The opinion of the court was delivered by: John T. Curtin United States District Judge
This breach of contract action was brought as a class action. Plaintiff, on behalf of itself and others similarly situated, seeks to recover damages from defendants for the alleged improper application of jet fuel surcharges for retail shipping services delivered by ground transportation. The parties agreed to file cross-motions for partial summary judgment regarding the interpretation of the contract at issue prior to plaintiff's filing of a class certification motion. Plaintiff filed its motion on February 10, 2009 (Item 19), and defendants filed their cross-motion on March 12, 2009 (Item 20). Plaintiff filed a reply/response on April 13, 2009 (Items 21-24), and defendants filed a reply on April 28, 2009 (Item 27). The court determined that oral argument was unnecessary. For the reasons that follow, the cross-motions are denied.
According to the parties' statements pursuant to Local Rule 56.1, defendant DHL is a shipping company that transports packages for a fee by motor vehicle and airplane. Plaintiff is an automobile dealership that has used DHL for shipping services. The parties have submitted DHL's 2008 Rate Guide*fn1 and additional documents in support of their positions.
DHL's 2008 Rate Guide provides information regarding DHL's various shipping services. On Page 2 of the Rate Guide, "U.S. Domestic Shipping" services are noted to include DHL Same Day, DHL Next Day: 10:30 A.M., 12:00 PM and 3:00 PM, DHL Second Day, DHL Ground, DHL Shipready, and DHL Smartmail. Each of the "Domestic Services" are further described on Page 4 of the Rate Guide. For example, "DHL Next Day 10:30 AM" is described as providing "[g]uaranteed delivery by 10:30 a.m. the next business day." "DHL Ground" provides "[d]oor-to-door delivery throughout the U.S. . . . in 1-6 business days." This method of shipment is said to "offer increased savings without decreased service features. We guarantee your packages receive the same attention and careful handling that you value with our Air Express services, including tracking and delivery details."
On Pages 7 and 8 of the Rate Guide, the customer is instructed on "DETERMINING DOMESTIC RATES." First, the customer chooses "the service option your shipment requires"--either DHL Next Day, Second Day, or Ground. The customer must then calculate the weight and size of the package and determine the DHL Rate Zone of the destination. Finally, the customer can find the rate from tables included in the Rate Guide.
The Rate Table for DHL Ground delivery service on page 14 of the Rate Guide contains a description of DHL Ground service and a guarantee that "your packages receive the same attention and careful handling that you value with our express services, including tracking and delivery details." On Page 35 of the Rate Guide, entitled "FEES," DHL advises its customers that "Air Express shipments are assessed a fuel surcharge which is indexed to the [U.S. Gulf Coast] kerosene-type jet fuel index. Ground shipments are assessed a fuel surcharge which is indexed to the U.S. Dept. Of Energy's on-highway diesel fuel index."
On Page 37 of the Rate Guide, DHL domestic shipping services are categorized as either "Same Day," "Time Definite," or "Day Definite." "DHL Ground," a "Day Definite" delivery service, is described as a way to "[s]ave money on your routine shipments with guaranteed door-to-door delivery in 1 to 6 business days, depending on the origin and destination of your shipment."
DHL's fuel surcharge terms are described in a document entitled "Current Indexed Fuel Surcharge" (Item 19, Att. 2, Tab B, Exhs. 2, 3; see also Item 20, Att. 2, Tab A, Exh. 2). "DHL utilizes an indexed fuel surcharge based upon the fuel prices published monthly by the U.S. Department of Energy." Id. The "Air Express and International indexed surcharge calculation is linked to the monthly rounded average of the U.S. Gulf Coast (USGC) price" for kerosene-type jet fuel, while the "Ground Delivery Service indexed surcharge calculation is linked to the monthly rounded average" of the national price for diesel fuel. Id. There are two fuel surcharge tables, one for "DHL Air Express Services" and the other for "DHL Ground Delivery Service."
The parties have also submitted examples of the waybills DHL uses to ship packages. There is a waybill labeled "GROUND DELIVERY SERVICE" (Item 20, Att. 2, Tab A, Exh. 3) and another which is used for "NEXT DAY" and "SECOND DAY" shipments (Item 20, Att. 2, Tab A, Exh. 4). It is not disputed that DHL reserves the right to ship packages by air or ground transportation.
In a letter dated November 28, 2006, DHL notified its customers that its rates would increase for "Domestic Air Express and International Express products by 3.9 percent" while "DHL Ground Service will increase by an average of 4.9 percent" (Item 20, Att. 2, Tab B, Exh. 3).
Summary judgment may be granted where it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); see also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006) (noting that a court must draw all reasonable inferences in the non-movant's favor). When deciding cross-motions for summary judgment, the court analyzes each motion on its own merits, drawing all reasonable inferences in the light most favorable to the nonmoving party. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).
A motion for summary judgment may be granted in a contract dispute only when the contractual language on which the moving party's case rests is found to be wholly unambiguous and to convey a definite meaning. See Compagnie Financiere de CIC et de L'Union Europeene v. Merrill, Lynch, Pierce, Fenner & Smith Inc., 232 F.3d 153, 157-58 (2d Cir. 2000). Ambiguity is defined in terms of whether a reasonably intelligent person viewing the contract objectively could interpret the language in more than one way. Sayers v. Rochester Tel. Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1095 (2d Cir. 1993). To the extent the moving party's case hinges on ambiguous contract language, summary judgment may be granted only if the ambiguities may be resolved through extrinsic evidence that is itself capable ...