CSX Transportation, Inc. v. Schuylkll Rail Car, Inc.

Filing 39

MEMORANDUM re pltf's MOTION for Summary Judgment 29 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 06/24/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CSX TRANSPORTATION INC.,
Plaintiff
v.
SCHUYKILL RAIL CAR INC.,
Defendant

:
:
:
:
:
:
:
:
:

Civil No. 1:13-CV-1409

Judge Sylvia H. Rambo

MEMORANDUM
In this civil case, Plaintiff filed a single-count complaint, alleging that
Defendant breached its contractual obligations to pay for work Plaintiff preformed
on 150 railcar repair invoices. Presently before the court is Plaintiff’s motion for
summary judgment (Doc. 29), wherein Plaintiff contends that there exists no issues
of material fact and that it is entitled to judgment as a matter of law on the basis that
Defendant has acquiesced to the validity of the outstanding invoices at issue by
virtue of its failure to dispute the invoices within the time prescribed by Rule 112 of
the Association of American Railroad Office Manual. Defendant argues that more
than half of the invoices are disputed, notwithstanding its failure to dispute the
charges within the time frame promulgated by the Rules, a position which Plaintiff
urges the court to reject on the basis of waiver. For the following reasons, the court
concludes that a genuine issue of material fact exists regarding whether the course of
conduct between the parties operates to modify the applicable timing requirements
and will grant in part and deny in part Plaintiff’s motion for summary judgment.

I.

Background
The facts of this case are largely undisputed. Where a dispute exists, the

court views the facts in the light most favorable to Defendant as the nonmoving party
and grants Defendant the benefit of all reasonable inferences in accordance with the
relevant standard when deciding a plaintiff’s motion for summary judgment.
A.

Facts

Plaintiff CSX Transportation Inc. (“Plaintiff”), a Virginia corporation
that has its principal place of business in Florida, is an interstate rail carrier which is
subject to the jurisdiction of the United States Surface Transportation Board and is a
member of the Association of American Railroads (“AAR”), an industry trade group
representing the major freight railroads operating in North America. The AAR
promulgates and publishes standards and rules that affect many aspects of railroad
operations, including rules that govern the maintenance and repair of all types of
railcars used on North American railroads (“AAR Rules”). These rules are published
in AAR’s manuals. The AAR Field Manual contains rules that establish standards
for the repair and maintenance of railcars. The AAR Office Manual contains the
default procedures that railroads and their agents are to follow when billing railcar
owners for repairs to their cars and the default procedures that railcar owners are to
follow to dispute such billing. Plaintiff is subject to the AAR Rules.
Defendant Schuykill Rail Car Inc. (“Defendant”), a Pennsylvania
corporation that has its principal place of business within the Middle District of
Pennsylvania, is an entity that owns a fleet of railcars that it leases to others.
Defendant is similarly subject to the AAR Rules.

2

Pursuant to the United States Federal Railroad Administration (“FRA”)
and AAR, railroad personnel must perform a series of safety-related inspections on
every railcar that enters a rail yard before the railcar is permitted to leave the rail
yard, a procedure that is governed by AAR and FRA rules. If railroad personnel
discovers damaged or defective components on a railcar, it must follow the rules that
govern the repair or replacement of that component. In many cases, the railroad
personnel will repair the damaged or defective component so the railcar can be safely
used to transport freight and send a billing invoice to the railcar’s owner. The AAR
Rules set forth the procedure for the submission and dispute of billing invoices.
Specifically, after an invoice is prepared, the railroad is required to
transmit it electronically to Railinc Corp. (“Railinc”), a wholly owned subsidiary of
AAR, at which time Railinc audits the invoices and places those invoices that pass
muster on the Car Repair Billing Data Exchange System for distribution to the railcar
owner. An invoice that fails Railinc’s audit is returned to the submitting entity for
correction.
It is undisputed that, between 2008 through August 2013, Plaintiff, as a
rail yard operator, submitted 150 invoices to Defendant through TTX Company
(“TTX”), its management service, purporting to correspond to repairs made on
Defendant’s railcars. These invoices, which total approximately $280,811.70,1
remain outstanding. (See Doc. 30-4, ¶ 6.) Defendant does not dispute that it owes

Defendant disputes the total calculated by Plaintiff. In support of its total, Plaintiff
submits an accounts receivable aging analysis prepared by TTX that represents $250,441.42 and
$30,307.28 is outstanding. (See Doc. 30-4, pp. 8-9 of 9.) Although Defendant calculates the sum of the
outstanding invoices to be $277,364.53(Doc. 33, ¶ 14), it provides no factual support for its
representation. Accordingly, the court accepts Plaintiff’s factually supported calculation in lieu of
Defendant’s unsupported figure.
1

3

$134,623.44 of this amount (Doc. 30, ¶ 28; Doc. 33, ¶ 28), but does dispute the
remaining $146,188.26 (Doc. 30, ¶ 26; Doc. 33, ¶ 26).
Plaintiff’s motion centers on the applicability of the AAR Rules, a
concept not set forth in its pleadings. Rule 112.H sets forth the procedures for
preparing, processing, submitting, auditing, and disputing invoices, and provides, in
pertinent part, as follows:
H.

Invoice Processing and Auditing Regulations
*

*

*

3. All invoices shall be passed for payment
unless net amount of errors or questionable
charges exceeds 10% when total invoice amount
is $10,000 or less; exceeds 7.5% when total
invoice amount is between $10,001 and
$200,000; or exceeds 5% when total invoice
amount is over $200,000.
a. The unpaid invoice must be returned
to the Billing Party no later than 60 days
from availability of the data (as defined in
Rule 112.H.2). The returned invoice must
be accompanied by documentation that
clearly describes the reason that the invoice
has been returned unpaid and quote rule
basis for exception.
AAR Rule 112.H.3.a (emphasis supplied). (Doc. 30-2, p. 9 of 16.) Thus, for a
railcar owner to dispute an invoice under this section, it must do so within sixty days.
Defendant was aware of this provision for invoices that are disputed pursuant to Rule
112.H.
However, as highlighted by Defendant, the foregoing dispute procedure
set forth in Rule 112.H applies only when the contracting parties do not agree to an
4

alternative procedure. AAR Rule A provides that the AAR Rules are formulated
“with the intent of . . . [e]stablishing that [the AAR Rules] are not intended to cover
other independent agreements entered into by subscribers concerned. Nothing in [the
AAR] Rules shall interfere with the right of any subscriber to enter into bilateral
agreements with any other subscriber or subscribers.” AAR Rule A. (Doc. 33-1, p.
2 of 2.) Thus, the AAR Rules specifically contemplate contracting parties to agree to
their own procedures. Defendant argues that, through the parties’ course of conduct,
they bilaterally agreed to extend the time in which Defendant could dispute a
submitted invoice beyond the schedule set forth in Rule 112.H.3.a.
David Gamble, President of Defendant, stated that Plaintiff, through
TTX, considered billing disputes to invoices submitted outside the sixty day window,
and both accepted and adjusted repair invoices in response to Defendant’s billing
disputes submitted outside the provisions set forth in the AAR Rules. (Doc. 33-2, ¶¶
20-21.) Importantly, according to Gamble, “neither [Plaintiff] nor TTX ever rejected
a dispute to a [Plaintiff] repair bill because the dispute was not made within sixty
days after the billing information became available.” (Id. at ¶ 17; see Doc. 33, ¶¶ 3942.) In his deposition, Gamble further outlined the bases for Defendant’s disputing
certain invoices, which included disputes arising from the duplication of charges and
disputes based on his belief that the work charged was impossible due to the nature
of the railcars. (See generally, Doc. 30-3.)

5

B.

Procedural History

Plaintiff commenced this action on May 24, 2013, by filing a singlecount complaint for breach of contract in this court on the basis of diversity. (Doc.
1.) On June 14, 2013, Defendant filed an answer with affirmative defenses and two
counterclaims. (Doc. 8.) On October 29, 2014, Plaintiff filed an amended complaint
for the purpose of adding additional claims for unpaid railcar repairs that had accrued
since the commencement of the action. (Doc. 17-1.) Plaintiff’s amended complaint
consisted of the following seven substantive paragraphs:
5.

[Defendant] provides various services to owners
of railcars used to transport freight including the
processing and payment of invoices for services
rendered by railroads and their agents in repairing
and maintaining those railcars (“Railcar Repair
Invoices”).

6.

Upon information and belief, [Defendant] has
agreements in place with owners of railcars,
including but not limited to Schuylkill Railcar,
L.P., Genesee & Wyoming, Inc., Genessee Valley
Transportation Co., Inc., and North Shore
Railroad Company (collectively, “the Car
Owners”), pursuant to which [Defendant] has
agreed to accept, process and pay Railcar Repair
Invoices on behalf of the Car Owners.

7.

[Plaintiff] has agreements in place with
[Defendant] pursuant to which [Defendant] has
agreed to accept, process, and pay on behalf of
the Car Owners those Railcar Repair Invoices
issued by [Plaintiff] for services rendered in
connection with the repair or maintenance of the
Car Owners’ railcars.

8.

Beginning in 2008 and continuing through the
present, [Plaintiff] or its agent has submitted 150
6

Railcar Repair Invoices to [Defendant] for work
performed by [Plaintiff] or its agent in connection
with the repair or maintenance of the Car
Owners’ railcars.
9.

The afore-mentioned invoices currently total
$280,811.70.

10.

[Plaintiff] has demanded that [Defendant] process
and pay those invoices in full, but [Defendant]
has refused.

11.

[Defendant]’s refusal to pay the outstanding
invoices submitted by [Plaintiff] is a breach of its
agreement with [Plaintiff] to pay the Railcar
Repair Invoices.

(Doc. 17-1, ¶¶ 5-11.) On October 29, 2013, Defendant filed an amended answer
with affirmative defenses and two counterclaims against Plaintiff. (Doc. 18-1.) On
November 4, 2013, Plaintiff filed an answer to Defendant’s amended counterclaims.
(Doc. 19.) AAR Rule 112.H is not mentioned in any of the pleadings.
On March 1, 2014, Plaintiff filed the instant motion for summary
judgment (Doc. 29) and a statement of facts (Doc. 30), followed by a brief in support
on March 11, 2014 (Doc. 31). On April 1, 2014, Defendant filed a brief in
opposition (Doc. 32) and a response to Plaintiff’s statement of facts (Doc. 33). On
April 15, 2014, Plaintiff filed its reply to Defendant’s opposition. (Doc. 36.) Thus,
this issue has been fully briefed and is ripe for consideration.
II.

Legal Standard
Rule 56 of the Federal Rules of Civil Procedure directs the court to

enter summary judgment in favor of the movant “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
7

matter of law.” Fed. R Civ. P. 56(a). Thus, summary judgment is appropriate when
the material facts are undisputed and the only issue before the court is a pure
question of law.
The initial burden of demonstrating the absence of a genuine issue of
material fact falls on the moving party. The substantive law determines which facts
are material; only disputes over facts that might affect the outcome of the suit under
the governing law properly preclude the entry of summary judgment. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has met its
burden, the nonmoving party must counter with “specific facts showing that there is
a genuine issue for trial.” Pollock v. Energy Corp. of Am., Civ. No. 10-cv-1553,
2012 WL 6929174, *2 (W.D. Pa. Oct. 24, 2012) (citing Anderson, 477 U.S. at 250).
The nonmovant must show more than the mere existence of a scintilla of evidence
for elements on which it bears the burden of production, because bare assertions,
conclusory allegations or suspicions are insufficient to defeat summary judgment.
Taylor v. Harrisburg Area Cmty. Coll., Civ. No. 12-cv-0169, 2014 WL 347036, *7
(M.D. Pa. Jan. 30, 2014) (citing Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001); see also Anderson, 477 U.S. at 252. “Thus, summary judgment is appropriate
when the record, taken as a whole and viewed in the light most favorable to the
nonmovant, could not lead a rational trier of fact to find for the nonmoving party.”
See U.S. ex rel. Green v. Schuykill Prods., Civ. No. 10-cv-0040, 2014 WL 2154664,
*3 (M.D. Pa. May 22, 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
“If the court does not grant all the relief requested by the motion, it may
enter an order stating any material fact – including an item of damages or other relief
8

– that is not genuinely in dispute and treating the fact as established in the case.”
Fed. R. Civ. P. 56(g).
III.

Discussion
In support of its motion for summary judgment, Plaintiff has submitted

undisputed evidence sufficient to establish that it submitted 150 invoices purporting
to represent the cost for work performed on Defendant’s railcars, that Defendant
received the invoices for the work performed according to the AAR Rules, that
Defendant failed to pay the amounts set forth on the invoices, that over sixty days
had passed between the date the invoices were received by Defendant without a
notice of dispute being submitted, and that the total amount of the outstanding
invoices is $280,811.70. Defendant acknowledges it has not paid the 150 invoices
and concedes that 60 of those invoices, totaling $134,623.44, remain due and
outstanding. However, Defendant argues that it disputes the validity of the
remaining 90 invoices. In response, Plaintiff argues that, because Defendant has not
disputed the invoices within sixty days as required by Rule 112.H.3.a, Defendant has
waived its ability to do so regarding the outstanding invoices. Defendant replies that
the parties’ course of conduct modified Rule 112.H.3.a’s sixty day window,
inasmuch as Plaintiff accepted disputes beyond sixty days from the date the invoice
was available. Plaintiff argues that Defendant waived the ability to assert contract
modification as an affirmative defense because it failed to raise it in a responsive
pleading.
As an initial matter, because Defendant does not dispute the charges
reflected on sixty of the 150 invoices referenced in the complaint (Doc. 30, ¶ 27
9

(“SRC does not dispute the charges reflected on the remaining invoices.”); Doc. 33, ¶
27 (“Undisputed.”)), the court will grant judgment in Plaintiff’s favor as to those
invoices in the amount of $134,623.44 (Doc. 30, ¶ 28; Doc. 33, ¶ 28; see also supra
n.1). Thus, the remaining discussion applies only to the remaining ninety invoices,
which total $146,188.26.
The first issue is whether Defendant’s failure to plead contract
modification as an affirmative defense in its amended answer waived its ability to
argue that the parties’ course of conduct modified the sixty day window for disputes
as set forth in Rule 112.H.3.a. The court concludes that, although contract
modification is generally an affirmative defense that must be pleaded in a responsive
pleading if it is to be asserted by a defendant, Defendant did not waive the ability to
assert such a defense here.
In diversity of citizenship cases, state law defines the nature of the
defenses, but the Federal Rules of Civil Procedure provide the manner and time in
which defenses are raised. “In responding to a pleading, a party must affirmatively
state any avoidance or affirmative defenses.” Fed. R. Civ. P. 8(c). The defenses set
forth in Rule 8(c) were not intended to be an exhaustive listing.
Matters treated as affirmative defenses under state law are generally
treated the same way by federal courts sitting in diversity. Elliott & Frantz Inc. v.
Ingersoll-Rand Co., 457 F.3d 312, 321 n.6 (3d Cir. 2006). A defense must be raised
in the defendant’s answer if it will defeat the plaintiff’s claim, even if all the
allegations in the complaint are true. See 5 Wright & Miller, Fed. Prac. & Proc. Civ.
§ 1270, 561 (3d ed. 2004). “Novation is an affirmative defense” and the party
raising the defense has the burden of proving that the parties intended to discharge
10

the earlier contract. Publicker Indus. Inc. v. Roman Ceramics Corp., 603 F.2d 1065,
1071 (3d Cir. 1979) (citing Jacobson & Co. v. International Env’t. Corp., 235 A.2d
612, 617 (Pa. 1967) (“[H]e who asserts a novation must properly plead and prove
it.”)). Similarly, a defense based on the existence of an agreement that varies the
terms of the written contract on which the plaintiff’s suit is based must be set out in
the answer if it is to be available later at the trial. See Allegro v. Rural Valley Mut.
Fire Ins. Co., 112 A. 140, 141 (Pa. 1920).
Although failure to raise an affirmative defense by a responsive
pleading or by appropriate motion generally results in the waiver of that defense, the
Federal Rules of Civil Procedure grant the court the authority to permit amendment
to a responsive pleading at any time to include an affirmative defense. Fed. R. Civ.
P. 15(a)(2). Unless the opposing party will be prejudiced, leave to amend should
generally be allowed. See Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208,
1212 (3d Cir. 1984). Moreover, under Rule 15(b), the pleadings may be amended
during or after trial to conform to the evidence being presented. See Fed. R. Civ. P.
15(b). Thus, failing to plead an affirmative defense is not necessarily fatal to the
defendant’s ability to assert it later during the proceedings.
Plaintiff argues that Defendant waived its ability to assert contract
modification as an affirmative defense, and accordingly, that the court should not
consider the course of conduct between the parties to alter the default time line for
disputing invoices set forth in Rule 112. The court disagrees.
While it is true Defendant did not assert contract modification as an
affirmative defense in its responsive pleading, it did not need to do so based on the
pleadings in this case. Absent from Plaintiff’s amended complaint is virtually any
11

reference to the AAR Rules. Nowhere in the amended complaint was Defendant
placed on notice that Plaintiff contended that Rule 112.H.3.a operated to
conclusively establish that Defendant conceded the validity of the invoices. Indeed,
Plaintiff simply alleged that a contract existed between the parties; it did not allege
that the default sixty day window was part of the essential terms of the agreement.
Accordingly, Defendant was not put on notice of the need to plead its affirmative
defense of contract modification.
Pennsylvania law requires that a plaintiff seeking to proceed with a
breach of contract action must establish “(1) the existence of a contract, including its
essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant
damages.” Ware v. Rodale Press Inc., 322 F.3d 218, 225 (3d Cir. 2003) (emphasis
supplied) (citing CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super.
Ct. 1999)). Plaintiff failed to plead that Rule 112.H.3.a was an essential part of its
agreement. Moreover, if the parties’ course of conduct did in fact modify the default
sixty day window, an issue discussed infra, Defendant would have no reason to
believe that Plaintiff was invoking an ineffective provision of the AAR Rules, and
thus, would have no reason to assert an affirmative defense to the ineffective
provision in response. Accordingly, the court concludes that Defendant did not need
to plead contract modification based on the cursory pleading set forth by Plaintiff in
its amended complaint.
Having concluded that Defendant’s failure to plead its contract
modification defense in its answer does not operate as a waiver, the court must next
address whether Plaintiff has produced evidence sufficient to demonstrate it is
entitled to judgment as a matter of law on the ninety invoices that remain
12

outstanding. In addressing this issue, the court must determine whether Defendant
has set forth evidence sufficient for a reasonable jury to conclude that its course of
conduct with Plaintiff modified Rule 112.H.3.a’s sixty day requirement. The court
notes that there exists no genuine issue as to whether Plaintiff submitted the ninety
invoices for payment that total $146,188.26 and that Defendant has not paid or
disputed them within the sixty days set forth by Rule 112.H.3.a. If the court
concludes that Rule 112.H.3.a is in effect, it follows that Defendant has lost its
opportunity to dispute the invoices and the court must find that Plaintiff is entitled to
judgment as a matter of law. However, if the record demonstrates that the course of
conduct between the parties has modified Rule 112.H.3.a to permit Defendant to
dispute the invoices beyond the sixty day window, Defendant may be able to defend
the lawsuit by proving that the invoices are invalid. For the following reasons, the
court concludes that the record contains sufficient evidence for a reasonable jury to
find that the parties’ course of conduct permitted Defendant to submit disputes as to
the validity of submitted invoices beyond the sixty day window, and, accordingly,
Defendant is not foreclosed from disputing the validity of the remaining outstanding
invoices.
“It is the well-settled law of Pennsylvania that a written contract may be
modified by a subsequent oral agreement. . . . [and that the] modification may be
accomplished by either words or conduct.” First Nat’l Bank of Pa. v. Lincoln Nat’l
Life Ins. Co., 824 F.2d 277, 280 (3d Cir. 1987). “While one party to a contract
cannot modify its terms without the assent of the other parties, the fact of agreement
as to a modification may be implied from a course of conduct in accordance with its
existence.” Judge v. Philadelphia Premium Outlets, Civ. No. 10-cv-1553, 2012 WL
13

876755, *7 (E.D. Pa. Mar. 15, 2012) (quoting United States v. LeCroy, 348 F. Supp.
2d 375, 384 (E.D. Pa. 2004)); see also Wisniewski v. Prudential Ins. Corp. of Am.,
422 F.2d 154, 157 (3d Cir. 1970) (looking at the insured’s course of conduct in
determining whether the written terms of the contract were modified). A contract
may be validly modified if the party which did not propose the change is “shown to
acquiesce in the modification through a course of conduct consistent with
acceptance.” LeCroy, 348 F. Supp. 2d at 384 (quoting International Bus. Lists Inc. v.
American Tel. & Tel. Co., 147 F.3d 636, 641 (7th Cir. 1998)). “[T]he subsequent
modification must be clearly established.” OneBeacon Ins. Co. v. Aviva Ins. Ltd.,
Civ. No. 10-cv-7498, 2013 WL 2147958, *7 (E.D. Pa. May 17, 2013) (quoting
Betterman v. American Stores Co., 80 A.2d 66, 71 (Pa. 1951)).
Given this record, a genuine issue of material fact exists as to whether,
through a course of conduct, the timing requirement in Rule 112.H.3.a was modified
to permit Defendant to dispute invoices outside the sixty day window. First, the
AAR Rules unequivocally provide that the procedure set forth therein is in effect
unless otherwise agreed to by the parties. Indeed, the AAR Rules contemplate the
parties reaching an alternative procedure. Second, in his affidavit, Gamble stated
that Plaintiff, through TTX, considered billing disputes to invoices submitted outside
the sixty day window, and both accepted and adjusted repair invoices in response to
Defendant’s billing disputes submitted in violation of the AAR Rules, thus
acquiescing to the modification. (Doc. 33-2, ¶¶ 20-21.) Importantly, according to
Gamble, “neither [Plaintiff] nor TTX ever rejected a dispute to a [Plaintiff] repair bill
because the dispute was not made within sixty days after the billing information
became available.” (Id. at ¶ 17; see Doc. 33, ¶¶ 39-42.) Should the parties’ course
14

of conduct establish that Rule 112.H.3.a was modified in this regard, then it must be
determined whether Defendant had a contractual obligation to pay the invoiced
amounts.
Having determined that the record contains evidence that may tend to
support a finding that Plaintiff and TTX’s acceptance of disputes beyond sixty days
establishes the parties’ intent to modify the default timing requirements set forth in
Rule 112.H.3.a, the court must next determine whether the record nevertheless
conclusively establishes Plaintiff’s entitlement to payment on the outstanding ninety
invoices. After a thorough review, the court determines that there exists a genuine
issue of material fact regarding Plaintiff’s entitlement to payments on the disputed
ninety invoices, and, accordingly, the court concludes that Plaintiff is not entitled to
judgment as a matter of law as to these invoices.
Jefree Turrentine, the Manager of Credit and Receivables for TTX,
stated that the unpaid invoices are in compliance with industry rules and regulations
and reflect the repair and maintenance of Defendant’s railcars. (See Doc. 30-4.)
However, throughout his deposition, Gamble discusses the bases for Defendant’s
disputing the invoices. Although it is beyond the province of the court to discuss the
strength or weakness of the proffered bases for Defendant’s disputes, it does note
that there is arguable evidence that at least some of the outstanding invoices are
inaccurate, inasmuch as they included duplicate charges for work performed only
once or charges for work that was impossible to be performed due to the nature of
the railcar at issue. Thus, while it is undisputed that the invoices were never paid, it
remains at issue whether Defendant in fact had the legal obligation to pay the
amounts stated on the invoices. This is a question that relies on the resolution of
15

whether the parties’ course of conduct modified Rule 112.H.3.a and established a
dispute resolution process that permitted a dispute to be submitted outside the default
sixty day window and whether the invoices are accurate and valid. These are
questions better suited for the trier of fact.
IV.

Conclusion
Based on the foregoing, the court concludes that there exists no genuine

issue of material fact as to the sixty outstanding invoices that Defendant does not
dispute it is obligated to pay. Therefore, Plaintiff is entitled to judgment as a matter
of law regarding that portion of its claim. However, the court concludes that there
exists a genuine issue of material fact regarding both whether the parties’ course of
conduct operated to supplant Rule 112.H.3.a’s sixty day dispute window and
whether Defendant is legally obligated to pay the amount set forth on the outstanding
invoices. Accordingly, it is not clear the Plaintiff is entitled to judgment as a matter
of law regarding the ninety disputed outstanding invoices.
An appropriate order will be issued.
s/Sylvia H. Rambo
United States District Judge

Dated: June 24, 2014.

16