title 28, it should have done so plainly and unequivocally. With the NRA, Congress has accomplished neither result. For the reasons set forth in this Order and Memorandum Decision, it is the opinion of this Court that the Trustee, who had the burden of persuasion in this matter, clearly must prevail. The NRA is inapplicable to the Trustee, and the ICC's actions nevertheless to implement its provisions against the Trustee make it abundantly clear that Rule 54 certification is now proper. Summary judgment in favor of the Trustee on his claims against the Defendant should be immediately entered.

II. FINDINGS OF FACT

This adversary proceeding is typical of many similar case...

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