United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
REBECCA RUTHERFORD U.S. MAGISTRATE JUDGE.
the Court are Plaintiff Spedag Americas, Inc.’s and
Defendant Bioworld Merchandising, Inc.’s cross Motions
for Summary Judgment (ECF Nos. 36 & 39, respectively) and
Defendant’s Motion to Strike Plaintiff’s Reply in
Support of its Motion for Summary Judgment (ECF No. 51). For
the reasons stated, the Court DENIES Plaintiff’s Motion
for Summary Judgment, GRANTS Defendant’s Motion for
Summary Judgment, and GRANTS Defendant’s Motion to
case arises from a series of international shipments from a
Chinese clothing seller, Wuxi Meishang Import & Export
Co., Ltd. (“Wuxi”), to Defendant Bioworld
Merchandising, Inc. (“Bioworld”) in 2015.
See Orig. Pet. 2, ¶¶ 6-7 (ECF No. 1-4). In
2015, Bioworld purchased t-shirts and other apparel from
Wuxi, and Wuxi engaged M Forwarding China, Ltd.
(“M”), a Spedag Americas, Inc.
(“Spedag”) affiliate, to carry Bioworld’s
clothing orders to Bioworld’s California warehouse.
Id.; Def.’s App. Supporting Resp. Pl.’s
Mot. Summ. J. 11 (ECF. No. 44) (“Def.’s
App.”). Each shipment had a corresponding bill of
lading or air waybill. Def.’s Br. Support Resp.
Pl.’s Mot. Summ. J. 5 (ECF No. 43) (“Def.’s
Resp.”); see generally Pl.’s App. Mot.
Summ. J. 127-171 (ECF No. 38) (“Pl.’s
App.”). And each bill of lading and air waybill was
marked “Freight Prepaid” or “DPP.”
Def.’s Resp. 5; Def.’s App. 3. Bioworld avers
that it paid Wuxi the amount owed for the goods, which
Bioworld understood to include all shipping charges for those
goods, and Wuxi, in turn, arranged for the shipping and was
to pay all the shipping charges to M. Def.’s App. 3.
But Wuxi did not pay M what it owed for the shipments in
question, and on September 28, 2016, M obtained a judgment
against Wuxi in Shanghai Maritime Court for the unpaid
charges. Def.’s App. 77. M was unable to collect its
judgment from Wuxi, so it “handed off” to Spedag,
its parent company, the responsibility of doing so.
Def.’s App. 28; see also Pl.’s App. 37.
In exchange for its collection efforts, Spedag purportedly
became the owner of the right to collect the judgment.
Pl.’s App. 37; 39. Spedag’s efforts to collect
the judgment from Wuxi also failed. Id. at 35.
Accordingly, on February 20, 2017, Spedag sued Bioworld in
the 193rd Judicial District Court of Dallas County, Texas,
for breach of contract seeking $237, 519.03 in unpaid
shipping fees. Orig. Pet. 7, ¶ 27. Bioworld timely
removed to this Court on the basis of federal question
jurisdiction because Spedag’s claims arise under 49
U.S.C. § 14706(d)(3). Def.’s Notice Removal 1-2
(ECF No. 1). Both parties agree that the material facts are
not in dispute and move for summary judgment. Pl.’s
Mot. Summ. J. 3; Def.’s Mot. Summ. J. 2.
Bioworld moves to strike a portion of Spedag’s Reply in
Support of its Motion for Summary Judgment because it
purportedly adds a new argument. Def.’s Mot. Strike
Pl.’s Reply 2-3. “[T]he Court can decline to
consider an argument raised for the first time in a reply
brief.” Weber v. Merrill Lynch Pierce Fenner &
Smith, Inc., 455 F.Supp. 2d 545, 551 (N.D. Tex. 2006);
see also Senior Unsecured Creditors’ Comm. of First
Republic Bank Corp. v. FDIC, 749 F.Supp. 758, 772 (N.D.
Tex. 1990) (refusing to consider argument raised for first
time in reply brief). Indeed, courts will generally not
consider new arguments in replies because doing so would
deprive the nonmovant “of a meaningful opportunity to
respond.” White v. City of Red Oak, 2014 WL
11460871, at *1 (N.D. Tex. July 31, 2014) (quotation marks
and citations omitted). When new arguments are raised in a
reply, a court may strike them or grant the nonmovant leave
to file a surreply. Id.
filed its Reply in Support of its Motion for Summary Judgment
on November 9, 2018. Pl.’s Reply Support Mot. Summ. J.
1-2 (ECF No. 49) (“Pl.’s Reply”). In its
brief supporting its reply, Spedag argues that it is entitled
to the shipping charges based on an alleged quasi-contract
between the parties. Pl.’s Reply 15. But Spedag failed
to assert liability based on any quasi-contract theory in its
original petition or in any filing up to that point. The
Court, therefore, will not consider Spedag’s
argues that by discussing quasi-contract in its reply, it did
not advance a new argument, but instead further explained an
argument it raised in its Motion for Summary Judgment. In
particular, Spedag urges that it is a “bedrock
rule” of cases like this one that the carrier gets paid
no matter what, even if the consignee must pay twice.
Pl.’s Br. Supporting Mot. Summ. J. 8
(“Pl.’s MSJ Br.”). In response to
Bioworld’s motion to strike, Spedag posits that this
“bedrock rule” is based on a quasi-contract
theory. Pl.’s Resp. Mot. Strike 3-4 (ECF No.
55). It is not. For its quasi-contract argument,
Spedag cites Contship Containerlines, Inc. v. Howard
Industries, Inc. Pl.’s Reply 15. In short,
Contship imposed quasi-contract liability on a
consignor for a carrier’s shipping fees where the
consignor had already paid the shipping to a third-party
freight forwarder. Contship Containerlines, Inc. v.
Howard Indus., Inc., 309 F.3d 910, 914 (6th Cir. 2002).
The Court, however, found that because the consignor actually
delivered the goods to the carrier’s vessels and the
carrier delivered those goods exactly as the consignor
wished, their dealings established a quasi-contract under
which the consignor was liable to the carrier. Id.
is the “bedrock rule” of cases like this that the
carrier gets paid in any event, even if the consignee must
pay twice, it is not because a quasi-contract exists between
the parties. The authority Spedag cites for this
“bedrock rule” does not mention quasi-contract.
See Exel Transp. Servs., Inc. v. CSX Lines LLC, 280
F.Supp. 2d 617 (S.D. Tex. 2003). Likewise, the authority
Spedag cites for its quasi-contract theory does not mention
this “bedrock rule.” See Contship, 309
F.3d 910. Indeed, quasi-contract is an equitable principle
employed when needed to prevent unjust enrichment.
Id. at 913. Spedag’s quasi-contract theory
does not explain the “bedrock rule” proposed in
Spedag’s Motion for Summary Judgment; it is a new
theory of liability. Thus, the Court will not consider it.
The Court GRANTS Bioworld’s Motion to Strike and will
not consider Spedag’s Reply in Support of its Motion
for Summary Judgment to the extent it brings a new argument
not raised by the response to the motion. In particular, the
Court will not consider Spedag’s argument that a
quasi-contract arose between the parties.
Bioworld objects to certain evidence submitted in support of
Spedag’s summary judgment motion, including paragraph
16 of Stephan Bucher’s affidavit and an April 18, 2016
Demand Letter. However because none of this evidence changes
the disposition of the pending motions for summary judgment,
Bioworld’s objection are OVERRULED as moot. See
Continental Cas. Co. v. St. Paul Fire & Marine Ins.
Co., 2006 WL 984690, at *1 n.6 (N.D. Tex. Apr. 14, 2006)
(Fitzwater, J.) (overruling as moot objections to evidence
that was not considered by the court in deciding motion for
judgment is proper when “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). A party
seeking summary judgment bears the initial burden of showing
the absence of a genuine issue for trial. Duffy v.
Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.
1995) (citation omitted). The movant’s burden can be
satisfied by demonstrating that there is an absence of
evidence to support the nonmoving party’s case, which
the nonmovant bears the burden of proving at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
With respect to claims or defenses upon which the movant
bears the burden of proof at trial, the movant must establish
each element of the claim or defense “beyond
peradventure.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986); Bramlett v. med.
Protective Co., No. 3:10-CV-2048-D, 2013 WL 796725, at
*6 (N.D. Tex. Mar. 5, 2013). Peradventure means without
uncertainty. See In re Romulus Cmty. Sch., 729 F.2d
431, 435 (6th Cir. 1984).
the movant meets its initial burden, the nonmovant must show
that summary judgment is not proper. Duckett v. City of
Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The
parties may satisfy their respective burdens “by
tendering depositions, affidavits, and other competent
evidence.” Topalian v. Ehrman, 954 F.2d 1125,
1131 (5th Cir. 1992) (citing Int’l Shortstop, Inc.
v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991);
Fed. R. Civ. P. 56(e)). The party opposing the summary
judgment motion must identify specific evidence in the record
and state the precise manner in which that evidence supports
the party’s claim. Esquivel v. McCarthy, 2016
WL 6093327, at *2 (N.D. Tex. Oct. 18, 2016) (citing Ragas
v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1988)). “Rule 56 does not impose a duty on the court to
‘sift through the record in search of evidence’
to support the nonmovant’s opposition to the motion for
summary judgment.” Id. (citing Ragas,
136 F.3d at 458; Skotak v. Tenneco Resins, Inc., 953