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Spedag Americas, Inc. v. Bioworld Merchandising, Inc.

United States District Court, N.D. Texas, Dallas Division

September 25, 2019

SPEDAG AMERICAS, INC., Plaintiff,
v.
BIOWORLD MERCHANDISING, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          REBECCA RUTHERFORD U.S. MAGISTRATE JUDGE.

         Before 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 Strike.

         Background

         This 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.

         Preliminary Matters

         First, 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.

         Spedag 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 quasi-contract argument.

         Spedag 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.

         If it 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.

         Next, 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 summary judgment).

         Legal Standard

         Summary 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).

         Once 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 F.2d ...


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