Gulf Coast Shippers Limited Partnership et al v. DHL Express USA et al

Filing 370

MEMORANDUM DECISION AND ORDER granting #274 Motion to Dismiss Count 1; denying #297 Motion for Partial Summary Judgment Contract Claims; denying #309 SEALED MOTION for Reconsideration of #294 Order; granting #317 Motion for Leave to File Third Amended Counterclaims; Magistrate Judge's Ruling of 10/14/11 is Affirmed. Signed by Judge Dale A. Kimball on 1/26/12 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

GULF COAST SHIPPERS LIMITED
PARTNERSHIP et al.,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 2:09CV221 DAK
DHL EXPRESS (USA), INC., an Ohio
Corporation, and DPWN Holdings, Inc.
Defendants.

This matter is before the court on several motions: Defendant’s Motion to Dismiss Count
I of Plaintiffs’ Fourth Supplemental and Amended Complaint; Defendant’s Motion for Partial
Summary Judgment on Plaintiffs’ Contract Claims; Defendant’s Sealed Motion for
Reconsideration of Memorandum Decision and Order; Defendant’s Motion for Leave to File
Third Amended Counterclaims; and Objection to Magistrate Judge Decision. The court has
carefully reviewed the written memoranda submitted by the parties. Pursuant to local rule 7-1(f),
the court has concluded that oral argument would not be helpful or necessary, and thus the court
will determine the motion on the basis of the written memoranda. See DUCivR 7-1(f). Now
being fully advised, the court renders the following Memorandum Decision and Order.

I.

Defendant’s Motion to Dismiss Count I of Plaintiffs’ Fourth Supplemental and
Amended Complaint
In this motion, DHL seeks to dismiss Plaintiffs’ Count I, described as “Rescission of the

Reseller Agreement” in their Fourth Supplemental and Amended Complaint. Plaintiffs seek
to rescind the same Reseller Agreement that Unishippers had previously sought unsuccessfully to
rescind in Unishippers Global Logistics, L.L.C. v. DHL, Case No. 2:08-CV-894 DAK. In that
action, the court ruled that Unishippers was not entitled to rescind the Reseller Agreement
because it was impossible to re-establish the contracting parties to the status quo before the
Reseller Agreement was executed.
For the same reasons set forth in the Unishippers case, the court also dismisses Plaintiffs’
rescission claim in this case.
II.

Defendant’s Motion for Partial Summary Judgment on Plaintiffs’ Contract Claims
and Sealed Motion for Reconsideration of Memorandum Decision and Order.
Defendant, in this motion, seek partial summary judgment regarding the contract claims

alleged by the Phase One Plaintiffs. Defendant argues that the contract claims fail because
Plaintiffs are not third-party beneficiaries of the contracts between DHL and Unishippers Global
Logistics, LLC and because the claims are barred by the Airline Deregulation Act and the Federal
Aviation Administration Authorization Act, which, they claim, preempt contact claims asserted
by purported third-party beneficiaries.
Defendant filed this motion, however, the day before the court issued a Memorandum
Decision and Order, on September 23, 2011, granting Plaintiffs’ Motion for Partial Summary

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Judgment on the Third-Party Beneficiary Issue.1 Recognizing that the court’s ruling rendered
their Motion for Partial Summary Judgment moot, Defendant, on September 30, 2011, filed a
Sealed Motion for Reconsideration of Memorandum Decision and Order, which has now been
fully briefed.
The court, however, declines to reconsider its previous ruling on the third-party
beneficiary issue.
III.

Defendant’s Motion for Leave to File Third Amended Counterclaims
Defendant seeks to correct the damages totals asserted in their counterclaims to comport

with newly discovered evidence and the opinions of DHL’s damages expert. Plaintiffs oppose
the motion, arguing, among other things, that the proposed amendment is untimely and that they
would suffer undue prejudice if the court permitted such an amendment.
While the court understands Plaintiffs’ position, the court will permit Defendants to file
their Third Amended Counterclaims. Plaintiffs will not suffer undue prejudice from this
amendment to the amount of damages.
IV.

Defendant’s Objection to Magistrate Judge’s Decision
Previously, DHL had filed a Motion to Amend the Scheduling Order Regarding Expert

Witnesses so that DHL could designate Mr. Gil A. Miller as a damages expert to replace DHL’s
current expert, Dr. Greg Hallman. DHL claimed that Dr. Hallman was no longer available to
testify in this or any other phase of proceedings due to conflicts with his teaching obligations at
the University of Texas – his primary employer. During a hearing before the Magistrate Judge,
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See Docket No. 294. Plaintiffs’ motion had been fully briefed, and oral argument had
been held on June 29, 2011.
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he denied DHL’s request to amend the scheduling order. DHL now objects to that ruling.
Having read the memoranda pertaining to the underlying Motion to Amend, along with
the briefing on the objection, the court finds, for all the reasons set forth in Plaintiffs’ Response
to Objection, that the Magistrate Judge’s decision was not clearly erroneous or contrary to law.
Therefore, the Objection is overruled.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion to
Dismiss Count I of Plaintiffs’ Fourth Supplemental and Amended Complaint [Docket Nol. 274]
is GRANTED; Defendant’s Motion for Partial Summary Judgment on Plaintiffs’ Contract
Claims [Docket No. 297] is DENIED; Defendant’s Sealed Motion for Reconsideration of
Memorandum Decision and Order [Docket No. 309] is DENIED; Defendant’s Motion for Leave
to File Third Amended Counterclaims [Docket No. 317] is GRANTED; and Defendant’s
Objection to Magistrate Judge Decision [Docket No. 335] is OVERRULED and the Magistrate
Judge’s decision is AFFIRMED.
DATED this 26th day of January, 2012.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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