* The Hon orable R ichard M ills, United States D i strict Judge for the Central Distri ct of Ill inois, s itting by designation. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2003 FED App . 0396P (6th C ir.) File Name: 03a03 96p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ A MERI CAN R OAD S ERVICE C OMPANY ,

Plaintiff- Appellant
,

v.
C ONSOLIDATED RAIL C ORPORATI ON , Defendant-Appellee. X

- - - -> , - - - - - N No. 02-1475

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 00-74640—Victoria A. Roberts, District Judge.

Argued: September 9, 2003 Decided and Filed: November 6, 2003
Befor e: MOORE a

nd GILMAN , Circuit Jud ges; MI LL S, District Judge. * 2 Am. Road Serv. Co. v. Consolidated Rail Corp. No. 02-1475

_________________ COUNSEL
ARGUED: David A. B ye rs, Eden Prairie , Minnesota, for Appellan t. Jonathan F. Ball, JANSSEN & KEENAN, Philadelphia, Pe nn syl v ania, for Appellee. ON BRI EF: David A. Bye rs, Eden Prairie, Minnesota , for App ellant. Paul D. Ke ena

n, JA NSSEN & KEENAN, Philadelphia, Penn syl vania, Dirk H. Beckwith, FOSTER, SWIFT, COLLI NS & SM IT H, Farmington Hills, Michigan, for Appellee.

_________________

OPINION

_________________ RICHA RD MILL S, District Judge. American Road Service s Company (“Amer ican”) filed a subrogation action agains tConsolidated Rail Corporation (“Conrail”) s eeking compensation for damaged property

. The distri ct court concluded that American’s complai nt wa s untimely and entere d summary judgme nt for Conrail.
We AFFI RM.
I. FACTS AND PROCEDURAL BACKGROUND Larry Krueger, a Ford Motor Company (“Ford”) employ

ee, was stationed on an overseas work assignment in the Czech Republic. At the conclusion of his stay, his household g oods and perso nal be longi ngs were packed, crated, a nd placed in a contai ner by I nterdean, an international moving company , an d shipped to port at Bremerhaven, Germany. Mark VI I, an inte rna tional transportation company, issued a bill of lading to Inte rdean a nd forwa rded the goods ov erseas

v ia Maer skNo. 02-1475 Am. Road Serv. Co. v. Consolidated Rail Corp. 3

1 Co nrail denie d the c laim because Ameri can fail ed to provide a more expl ici t de scr ipt ion of i ts cl aim

. Sea Lines to port at Newark, Ne w Jersey. Conrail transported Krueger’s g oods by r

ail to thei r final de stination i

n Detroit , Michigan. Two days later, Conra il employees discovere d that the 45-foot c ontain er ho lding Krueger’s g oods had been broken into and set on fire. Am e rican, an affiliate of Ford, paid Krueger $ 182,587.6 0 for his lo ss. On September 23, 1998, American notified Conrail of it s intentto pu rsue s ubroga tion and on January 25, 1999 g ave notice of the final amo unt of the claim. Conrail denied the claim on June 8, 1999. 1 On October 18, 2000, American filed suit in distric t c ourt all eging

a negli gence

claim and

a claim pursuant to the Carmack Amendment.
OnMarch 13 , 2002, the dis trict c ourt entered summary judgment in favor

of Conra il becau se American’s complaint wa s u nt im el y. Onappeal, American claims that the distri ct court erred when it failed to provide

America n notice a nd an opportunity to respond before entering summary judgmen t sua sponte

. American also claims genuine issues of materi al fact precluded summary judgmen t. Finally, Americ anargues that the district court erred when i t consid ered testimony of a witness who was not disclose d in accordance with Rule

26 of the Federal Rules of Civil Procedure.

II. AN ALYS IS
A. Sua Sponte American claims that the district co u rt’s order granting judgment in favor of Conrail was inappr opri ate because the time for filin

g disposi t ive mot ions had expired. American 4 Am. Road Serv. Co. v. Consolidated Rail Corp. No. 02-1475

2 Even if it we re possi ble t o characterize the gr ant of summary judgment as sua spo nte , Ame rican su ffered n o pr ejud ice, as is ev ident in Section B of this opinion. claims that the court ente red summa ry judgmen t sua sponte and did not allow American an opportunity to respond.
“The clearly

established rule in this circuit is that a district court must afford the pa rty aga inst whom sua sponte summary judgment is to be entered te n d ays notice and an adequa te opportunity to respond.” Yashon v. Gregory , 737 F.2d 547, 552 (6th

Cir. 1984) . “Nonco

mpliance with the time provision of the rule deprives the cour t of authority to gr

ant summary judgment, unless the opposing party has waived th

is require ment, or there has been no prejudice to the opposing party by the court’s f

ailure to comply with this provision of the rule.” Helwig v. Vencor, Inc. , 251 F.3d 540, 552 (6th Cir. 2001) (quot ing Kistner v. Califano , 579 F.2d 1004, 1006 (6th Cir. 1978)).
At the fina l pretria l confer ence, a ccordin g to both parties, the district c ourt req

uested that the pa

rties bri ef cer

tain di s positive issues. At

the end of

Conrail’ s Brief

, Conrail requested “the entry of

judgment as a matter of law.” America n respond ed to the issues raised

and asked the court to deny Conrail’s reque st for judgment.
American therefore had notice, was awa r e o f the relevant issues, had an op

portunity to respon d and did in

fact respond to Conrail’ s reques t for ju dgme nt as a matter of law. Ac co rd in gl y, the Court r

ejects A meric an’s characterization of the judg ment in this

case as sua sponte

. 2

B. Genuine Issue of Material Fact
The district court found

that the Mark VII

bill of lading was a thro ugh bill of lading and that the Carmack Amendment’sNo. 02-1475 Am. Road Serv. Co. v. Consolidated Rail Corp. 5

two-year period of limitation for

filing a civil action therefore did not apply. The cour

t then examined

the Mark VII bill of lading to determine whether the time to commence a suit was limitedby cont

ract . Section XVII

I of the Mark VI

I bill of lading states, “Carrier

shallbe discharged from all liability for loss of damage to goods unless sui t is brought within 9 months after

delivery of the goods.” Based on that lang uage, the district c ourt foun

d Americ an’s c ompla int, filed almost tw o ye ar s a ft er th e f

ir e i n t he ra il yar d, wa s u nt im el y. American argues on appea l thatthe Carmack Amendment applies to this ca se and that a genuine issue of material fac t precluded summary judgme

nt. We review a district court’s grant of summary judgmen t de novo
. Cherrington v. Skeeter , 344 F.3d 631, 636 (6th Cir. 2003).
The Carmack Amend

ment was enacted in 1906 a s an amendment

to the Int erstate Commerce Act of 1887 and addresses the liability of common carrier s for goods lost or damaged during a

ship men t over wh

ich the I

nterstat e Commerce Commission (“ICC”) has jurisdict ion. Capitol Converting

Equipment, Inc. v. LEP Transport, Inc. , 965 F.2d 391, 394 (7t h Cir. 1992). The Amendment requires, among other things, t hat a carrier transporting proper ty issue a bill of lading to the shipper, and makes the carrier liable to the one entitled to recov er under

the bill of lading for loss of or injury to th e p ro pe rt y. “Abill of lading issued in a fore ign country to govern a shipmentthroughout

its transportation from abroad to its final destinati on in the U

nited State s, is termed a ‘through’ bill of lading.” Capitol , 965 F.2d at 394. The ICC’s jurisdiction does not extend to a shipment under a through bill of lading unless a domestic

se gment of

th e s hi pm en t i s c ov er ed by a separa te domestic bill of lading. See 49 U.S.C. § 10501; Swift Textiles, Inc. v. Watkins Motor Lines, Inc ., 799 F.2d 697, 701 (11th Cir. 1 98 6); Capitol , 965 F.2d at 394; Shao v. Link Cargo (Taiwan) Ltd. , 986 F.2d 700, 703 (4th Cir. 1993). 6 Am. Road Serv. Co. v. Consolidated Rail Corp. No. 02-1475

Determiningwhether a

shipment is

govern ed by a thro ugh bill of lading is a question of fact. Capitol , 965 F.2d at 394. In Capitol , LEP Transport was hir ed by Capitol toarrange for the transportation of machinery from Italy

to Chicago. The machinery

never ar rive d and Capitol sued LEP under the C armack Amendment. The district court held t hat th e shipm ent was governed by

a through bill of lading, maki n g the Carm ack A mendment inapplicable, because the bill of lading was issued in Italy, showed Chicago as the place of de li ve ry, was pr epaid an d was not followed by a separate, domestic bill of lading. Id

. Here, the dis tri ct court concluded that the shipment was covered by a through bill of lading because (1) the f inal destination was included in the bill of lading issued by

Mark VII to Interdean; (2 ) th e freight was prepaid for the entire shipmentto Detroi

t; and (3)no separ

ate bill of ladi ng was issued for the trip from Newark to Detroit.
American disputes the accuracy

of the district court’s finding s. Specific ally , American claims there is evidence Conrail issued a d

omestic bi ll of ladin

g. That evidenc e is found in Conrail’s claim notes, w hich state tha t “this document does not c onstitute a

claim w ithin the meaning of section2(b) of

bill of lading contract.” American states that a “section 2(b)” i s n ot list ed in the bills of lading issued by Ma ers k or Mark VII

and argues “[w]hether there is a third Conrail bill of lading that a lso gove rns the tr ansacti on is a question of fact that precludes summary judgment.”
To support a

claim u nder t he Carma

ck Amend

ment, America n must present some proof that a domestic bill of lading was issued. Speculation, uns up ported by fa cts in the record, is insufficient to create a genuine issue of material fact a nd falls short of what is required to survive summar y judgmen t. See Andersonv. Liberty Lobby, Inc. , 477 U.S. 242, 252 ( 1986 ) (holdin

g that “ [t]he mere

existence of a scin tilla of evidenc e in suppor

t of the pla

intiff’s posit ion will beNo. 02-1475 Am. Road Serv. Co. v. Consolidated Rail Corp. 7

3 American rais es another iss ue on appeal: whether the di stri ct court abused its discretio n whe n it cons idere d the d epo sit ion t est imony of M aersk ’s claims manager, Massoud M esskoub. American argues that t he testi mony was ina dmiss ible b ecau se Co nrail fai led to disc lose M essko ub’s identity unti l ni ne months afte r the witn ess disclosure deadline. The district cour t relied o n M essko ub’s testim ony to conclude t hat Am erican ’s complai nt wa s untimel y eve n if the Carmack

Amendment

appli ed. Bec ause the Court

has concl uded the Car m ack A men dme nt is inappli cable, a ruling on w h ether M essko ub’s testim ony wa s adm issible is unnec essary. insufficient; there must be evidenceon which the jury could reasonably

find for the plaintiff”).
Without evidenc e to the c ontrary , the Cour t agre es with

the district court’s findingthat the Ma rk VI I bill of lading was a t hr ough bill of lading. Such a finding renders the Carmac k Amendment inapplicable to the shipment at issue. 3
As a result, the Mark VII

bill of lading’s nine-month period of limitation c ontrols and American’s neglige nce claim, filed almost two years a

fter the goods were destroy ed by fire , was too late.
AFFIRMED.