The opinion of the court was delivered by: John T. Curtin United States District Judge
Presently before the court is plaintiff's renewed motion for class certification (Item 78). 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, finding that the term "Air Express" in DHL's 2008 Rate Guide was susceptible of more than one meaning (Item 33). On March 2, 2011, the court denied the plaintiff's initial motion for class certification (Item 58). Thereafter, the court denied the plaintiff's renewed motion for partial summary judgment (Item 61). The renewed motion to certify the class was filed on September 28, 2011 (Item 78). Defendants filed their response to the motion on October 22, 2011 (Item 79). Plaintiff filed a reply declaration on November 1, 2011 (Item 80). The court declined to hear oral argument. For the reasons that follow, the renewed 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 its renewed motion for class certification, plaintiff proposes a putative class consisting 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 DHL Next Day or 2nd Day package deliveries within the United States that DHL transported solely by ground transportation pursuant to any DHL contract that permitted jet fuel surcharges solely on Air Express shipments; the class excludes customers who purchased DHL services through resellers, and excludes DHL customers with embedded or zero jet fuel surcharges; the class also 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 78, Att. 3, p. 2). In support of the motion, plaintiff has incorporated its prior submissions and has submitted a letter dated October 10, 2008 from plaintiff's counsel to DHL (Item 78, Att. 2, Exh. A), excerpts from the depositions of Hank Gibson and Charles Boice (Item 78, Att. 2, Exhs. B, F), and a 51-jurisdiction survey of the law relating to the use of extrinsic evidence in resolving contractual ambiguities (Item 78, Att. 2, Exh. C).*fn1
In its renewed motion for class certification, plaintiff purports to narrow the proposed class by excluding those customers who purchased DHL shipping services through a reseller and customers with "embedded" or "zero" jet fuel surcharges. In all other respects, the proposed class is identical to the class proposed in the previous motion for class certification.
Pursuant to Rule 23(a), plaintiffs must demonstrate that four conditions have been met before a court will certify a class: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); Teamsters Local 445 Freight Div. v. Bombardier, Inc., 546 F.3d 196, 201--02 (2d Cir. 2008). In addition, "Rule 23 contains an implicit requirement that the proposed class be precise, objective and presently ascertainable. Thus, a proposed class must be clearly defined so that it is administratively feasible for a court to determine whether a particular individual is a member." Bakalar v. Vavra, 237 F.R.D. 59, 64 (S.D.N.Y. 2006) (quoting Burley v. City of New York, 2005 WL 668789, at *8 (S.D.N.Y. March 23, 2005) (citations omitted)). Finally, the plaintiff must also demonstrate that a class action is maintainable under one of several different theories. Here, plaintiff argues that the class action is maintainable pursuant to Rule 23(b)(3), which requires a court to find (1) that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed.R.Civ.P.23(b)(3); Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010), cert. denied, 132 S.Ct. 368 (2011). The plaintiff bears the burden of showing each of these elements by a preponderance of the evidence. Teamsters Local, 546 F.3d at 202.
Plaintiff's new proposed class does not adequately address the court's previous concerns with regard to ascertainability and predominance. "Class membership must be readily identifiable such that a court can determine who is in the class and bound by its ruling without engaging in numerous fact-intensive inquiries." Bakalar, 237 F.R.D. at 64 (citing Fears v. Wilhelmina Model Agency, Inc., 2003 WL 21659373, at *2 (S.D.N.Y. July 15, 2003); Daniels v. City of New York, 198 F.R.D. 409, 414 (S.D.N.Y.2001)). Here, despite a narrowed proposed class definition, the court would nonetheless be forced to engage in individual inquiries regarding the class members satisfaction of a condition precedent to suit.
As stated in the court's previous decision on class certification (Item 58), DHL is a "motor carrier" pursuant to the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 13102(14); see Cerdant, Inc. v. DHL Express (USA), Inc., 2010 WL 3397501, *5 (S.D.Ohio August 25, 2010). The ICCTA provides in part that if a shipping customer wishes to contest charges originally or subsequently billed, it "must contest the original bill or subsequent bill within 180 days of receipt of the bill in order to have the right to contest such charges." 49 U.S.C. § 13710(a)(3)(B). Plaintiff argues in its renewed motion that the 180-day period does not apply to actions brought in courts, only to matters before the Surface Transportation Board ("the Board'). However, the Board has stated that the 180-day rule applies to all billing errors and disputes, not simply matters before the Board. See Nat'l Assoc. Of Freight Transp. Consultants, Inc. - Petition for Declaratory Order, 1997 WL 189658, *4-5 (S.T.B. April 9, 1997); see also Avery Dennison Corp. v. Conway Transp. Serv., Inc., 2006 WL 3350761, *4 (Ohio Ct. App. November 17, 2006) (a shipper loses any right to contest charges, whether before the Board, in court, or both, if it does not notify the carrier of its disagreement within 180 days of receiving the disputed bill, as required by ICCTA). Under the terms of the statute, any DHL customer who failed to contest a bill within 180 days lacks standing to sue. Cerdant, 2010 WL 3397501, at *6. To the extent that the proposed class definition does not limit the class to those DHL customers who complied with the 180-day notice provision, it is overbroad. Additionally, as the court would be required to engage in individualized factual inquiries to determine those putative class members who complied with the 180-day requirement, the class is not ascertainable. Cerdant, 2010 WL 3397501, at *6 (class certification denied where class not limited to those customers who complied with 180-day provision).
Plaintiff further argues that the 180-day period is "uniformly and completely trumped" by a one-year notice provision found in the DHL waybill (Item 78, Att. 3, p. 9). The waybill requires that a shipper contest an invoice within one year from the date DHL accepted the shipment and apparently provides a more generous time period in which the shipper must contest an invoice (Item 44, Att. 3, Exh. B). However, the ICCTA provides that the transportation provided by a contract is subject to those rights and remedies provided by the ICCTA unless "the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part . . .." 49 U.S.C. § 14101(b)(1). The language in the DHL waybill is not an express written waiver of any rights afforded by the ICCTA, particularly the 180-day provision. Accordingly, the court does not read the waybill language as an abrogation of the 180-day time period. Even assuming that the one-year provision is controlling, the court would nonetheless be required to individually determine whether the class members satisfied the more liberal notice provision. Such individual inquiries are inconsistent with class certification. See Fogarazzao v. Lehman Bros., Inc., 232 F.R.D. 176, 181 (S.D.N.Y. 2005); Daniels v. City of New York, 198 F.R.D. at 414.
Additionally, plaintiff contends that its attorney wrote to DHL before the case was filed and contested the allegedly improper jet fuel surcharges on behalf of all putative class members. In a letter dated October 10, 2008, counsel for plaintiff wrote to Jon E. Olin, Esq., Senior Vice President, Secretary, and General Counsel for DHL, to notify DHL that plaintiff was being improperly assessed jet fuel surcharges on Next Day and 2nd Day deliveries that were transported solely by ground transportation (Item 78, Att. 2, Exh. A). The notice was purported to have been provided on behalf of plaintiff "and all other similarly-situated United States customers of DHL" and was ...