Expeditors International of Washington Incorporated v. Synergy Cargo Logistics Incorporated et al

Filing 16

ORDER denying 11 Motion to Dismiss without prejudice. Further Ordered denying as moot 14 Motion for Leave to File Sur-Reply Memorandum. See order for details. Signed by Judge G Murray Snow on 12/21/10.(SJF)

Expeditors International of Washington Incorporated v. Synergy Cargo Logistics Incorporated et al

Doc. 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Expeditors International of Washington,) ) Inc., ) ) Plaintiff, ) ) vs. ) ) Synergy Cargo Logistics, Inc., an Arizona) corporation; Towne Air Freight, Inc., an) Indiana corporation; Towne Air Freight,) LLC, an Indiana corporation; Towne) Holdings, Inc., an Indiana corporation, ) ) ) Defendants. )

No. CV-10-1347-PHX-GMS ORDER

Pending before this Court is Motion to Dismiss (Doc. 11) filed by Defendants Synergy Cargo Logistics, Inc., Towne Air Freight Incorporated, Towne Air Freight, LLC, and Towne Holdings, Inc. ("Defendants"), and a Motion for Leave to File a Sur-Reply filed by Plaintiff Expeditors International of Washington, Inc. ("Expeditors"). For the reasons provided below, the Court denies the Motion to Dismiss without prejudice and denies as moot Plaintiff's Motion to File a Sur-Reply. Defendants' motion argued that the Carmack Amendment "governs the liability of carriers for lost or damaged goods and mandates that it is the exclusive remedy against such carriers. Consequently, the Carmack Amendment preempts all state laws that impose liability on carriers, including Plaintiff's breach of contract claim." (Doc. 11 (emphasis added)). In its Response, Expeditors asserted that Defendants' motion should be denied because the

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"Supreme Court held that the Carmack Amendment does not apply to the inland segment of a shipment originating overseas under a single through bill of lading." (Doc. 12 (citing Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S.Ct. 2433, 2446 (2010))). In their Reply, Defendants agreed, stating that "[a]s Plaintiff's [sic] have asserted, this case does not fall under the Carmack Amendment." (Doc. 13). After conceding that the Carmack Amendment is not applicable to this case, Defendants raise a new argument that Plaintiff's claims should nevertheless be dismissed because the Carriage of Goods by Sea Act ("COGSA") is the exclusive remedy. The Court need not consider Defendants' COGSA argument because it was raised for the first time in their Reply. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) ("Arguments raised for the first time in [the] reply brief are deemed waived."); Marlyn Nutraceuticals, Inc. v. Improvita Health Prods., 663 F. Supp.2d 841, 848 (D. Ariz. 2009) ("The Court need not consider Defendants' position, however, since it was first raised in their reply brief . . . Thus, even if the argument has merit, this Court cannot appropriately consider it, since Plaintiffs did not have the opportunity to respond."). IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss (Doc. 11) is denied without prejudice. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File Sur-Reply Memorandum (Doc. 14) is denied as moot. DATED this 21st day of December, 2010.

-2-