Paulson v. Greyhound Lines, Inc.

• Decision Date: 21 February 1986
• Docket Number: Civ. No. 4-85-1309.
• Citation: 628 F. Supp. 888
• Parties: Charles PAULSON, d/b/a Chuck Paulson & Sons Construction, Plaintiff, v. GREYHOUND LINES, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

628 F. Supp. 888

Charles PAULSON, d/b/a Chuck Paulson & Sons Construction, Plaintiff, v. GREYHOUND LINES, INC., Defendant.

Civ. No. 4-85-1309.

United States District Court, D. Minnesota, Fourth Division.

February 21, 1986.

William Kirschner, Al Baker, Kirschner & Baker Legal Clinic, Fargo, N.D., for plaintiff.

Lynn G. Truesdell, Charles E. Lundberg, Bassford, Heckt, Lockhart & Mullin, P.A., Minneapolis, Minn., for defendant.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on defendant's motion for summary judgment. The Court will grant defendant's motion.

FACTS

Plaintiff in this action, Charles Paulson d/b/a Chuck Paulson and Sons Construction, is a construction contractor in northwestern Minnesota. The defendant is Greyhound Lines, Inc., a California corporation with its principal place of business in Phoenix, Arizona.

In May of 1983, plaintiff intended to submit a bid on a contract proposal to the Minnesota Department of Transportation (DOT). See Paulson aff. ¶ 3. DOT, located in St. Paul, would consider only those bids which it received in its office by 9:25 a.m. on May 20, 1983. Id. at ¶ 4. Early in the afternoon of May 19, 1983, Gary Paulson, an employee of plaintiff, twice contacted the Greyhound terminal in Fargo, North Dakota.¹ Both times Paulson asked whether defendant could guarantee delivering a construction bid to St. Paul by 8:30 a.m. on May 20, 1983. An employee of defendant, who Paulson later identified as James Houseman, told Paulson that defendant could make the delivery prior to 8:30 a.m. Id. at ¶ 2, 5-12, 25.²

Paulson delivered the package containing the construction bid to the Fargo Greyhound terminal at approximately 4:15 p.m. on May 19, 1983. Paulson had written "URGENT: Deliver by 8:30 a.m. 5/20/83" on the outside of the package. Id. at ¶ 13-14, exh. 1. While at the terminal, Paulson reiterated that the package containing the construction bid must be delivered by 8:30 a.m., and Houseman assured Paulson that it would be delivered by that time. Id. at ¶ 17-18.

Defendant delivered the package to DOT at 11:30 a.m. on May 20, 1983. DOT refused to consider plaintiff's bid because it was two hours and five minutes late. Id. at ¶ 27-30, exh. 1. The bid which DOT accepted was higher than the bid plaintiff submitted. Id. at ¶ 31. Plaintiff claims that defendant's failure to deliver the package on time caused plaintiff to lose $67,000 in lost wages and profits which plaintiff would have earned on the DOT project.

Plaintiff commenced the present action in state district court (Clay County) on March 15, 1984. Defendant removed the action to federal court on April 2, 1984, and the case was assigned to Judge Devitt. Defendant moved for summary judgment arguing that under the federal law governing interstate carriers, a contract for delivery of the package by a specific time could not exist. Defendant argued in the alternative that federal law limited plaintiff's damages to the $100 set by the tariff. Judge Devitt denied the motion for summary judgment on January 24, 1985, reasoning that plaintiff could escape the $100 limit on liability if he could establish his allegations that defendant fraudulently induced him to enter into the shipping contract. Judge Devitt added that if plaintiff failed to establish actual fraud in the inducement, plaintiff could not enforce a contract for delivery by a specific time.

At the settlement conference, the parties requested Judge Devitt to clarify his January 24, 1985 order denying summary judgment. The parties resubmitted briefs on the issue of whether defendant's alleged fraud vitiates the limits on defendant's liability. Judge Devitt adhered to his earlier conclusion that fraud did provide such an exception. See August 13, 1985 order. The case was tried to a jury from September 3-5, 1985 only on the issue of liability. On September 5, 1985 the jury returned a verdict in favor of plaintiff by answering yes to the one interrogatory submitted to them. Specifically, the jury found that defendant made a false representation to plaintiff guaranteeing delivery of the package by a certain time, that plaintiff reasonably relied on the representation, and that the reliance proximately caused injury to plaintiff. Defendant moved for judgment notwithstanding the verdict, or in the alternative a new trial. On September 17, 1985, Judge Devitt denied defendant's JNOV motion, but granted defendant's motion for a new trial, stating that he was "left with a definite and firm conviction that the jury erred." September 17, 1985 order, at 2. Judge Devitt also disqualified himself from any further proceedings in the case. Defendant now, for the third time, seeks summary judgment.

DISCUSSION

Summary Judgment

A defendant is not entitled to summary judgment unless the defendant can show that no genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). Summary judgment is an extreme remedy that should not be granted unless the moving party has established a right to judgment with such clarity as to leave no room for doubt and unless the nonmoving party is not entitled to recover under any discernible circumstances. E.g., Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). In considering a summary judgment motion, a court must view the facts most favorably to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. E.g., Hartford Accident & Indemnity Co. v. Stauffer Chemical Co., 741 F.2d 1142, 1144-45 (8th Cir.1984). The nonmoving party may not merely rest upon the allegations or denials of the party's pleading, but must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. Salinas v. School District of Kansas City, 751 F.2d 288, 289 (8th Cir.1984).

Law of the Case

Plaintiff argues that this Court should deny defendant's motion because Judge Devitt's prior denials of summary judgment are the law of the case. "The doctrine of law of the case `merely expresses the practice of courts generally to refuse to reopen what has been decided, it is not a limit to their power.'" Erie Conduit Corp. v. Metropolitan Asphalt Paving Ass'n, 560 F.Supp. 305, 307 (E.D.N.Y. 1983), quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912) (Holmes, J.); accord Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed.Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 230, 88 L.Ed.2d 229 (1985). The doctrine prevents repeated litigation of issues previously decided in a lawsuit. Liddell v. State of Missouri, 731 F.2d 1294, 1304 (8th Cir.) (en banc), cert. denied, ___ U.S. ___, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984). The United States Court of Appeals for the Eighth Circuit, for example, "will reconsider a previously decided issue only on a showing of clear error and manifest injustice," Liddell, 731 F.2d at 1304, or if the evidence at a later trial is different from the evidence reviewed on the first appeal. E.g., Austin v. Loftsgaarden, 768 F.2d 949, 952 (8th Cir.), cert. granted, ___ U.S. ___, 106 S.Ct. 379, 88 L.Ed.2d 333 (1985). Other courts of appeals add a change in controlling authority as another exception circumstance permitting reconsideration. E.g., Kori Corp., 761 F.2d at 657.

The doctrine of law of the case has less force at the trial court level, where it is essentially a management practice to allow a logical progression toward a final resolution. See 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice ¶ 0.4041, at 118 (1984). Under Eighth Circuit law, a trial judge's denial of a motion for judgment notwithstanding a verdict does not constitute law of the case precluding a subsequent judge from directing a verdict in a retrial. Day v. Amax, Inc., 701 F.2d 1258, 1263 (8th Cir.1983).

One judge denying a summary judgment motion does not preclude a successor judge from granting it. E.g., Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134-36 (2d Cir.) (L. Hand, J.), cert. dismissed, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 794 (1981). A successor judge has the same discretion to reconsider a ruling as the first judge would. Abshire v. Seacoast Products, Inc., 668 F.2d 832, 837-38 (5th Cir.1982); but see Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir.1982) (a subsequent judge should give deference to previous rulings). A panel of the Eighth Circuit relied, in part, on Hayman Cash Register Co. in holding that a successor judge can overrule prior opinions in the same case only for good cause. In re Exterior Siding & Aluminum Coil, 696 F.2d 613, 616 (8th Cir. 1982). That panel decision, however, was negated by a divided en banc court. In re Exterior Siding & Aluminum Coil, 705 F.2d 980 (8th Cir.) (en banc) (per curiam), cert. denied, 464 U.S. 866, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). The Court, therefore, is not constrained from granting defendant's motion for summary judgment if the Court concludes that such action is appropriate.³

Merits

As an interstate carrier, defendant is governed by the Interstate Commerce Act, 49 U.S.C. §§ 10101-11917 (hereafter Act). Any claim plaintiff has against defendant arising from the shipment of the package must be asserted under the Act since it preempts state law. See, e.g., Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 1144, 12 L.Ed.2d 194 (1964); Fulton v. Chicago, Rock Island & Pacific Railroad Co., 481 F.2d 326, 331-32 (8th Cir.), cert. denied, 414 U.S. 1040, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973).

Under the Act, defendant can charge rates and supply services only in accordance with published tariffs. 49 U.S.C. § 10761.⁴ The tariff governing defendant provides that

Carriers do not agree to deliver Express Shipments in time for any particular market, occasion or event, or

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