Global Freight Systems et al v. Al-Morrell Development et al
MEMORANDUM DECISION granting 16 Motion for Partial Summary Judgment. No later than Monday, September 28, 2015, Global Freight must submit a sworn affidavit and any other relevant documentation to the court listing the amount of fe es and costs it seeks to recover. Defendant Al-Morrell Development may respond to Global Freights petition for attorneys fees and costs, in writing, no later than Monday, October 12, 2015. If Global Freight wishes to reply to AMDs response, it must do so no later than Monday, October 19, 2015. Signed by Judge Tena Campbell on 9/14/15. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
GLOBAL FREIGHT SYSTEMS CO.,
W.L.L.; GAMA CENTER; and GENOA
AL- MORRELL DEVELOPMENT, L.L.C.
and PAUL A. MORRELL,
Case No. 1:14-CV-133-TC
Defendant Al-Morrell Development, L.L.C. (AMD), a Utah company, was awarded a
contract by the United States government to supply water to the United States military and to
civilians in Iraq. AMD then agreed with Plaintiff Global Freight Systems Co. W.L.L. (Global
Freight), a Kuwait company, that Global Freight would transport the water in Kuwait and Iraq.
Global Freight contends that even though it fulfilled its obligations under the agreement, AMD
breached the agreement because it failed to pay Global Freight the amount Global Freight was
owed under the agreement. Global Freight brought this diversity lawsuit to recover the amount it
claims that AMD owes to Global Freight, including attorney’s fees. Global Freight seeks partial
summary judgment against AMD. The court agrees that AMD breached the agreement and
grants Global Freight’s motion for partial summary judgment.
Global Freight and AMD signed an agreement, the Service Provider Agreement, in July
2011. (Service Provider Agreement, Ex. A to Decl. of Anthony Dsouza, ECF No. 18.) Global
Freight agreed that it would deliver water to members of the United States military and to
civilians in Iraq and Kuwait for one year. AMD agreed to pay Global Freight for its work.
Global Freight fully performed its obligations under the agreement. But beginning in October
2011, AMD stopped paying Global Freight. (Dsouza Decl. ¶ 12.) The unpaid amount is
$248,675. (Id. ¶ 14.)
In January 2012, AMD sold its assets to an Iraqi entity named Bright Pearl. (Decl. of
Paul A. Morrell ¶ 9, ECF No. 24.)1 Global Freight was not a party to the sale agreement and
there is no evidence about when Global Freight learned of the sale.
Federal Rule of Civil Procedure 56 permits summary judgment “if the pleadings,
depositions, answers to interrogatories, and admission on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250-51 (1986). Further, the court must draw all reasonable inferences in favor of
the nonmoving party when examining the record. Anderson, 477 U.S. at 250. While Global
Freight bears the burden of demonstrating there are no material facts upon which a jury could
find for AMD, AMD’s burden is to establish a genuine issue for trial. See Celotex Corp. v.
Global Freight raised several evidentiary objections to Mr. Morrell’s declaration. The
court denies them.
Catrett, 477 U.S. 317, 322-23 (1986). But “a mere scintilla of evidence supporting the
nonmoving party theory does not create a genuine issue of material fact.” Anderson v. Coors
Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999) (emphasis added).
In its written opposition to Global Freight’s motion, AMD raised several defenses. But at
oral argument, counsel for AMD informed the court that AMD was relying only on its contention
that once it sold its assets to Bright Pearl, Bright Pearl received the benefit of Global Freight’s
services and Bright Pearl, not AMD, was obligated to pay any money owed to Global Freight.
AMD’s argument is contrary to the well-settled principle of contract law “that an obligor
cannot free itself of contractually created duties by delegating them to another, without the
consent of the persons to whom it is obligated.” Old West Annuity & Life Ins. Co. v.
Progressive Closing & Escrows, Inc., 74 Fed. Appx.4, *8, 2003 WL 21872555 (10th Cir. 2003)
(internal citations omitted). Global Freight did not consent to Bright Pearl taking over AMD’s
duty to pay Global Freight. In fact, it appears that Global Freight was unaware during the life of
its agreement with AMD that Bright Pearl existed. AMD was required by the agreement to pay
Global Freight for its services. AMD breached the agreement when it failed to do so.
Global Freight has also asked for an award of attorney’s fees. Global Freight has
submitted the declaration of a Kuwait attorney who states that the prevailing party in a breach of
contract case is entitled to recover attorney fees. (Decl. of Hassan Essa, ¶ 4, ECF No. 17.) AMD
does not dispute that Kuwait law applies on this issue or that under Kuwait law, the prevailing
party is entitled to an award of attorney’s fees. AMD argues that if an award is made to Global
Freight, AMD should have the opportunity to review, and contest, if warranted, the amount
Global Freight claims. The court agrees. Accordingly, a briefing schedule is set forth below.
For the foregoing reasons, Global Freight’s Motion for Partial Summary Judgment (ECF
No. 16) is GRANTED. No later than Monday, September 28, 2015, Global Freight must submit
a sworn affidavit and any other relevant documentation to the court listing the amount of fees and
costs it seeks to recover. Defendant Al-Morrell Development may respond to Global Freight’s
petition for attorneys’ fees and costs, in writing, no later than Monday, October 12, 2015. If
Global Freight wishes to reply to AMD’s response, it must do so no later than Monday, October
SO ORDERED this 14th day of September, 2015.
BY THE COURT:
U.S. District Court Judge
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