United States District Court, E.D. Pennsylvania
April 6, 2004.
CAROL MALLORY, Plaintiff,
ALLIED VAN LINES, INC., and LIBERTY MOVING & STORAGE, Defendants
The opinion of the court was delivered by: LEGROME DAVIS, District Judge
Presently before the Court is Defendants' Motion for Summary Judgment
(Dkt. No. 35). For the reasons discussed below, Defendants' Motion is
GRANTED IN PART AND DENIED IN PART.
I. Factual Background and Procedural History
In August, 2000, Plaintiff Carol Mallory ("Mallory") moved from New
York, New York to Plymouth Meeting, Pennsylvania, and contracted with
Allied Van Lines, Inc. ("Allied"), through its disclosed agent, Liberty
Moving & Storage ("Liberty") (collectively, "Defendants") to
transport her property. Compl. ¶ 1, 8 (Dkt. No. 7). On February 14,
2003, Plaintiff filed a two-count complaint against Defendants. Plaintiff
alleged in Count One that Defendants negligently lost "certain priceless
documents" during the move and, in Count Two, that she suffered
psychological injury and mental anguish as a result of Defendants'
negligence. Compl. ¶¶ 9, 13. Shortly thereafter, Defendants moved to
dismiss the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. Nos. 11 & 13). By Memorandum and Order of October 20,
2003, the Court dismissed Plaintiff's common law claim for emotional
injury, but allowed her to proceed against Defendants under the Carmack
Amendment to the Interstate Commerce Act, 49 U.S.C. § 11706 (the "Carmack Amendment").
Defendants now move for summary judgment.
II. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions 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 a judgment as a
matter of law." Fed.R.Civ.P. 56(V); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). In
reviewing the record, "a court must view the facts in the light most
favorable to the nonmoving party and draw all inferences in that party's
favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.
1994). The moving party bears the burden of showing that the record
discloses no genuine issues as to any material fact and that he or she is
entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,
157, 90 S.Ct. 1598, 1608 (1970). Once the moving party has met its
burden, the non-moving party must go beyond the pleadings to set forth
specific facts showing that there is a genuine issue for trial.
See Fed.R.Civ.P. 56(e); see also Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86,
106 S.Ct. 1348 (1986). There is a genuine issue for trial "if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 249. "Such affirmative evidence
regardless of whether it is direct or circumstantial must amount
to more than a scintilla, but may amount to less (in the evaluation of
the court) than a preponderance." Williams v. Borough of W.
Chester, 891 F.2d 458, 460-61 (3d Cir. 1989). III. Analysis
To establish a prima facie case against a common carrier under
the Carmack Amendment, a plaintiff must prove the following three
elements: "(1) delivery of the goods to the initial carrier in good
condition, (2) damage of the goods before delivery to their final
destination, and (3) the amount of damages." Conair Corp. v. Old
Dominion Freight Line, Inc., 22 F.3d 529, 531 (3d Cir. 1994) (citing
49 U.S.C. § 11707(a)(1)). Defendants argue that Plaintiff has failed
to demonstrate that her missing documents were delivered to Allied.
Defendants' Memorandum of Law in Support of Their Motion for Summary
Judgment ("Defs.' Mem.") 2-7.
Where the goods are open and visible to the carrier, a plaintiff can
rely solely on a bill of lading to establish the contents of the
container. See Beta Spawn, Inc. v. FFE Transp. Serv. Inc.,
250 F.3d 218, 225 (3d Cir. 2001). Where the goods are not open and visible to
the carrier, however, a plaintiff must produce evidence, other than a
bill of lading, to establish the contents of the container. See
id. at 224-25. The Court need not decide whether the documents were
open and visible because Plaintiff relies on evidence direct and
circumstantial to establish that they were delivered to Allied.
Specifically, Plaintiff testified during her deposition that she placed
the documents in certain plastic bins when packing for her move and
observed the movers removing those bins from her apartment in New York
for transport to Plymouth Meeting. Deposition of Carol Mallory ("Mallory
Dep.") 63-64, 70, 87-91. She further testified that the documents were
not in the bins when she received them in Plymouth Meeting. Id.
at 88-89. As a result, she refused to sign the bill of lading until the
movers wrote the following on it: "Missing contents of 3 plastic bins.
Journalism transcripts edited by public figure." Id. at 45-46;
Defs.' Mem., Ex. A. After reviewing the record, the Court finds that a genuine issue of
material fact exists as to whether Plaintiff delivered her missing
documents to Allied. There is a sufficient evidentiary basis on which a
reasonable jury could find in favor of Plaintiff. Therefore, Defendants
Motion for Summary Judgement is denied to the extent that it seeks
dismissal of this case in its entirety.
Next, Defendants argue that the disclosed principal in this case,
Allied, is the only party that can be held liable under the Carmack
Amendment for the alleged loss of Plaintiffs goods. Defs.' Mem. 7-8.
According to Defendants, Liberty, as Allied's agent, is not liable for
Allied's failure to perform the moving contract. Id. The Court
agrees. Courts have regularly applied agency principles to Carmack
Amendment claims. See Seguros Banvenez, S.A. v. S/S Oliver
Drescher, 761 F.2d 855, 860 (2d Cir. 1985); Atl. & Gulf
Stevedores, Inc. v. Revelle Shipping Agency, Inc., 750 F.2d 457, 458
(5th Cir. 1985); O'Donnel v. Earle W. Noves & Sons,
98 F. Supp.2d 60, 63 (D. Me. 2000); Werner v. Lawrence Transp. Sys.,
Inc., 52 F. Supp.2d 567, 568-69 (E.D.N.C. 1998); Fox v.
Kachina Moving & Storage, No. 3:98-CV-0842-AH, 1998 WL 760268,
at *1 (N.D. Tex. Oct. 21, 1998). The Restatement (Second) of Agency
provides that when an agent makes a contract for a disclosed principal,
the agent becomes neither a party to the contract nor liable for the
performance of the contract. Restatement (Second) of Agency § 320,
("Unless otherwise agreed, a person making or purporting to make a
contract with another as agent for a disclosed principal does not become
a party to the contract."), § 328 ("An agent, by making a contract
only on behalf of a competent disclosed or partially disclosed principal
whom he has power so to bind, does not thereby become liable for its
nonperformance."). Here, Plaintiff contracted with Allied, through its
disclosed agent, Liberty to transport her property from New York to Plymouth Meeting. There is nothing to suggest
Liberty acted negligently or outside the scope of its agency.
See 3 C.J.S. Agency §§ 362, 379; Restatement (Second) of
Agency § 343. Therefore, Liberty is dismissed as a defendant in this
ACCORDINGLY, this ___ day of April, 2004, upon consideration of
Defendants Allied Van Lines, Inc. and Liberty Moving & Storage's
Motion for Summary Judgment (Dkt. No. 35), and Plaintiff Carol Mallory's
response thereto, IT IS HEREBY ORDERED that Defendants' Motion is GRANTED
IN PART, in that Liberty Moving & Storage is dismissed as a defendant
in this case, and DENIED IN PART, in that there is a genuine issue of
material fact as to whether Plaintiff delivered her missing documents to
Allied Van Lines, Inc. IT IS HEREBY FURTHER ORDERED that Judgment is
entered in favor of Defendant Liberty Moving & Storage City and
against Plaintiff Carol Mallory.
AND NOW, this ___ day of April, 2004, IT IS HEREBY ORDERED that in
accordance with Rule 58 of the Federal Rules of Civil Procedure, judgment
is entered in favor of Defendant Liberty Moving & Storage and against
Plaintiff Carol Mallory.
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