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