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Jim Ball Pontiac-Buick-Gmc, Inc. v. Dhl Express (Usa)

February 28, 2011


The opinion of the court was delivered by: John T. Curtin United States District Judge


Presently before the court is a motion for class certification (Item 39).*fn1 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. In a Decision and Order dated May 7, 2010, the court denied the parties' cross motions for partial summary judgment on liability (Item 33). The motion to certify the class was filed on July 2, 2010 (Item 39). Defendants filed their response to the motion on August 9, 2010 (Item 44). The court declined to hear oral argument. For the reasons that follow, the motion to certify the class is denied.


According to the amended complaint (Item 3), defendants, collectively referred to as "DHL," are 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. DHL offers "Next Day," "2nd Day," and "Ground" delivery service. In its "U.S. Fees" document, DHL states that "Air Express shipments" are assessed a jet fuel surcharge, while "Ground Shipments" are assessed a fuel surcharge indexed to the United States Department of Energy's diesel fuel index. Regardless of the service category, DHL reserves the right to transport each shipment as it chooses, whether by air or ground. At all times relevant to the complaint, the jet fuel surcharge has been substantially higher than the ground fuel surcharge (Item 3, ¶¶ 35-43).

Plaintiff alleges that, pursuant to the contract, all shipments transported solely by ground are subject to the ground fuel surcharge, not the jet fuel surcharge. Plaintiff further alleges that DHL often ships "Next Day" or "2nd day" shipments by ground transportation where practicable. However, plaintiff states that DHL applies the jet fuel surcharge to these shipments in breach of the contract (Item 3, ¶¶ 45-48).

In support of class certification, plaintiff alleges that the putative class consists of all individuals and entities who have, at any time from 2003 to the date of any class certification order, paid DHL a jet fuel surcharge for package deliveries within the United States that DHL transported solely by ground transportation; the class excludes the judge, attorneys, consultants, and their respective staffs who are working on this case, DHL's employees, DHL's independent contractor delivery network, and federal, state, and local government entities.

(Item 3, ¶ 16). Plaintiff also alleges that the exact number of class members is not yetknown, but that the class is so numerous that joinder of all members is impracticable. Id., ¶¶ 17-18. Additionally, plaintiff alleges that the case involves common questions of law, specifically whether the contract allows for the assessment of jet fuel surcharges on shipments traveling solely by ground transportation. Id., ¶ 19. A common question of fact is whether the jet fuel surcharge practice amounts to a breach of contract. Id., ¶20. Plaintiff also alleges that its claims are typical of the class, that it will fairly and adequately protect the interests of the class, that it has engaged qualified counsel, that it has no conflicts of interest, and that it is prepared to engage in a vigorous prosecution of the case. Id., ¶¶ 21-25.

Plaintiff asserts that the common questions of law and fact predominate over any questions that might affect class members individually (Item 3, ¶ 27). It also alleges that the class action is a superior method to efficiently adjudicate the controversy as the contract is uniformly applicable to all class plaintiffs, basic contract law is uniform across the nation, and the damages issues are neither complex nor burdensome. Id.,¶¶ 28-32. Finally, plaintiff alleges that it knows of no other pending action against DHL seeking recovery for any class plaintiffs based on the facts alleged in the amended complaint. Id., ¶ 34. Accordingly, plaintiff alleges that the class should be certified pursuant to Fed. R. Civ. P. 23.

In further support of the motion, plaintiff submitted a declaration of Kevin Grupp, the Vice President of MVP Delivery and Logistics, Inc., and a former independent contractor of DHL. See Item 39, Att. 4. Mr. Grupp stated that MVP was responsible for the local portion of the transport of DHL shipments. Id., ¶ 4. In Mr. Grupp's experience, "a significant number of DHL's Next Day and 2nd Day shipments were transported solely by ground transportation." Id., ¶ 5. He believed that information as to whether packages traveled solely by ground transportation "should be readily available to DHL" by identifying shipments that traveled to their destinations without passing through a DHL air hub. Id., ¶ 7. In Mr. Grupp's experience, "all DHL Next Day and 2nd dayshipments that did not travel through an air hub traveled solely by ground transportation - either through DHL's truck hubs or solely via local transportation." Id., ¶ 9.

In opposition to the motion, defendant submitted a declaration of Hank Gibson, Vice President, Strategy of defendant DHL. Mr. Gibson stated that at all times relevant to this lawsuit, defendant DHL offered expedited and non-expedited domestic shipping services (Item 44, Att. 2, ¶ 7).*fn2 Expedited services were known as "Air Express Services" and included Next day and 2nd Day products. Id. Non-expedited services were referred to as "Ground Shipping." Id., ¶ 8. Consistent with industry practice, defendant charged its customers a fuel surcharge linked to the price of jet fuel for Air Express services, and a surcharge linked to the price of diesel fuel for ground shipments. Id., ¶ 11.

Defendant had a number of different categories of customer, including Global, National, Resellers, Field Sales, Telesales, Web Customers, Alliance, and Retail (Item 44, Att. 2, ¶ 13). Global and National customers and Resellers "negotiated tailored individual agreements with special rates and terms." Id., ¶ 14. Pursuant to their individual agreements, Resellers were allowed to resell DHL services to their own customers at rates that they determined. Id. Field Sales customers were called upon by sales representatives and had letter agreements or other contracts with DHL. Id.

Customers who used internet-based tools to ship with DHL generated their waybills online and received an itemized quote for the shipping services, as did retail customers (Item 44, Att. 2, ¶ 15). Customers using hand-written hard-copy waybills, like plaintiff, may not have received a price quote prior to sending the shipment. Id.,¶

16. Customers who used hand-written waybills represented approximately 20 to 30 percent of DHL's customers. Id.

Mr. Gibson stated that many of DHL's customers enjoyed non-standard fuel surcharge terms, including capped, waived, or flat rate surcharges (Item 44, Att. 2, ¶17). Some did not pay a separate fee, but had the surcharge embedded in their rates. Id. DHL's records indicate that, on April 22, 2008, plaintiff began purchasing DHL's shipping services through Unishippers, an authorized DHL reseller. Id., ¶ ...

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