United States District Court, E.D. New York
Ian J. Frimet, WEXLER BURKHART HIRSCHBERG & UNGER, LLP, Garden City, New York, Attorneys for Plaintiff.
Barry N. Gutterman, BARRY N. GUTTERMAN & ASSOCIATES, Bedford Hills, New York, Attorneys for Defendants.
AMENDED MEMORANDUM AND ORDER
JOHN GLEESON, District Judge.
Lewis Brass and Copper Company ("LBC") brings this action against ABF Freight System, Inc. ("ABF") for the loss of two shipments of copper shipped by LBC using ABF's freight services. LBC asserts claims under state law as well as the Carmack Amendment, 49 U.S.C. § 14706. ABF has moved for summary judgment. I conclude that LBC's state law claims are preempted, and that LBC's Carmack Amendment fails because the losses were attributable solely to its own actions. I also conclude that, because ABF complied with the terms of its contract but has not yet been paid, it is entitled to judgment on its counterclaim for breach of contract. Thus, I grant ABF's motion for summary judgment.
A. Factual Background
The following facts are taken from the parties' Local Rule 56.1 statements and affidavits. Unless otherwise noted, the facts set forth below are uncontroverted.
According to the statement of Martin Erdfarb, LBC's CFO, LBC was contacted by two people - claiming to be Scott Ellis and Derick Lamberti - in May of 2012. They purported to represent a roofing company, S&C Roofing Gutters ("S&C"), in Illinois. On May 17, S&C contracted with LBC for $22, 720.54 of copper, paid by credit card. Erdfarb Aff. ¶¶ 2-3, ECF No. 25.
On May 29, 2012, LBC contracted with ABF to ship that order - in the form of two skids of copper - from Glendale, New York to an address in Chicago, Illinois. LBC prepared a bill of lading for the shipment, which listed the Chicago address as the destination, S&C as the consignee, and the instruction to "Call before delivery Scott (773) 683-7474." Crouse Aff., Ex. A, ECF No. 23-1. The shipment arrived without incident at ABF's shipping dock in Sauk Village, Illinois on May 31, 2012. It is disputed whether ABF called Scott or whether Scott called ABF, but a phone conversation did occur, and Scott told ABF that S&C would pick the delivery up from ABF's dock. An apparent S&C designee, Kenneth, picked up the shipment on May 31; he signed his name and entered his driver's license number, though his last name was illegible. Def.'s Rule 56.1 Statement, ¶¶ 4-13, ECF No. 21; Pl.'s Rule 56.1 Statement, ¶¶ 4-13, ECF No. 26.
On June 1, LBC contracted with S&C for a second order of copper worth $20, 822.82. Payment was split between two credit cards. LBC again contracted with ABF to ship the order to the same Chicago address and included the same instruction to call Scott. Erdfarb Aff. ¶¶ 7-9; Crouse Aff., Ex. C, ECF No. 23-1. The shipment contract was entered into on June 7, and the shipment was delivered to ABF's Chicago shipping dock on June 11. Again there is a dispute about whether ABF called Scott or vice versa, but once again the cargo was picked up by an apparent S&C designee, this time a John Greene, who signed his name and printed his driver's license number on a delivery receipt. Def.'s Rule 56.1 Statement, ¶¶ 8-12, 14-15.
Shortly after the shipments were picked up, the banks processing the credit card payments for the orders informed LBC that the charges were being disputed because the card holders claimed that their cards had been stolen. After fighting the disputed charges, LBC ultimately was not paid for the shipments. Erdfarb Aff. ¶¶ 11-12. Upon investigation, LBC also learned that the license numbers provided when the loads of cargo were picked up were fake, and that the phone number provided for Scott was also fake. Id. ¶¶ 16, 19. Furthermore, the address that S&C had originally provided to LBC is, according to LBC's Amended Complaint (in turn based on an image from Google Maps), "an empty lot in a dilapidated part of Chicago." Am. Compl. ¶ 37 & Ex. J, ECF No. 16.
LBC commenced this action in state court, and it was removed by ABF on June 6, 2013. After LBC amended its complaint to assert a claim under the Carmack Amendment, ABF moved for summary judgment. I heard argument on the motion on February 28, 2014.
A. Summary Judgment ...