Union Pacific R.R. Co. v. Coast Packing Co.

• Decision Date: 29 January 2002
• Docket Number: No. CIV-01-01326-GHK.,CIV-01-01326-GHK.
• Citation: 236 F.Supp.2d 1130
• Parties: UNION PACIFIC RAILROAD COMPANY v. COAST PACKING COMPANY
• Court: U.S. District Court — Central District of California

236 F.Supp.2d 1130

UNION PACIFIC RAILROAD COMPANY v. COAST PACKING COMPANY

No. CIV-01-01326-GHK.

United States District Court, C.D. California.

January 29, 2002.

Order Denying Reconsideration April 11, 2002.

Michael L. Whitcomb, Union Pacific Railroad, Paul D. Keenan, Philadelphia, PA, Nancy W. Carman, Nancy W. Carman Law Offices, Los Angeles, CA, for Plaintiff.

Stephan S. Smith, Greenberg Glusker Fields Claman Machtinger & Kinsella, Donald J. Sands, Sands & Lerner, Andrew D. Kehagiaras, Countryman & McDaniel, Los Angeles, CA, Stephen C. Herman, Stephen C. Herman Law Offices, Chicago, IL, for Defendant.

KING, District Judge.

PROCEEDINGS: Plaintiff's Motion to Dismiss; Defendant's Motion for Partial Summary Adjudication

This matter is before the court on the parties' above-titled motions. Both motions are fully briefed and appropriate for resolution without oral argument. See Fed.R.Civ.P. 78; Local Rule 7-15 (formerly Local Rule 7.11). After considering all pertinent papers filed therewith, we rule as follows:

I. Background

On February 8, 2001, Plaintiff filed this action to collect approximately $164,750.00 in unpaid demurrage and switching charges. Compl. ¶ 8. The complaint states we have jurisdiction pursuant to 28 U.S.C. § 1337, id. ¶ 3, as the demurrage charges were allegedly assessed and incurred pursuant to 49 U.S.C. § 10746, id. ¶¶ 7, 10. On April 19, 2001, Defendant counterclaimed under 49 U.S.C. § 11704(b) for the value of goods it was unable to unload from tank cars. Countercl. ¶ 16. The goods could not be unloaded because Plaintiff allegedly failed to maintain level tracks near Defendant's Vernon, California facilities. Id. ¶¶ 4, 16. The failure purportedly violates the duty to provide transportation or service upon reasonable request pursuant to 49 U.S.C. § 11101(a). Id. ¶¶ 5-6.

On June 25, 2001, the parties submitted a Joint Status Report, wherein they again stated we have subject matter jurisdiction based on 28 U.S.C. § 1337. Joint Status Report, p. 2. In particular, Plaintiff reasserted that its claim against Defendant was pursuant to 49 U.S.C. § 10746. Id. Given the limited amount in controversy, we ordered the parties to exchange documents bearing on their claimed losses, directed them to participate in a mandatory settlement conference, and set November 9, 2001 as the cut-off date for discovery. See Minute Order (dated July 9, 2001).

As a result of the negotiations, the parties agreed to file an amended complaint, answer and counterclaim. See Stipulation (lodged August 30, 2001; ordered September 5, 2001). Plaintiff's first amended complaint ("FAC") remains essentially unchanged from its original complaint, except it now seeks $215,750.00 in demurrage and switching charges. See FAC ¶ 8. It still bases subject matter jurisdiction on 28 U.S.C. § 1337 for demurrage charges determined and assessed pursuant to 49 U.S.C. § 10746. Likewise, Defendant's first amended counterclaim ("counterclaim") remains essentially unchanged. We extended the discovery cut-off to January 8, 2002.

II. Plaintiff's Motion to Dismiss

Plaintiff moves to dismiss Defendant's counterclaim on the grounds that the two-year statute of limitations for § 11704(b) claims has expired. Pl.s' Mot. to Dismiss, pp. 3-4. In its opposition, Defendant acknowledges that its counterclaim rests in part on harms which occurred more than two-years ago and thus outside the statute of limitations. Def.'s Opp'n, p. 9. However, it argues that it should be able to maintain some of those claims under the theory of recoupment. Id. pp. 10-12.

In its reply, Plaintiff contends for the first time that the counterclaim should be dismissed for failure to state a proper claim under § 11704(b). Since the counterclaim involves the loss of goods during shipment, Plaintiff argues the sole remedy, if any, is pursuant to the Carmack Amendment, 49 U.S.C. § 11706. Furthermore, Plaintiff alleges that Defendant has failed to perfect any claim under the Carmack Amendment.

Because this latter argument is untimely, we decline to rule on the motion to dismiss at this time. Defendant shall file a response to Plaintiff's reply, in writing, by February 11, 2002. The response shall comply with the Local Rule typeface requirements and not exceed ten (10) pages in length. The response shall address the propriety of asserting the counterclaim pursuant to § 11704(b) and § 11101(a) as opposed to § 11706. In addition, should § 11706 apply, Defendant shall explain why permitting amendment would not be futile because of any attendant procedural requirements.

III. Defendant's Motion for Partial Summary Judgment

Defendant moves for partial summary judgment on the basis that the relevant statute of limitations bars a portion of Plaintiff's claim for unpaid demurrage and switching charges.

A. Summary Judgment Standard

Summary judgment is appropriate when there is no dispute as to the material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, e.g., Toscano v. Prof'l Golfers' Assoc., 258 F.3d 978, 982 (9th Cir.2001). On summary judgment, we view the evidence in the light most favorable to the non-movant. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The non-movant can defeat summary judgment by demonstrating that the evidence, taken as a whole, could lead a rational trier of fact to find in its favor. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

The parties must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Thus, a party opposing summary judgment must direct the court's attention to specific, triable facts. Hon. William W. Schwarzer, et al., Cal. Practice Guide: Federal Civil Procedure Before Trial § 14:101.1, at 14-24.2 (2001). General references without page or line numbers are not sufficiently specific. Id. (citing Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.1988)); see also Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir.2001); Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988) ("The district judge is not required to comb the record to find some reason to deny a motion for summary judgment.").

B. Statute of Limitations

The FAC states that the "demurrage charges were assessed pursuant to the provisions of 49 U.S.C. § 10746 and rules promulgated thereunder ...." FAC ¶ 7. "The assessed demurrage charges were determined and made applicable pursuant to rules and rates promulgated and published in accordance with 49 U.S.C. § 10746." FAC ¶ 10. These allegations are consistent with Plaintiff's original complaint, the Joint Status Report submitted by the parties, and Plaintiff's thrice repeated allegation that we have subject matter jurisdiction pursuant to 28 U.S.C. § 1337.

As Plaintiff concedes in its opposition, claims based on § 10746 are subject to the three-year statute of limitations in § 11705(a). See Pl.'s Opp'n, p. 2. Moreover, § 10746 claims accrue from the date of delivery or tender of delivery. See 49 U.S.C. § 10705(g). In its motion, Defendant identifies $62,520 in demurrage and switching charges which accrued more than three years before Plaintiff instituted this action on February 8, 2001. Plaintiff does not contest that $62,520 in charges fall outside the statutory bar or the date of February 8, 1998. Thus, Defendant is entitled to summary adjudication based on the theory of recovery Plaintiff has continuously asserted over the past year.

C. 49 U.S.C. § 10709

Rather than oppose the motion on its merits, Plaintiff attempts to rewrite its complaint by claiming the charges in question were incurred pursuant to a contract formed under 49 U.S.C. § 10709. When appropriate, courts will deem new claims in opposition to a motion for summary judgment as a motion to amend the pleadings. See, e.g., Kaplan v. Rose, 49 F.3d 1363 (1994), 389 Orange Street Partners v. Ciarcia, 179 F.3d 656, 665-66 (9th Cir. 1999). We find amendment at this stage unwarranted due to possible bad faith, undue delay, prejudice to the opposing party, and the futility of amendment.

As for bad faith and undue delay, this attempted amendment occurs after the close of discovery and in the face of a dispositive motion. This amendment cannot be the result of newly discovered evidence as Plaintiff had the relevant documents in its possession before it even brought this action. Plaintiff does not explain why it waited over a year to allege this new basis, especially in light of the parties' negotiations, the recent amendment of its complaint, and the fact the parties met and conferred regarding the substance of this motions more than twenty days before it was filed. See Local Rule 7-3. Plaintiff knew the position Defendant would be advancing and thus could have avoided the delay and expense of litigating this motion.

Because discovery is closed, Defendant would be prejudiced by this late amendment. Even if we reopened discovery, we find no reason to do so because amendment appears futile. The three affidavits submitted by Plaintiff in support of its new claim are conclusory, lack sufficient evidentiary basis for the propositions contained therein, and fail to indicate that Plaintiff entered into any § 10709 contracts, let alone a § 10709 contract with Defendant. The affidavits make literally no reference to § 10709. To that extent, the opposition fails to set forth specific facts showing there is a genuine issue for trial, see Fed.R.Civ.P. 56(e), or otherwise provide any reason for amendment. Plaintiff did not attach a single document referenced in the affidavits, which undermines its position regarding § 10709 and violates Rule 56(e).

We also find amendment futile because this new position is inconsistent with Plaintiff's numerous...