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FERROSTAAL, INC. v. UNION PACIFIC R. CO.

July 5, 2000

FERROSTAAL, INC., PLAINTIFF,
V.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT.



The opinion of the court was delivered by: Schwartz, District Judge.

OPINION and ORDER

Plaintiff Ferrostaal, Inc. filed this action on October 13, 1999, seeking damages for defendant's alleged failure to deliver a shipment of steel bars. Before the Court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ.P.") 56 and plaintiff's cross-motion for transfer of venue to the Southern District of Texas pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, defendant's motion is GRANTED and plaintiff's cross-motion is DENIED.

BACKGROUND*fn1

In June 1997, plaintiff sought to ship 26 bundles of steel bars from Laredo, Texas to Red Lion, Pennsylvania. (Def's. 56.1 Statement ¶ 6; Exh. 2 att. to Plaintiff's Attorney's Affirmation in Opposition to Motion for Summary Judgment, dated Mar. 22, 2000 ("Pl.'s Aff. Opp."); Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl's. Mem. Law Opp.") at 1.) Plaintiff booked rail transportation with defendant Union Pacific Railroad Company. (Def's. 56.1 Statement ¶ 1.) Plaintiff designated the terms and conditions of the rail transportation and transmitted this shipping information to defendant. (Def's. 56.1 Statement ¶¶ 2, 4, 7.) Plaintiff's agent allegedly loaded defendant's railcar with the steel bars to be shipped and prepared a bill of lading dated June 18, 1997. (Pl.'s 56.1 Statement ¶ 1; Exhs. 1, 2 att. to Pl.'s Aff. Opp.; Pl's. Mem. Law Opp. at 1.)

On June 19, 1997, defendant invoiced plaintiff in the amount of $4224.64, a sum that plaintiff duly paid. (Exh. 3 att. to Pl.'s Aff. Opp.; Pl's. Mem. Law Opp. at 1.) For the "price authority", the invoice refers to "UP 000007", (Exh. 3 att. to Pl.'s Aff. Opp.), thereby allegedly referencing a document entitled UP Exempt Circular 7-E. (Def's. 56.1 Statement ¶¶ 5, 8; Affidavit of Brian D. Shaw in Support of Defendant Union Pacific Railroad Company's Motion for Summary Judgment, dated Mar. 7, 2000 ("Shaw Aff.") ¶ 11; Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Def's. Reply") at 3.) UP Exempt Circular 7-E is also referenced by the waybill. The waybill references UP Exempt Circular 7-E under the heading "customer-furnished contract data". (Exh. A att. to Shaw Aff.)

UP Exempt Circular 7-E publishes defendant's interstate rail rates and terms for shipments of metals. (Def's. 56.1 Statement ¶ 9.) This Exempt Circular specifies that such rates and terms are "subject to the provisions" of a second Exempt Circular, UP Exempt Circular 4-D. (Def's. 56.1 Statement ¶ 11; Exh. C att. to Shaw Aff. at 2.) The version of UP Exempt Circular 4-D in effect at the relevant time provided:

All lawsuits must be filed within 1 year of receipt of written notice from Union Pacific Railroad rejecting a claim, either in full or in part.

See Union Pacific Railroad Company Exempt Circular 4-D, Item 142(4)(c) (effective Aug. 1, 1994) (Def's. 56.1 Statement ¶ 12 (emphasis added).)

The steel bars that plaintiff had shipped allegedly failed to arrive in Pennsylvania. (Pl's. Mem. Law Opp. at 1.) On September 29, 1997, plaintiff submitted a Freight Claim Presentation Form to defendant, asserting a claim for the loss of the shipment. (Def's. 56.1 Statement ¶ 13; Exh. 4 att. to Pl.'s Aff. Opp.; Pl's. Mem. Law Opp. at 1.) Defendant declined plaintiff's claim by letter dated October 15, 1997. (Def's. 56.1 Statement ¶ 14; Exh. D att. to Shaw Aff.)

Plaintiff filed suit on October 13, 1999, close to two years after receiving written notice that its claim had been rejected by defendant. (Def's. 56.1 Statement ¶¶ 14, 16, 17.) Plaintiff brings this action pursuant to 49 U.S.C. § 10101 et seq., seeking damages with respect to the alleged non-delivery of the steel bars. Defendant filed the instant motion for summary judgment, which was fully submitted on March 29, 2000. Subsequently, plaintiff filed the instant cross-motion to transfer venue to the Southern District of Texas.

DISCUSSION

I. MOTION FOR SUMMARY JUDGMENT

A. Legal Standard for Summary Judgment

A court may grant summary judgment under Fed.R.Civ.P. 56 only if it is satisfied that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Mitchell v. Washingtonville Central School District, 190 F.3d 1, 5 (2d Cir. 1999). The initial burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, and all inferences and ambiguities must be resolved in favor of the party against ...


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