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STARMAKERS PUBL. CORP. v. ACME FAST FREIGHT

July 17, 1985

STARMAKERS PUBLISHING CORPORATION, Plaintiff,
v.
ACME FAST FREIGHT, INC., Defendant. ACME FAST FREIGHT, INC., Third-Party Plaintiff, vs. CHAS. J. BURNHAM CARTAGE, INC., Third-Party Defendant.



The opinion of the court was delivered by: HAIGHT

CHARLES S. HAIGHT, JR., U.S.D.J.

MEMORANDUM OPINION AND ORDER

This action is before the Court on defendant Acme Fast Freight, Inc.'s ("Acme") motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), on two of plaintiff Starmakers Publishing Corporation's ("Starmakers") claims against it.

 Starmakers, a shipper, filed this diversity action, pursuant to 28 U.S.C. § 1332, to recover damages for the alleged late delivery of goods shipped by Starmakers pursuant to a contract of carriage with Acme, a freight forwarder.

 Starmakers alleges that on or about June 8, 1984, it entered into a contract of carriage with Acme whereby Acme agreed to transport certain printed matter from New York to Michigan for delivery to one of plaintiff's customers. This contract was in the form of a bill of lading.

 According to Starmakers, Acme made representations that the material would arrive at its destination within a week. Starmakers does not indicate which individual at Acme made those representations were written or oral. In any event, plaintiff contends that due to disputes between defendant and its agents, the shipment arrived five weeks late and that, as a result, Starmakers lost the business of a valuable customer.

 On November 30, 1984, Starmakers filed this action seeking damages, first, for negligent performance of duties owed to it by Acme ($109,925.52); second, for restitution of the amount paid pursuant to the terms of the contract ($205.52); third, for loss of the continued business of its customer ($100,000); and finally, for the diminution in value of the printed matter ($9,700.00). It should be noted that the amount of damages sought by plaintiff on its first cause of action, sounding in negligence, is equal to the sum of the alleged damaged under the three remaining contractual claims.

 Defendant has moved for dismissal of plaintiff's first and third causes of action.

 Acme contends that Starmakers' first cause of action fails to state a claim for which relief may be granted because a shipper may not sue a carrier in negligence when goods are shipped under a contract of carriage evidenced by a bill of lading. It claims that plaintiff's exclusive remedy is for breach of the contract under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707 ("Carmack Amendment") *fn1"

 Acme also seeks dismissal of plaintiff's third cause of action which is a claim for special damages. Acme contends that absent a specific allegation in the pleadings that the carrier had notice, actual or constructive, that such loss could occur, plaintiff cannot recover these damages.

 In opposition to Acme's motion, Starmakers contends that the Carmack Amendment does not preempt a shipper's right to bring a common-law negligence claim against the carrier under state law. Starmakers further contends that special damages may, in exceptional cases, be recoverable even when they were not contemplated by the parties at the time of their agreement.

 Finally, plaintiff claims that defendant's motion is premature because an impleaded third-party defendant has not yet filed an answer to the third-party complaint. Hence plaintiff contends that the pleadings are not closed, and that a motion for judgment on the pleadings is inappropriate at this time.

 A. Maturity of Motion

 As a threshold issue, I must consider plaintiff's objection to the form of defendant's motion. Fed.R.Civ.P. 12(c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Plaintiff's contention that defendant's motion for judgment on the pleading is premature because the pleadings are not closed is without merit. Joinder of issue between these two parties requires only the filing of a complaint and an answer. Both have been filed. Since a grant of this motion would not dispose of Starmakers' entire cause of action against Acme, Acme's impleader action for ...


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