sf-3646638 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JOE SOLO and BLEACHTECH L.L.C., 

on behalf of themselves and all others 

similarly situated, 

Plaintiffs, 

v. 

UNITED PARCEL SERVICE CO., 

Defendant. 

Case No. 14-12719 GER-RSW

Hon. Gerald E. Rosen 

Magistrate Judge R. Steven Whalen 

ANDREW J. MCGUINNESS (P42074) drewmcg@topclasslaw.com 

ANDREW J. MCGUINNESS, ESQ. 

122 S. Main Street, Suite 118 

P.O. Box 7711 

Ann Arbor, Michigan 48107 

Telephone: 734.274.9374 

PAUL F. NOVAK (P39524) 

pnovak@milberg.com 

DIANA GJONAJ (P74637) 

dgjonaj@milberg.com 

MILBERG LLP 

One Kennedy Square 

777 Woodward Avenue, Suite 890 

Detroit, Michigan 48226 

Telephone: 313.309.1760 

Attorneys for Plaintiffs 

PAUL T. FRIEDMAN (CA SBN 98381) PFriedman@mofo.com 

CAITLIN SINCLAIRE BLYTHE 

(CA SBN 265024) 

CBlythe@mofo.com 

MORRISON & FOERSTER LLP 

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

(Friedman: Admitted 3/25/1999; 

Blythe: Admitted 2/28/2014) 

GREGORY B. KOLTUN 

(CA SBN 130454) 

GKoltun@mofo.com 

MORRISON & FOERSTER LLP 

707 Wilshire Boulevard 

Los Angeles, California 90017-3543 

Telephone: 213.892.5200 

(Admitted 2/6/2014) 

BONNIE L. MAYFIELD (P40275) 

bmayfield@dykema.com 

DYKEMA GOSSETT PLLC 

39577 Woodward Avenue, Suite 300 

Bloomfield Hills, MI 48304 

Telephone: 248.203.0700 

Attorneys for Defendant 

UNITED PARCEL SERVICE CO.

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DEFENDANT UNITED PARCEL SERVICE CO.’S 

ANSWER TO COMPLAINT 

Defendant United Parcel Service Co. (“UPS Co.”), through its undersigned 

counsel, hereby submits this Answer to Plaintiffs Joe Solo and BleachTech 

L.L.C.’s (collectively, “Plaintiffs”) Complaint and answers as follows: 

In answering the Complaint, UPS Co. denies all allegations contained in the 

headings and unnumbered paragraphs in the Complaint. 

INTRODUCTION 

1. In response to Paragraph 1, UPS Co. admits that the UPS Rate and 

Service Guide (“UPS Service Guide”) addresses United Parcel Service, Inc.’s 

(“UPS”) limitation of liability for loss or damage to a shipment to $100 without a 

declaration of value. UPS Co. further admits that the UPS Service Guide provides 

that UPS’s limitation of liability for loss or damage can be increased by making a 

declaration of value and paying an additional charge, subject to terms and 

conditions. Except as expressly admitted, UPS Co. denies each and every one of 

the allegations contained in Paragraph 1 for the reason that they are not true. 

2. In response to Paragraph 2, UPS Co. admits that the UPS Service 

Guide in effect in July 2013 (and attached to the Complaint as Exhibit B) provides 

that the maximum declared value is $50,000 per package. UPS Co. further admits 

that the UPS Service Guide provides that UPS’s limitation of liability for loss or 

damage can be increased up to the per package maximum by making a declaration 

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of value for an additional charge, subject to terms and conditions. Except as 

expressly admitted, UPS Co. denies each and every allegation contained in 

Paragraph 2 for the reason that they are not true. 

3. In response to Paragraph 3, UPS Co. admits that the UPS Service 

Guide in effect in July 2013 (and attached to the Complaint as Exhibit B) includes 

the following information for declared value provided by UPS: 

Description Fee 

Package 

- UPS’s liability for loss or damage to a shipment is limited to $100.00 without a declaration of value. 

- The maximum declared value is $50,000.00 per package. UPS’s liability for loss or damage can be increased 

up to $50,000.00 (subject to terms and conditions) by making a declaration of value for an additional charge. 

- Declared Value charges for freight collect and third-party shipments may be billed to your shipper account. 

- Refer to ups.com/terms for more information. 

Package 

- $0.00-$100.00 

- $100.01-$50,000.00 

for each $100.00 (or 

portion of $100.00) of 

the total value declared 

- Minimum 

$0.00

$0.85

$2.55

UPS Co. further admits that the “Export and Import Value-Added Services” 

section of the UPS Service Guide in effect in July 2013 (and attached to the 

Complaint as Exhibit B) includes the following information for declared value 

regarding international packages: 

Description Fee

- UPS’s liability for loss or damage to a shipment is limited to $100.00 without a declaration of value.

- The maximum declared value is $50,000.00 per package/$100,000.00 per pallet. UPS’s liability 

for loss or damage can be increased up to $50,000.00 per package or $100,000.00 per pallet 

by making a declaration of value for an additional charge (subject to terms and conditions). 

- For shipments with a declared value of more than $50,000.00, multiply the total declared value 

by the rate to determine the declared value charge for the shipment. 

- Declared Value charges for freight collect and third-party shipments may be billed to your 

shipper account. 

- Refer to ups.com/terms for more information. 

- $0.00-$100.00 

- $100.01-$50,000.00 for 

each $100.00 (or portion 

of $100.00) of the total 

value declared 

- Minimum 

$0.00

$0.85

$2.55

- For shipments with a declared value 

of more than $50,000.00: 

$0.0085 times the declared value 

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Except as expressly admitted, UPS Co. denies each and every allegation contained 

in Paragraph 3 for the reason that they are not true. 

4. UPS Co. denies each and every allegation contained in Paragraph 4 

for the reason that they are not true. 

5. UPS Co. denies each and every allegation contained in Paragraph 5 

for the reason that they are not true. 

6. In response to Paragraph 6, UPS Co. is without knowledge or 

information sufficient to form a belief as to the truth of whether shipping 

consultants made the alleged statements about UPS Co.’s practices, and on that 

basis UPS Co. denies those allegations. To the extent that Paragraph 6 alleges that 

the statements purportedly made by shipping consultants are true, UPS Co. denies 

each and every such allegation contained in Paragraph 6 for the reason that they 

are not true. 

7. UPS Co. denies each and every allegation contained in Paragraph 7 

for the reason that they are not true. 

8. UPS Co. denies each and every allegation contained in Paragraph 8 

for the reason that they are not true. 

9. UPS Co. denies each and every allegation contained in Paragraph 9 

for the reason that they are not true. 

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10. UPS Co. denies each and every allegation contained in Paragraph 10 

for the reason that they are not true. 

THE ALLEGED PARTIES 

11. In response to Paragraph 11, UPS Co. is without knowledge or 

information sufficient to form a belief as to the truth of the allegations contained 

therein, and on that basis UPS. Co. denies each and every allegation contained in 

Paragraph 11. 

12. In response to Paragraph 12, UPS Co. admits Solo used a The UPS 

Store location to ship a package on December 26, 2013 with declared value of 

$565. Except as expressly admitted, UPS Co. is without knowledge or information 

sufficient to form a belief as to the truth of the allegations contained in Paragraph 

12, and on that basis UPS. Co. denies each and every other allegation contained 

therein. 

13. In response to Paragraph 13, UPS Co. admits Solo used a The UPS 

Store location to ship a package on December 26, 2013 with declared value of 

$565. 

14. UPS Co. denies each and every allegation contained in Paragraph 14 

for the reason that they are not true. 

15. In response to Paragraph 15, UPS Co. is without knowledge or 

information sufficient to form a belief as to the truth of the allegations contained 

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therein, and on that basis UPS. Co. denies each and every allegation contained in 

Paragraph 15. 

16. In response to Paragraph 16, UPS Co. admits BleachTech paid for 

declared value for the packages listed. Except as expressly admitted, UPS Co. is 

without knowledge or information sufficient to form a belief as to the truth of the 

allegations contained in Paragraph 16, and on that basis UPS. Co. denies each and 

every other allegation contained therein. 

17. In response to Paragraph 17, UPS Co. admits that the charge for 

declared value included a charge for each $100 (or portion of $100) of the total 

value declared, including for the first $100 of the total value declared. Except as 

expressly admitted, UPS Co. is without knowledge or information sufficient to 

form a belief as to the truth of the allegations contained in Paragraph 17, and on 

that basis UPS. Co. denies each and every other allegation contained therein. 

18. The last sentence of Paragraph 18 contains argument purporting to be 

allegations of fact. Accordingly, no response is required; however, to the extent a 

response is required, UPS Co. is without knowledge or information sufficient to 

form a belief as to the truth of the allegations contained therein, and on that basis 

UPS. Co. denies each and every allegation contained in the last sentence of 

Paragraph 18. UPS Co. is without knowledge or information sufficient to form a 

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belief as to the truth of the other allegations contained in Paragraph 18, and on that 

basis UPS. Co. denies each and every other allegation contained therein. 

19. In response to Paragraph 19, UPS Co. admits that it has the ability to 

identify some shipments made by its shippers, and for some such shipments 

whether the shipper declared a value in excess of $100 and paid the applicable 

charge. Except as expressly admitted, UPS Co. denies each and every allegation 

contained in Paragraph 19 for the reason that they are not true. 

20. In response to Paragraph 20, UPS Co. admits it is an indirect whollyowned subsidiary of United Parcel Service, Inc. – Delaware, is incorporated in 

Delaware, and maintains its principal office in Atlanta, Georgia. 

ALLEGED JURISDICTION AND VENUE 

21. In response to Paragraph 21, UPS Co. admits that the Court has 

jurisdiction over actions that meet the requirements of 28 U.S.C. § 1332(d); 

however, Plaintiffs’ claims may be subject to a mandatory arbitration provision 

contained in the UPS® TARIFF / TERMS AND CONDITIONS OF SERVICE – 

UNITED STATES (“UPS Terms”). UPS Co. admits that Plaintiffs purport to 

bring a class action, but UPS Co. denies that this case is appropriate for class 

action treatment and further denies that Plaintiffs or any putative class members 

are entitled to recovery in this action. 

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22. In response to Paragraph 22, UPS Co. admits that one or more UPS 

entities conduct business within this judicial district, including marketing, sales, 

and the provision of transportation services. Except as expressly admitted, 

UPS Co. denies each and every allegation contained in Paragraph 22 for the reason 

that they are not true. 

23. Paragraph 23 contains conclusions of law purporting to be allegations 

of fact. Accordingly, no response is required. 

ALLEGED FACTS COMMON TO THE CLASS 

24. In response to Paragraph 24, UPS Co. admits that the UPS Terms, 

together with the documents incorporated therein, sets forth “the general terms and 

conditions of contract under which United Parcel Service® (‘UPS’) is engaged in 

the transportation of shipments itself and jointly through interchange with its 

affiliates via the services described below.” Except as expressly admitted, 

UPS Co. denies each and every allegation contained in Paragraph 24 for the reason 

that they are not true. 

25. In response to Paragraph 25, UPS Co. admits that the UPS Terms 

provide that UPS’s liability for loss or damage to each UPS domestic package is 

limited to a value of $100, except as set forth in the UPS Terms. UPS Co. further 

admits that the UPS Terms provide that, to increase UPS’s limit of liability for loss 

or damage above $100, the shipper must declare a value in excess of $100 for each 

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package in the declared value field of the UPS Source Document or the UPS 

Automated Shipping System used (as those terms are defined by the UPS Terms), 

and pay an additional charge. Except as expressly admitted, UPS Co. denies each 

and every allegation contained in Paragraph 25 for the reason that they are not true. 

26. In response to Paragraph 26, UPS Co. admits that the applicable UPS 

Service Guide provides cost information for certain domestic and international 

services offered by UPS, including declared value for carriage, and that such UPS 

Service Guide is published and made widely available. Except as expressly 

admitted, UPS Co. denies each and every allegation contained in Paragraph 26 for 

the reason that they are not true. 

27. In response to Paragraph 27, UPS Co. admits that the UPS Service 

Guide in effect in July 2013 (and attached to the Complaint as Exhibit B) includes 

the following information for declared value offered by UPS: 

Description Fee 

Package 

- UPS’s liability for loss or damage to a shipment is limited to $100.00 without a declaration of value. 

- The maximum declared value is $50,000.00 per package. UPS’s liability for loss or damage can be increased 

up to $50,000.00 (subject to terms and conditions) by making a declaration of value for an additional charge. 

- Declared Value charges for freight collect and third-party shipments may be billed to your shipper account. 

- Refer to ups.com/terms for more information. 

Package 

- $0.00-$100.00 

- $100.01-$50,000.00 

for each $100.00 (or 

portion of $100.00) of 

the total value declared 

- Minimum 

$0.00

$0.85

$2.55

UPS Co. further admits that the “Export and Import Value-Added Services” 

section of the UPS Service Guide in effect in July 2013 (and attached to the 

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Complaint as Exhibit B) includes the following information for declared value 

regarding international packages: 

Description Fee

- UPS’s liability for loss or damage to a shipment is limited to $100.00 without a declaration of value.

- The maximum declared value is $50,000.00 per package/$100,000.00 per pallet. UPS’s liability 

for loss or damage can be increased up to $50,000.00 per package or $100,000.00 per pallet 

by making a declaration of value for an additional charge (subject to terms and conditions). 

- For shipments with a declared value of more than $50,000.00, multiply the total declared value 

by the rate to determine the declared value charge for the shipment. 

- Declared Value charges for freight collect and third-party shipments may be billed to your 

shipper account. 

- Refer to ups.com/terms for more information. 

- $0.00-$100.00 

- $100.01-$50,000.00 for 

each $100.00 (or portion 

of $100.00) of the total 

value declared 

- Minimum 

$0.00

$0.85

$2.55

- For shipments with a declared value 

of more than $50,000.00: 

$0.0085 times the declared value 

28. UPS Co. denies each and every allegation contained in Paragraph 28 

for the reason that they are not true. 

29. In response to Paragraph 29, UPS Co. admits that the fee for declared 

value for carriage under the UPS Service Guide in 2013 was $0.85 for each $100 

(or portion of $100) of the total value declared. UPS Co. further admits that for a 

declaration of value of $350, the charge would have been $3.40, and the fee for a 

declaration between $400 and $500 would have been $4.25. Except as expressly 

admitted, UPS Co. denies each and every allegation contained in Paragraph 29 for 

the reason that they are not true. 

30. UPS Co. denies each and every allegation contained in Paragraph 30 

for the reason that they are not true. 

31. UPS Co. denies each and every allegation contained in Paragraph 31 

for the reason that they are not true. 

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32. UPS Co. admits the allegations in Paragraph 32. 

33. UPS Co. admits that a press release attached as an exhibit to a Form 

8-K filed by UPS. Co.’s parent company on January 17, 2014 states: “On 

December 23rd UPS delivered more than 31 million packages, the most ever and 

13% over the prior-year peak day.” 

UPS CO.’S ALLEGED EFFORT TO ERECT AN EXCULPATORY WALL 

OF ONE-SIDED CONTRACT PROVISIONS 

34. UPS Co. denies each and every allegation contained in Paragraph 34 

for the reason that they are not true. 

35. Paragraph 35 contains argument and conclusions of law purporting to 

be allegations of fact. Accordingly, no response is required; however, to the extent 

a response is required, UPS Co. denies each and every allegation contained in 

Paragraph 35 for the reason that they are not true. 

36. UPS Co. denies each and every allegation contained in Paragraph 36 

for the reason that they are not true. 

37. In response to Paragraph 37, UPS Co. is without knowledge or 

information sufficient to form a belief as to the truth of the allegations contained 

therein, and on that basis UPS Co. denies each and every allegation contained in 

Paragraph 37. 

38. In response to Paragraph 38, UPS Co. is without knowledge or 

information sufficient to form a belief as to the truth of the allegations contained 

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therein, and on that basis UPS Co. denies each and every allegation contained in 

Paragraph 38. To the extent Paragraph 38 alleges that UPS Co. or any of its 

affiliates overcharges for declared value, UPS Co. specifically denies those 

allegations for the reason that they are not true. 

39. In response to Paragraph 39, UPS Co. affirmatively alleges that the 

180 day notice requirement is consistent with federal law, 49 U.S.C. § 13710. 

UPS Co. denies each and every other allegation contained in Paragraph 39 for the 

reason that they are not true. 

40. UPS Co. denies each and every allegation contained in Paragraph 40 

for the reason that they are not true. 

41. UPS Co. denies each and every allegation contained in Paragraph 41 

for the reason that they are not true. 

42. UPS Co. denies each and every allegation contained in Paragraph 42 

for the reason that they are not true. 

43. Paragraph 43 contains argument and conclusions of law purporting to 

be allegations of fact. Accordingly, no response is required; however, to the extent 

a response is required, UPS Co. denies each and every allegation contained in 

Paragraph 43 for the reason that they are not true. 

44. Paragraph 44 contains argument and conclusions of law purporting to 

be allegations of fact. Accordingly, no response is required; however, to the extent 

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a response is required, UPS Co. denies each and every allegation contained in 

Paragraph 44 for the reason that they are not true. 

ALLEGED CLASS ALLEGATIONS 

45. In response to Paragraph 45, UPS Co. admits that Plaintiffs purport to 

bring this action on behalf of a putative class described in Paragraph 45, but 

UPS Co. denies that this case is appropriate for class action treatment and further 

denies that Plaintiffs or any putative class members are entitled to recovery in this 

action. Except as expressly admitted, UPS Co. denies each and every allegation 

contained in Paragraph 45 for the reason that they are not true. 

46. In response to Paragraph 46, UPS Co. admits that Plaintiffs purport to 

bring this action in the alternative on behalf of one or more putative issue class(es) 

described in Paragraph 46, but UPS Co. denies that this case is appropriate for 

class action treatment and further denies that Plaintiffs or any putative class 

members are entitled to recovery in this action. No response is required to the 

allegations about class or classes regarding UPS Co.’s alleged violation of 49 

U.S.C. § 13708(b) because this Court dismissed that claim with prejudice, which 

the Sixth Circuit affirmed. Opinion, Solo v. United Parcel Service Co., No. 15-

1426 (6th Cir. Mar. 18, 2016). Except as expressly admitted, UPS Co. denies each 

and every allegation contained in Paragraph 46 for the reason that they are not true. 

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47. In response to Paragraph 47, UPS Co. admits that Plaintiffs purport to 

bring this action on behalf of a putative class—or, in the alternative, one or more 

issue class(es)—described in Paragraph 47, but UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. Except as expressly 

admitted, UPS Co. denies each and every allegation contained in Paragraph 47 for 

the reason that they are not true. 

48. In response to Paragraph 48, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. UPS Co. is without 

knowledge or information sufficient to form a belief as to the truth of the other 

allegations contained therein, and on that basis UPS Co. denies each and every 

other allegation contained in Paragraph 48. 

49. In response to Paragraph 49, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. UPS Co. further 

denies each and every other allegation contained in Paragraph 49, including all 

subparts, for the reason that they are not true. 

50. In response to Paragraph 50, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

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putative class members are entitled to recovery in this action. UPS Co. further 

denies each and every other allegation contained in Paragraph 50 for the reason 

that they are not true. 

51. In response to Paragraph 51, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. UPS Co. is without 

knowledge or information sufficient to form a belief as to the truth of the other 

allegations contained therein, and on that basis UPS Co. denies each and every 

other allegation contained in Paragraph 51. 

52. In response to Paragraph 52, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. UPS Co. further 

denies each and every other allegation contained in Paragraph 52 for the reason 

that they are not true. 

COUNT I 

ALLEGED BREACH OF CONTRACT 

53. In response to Paragraph 53, UPS Co. incorporates by this reference 

its responses to Paragraphs 1 through 52 of the Complaint. 

54. In response to Paragraph 54, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

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putative class members are entitled to recovery in this action. UPS further denies 

that all UPS shippers are governed by “uniform contracts.” UPS Co. admits that 

one or more plaintiffs and members of the putative class have made shipments 

subject to the UPS Terms and the UPS Service Guide. Except as expressly 

admitted or denied, UPS Co. is currently without knowledge or information 

sufficient to form a belief as to the truth of the allegations contained in Paragraph 

54, and on that basis UPS Co. denies each and every other allegation contained 

therein. 

55. UPS Co. denies each and every allegation contained in Paragraph 55 

for the reason that they are not true. 

56. UPS Co. denies each and every allegation contained in Paragraph 56 

for the reason that they are not true. 

57. UPS Co. denies each and every allegation contained in Paragraph 57 

for the reason that they are not true. 

COUNT II 

ALLEGED BASIS FOR DECLARATORY RELIEF, 28 U.S.C. §2201 

58. In response to Paragraph 58, UPS Co. incorporates by this reference 

its responses to Paragraphs 1 through 57 of the Complaint. 

59. In response to Paragraph 59, UPS Co. admits that Plaintiffs purport to 

bring this Count pursuant to 28 U.S.C. § 2201, but UPS Co. denies that Plaintiffs 

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or any putative class members are entitled to recovery in this action. Except as 

expressly admitted, UPS Co. denies each and every allegation contained in 

Paragraph 59 for the reason that they are not true. 

60. Paragraph 60 contains conclusions of law purporting to be allegations 

of fact. Accordingly, no response is required; however, to the extent a response is 

required, UPS Co. denies each and every allegation contained in Paragraph 60 for 

the reason that they are not true. 

61. Paragraph 61 contains no allegations; just a statement. Accordingly, 

no response is required; however, to the extent a response is required, UPS Co. 

admits the Court has statutory authority to grant declaratory relief, but UPS Co. 

denies that Plaintiffs are entitled to any such relief in this action. 

62. UPS Co. denies each and every allegation contained in Paragraph 62 

for the reason that they are not true. 

63. Paragraph 63 contains conclusions of law purporting to be allegations 

of fact. Accordingly, no response is required; however, to the extent a response is 

required, UPS Co. denies each and every allegation contained in Paragraph 63 for 

the reason that they are not true. 

64. In response to Paragraph 64, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. UPS Co. further 

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denies each and every allegation contained in paragraph 64, including all subparts, 

for the reason that they are not true. 

COUNT III 

ALLEGED VIOLATION OF FEDERAL TRANSPORTATION STATUTE 

65. In response to Paragraph 65, UPS Co. incorporates by this reference 

its responses to Paragraphs 1 through 64 of the Complaint. 

66-72. Paragraphs 66 through 72 contain allegations in support of a claim 

that this Court dismissed with prejudice, which the Sixth Circuit affirmed. 

Opinion, Solo v. United Parcel Service Co., No. 15-1426 (6th Cir. Mar. 18, 2016). 

Accordingly, no response is required because Paragraphs 66 through 72 no longer 

are part of the case. However, to the extent a response is required, Paragraphs 71 

and 72 contain no allegations; just statements. Accordingly, no response to 

Paragraphs 71 and 72 is required; however, to the extent a response is required, 

UPS Co. admits that 49 U.S.C. § 14704(a)(2) creates a private right of action and 

that 49 U.S.C. § 14704(e) permits the recovery of attorneys’ fees and costs, but 

UPS Co. denies that Plaintiffs are entitled to bring any such private right of action 

or that Plaintiffs are entitled to any such recovery in this action. In response to 

Paragraph 69, UPS Co. admits that 49 U.S.C. § 13708(b) provides that “[n]o 

person may cause a motor carrier to present false or misleading information on a 

document about the actual rate, charge, or allowance to any party to the 

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transaction,” but UPS Co. denies that UPS Co. has violated 49 U.S.C. § 13708(b) 

or is responsible for any such violation. Paragraphs 67, 68, and 70 contain 

conclusions of law purporting to be allegations of fact. Accordingly, no response 

to Paragraphs 67, 68, and 70 is required; however, to the extent a response is 

required, UPS Co. denies each and every allegation contained in Paragraphs 67, 

68, and 70 for the reason that they are not true. Except as expressly admitted, UPS 

Co. denies each and every allegation contained in Paragraphs 66 through 72 for the 

reason that they are not true. 

COUNT IV 

ALLEGED UNJUST ENRICHMENT (IN THE ALTERNATIVE) 

73. In response to Paragraph 73, UPS Co. incorporates by this reference 

its responses to Paragraphs 1 through 72 of the Complaint. 

74. In response to Paragraph 74, UPS Co. specifically denies that the UPS 

Service Guide states that, where a shipper declares a value in excess of $100, the 

first $100 of UPS’s liability for loss or damage is provided at no additional charge. 

UPS Co. further denies each and every other allegation contained in Paragraph 74 

for the reason that they are not true. 

75. In response to Paragraph 75, UPS Co. denies that this case is 

appropriate for class action treatment and further denies that Plaintiffs or any 

putative class members are entitled to recovery in this action. UPS Co. admits 

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Solo used a The UPS Store location to ship a package on December 26, 2013. 

Except as expressly admitted or denied, UPS Co. is without knowledge or 

information sufficient to form a belief as to the truth of the allegations contained in 

Paragraph 75, and on that basis UPS Co. denies each and every other allegation 

contained therein. 

76. UPS Co. denies each and every allegation contained in Paragraph 76 

for the reason that they are not true. 

77. In response to Paragraph 77, UPS Co. admits that it asserted an 

affirmative defense based on lack of standing in its First Amended Answer in Sivak 

v. United Parcel Service Co., No. 2:13-cv-15263 (E.D. Mich. Jan. 6, 2014). 

Except as expressly admitted, UPS Co. denies each and every allegation contained 

in Paragraph 77. 

78. In response to Paragraph 78, UPS Co. admits that the UPS Terms 

provide that “UPS assumes no liability other than to the Third-Party Retailer as the 

shipper of the package, for lost, damaged or delayed packages sent via the ThirdParty Retailer.” Except as expressly admitted, UPS Co. denies each and every 

allegation contained in Paragraph 78. 

79. UPS Co. denies each and every allegation contained in Paragraph 79 

for the reason that they are not true. 

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80. UPS Co. denies each and every allegation contained in Paragraph 80 

for the reason that they are not true. 

81. UPS Co. denies each and every allegation contained in Paragraph 81 

for the reason that they are not true. 

82. Paragraph 82 contains argument and conclusions of law purporting to 

be allegations of fact. Accordingly, no response is required; however, to the extent 

a response is required, UPS Co. denies each and every allegation contained in 

Paragraph 82 for the reason that they are not true. 

83. Paragraph 83 contains argument and conclusions of law purporting to 

be allegations of fact. Accordingly, no response is required; however, to the extent 

a response is required, UPS Co. admits that Plaintiffs purport to seek in the 

alternative relief for unjust enrichment on behalf of a putative class, but UPS Co. 

denies that this case is appropriate for class action treatment and further denies that 

Plaintiffs or any putative class members are entitled to any such relief in this 

action. Except as expressly admitted, UPS Co. denies each and every allegation 

contained in Paragraph 83 for the reason that they are not true. 

REQUESTS FOR RELIEF 

84. UPS Co. denies that this case is appropriate for class action treatment 

and denies that Plaintiffs or any putative class members are entitled to any relief 

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whatsoever. Accordingly, UPS Co. denies all allegations set forth in the section of 

the Complaint entitled, “Requests for Relief,” including all subparts. 

85. UPS Co. denies all allegations in the Complaint not specifically 

admitted. 

AFFIRMATIVE DEFENSES 

Without admitting any of the allegations of the Complaint, and without 

admitting or acknowledging that UPS Co. bears any burden, of proof or otherwise, 

as to any of them, UPS Co. asserts the following affirmative defenses to Plaintiffs’ 

Complaint. 

FIRST AFFIRMATIVE DEFENSE 

(ARBITRATION OBLIGATION) 

To the extent subject to the individual binding arbitration provision 

contained in the UPS Terms, Plaintiffs and all putative class members are obligated 

to resolve all of their claims—including those arising before and after December 

30, 2013—by individual binding arbitration. 

SECOND AFFIRMATIVE DEFENSE 

(NO STANDING) 

Any recovery on Plaintiffs’ Complaint, or any claim for relief averred 

therein, is barred to the extent that either or both of the Plaintiffs was not in direct 

contractual privity with UPS Co., or otherwise lacks standing to assert these claims 

on their own behalf or on behalf of the putative classes against UPS Co. 

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THIRD AFFIRMATIVE DEFENSE 

(CONTRACTUAL LIMITATIONS) 

Plaintiffs’ claims for relief are subject to, and limited by, the terms, 

exclusions, conditions, and limitations contained in the UPS Terms and UPS Rate 

and Service Guide (together, the “UPS Shipping Contract”), including the 

obligation to satisfy conditions precedent to recovery by giving appropriate notice 

of a disputed invoice within 180 days of receipt. 

FOURTH AFFIRMATIVE DEFENSE 

(FAILURE TO PROVIDE TIMELY NOTICE 

OF CONTEST – 49 U.S.C. § 13710) 

Plaintiffs’ claims are barred, in whole or in part, for failure to give 

appropriate notice of a disputed invoice within 180 days of receiving a contested 

bill, as required by 49 U.S.C. § 13710. 

FIFTH AFFIRMATIVE DEFENSE 

(CLAIM REQUIREMENT) 

Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs 

failed to submit a written claim in accordance with the applicable UPS Shipping 

Contract. 

SIXTH AFFIRMATIVE DEFENSE 

(FEDERAL PREEMPTION) 

Plaintiffs’ state law claims are preempted by, inter alia, federal common 

law, the provisions of the Federal Aviation Administration Authorization Act of 

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1994, 49 U.S.C. §§ 14501(c)(1) & 41713(b)(4)(A), the Carmack Amendment to 

the Interstate Commerce Act, 49 U.S.C. § 14706, and other relevant statutes 

contained in Title 49 of the United States Code. 

SEVENTH AFFIRMATIVE DEFENSE 

(LACK OF CAUSATION) 

Plaintiffs’ claims are barred, in whole or in part, because to the extent 

Plaintiffs have suffered the injury or damages alleged, such injury or damages were 

not caused by the acts or omissions of UPS Co. 

EIGHTH AFFIRMATIVE DEFENSE 

(STATUTES OF LIMITATIONS) 

Plaintiffs’ claims are barred, in whole or in part, by the applicable statute(s) 

of limitations, including but not limited to 49 U.S.C. § 14705(b). 

NINTH AFFIRMATIVE DEFENSE 

(ADDITIONAL AFFIRMATIVE DEFENSES) 

UPS Co. has not completed its investigation and discovery into the 

allegations of the Complaint. Therefore, UPS Co. cannot fully anticipate all 

affirmative defenses that may be applicable to this action at this time and hereby 

reserves its right to add additional affirmative defenses if and to the extent such 

affirmative defenses are applicable to this action. 

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PRAYER FOR RELIEF 

WHEREFORE, defendant UPS Co. prays for judgment against Plaintiffs as 

follows: 

A. That Plaintiffs take nothing by way of this suit and that judgment be 

entered in favor of UPS Co; 

B. That UPS Co. be awarded costs as may be allowed by the law; and 

C. That UPS Co. be granted all such other relief as the Court may deem 

reasonable and just. 

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Dated: April 25, 2016 By: /s/ Gregory B. Koltun 

GREGORY B. KOLTUN 

PAUL T. FRIEDMAN (CA SBN 98381) 

PFriedman@mofo.com 

CAITLIN SINCLAIRE BLYTHE 

(CA SBN 265024) 

CBlythe@mofo.com 

MORRISON & FOERSTER LLP 

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

(Friedman: Admitted 3/25/1999; 

Blythe: Admitted 2/28/2014) 

GREGORY B. KOLTUN 

(CA SBN 130454) 

GKoltun@mofo.com 

MORRISON & FOERSTER LLP 

707 Wilshire Boulevard 

Los Angeles, California 90017-3543 

Telephone: 213.892.5200 

(Admitted 2/6/2014) 

BONNIE L. MAYFIELD (P40275) 

bmayfield@dykema.com 

DYKEMA GOSSETT PLLC 

39577 Woodward Avenue, Suite 300 

Bloomfield Hills, MI 48304 

Telephone: 248.203.0700 

Attorneys for Defendant 

UNITED PARCEL SERVICE CO. 

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CERTIFICATE OF SERVICE 

I hereby certify that on April 25, 2016, I electronically filed the foregoing 

paper with the Clerk of the Court using the ECF system, which will send 

notification of such filing to the following: Andrew J. McGuinness 

(drewmcg@topclasslaw.com), Paul F. Novak (pnovak@milberg.com), and Diana 

Gjonaj (dgjonaj@milberg.com). 

Dated: April 25, 2016 By: /s/ Gregory B. Koltun 

GREGORY B. KOLTUN 

PAUL T. FRIEDMAN (CA SBN 98381) 

PFriedman@mofo.com 

CAITLIN SINCLAIRE BLYTHE 

(CA SBN 265024) 

CBlythe@mofo.com 

MORRISON & FOERSTER LLP 

425 Market Street 

San Francisco, California 94105-2482 

Telephone: 415.268.7000 

(Friedman: Admitted 3/25/1999; 

Blythe: Admitted 2/28/2014) 

GREGORY B. KOLTUN 

(CA SBN 130454) 

GKoltun@mofo.com 

MORRISON & FOERSTER LLP 

707 Wilshire Boulevard 

Los Angeles, California 90017-3543 

Telephone: 213.892.5200 

(Admitted 2/6/2014) 

BONNIE L. MAYFIELD (P40275) 

bmayfield@dykema.com 

DYKEMA GOSSETT PLLC 

39577 Woodward Avenue, Suite 300 

Bloomfield Hills, MI 48304 

Telephone: 248.203.0700 

Attorneys for Defendant 

UNITED PARCEL SERVICE CO. 

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