The opinion of the court was delivered by: James C. Francis IV, United States Magistrate Judge
This case concerns a contract for the shipment of goods. The shipper, plaintiff American Pacific Enterprises, LLC ("American Pacific"), alleges that the carrier, Celadon Trucking Services, Inc. ("Celadon"), breached their contract by failing to transport cargo in good condition. American Pacific now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The parties have consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the plaintiff's motion is granted.
On May 29, 2003, American Pacific purchased 3,330 cartons of cotton sheet sets from Kaltex Home S.A. de C.V. ("Kaltex Home") for the price of $88,232.79 (the "June 6 shipment"). (Plaintiff's Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1(a) ("Pl. Rule 56.1 Statement"), ¶ 1). American Pacific contracted with Celadon to ship the goods by truck from Laredo, Texas to an American Pacific facility in Grove City, Ohio. (Pl. Rule 56.1 Statement, ¶ 2). Celadon took possession of the shipment on May 30, 2003. (Dufour Laskay & Strouse, Inc. Report No. 03-9363 ("DLS Report"), attached as Exh. 1 to the Declaration of Thomas O'Keefe dated Feb. 15, 2006 ("O'Keefe Decl."), at 1). On June 6, 2003, the tractor trailer carrying the shipment overturned and caught fire. (DLS Report at 1). The local fire department responded and extinguished the fire, but the cargo sustained fire, smoke, and water damage. (O'Keefe Decl., at ¶ 5); DLS Report at 1-2). The damaged trailer and its contents were brought from the accident site to the Rush Truck Center ("Rush") in San Antonio, Texas. (DLS Report at 1-2).
On July 9, September 16, and October 27, 2006, Thomas O'Keefe, a marine surveyor with Dufour Laskay & Strouse, Inc. ("DLS"), examined the contents of the damaged trailer. (O'Keefe Decl., ¶ 3). Mr. O'Keefe determined that the cartons of sheets had been damaged too extensively to distribute to conventional retail outlets. (O'Keefe Decl., ¶ 6). The cargo was then removed to Houston, Texas, while DLS canvassed the salvage market and sought competitive bids. (DLS Report at 2-3). Celadon was invited to participate in the process of determining the salvage value of the cargo but did not offer any alternative recommendations. (DLS Report at 3). The highest bid was submitted by Front Street Commodities Corporation ("Front Street") in the amount of $19,156.00. (O'Keefe Decl., ¶ 7; DLS Report at 3).
After the bid process, DLS conducted an independent tally of the damaged cargo and confirmed that there were 2,375 cartons of sheet sets at the storage facility in Houston. (DLS Report at 3).
According to the DLS Report, the missing 955 cartons "can reasonably be attributed to the fire and/or being lost/pilfered in the clean up operation following the alleged truck accident." (DLS Report at 3).
Celadon claims, instead, that 142 of the 955 cartons not sold to Front Street were delivered to American Pacific in Grove City, Ohio on November 24, 2003. (Declaration of Dean Shannon Severs dated April 7, 2006 ("Severs Decl."), attached to Affirmation of Steven J. Mines dated April 7, 2006 ("Mines Aff."), ¶¶ 2-5; Report of MTI Inspection Services dated Nov. 26, 2006 ("MTI Report"), attached as Exh. B to Severs Decl.). Celadon has submitted to the Court a copy of a fax cover sheet sent on July 31, 2003, by Dean Shannon Severs of Celadon to Jayson Martin at American Pacific confirming the parties' alleged agreement that most of the cargo had not been damaged. (Severs Decl., Exh. B). Finally, Celadon disputes that the DLS survey was "fair, reasonable and the best available means to minimize the loss." (Mines Aff., ¶ 4 (citing O'Keefe Decl., ¶ 7)).
American Pacific is seeking $72,023 in damages, which it calculates as the invoice value of the cargo ($88,232.79), less the salvage value ($19,156.00), plus the survey fee ($2,947.14). (Pl. Rule 56.1 Statement, ¶ 6).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 Andy Warhol Foundation for Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). Summary judgment is appropriate where the non-moving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.
The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Id. Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that ...