UNITED VAN LINES, LLC et al v. LOHR PRINTING, INC.

Filing 142

OPINION filed. Signed by Judge Anne E. Thompson on 7/17/2014. (kas )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED VAN LINES, LLC, et al.,
Plaintiffs,

Civ. No. 11-4761

v.

OPINION

LOHR PRINTING, et al.,
Defendants.
THOMPSON, U.S.D.J.
This matter comes before the Court upon the motion of Plaintiffs United Van
Lines, LLC (“United”) and McCollister’s Transportation Services, Inc. (“McCollister’s”)
for summary judgment. (Doc. No. 101). Defendant Lohr Printing, Inc. (“Lohr Printing”)
and Third Party Defendant Canon Financial Services, Inc. (“CFS”) oppose the motion.
Lohr Printing has also filed a motion for a continuance pending additional discovery
under Federal Rule of Civil Procedure 56(d). The Court has issued the Opinion below
based upon the written submissions of the parties and oral argument. (Doc. Nos. 101,
117, 119, 122, 123, 124, 125, 126, 127, 130). For the reasons stated herein, the Court
will grant Plaintiffs’ motion for summary judgment, (Doc. No. 101), and will deny Lohr
Printing’s motion for a continuance, (Doc. No. 117).
BACKGROUND
This matter stems from damage caused to a leased printer during transit from
Kentucky to New Jersey.
Lohr Printing is in the business of making textbook covers. (Doc. No. 101-1,
Plaintiffs’ Statement of Material Facts, at ¶ 7; Doc. No. 30 at ¶ 50). Richard C. Lohr, Jr.
1

(“Mr. Lohr”) is the president of Lohr Printing. (Doc. No. 30 at ¶ 50; Doc. No. 117-3,
Lohr Printing’s Statement of Material Facts, at ¶ 63). In the course of its business, Lohr
Printing leased a Canon Image Press 60000 VP-4, Serial Number CWM00081 (the
“Printer”) under a Canon Business Solutions (“CBS”) service contract in April 2009; the
Printer was leased through and owned by CFS. (Doc. No. 101-1 at ¶¶ 8, 12-13; Doc. No.
117, Lohr Printing’s Statement of Material Facts, at ¶¶ 8, 12-13). The agreement
between CFS and Lohr Printing states that Lohr Printing “shall not move the Equipment
from the location . . . except with the prior written consent of CFS.” (Doc. No. 117-3 at ¶
75). 1
In 2011, Mr. Lohr contacted Rodney Held, a CBS employee, and advised him
that the Printer “needed” to be relocated to Hightstown, New Jersey. 2 (Doc. No. 117-3,
Lohr Printing’s Statement of Material Facts, at ¶ 14). Lohr Printing had previously dealt
exclusively with Held when purchasing equipment from CBS and leasing from CFS. (Id.
at ¶ 66). Held offered to assist in the move and advised Lohr Printing that Canon
companies often used McCollister’s, a company that was experienced in dealing with this
type of equipment. (Doc. No. 117-3, Lohr Printing’s Statement of Material Facts, at ¶¶
15, 16; Doc. No. 101-1 at ¶¶ 15, 16).
Held also stated that he could get Lohr Printing a good price on the shipment.
(Doc. No. 101-1 at ¶ 16). During February and March of 2011, Held engaged in

1

Prior to this transaction, Lohr Printing had purchased several other printing items from
CBS and CFS. (Doc. No. 101-1 at ¶ 65).

2

Defendant Lohr Printing contends that Held was also an agent or employee of CFS.
(Doc. No. 117-3). However, this issue of fact is not material for the purposes of this
motion.
2

conversations with a representative of McCollister’s. (Doc. No. 101-1 at ¶ 18). On
February 16, 2011, Held called McCollister’s representative and informed her that the
Printer was valued at between $250,000 and $300,000. (Doc. No. 101-1 at ¶ 20). 3 The
representative also told Held that the Printer did not need to be packaged for shipment in
a special way; instead, she stated that the Printer only needed to be broken down and
shipped in pieces. (Doc. No. 117-3 at ¶ 22). After the call, McCollister’s representative
sent an email quoting the transportation charge at $795.72, a 57% “discount.” (Id. at ¶
22; Doc. No. 117-3 at ¶ 22).
In mid-March of 2011, Mr. Lohr decided that he wanted the Printer delivered to
New Jersey by April 4, 2011. (Doc. No. 101-1 at ¶ 23). Lohr Printing asked Held to “try
to get a better shipping rate” than the $795.72 value. (Doc. No. 117-3 at ¶ 6). On March
14, 2011, Held called McCollister’s to request a lower price for the shipment. (Doc. No.
101-1 at ¶ 25). On March 15, 2011, McCollister’s sent an email to Held with a quote of
$669.00; McCollister’s representative informed Held that this 65% discount was the
“highest discount [she] can give at this time.” (Id. at ¶ 27). Mr. Lohr told Held that he
accepted the $669.00 price, and Held notified McCollister’s on March 16, 2011 that Mr.
Lohr had accepted the quote. (Id. at 28; Doc. No. 117-3 at ¶ 28). McCollister’s
contacted Mr. Lohr and advised him that he had to either pay in advance or pay at pickup
by certified check. (Doc. No. 117-3 at ¶ 85). Lohr Printing responded by sending an
email with credit card information in order to pay the $669.00 charge. (Doc. No. 101-1 at
¶ 29).

3

During that call, the representative did not specifically state that McCollister’s would
limit its liability to more or less than that amount. (Doc. No. 101-1 at ¶ 20).
3

On March 29, 2011, a vehicle bearing United’s markings arrived at Lohr
Printing’s facility. (Doc. No. 101-1 at ¶ 32; Doc. No. 117-3 at ¶ 32). At the time of pickup, Mr. Lohr received the “UVL Bill of Lading No. 18-2875-1.” (Doc. No. 101-1 at ¶
33; Doc. No. 117-3 at ¶ 33). Mr. Lohr signed the Bill of Lading in two places. (Doc. No.
117-3 at ¶ 34). There is a factual dispute as to whether Mr. Lohr signed the Bill of
Lading before or after the Printer was loaded into the truck. (Compare id. with Doc. No.
101-1 at ¶ 43). Mr. Lohr claims that he signed the Bill of Lading believing it was
“simply a receipt indicating that the equipment was picked up” and had “no idea that [he]
was signing anything that limited the shipper[’]s liability.” (Doc. No. 117-3 at ¶ 37; Id.
at ¶ 97-100).
Mr. Lohr’s signature first appears in the the “Carrier Liability” section of the Bill
of Lading. (Doc. No. 101-1 at ¶ 51). This section states that Lohr Printing agreed to
limit the carrier’s liability to $5.00 per pound. (Id. at ¶ 43). 4
The reverse side of the Bill of Lading further states, in relevant part:
The following Contract Terms and Conditions apply to services performed
by Carrier in addition to all other rules, regulations, rates and charges in
the Carrier’s current rate schedule or tariff which are referenced on the
front of this Bill of Lading. A copy of the applicable schedule or tariff
shall be made available to the consignor, or consignee and/or shipper upon
request.
Carrier maintains tariffs . . . which set forth the terms, conditions and
prices for the transportation services it provided. The applicable tariff . . .
are incorporated herein by reference . . . Incorporated provisions include,
but are not limited to: (1) Establishing the limitation of Carrier’s liability
...

4

“The shipper declares value of property to be $5.00/LB and hereby releases and limits
value and liability subject to the contract terms and conditions of the reverse hereof, in
addition to all other limitations, rules, regulations, rates and charges in the carrier’s
applicable tariffs or rate schedules which are referred herein.” Doc. No. 101-1 at ¶ 39.
4

SECTION 3: The liability of Carrier . . . for physical loss or damage . . .
shall be subject to the limitations of liability set forth in the Bill of Lading,
the limitations of liability contained in any written, signed account
contract and the rules, regulations, rates, charges and provisions of the
Carrier’s currently applicable tariffs and/or rate schedule reference on the
front of this Bill of Lading.
(Id. at ¶ 50).
The right-hand side of the Carrier Liability section also states that the “Tariff/Rate
Schedule” is “305B.” (Id. at ¶ 47). United’s Tariff UVLN Schedule No. 305-B states
that UVLN, the abbreviation for United Van Lines, is the interstate motor carrier of the
goods at issue. (Doc. No. 101-1 at ¶ 48-50). The “BILL OF LADING AND RATES”
section of the Tariff states that shipments are “offered for . . . transportation . . . at a
released value not exceeding $5.00 per pound, per article.” (Id. at ¶ 52). The
“RELEASED VALUE (DECLARATION OF VALUE – LIABILITY LIMITATION)”
similarly states that “[u]nless the shipper or consignee elects a different released value
level, the basic released value level applicable to shipments under this Tariff is a released
value of $5.00 per pound per article.” (Id. at ¶ 53). Tariff UVLN Schedule No. 305-B
also states that Lohr Printing could declare a level of liability in excess of the $5.00
default liability for an additional charge of $.50 per $100 of increased valuation. (Doc.
No. 101, Exhibit 1, at 6).
Mr. Lohr’s signature also appears in the Bill of Lading above the “Consigner’s
Signature” section. After the document was signed, the Printer was taken from the
Kentucky location and damaged in transit to New Jersey. Plaintiffs instituted the present
action and now move this Court to grant summary judgment with respect to each
plaintiff’s liability.

5

DISCUSSION
1. Legal Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be
granted “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding
a motion for summary judgment, a court must construe all facts and inferences in the
light most favorable to the nonmoving party. See Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of
establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). “[W]ith respect to an issue on which the nonmoving party
bears the burden of proof [. . .] the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence of evidence
to support the nonmoving party's case.” Id. at 325.
If the moving party meets its threshold burden, the opposing party must present actual
evidence that creates a genuine issue as to a material fact for trial. Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986); see also Fed.R.Civ.P. 56(c) (setting forth types of
evidence on which nonmoving party must rely to support its assertion that genuine issues
of material fact exist). The non-movant's burden is rigorous: it “must point to concrete
evidence in the record;” mere allegations, conclusions, conjecture, and speculation will
not defeat summary judgment. Orsatte v. N.J. State Police, 71 F.3d 480, 484 (3d Cir.
1995); Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir.2010) (citations omitted)
(“[S]peculation and conjecture may not defeat summary judgment.”). “[U]nsupported
allegations [. . .] and pleadings are insufficient to repel summary judgment.” Schoch v.

6

First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v.
Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created
a genuine issue of material fact if it has provided sufficient evidence to allow a jury to
find in its favor at trial.”).
2. Analysis
Plaintiffs filed this motion for summary judgment, moving this Court to: “(1) declare
that Plaintiff United’s maximum liability to Lohr Printing is limited to the $5.00 per
pound calculation set forth in the Bill of Lading; (2) declare that Plaintiff McCollister’s
has no liability to Lohr Printing or, alternatively, that its liability is limited by the $5.00
per pound calculation set forth in the Bill of Lading; (3) dismiss Lohr Printing’s
Counterclaim against both Plaintiffs; and (4) dismiss CFS’s Cross-claims against both
Plaintiffs.” (Doc. No. 101).
a. United’s Liability
United contends that its liability for the Printer is limited by the Bill of Lading to
$5.00 per pound.
Section 14706(c)(1)(A) of the Carmack Amendment allows an interstate motor carrier
to limit its liability to a value established by a written declaration or agreement of the
shipper. 5 See Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179,
187-88 (3d Cir. 2006); American Cyanamid Co. v. New Penn Motor Express, Inc., 979
F.2d 310, 313 (3d Cir. 1992). A bill of lading is a contractual agreement that binds both

5

The Carmack Amendment, 49 U.S.C. Sect. 14706, governs Defendant Lohr Printing’s
claims with respect to the Printer. (Doc. No. 20 at 7).
7

the shipper and the carrier to its terms and conditions. Texas and Pacific Railway Co. v.
Leatherwood, 250 US. 478, 481 (1991).
A party seeking to enforce a bill of lading must meet the following five requirements:
(1) maintain a tariff within the prescribed guidelines of the Interstate Commerce
Commission; (2) obtain the shipper's agreement as to [the shipper's] choice of
liability; (3) give the shipper a reasonable opportunity to choose between two or more
levels of liability; and (4) issue a receipt or bill of lading prior to moving the
shipment.
Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 186 (3d Cir.
2006); Hughes v. United Van Lines, Inc., 829 F.2d 1407 (7th Cir. 1987).
The fifth requirement is that the carrier must, “on request of the shipper,” provide “a
written or electronic copy of the rate classification rules and practices.” 49 U.S.C. Sect.
14706(c)(1)(B); id. at Sect. 13702 (c)(1) (carrier’s tariff “must be . . . made available for
inspection by Shippers upon request”). However, if the shipper fails to request the tariff
or any other rules, the carrier has no obligation to present the shipper with the tariff. See
Emerson Electric Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 187 n. 6 (3d
Cir. 2006) (carriers must “provide to the shipper, on the request of the shipper, . . .”);
H.R. Conf. Rep. No. 104-422, at 223 (1994) (“This provision is intended to return to the
. . . situation where shippers were responsible for determining the conditions imposed on
the transportation of a shipment.”); OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d
1092, 1100 (9th Cir. 2011) (citing Sassy Doll Creations, Inc. v. Watkins Motor Lines,
Inc., 331 F.3d 834, 841 (11th Cir. 2003)) (“carrier is now required to provide a shipper
with the carrier's tariff if the shipper requests it”).
Here, the record shows that Plaintiff United has complied with the applicable
requirements for limiting liability through a valid bill of lading.

8

As an initial matter, the carrier must maintain a tariff within the prescribed guidelines
of the Interstate Commerce Commission. Plaintiff United has shown that it has
maintained a tariff and has submitted the tariff with this motion. Lohr Printing contends
that an issue of material fact exists as to the validity of this tariff. However, it has failed
to carry its burden as a non-movant to identify, with sufficient specificity, what issues
exist or why the tariff might be invalid. Lohr Printing had an opportunity throughout the
discovery process to investigate the tariff’s status and its compliance with the Interstate
Commerce Commission.
Next, United must show that it obtained the shipper's agreement as to the choice of
liability. Here, there is no dispute that Lohr Printing’s President, Mr. Lohr, signed the
Bill of Lading, which stated that United’s liability for the shipment was limited to $5.00
per pound and which also referenced the applicable tariff. Lohr Printing contends that
these two signatures do not constitute a sufficient agreement on the grounds that Mr.
Lohr was mistaken as to the legal significance of the document. According to Lohr
Printing, Mr. Lohr merely thought the paper was a receipt and, based upon his
relationship and dealings with McCollister’s, CFS, and CBS, he did not believe that he
needed to take additional steps to verify that the document was not a contract.
“Where a party affixes his signature . . . a presumption arises that he . . . read,
understood and assented to its terms and will not be heard to complain that the effect of
the act of signing was not comprehended.” Borbely v. Nationwide Mut. Ins. Co., 547
F.Supp. 959, 977 (D.N.J. 1981). A shipper who signs a valid bill of lading is
“conclusively presumed” to know the terms set out in the bill of lading and any
incorporated or referenced tariff. Am. Railway Exp. Co. v. Daniel, 269 U.S. 40 (1925);

9

Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1416 (7th Cir. 1987)(“If the contract
imports on its face to be a complete expression of the whole agreement, it is presumed
that the parties introduced into it every material item, and parole evidence cannot be
admitted to add another term to the agreement.”).
Therefore, the record shows that no reasonable jury could find that the two signatures
on the Bill of Lading did not constitute agreement to the terms as they are expressed in
the signed Bill of Lading.
Next, Lohr Printing argues that it did not receive a “reasonable opportunity” to
choose between two or more levels of liability. In this case, Held, on behalf of Lohr
Printing, negotiated different shipping rates and values prior to the shipment. These
values were communicated to Defendant Lohr Printing, who eventually approved the
65% discounted rate of $669.00. At the time of shipping, Mr. Lohr was given the Bill of
Lading, which contained a section entitled “Carrier Liability.” This section of the
document stated that Lohr Printing was choosing the $5.00 per pound liability limitation.
Mr. Lohr signed that section of the agreement and did not dispute the $5.00 per pound
amount. Furthermore, Tariff UVLN Schedule No. 305-B also stated that the shipper
could choose to declare a level of liability in excess of the $5.00 per pound default
liability for an additional charge of $.50 per $100 of increased valuation. (Doc. No. 101,
Exhibit 1, at 6).
Defendant Lohr Printing also claims that any opportunity to choose levels of liability
during pickup was unreasonable because the Printer was already loaded by the time Mr.
Lohr signed and received the Bill of Lading. The mere fact that the Printer may have
been already loaded in the truck and was ready for shipment does not make the

10

opportunity at the time of pick up unreasonable. Mr. Lohr was free to contact a
representative of McCollister’s or United at any time prior to the transaction or at the
time of pickup. Mr. Lohr was also free to request additional time to review the document
or to simply refuse to ship the Printer until he was satisfied with the document.
Furthermore, Mr. Lohr is the President of Lohr Printing and had the experience and
business acumen to seek and obtain a discounted shipping price; he is not a residential
shipper or a person with no business experience or understanding.
For the reasons stated above, no reasonable jury could find in Defendant Lohr
Printing’s favor with respect to this issue.
Next, there is no dispute that the Bill of Lading was issued prior to the Printer’s
leaving the Kentucky location. Therefore, United satisfied the fourth requirement.
Finally, Defendant Lohr Printing argues that United was required to show Lohr
Printing the tariff prior to shipping. A carrier must show the tariff to the shipper only if
the shipping party requests the tariff. See Emerson Electric Supply Co., 451 F.3d at 187
n. 6 (carriers must “provide to the shipper, on the request of the shipper . . .”). Here, Lohr
Printing contends that a reasonable jury could find that the tariff was requested in the
February 16, 2011 phone call in which Held asked for a price quote and advised
McCollister’s that the Printer was valued in the $250,000 to $300,000 range. (Doc. No.
117 at 17). Lohr Printing fails to allege or show that this range was contained in any
written agreement, as required by statute. See 49 U.S.C.A. § 14706 (c)(1)(A)(“the
liability of the carrier for such property is limited to a value established by written or
electronic declaration of the shipper or by written agreement between the carrier and
shipper if that value would be reasonable under the circumstances surrounding the

11

transportation”); 49 U.S.C.A. § 14706 (f)(1) (“liability of the carrier for that property is
limited to a value established by written declaration of the shipper or written
agreement”). Moreover, a $50,000 range of values is too imprecise to qualify as a
“value” upon which a specific shipping rate or liability quote can be given.
For the reasons stated above, United’s liability in this matter is limited to $5.00
per pound pursuant to the Bill of Lading. See George N. Pierce Co. v. Wells Fargo &
Co., 236 U.S. 278, 284 (1915) (“The valuation declared or agreed upon as evidenced by
the contract of shipment upon which the published tariff is applied, must be conclusive in
an action to recover for loss . . .”); Hart v. Pennsylvania R.R. Co., 112 U.S. 331, 340
(1884) (“There is no justice in allowing the shipper to be paid a large value for an article
which he has induced the carrier to take at a low rate of freight on the assertion and
agreement that its value is a less sum than that claimed.”).
b. McCollister’s Liability as a Household Goods Agent
McCollister’s contends that the Carmack Amendment “extinguishes” its liability for
the damaged shipment because it is a household goods agent.
49 U.S.C. Section 13970 “makes a motor carrier liable for the acts or omissions of its
household goods agents ‘which relate to the performance of household goods
transportation services . . . and which are within the actual or apparent authority of the
agent from the carrier or which are ratified by the carrier.’” 6 This section also
“simultaneously relieves the carrier’s agents of any liability, provided the transaction

6

“Each motor carrier providing transportation of household goods shall be
responsible for all acts or omissions of any of its agents which relate to the
performance of household goods transportation services (including accessorial or
terminal services) and which are within the actual or apparent authority of the agent
from the carrier or which are ratified by the carrier.” 49 U.S.C. § 13907(a).
12

occurred pursuant to a valid bill of lading.” Parramore v. Tru-Pak Moving Sys. Inc., 286
F.Supp. 2d 643, 649 (M.D.N.C. 2003); See, e.g., Werner v. Lawrence Transportation
Systems, Inc., 52 F.Supp.2d 567, 568–69 (E.D.N.C. 1998) (“[n]ot only does the statutory
language impose liability on a motor carrier for the acts and omissions of the carrier's
agent, but case law holds that the agent of a disclosed principal cannot be held liable
pursuant to a duly issued bill of lading contract”)(citing Atlantic & Gulf Stevedores, Inc.
v. Revelle Shipping Agency, Inc., 750 F.2d 457, 458 (5th Cir. 1985)); Marks v. Suddath
Relocation Sys., Inc., 319 F. Supp. 2d 746, 752 (S.D. Tex. 2004)(carrier is liable and
agent has no independent liability).
In order to be relieved of liability pursuant to this section, the party must show that it
is: (1) a household goods agents; (2) acting within the actual or apparent authority given
by the carrier or ratified by the carrier; (3) pursuant to a valid bill of lading. See 49
U.S.C. Section 13907.
a. “Household goods”
Under Section 13907(e), office equipment qualifies as “household goods.” See
Trepel v. Roadway Express, Inc., 266 F.3d 418, 423 (6th Cir. 2001) superseded by
Osman v. Intern. Freight Logistics, Ltd., 405 Fed. Appx. 1991 (6th Cir. 2001); Central &
Southern Motor Freight Tariff Ass’n v. U.S., 757 F.2d 301, 328 (D.C. Cir. 1985); 49
U.S.C.A. § 14302 (West)(“The term ‘household goods’ has the meaning such term had
under section 10102(11) of this title, as in effect on December 31, 1995.”).

13

Here, the Printer is a piece of office equipment. 7 Therefore, the “household goods”
requirement is satisfied.
b. Actual or apparent authority
Under Section 13907(a), the agent’s actions must be “within the actual or apparent
authority of the agent from the carrier or which are ratified by the carrier.” Ratification
allows a principal to be bound by an agent’s unauthorized prior act if the principal knows
about it and fails to take affirmative steps to disavow the act. City of Philadelphia v. One
Reading Ctr. Associates, 143 F. Supp. 2d 508, 520 (E.D. Pa. 2001); see also Bromberg
and Ribstein on Partnership § 4.03(d)(2) at 4:66 (“Ratification requires an ‘affirmance’ of
an earlier unauthorized act by partners who would have had the authority to bind the
partnership in the first instance. An affirmance includes any conduct manifesting consent
to be bound by the transaction.”).
Here, the record shows that United was the motor carrier and principal. McCollister’s
made arrangements with Lohr Printing concerning the shipment of the Printer to New
Jersey. United ratified McCollister’s conduct by actually shipping the item over which
McCollister’s had made arrangements with Lohr Printing. The record also shows that
McCollister’s, the agent named in the Bill of Lading, had at least the apparent authority
of United in this instance and was listed as the agent on the Bill of Lading.
c. Valid Bill of Lading
For the reasons set forth above, the Bill of Lading is valid. Moreover, Defendant Lohr
Printing asserted counterclaims under the Bill of Lading. See Doc. No. 53 (Lohr alleges

7

Defendants Lohr Printing and CFS do not argue that the Printer is not a piece of office
equipment.
14

that it complied with the “terms of the bill of lading” and that United and McCollister’s
breached the covenant of good faith and fair dealing implied in the Bill of Lading). A
party suing under a bill of lading consents to and is bound by the terms of the bill of
lading. See A.P. Moller-Maersk A/S v. Comercializadora de Calidad S.A., 429 F. App’x
25, 28 (2d Cir. 2011); Mitsui & Co., Inc. v. MIRA M/V , 111 F.3d 33, 36 (5th Cir. 1997)
(“the district court did not err in determining that, by filing a lawsuit for damages under
the bill of lading, [the shipper] has accepted the terms of the bill of lading . . .”).
For the reasons set forth above, McCollister’s acted as a household goods agent for
United with respect to the transaction at issue and the Bill of Lading is valid.
Accordingly, United is liable for the actions of McCollister’s, subject to the liability
scheme set forth in the Bill of Lading, and McCollister’s has no independent liability.
c. Lohr Printing’s Claims for Breach of Contract and Breach of the Implied
Covenant of Good Faith and Fair Dealing Against McCollister’s
Plaintiff McCollister’s claims that the state law counterclaims brought by Defendant
Lohr Printing are preempted by the Carmack Amdendment.
The Carmack Amendment preempts “state law claims, whether they contradict or
supplement Carmack Amendment remedies.” Parramore v. Tru-Pak Moving Sys., Inc.,
286 F. Supp. 2d 643, 648 (M.D.N.C. 2003). Therefore, the shipper cannot bring state law
claims against the carrier for violations relating to the damaged shipment. Adams
Express Co. v. Croninger, 226 U.S. 491, 505-06 (1913) (“Almost every detail of the
subject is covered so completely that there can be no rational doubt but that Congress
intended to . . . supersede all state regulation with reference to it.”); Shao v. Link Cargo
(Taiwan) Ltd., 986 F.2d 700, 706 (4th Cir. 1993) (the “Carmack Amendment was
intended by Congress to create a national uniform policy regarding the liability of carriers
15

under a bill of lading for goods lost or damaged in shipment. Allowing a shipper to bring
common law breach of contract or negligence claims against a carrier for such loss or
damage conflicts with this policy.”); Underwriters at Lloyds of London v. N. Am. Van
Lines, 890 F.2d 1112, 1116 (10th Cir. 1989) (the “Supreme Court and other authorities
have described the Carmack Amendment in broad, preemptive terms”).
Here, there is a valid Bill of Lading and the Carmack Amendment applies to the
claims at issue. Therefore, the state law claims brought by Lohr Printing are preempted. 8
d. Defendant CFS’s Counterclaims Against Plaintiffs United and McCollister’s
Plaintiffs claim that CFS’s claims for conversion, contribution, and indemnification
against Plaintiffs are preempted by the Carmack Amendment.
As stated above, courts have specifically held that the Carmack Amendment preempts
state law claims, such as contribution and indemnification. See McDougal v. G&S
Tobacco Dealers, LLC, 712 F.SUpp. 2d 488, 494-95 (N.D.V.A. 2010); Adams Express
Co. v. Croninger, 226 U.S. 491, 505-06 (1913) (“there can be no rational doubt but that
Congress intended to . . . supersede all state regulation with reference to it”).
CFS’s claims stem from United’s actions as a motor carrier and McCollister’s actions
as a household goods agent. For the reasons stated above, state and common law claims
against United in this matter are governed by the Carmack Amendment and are,
therefore, preempted by the Carmack Amendment. Similarly, state and common law
claims against McCollister’s, the household goods agent, are extinguished by the
Carmack Amendment. Accordingly, CFS’s claims against Plaintiffs will be dismissed.

8

Defendant Lohr Printing “concedes that its claim for common law negligence is
barred.” Doc. No. 117 at 23.
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e. Additional Discovery Under Rule 56(d)
Under Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate
order.” See also Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir. 1988). “A party
seeking further discovery in response to a summary judgment motion [must] submit an
affidavit specifying, for example, what particular information is sought; how, if
uncovered, it would preclude summary judgment; and why it has not previously been
obtained.” Pennsylvania, Dep't of Pub. Welfare v. Sebelius, 674 F.3d 139, 157 (3d Cir.
2012) (citations omitted).
Here, Lohr Printing has submitted an affidavit and brief, stating that additional
discovery is needed to show, inter alia, the full communications between Held and
McCollister’s, what McCollister’s and/or United would have done had a value been
declared, and whether McCollister’s was a disclosed agent or broker of United. After
considering the arguments raised in support of the cross motion for continuance, the
Court finds that Lohr Printing has failed to show how any additional discovery would
uncover any material facts for the purposes of the present motion.

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CONCLUSION
For the reasons set forth above, the motion for summary judgment will be granted
and the motion for a continuance pending additional discovery will be denied.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Dated: 7/17/14

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