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ASSET MGMT. & CONTROL v. ABF FREIGHT SYS.

June 30, 1998

ASSET MANAGEMENT & CONTROL, INC., Plaintiff, against ABF FREIGHT SYSTEM, INC., Defendant.


The opinion of the court was delivered by: KAHN

MEMORANDUM-DECISION AND ORDER

 This is an action against a rail carrier for damage allegedly done to used computer systems while they were within the carrier's possession. Originally brought in state court, the action was removed on July 3, 1997 by defendant under federal question jurisdiction under the Interstate Commerce Act ("ICA"), 49 U.S.C. 10101, et seq. *fn1" Presently before the Court is defendant's motion for partial summary judgment on the issue of damages.

 I. Facts

 Plaintiff Asset Management & Control, Inc. ("AMC") is engaged in the business of reselling used data processing machines purchased from International Business Machines Corporation ("IBM"). These purchases are conducted in accordance with the terms of an express agreement between AMC and IBM entered into on or about February 15, 1995.

 On or around February 7, 1996, IBM delivered such a shipment to defendant ABF Freight System, Inc. ("ABF Freight") for delivery by rail to AMC. Although it was normal practice for AMC to pay the cost of freight, this particular shipment was prepaid by IBM. On the bill of lading, IBM specified that the value of the property did not exceed $ 5.00/pound. Jones Aff. Exh. A. On the same form, the goods were described in typed letters as "Machine, Systems Or Devices Data Processing Or Parts," a designation that refers to a particular section of defendant's tariff schedule. Underneath this was written "8 Pallets of electrical equipment." Id. Although the weight of the shipment was not specified on the bill of lading, IBM paid the defendant for a shipment of 2,400 pounds.

 The equipment was packed, palletized, loaded onto the train and secured by IBM. It appears that this was done inadequately for upon receipt, plaintiff discovered that the equipment had been damaged. Plaintiff has brought this suit against defendant ABF Freight for recovery. *fn2"

 In support of its motion for partial summary judgement on the issue of damages, the defendant argues that it has effectively limited its liability to a maximum of 10 cents/pound and that the weight of the cargo was 2,400 pounds. Thus, defendant argues, its liability is at most $ 240.00. Plaintiff asserts that the defendant's maximum liability is $ 30,725.00.

 II. Discussion

 A. Standard of Review

 Under Rule 56(c), summary judgment:

 
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Fed. Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994). The substantive law determines which facts are material to the outcome of a particular litigation. See Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); Hurwitz v. Sher, 982 F.2d 778, 780 (2d Cir. 1992), cert. denied, 508 U.S. 912, 124 L. Ed. 2d 255, 113 S. Ct. 2345 (1993).

 If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; Trans Sport v. Starter Sportswear, 964 F.2d 186, 188 (2d Cir.1992) (stating that "the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely ... on the basis of conjecture or surmise") (citations omitted). Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.1994). With this standard in mind, the Court turns to the substance of defendant's motion.

 B. Alleged Defects of Plaintiff's Opposition Papers

 Defendant argues that an affidavit submitted by Michael Bange, put forward by plaintiff as an expert, should be excluded because the expert was not timely disclosed. The Uniform Pretrial Order required plaintiff to disclose rebuttal experts at least 30 days prior to March 1, 1998. Uniform Pretrial Order, Dkt. # 3, at P 6(a)(4). Plaintiff does not dispute that Michael Grange was not disclosed by the deadline. The Uniform Pretrial Order also states that "the Court will preclude the testimony of any experts ...


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