FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMERT INDUSTRIAL CORPORATION, 

an Oregon corporation, No. 05-35622 Plaintiff-Appellant,

D.C. No.

v.  CV-03-00782-AJB

ARTISAN ASSOCIATES, INC., a OPINION Michigan corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

July 12, 2007—Portland, Oregon

Filed August 13, 2007

Before: Alfred T. Goodwin, Stephen Reinhardt, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Goodwin

9741
COUNSEL

Jeffry S. Garrett, Vicki L. Smith, Lane Powell PC, Portland,

Oregon, for the plaintiff-appellant. 

Frederick R. Damm, Clark Hill PLC, Detroit, Michigan, for

the defendant-appellee. 

OPINION

GOODWIN, Senior Circuit Judge: 

Emmert Industrial Corporation (“Emmert”) appeals a summary judgment in favor of Artisan Associates, Incorporated

(“Artisan”) on Emmert’s three contract claims arising from

the parties’ agreement for the transportation of industrial

metal-stamping presses and press components. We affirm in

part, reverse in part, and remand to the district court for further proceedings. 

I. FACTS AND PROCEEDINGS BELOW

An Oregon corporation, Emmert is an engineering and

transportation company that specializes in transporting objects

weighing in excess of 100,000 pounds. Artisan is a Michigan

9744 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES
corporation and transportation broker engaged primarily in

coordinating complex “heavy haul” projects on behalf of its

clients, a business in which Artisan routinely contracts with

carriers such as Emmert.1 In May 1996 Artisan, under a broker’s contract with General Motors (“GM”), solicited bids for

the “Press Project,” a complex undertaking that involved the

transportation and delivery of six industrial metal-stamping

presses from Japan to GM plants in Georgia, Michigan, and

Missouri. Emmert submitted the winning bid for transporting

the major components of six presses, subsequently receiving

a 46-word notification letter from Artisan stating that Emmert

would serve as “the primary carrier” on the Press Project for

transportation of “all components that weigh more than

100,000 pounds.” Upon receipt of this letter, which also

instructed Emmert to “proceed with the necessary planning,”

Emmert took a number of actions. Emmert sent employees to

Japan to inspect the goods to be moved, surveyed port facilities, prepared a pre-moving analysis and route survey, and put

together route plans for the Georgia phase of the project.

Emmert assigned personnel and equipment to the Press Project, and paid a third party to monitor and detect “strain” on

bridges over which loaded Emmert vehicles would pass. 

Under Artisan’s master operating agreement with GM, the

“volume of business tendered to [Artisan] is contingent upon

GM’s requirements for such Heavy Haul, Rigging, and Flatbed services.” Although GM retained control over the flow of

work to Artisan in the first instance, once a move had been

authorized, Artisan became primarily responsible for on-theground oversight and management. Specifically, the ArtisanGM contract provided that Artisan “is required to select and

1The term “broker” is statutorily defined as “a person, other than a

motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by

solicitation, advertisement, or otherwise as selling, providing, or arranging

for, transportation by motor carrier for compensation.” 49 U.S.C.

§ 13102(2). 

EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES 9745
manage a network of certified and permitted carriers and riggers . . . to meet the needs of GM,” and that Artisan “shall

arrange transportation for GM, including the hiring of carriers

and riggers . . . .” The GM contract also provided that: 

Operational Control. [Artisan] shall have sole and

exclusive control over the manner in which [Artisan]

and its employes [sic] and/or sub-contractors perform their Services. [Artisan] shall engage and

employ and/or sub-contract with, such individuals or

carriers as it may deem necessary in connection

therewith. Such individuals shall be considered

employes [sic] or sub-contractors of [Artisan] only

and shall be subject to employment, discharge, discipline and control solely and exclusively by [Artisan].

Emmert completed two phases of the Press Project, transporting and delivering press components to GM plants in

Georgia and Missouri, and invoiced Artisan approximately

$4.9 million for this work and for services in preparation for

a third project phase involving transportation to GM plants in

Michigan. However, before Emmert performed any further

Press Project work, GM reminded Artisan in writing that Artisan was scheduled to broker the move of another press in

early 1998, and requested a quote for this move “using carriers other than Emmert.” GM’s logistics liaison also instructed

Artisan orally not to engage Emmert on any further Press

Project moves. At that point, the remaining Press Project

moves consisted of (1) parts of two presses to be moved to

Michigan; (2) one press to be moved to Missouri; and (3) various press component shipments. 

On the same day it received GM’s letter, Artisan notified

Emmert that Emmert did not receive the contract to transport

the remaining press parts to Michigan and Missouri, moves

that Artisan ultimately brokered through another carrier. Artisan also notified Emmert that Artisan did not receive the con9746 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES
tract from GM to broker the remaining component shipments,

which GM eventually awarded to a different broker. 

Artisan objected to numerous individual charges contained

in the approximate $4.9 million claimed due by Emmert.

After protracted negotiations, Artisan paid Emmert approximately $4.2 million and advised Emmert in October 1997 that

it would make no further payments. 

Emmert brought this action in June 2003. In its amended

complaint Emmert (1) claimed that Artisan breached the contract by failing to pay the remaining balance; (2) attempted to

state a claim in quantum meruit for the same amount; and (3)

claimed that Artisan’s failure to broker any further work to

Emmert in the wake of GM’s letter constituted an additional,

independent breach of the contract. The district court granted

Artisan’s motion for summary judgment with respect to all

three claims, reasoning that Emmert’s first two claims were

time-barred under the Interstate Commerce Commission Termination Act (“ICCTA”), and that because Emmert had no

exclusive contractual right to handle the Press Project moves,

Artisan did not breach the parties’ contract by ceasing to funnel work to Emmert after July 31, 1997. Emmert now appeals,

invoking our jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

This is a diversity action in which none of Emmert’s affirmative claims presents a federal question, and Emmert contends the district court erred on two grounds in concluding

that its first two claims are barred by the ICCTA limitations

period codified at 49 U.S.C. § 14705(a). Emmert first argues

that the statute applies solely to a carrier’s claims against a

shipper for charges owed under a filed tariff. Because Emmert

has no filed tariff, it asserts that § 14705(a) is inapplicable to

its first two claims as a matter of law. Alternatively, Emmert

contends that because the statute’s substantive elements are

not satisfied on the facts of this case, § 14705(a) cannot bar

EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES 9747
its first two claims. Emmert also argues that the district court

erred in dismissing its third claim for breach of contract. Each

assignment of error is taken up below. 

Applicability and Operation of the ICCTA Limitations

Period

[1] Emmert’s contention that § 14705(a) is inapplicable to

its first two claims as a matter of law was never argued or

briefed in the district court. As Artisan correctly points out,

we generally will not consider issues raised for the first time

on appeal. Cold Mountain v. Garber, 375 F.3d 884, 891 (9th

Cir. 2004) (citation omitted). However, in our discretion we

may consider an issue raised for the first time on appeal under

several recognized circumstances, including where the issue

presents a pure question of law that does not depend on the

factual record developed below, or the relevant record is fully

developed. Id.; see also United States v. Carlson, 900 F.2d

1346, 1349 (9th Cir. 1990). This appeal fits comfortably

within that exception. The question whether § 14705(a)

applies solely to claims for charges owed under a filed tariff

is purely one of law, resolution of which requires no further

development of the factual record in this case. Further, notwithstanding Artisan’s argument that it has been prejudiced

by Emmert’s failure to raise this issue below, this court has

already determined that when, as here, an appellee has a full

and fair opportunity to address an issue raised for the first

time on appeal in its appellate briefing, there is no prejudice.

Dream Palace v. County of Maricopa, 384 F.3d 990, 1005

(9th Cir. 2004); United States v. Nukida, 8 F.3d 665, 669 (9th

Cir. 1993). Because Emmert’s argument to this court presents

statutory interpretation questions of first impression, and

because resolution of those questions is likely to broadly

impact entities engaged in transporting goods in interstate

commerce, we choose to address Emmert’s argument. 

Turning to the substance of this issue, there is no merit to

Emmert’s contention that the time limitation in § 14705(a)

9748 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES
applies only when a carrier seeks to recover charges owed

under a filed tariff. Although neither this circuit nor any of

our sister circuits appears to have directly addressed the issue,

there are several reasons to reject Emmert’s proposed construction of § 14705(a). Before evaluating those reasons, we

briefly consider the broader statutory framework. 

As originally enacted, the Interstate Commerce Act

(“ICA”) was a wide-ranging statutory scheme that imposed

substantial regulations on the transportation of goods and persons between the states. See Verizon Commc’ns, Inc. v. FCC,

535 U.S. 467, 478 n.3 (2002); Munitions Carriers Conference, Inc. v. United States, 147 F.3d 1027, 1029-30 (D.C. Cir.

1998). The ICA contained a number of rate regulation provisions, including a requirement that most road carriers file tariffs defining the prices and terms under which they would

transport persons and property. See Munitions Carriers, 147

F.3d at 1029-30. Enactment of the ICCTA in 1995 largely

rolled back this pervasive scheme of federal regulation. Id.

The new legislation deregulated most sectors of road transport, and relieved most road carriers of having to file tariffs

describing their rates in detail. Id.2 Despite the many changes

implemented by the ICCTA, Congress retained the ICA’s

statute of limitations governing claims brought by carriers

against shippers. See 49 U.S.C. § 14705(a). That statute lies

at the heart of the district court’s summary judgment on

Emmert’s first two claims, and in determining whether the

statute should be construed as Emmert argues, we must begin

“with the plain meaning of the statute’s language.” Molski v.

M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007) (quoting

Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir.

2000)). The statute at issue in this appeal reads, in full: 

2Road carriers still must file tariffs in two specialized categories of

transportation: household goods and noncontiguous domestic trade. Munitions Carriers, 147 F.3d at 1029. Neither category is implicated by this

appeal. 

EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES 9749
A carrier providing transportation or service subject

to jurisdiction under chapter 135 must begin a civil

action to recover charges for transportation or service provided by the carrier within 18 months after

the claim accrues. 

49 U.S.C. § 14705(a). 

“Where the statutory language is clear and consistent with

the statutory scheme at issue, the plain language of the statute

is conclusive and the judicial inquiry is at an end.” Molski,

481 F.3d at 732. (citations and internal quotation marks omitted). Additionally, where a statute is complete and unambiguous on its face, additional terms should not be read into the

statute. See Burlington N. R.R. v. Okla. Tax Comm’n, 481

U.S. 454, 463 (1987). Finally, unless statutory terms are otherwise defined, they are “generally interpreted in accordance

with their ordinary meaning.” BP Am. Prod. Co. v. Burton,

127 S. Ct. 638, 643 (2006). 

[2] As relevant to Emmert’s tariff filing argument, the statute’s plain language requires a carrier to bring a claim “to

recover charges for transportation or service” within 18

months of the claim’s accrual. Emmert, however, argues that

“charges” should be read to mean “charges owed under a filed

tariff.” This contention is problematic for several reasons.

First, there is no tariff requirement on the face of the statute.

Because the statute is complete and unambiguous — a conclusion Emmert does not challenge — we will not read such

a requirement into the statute. See Burlington N. R.R., 481

U.S. at 463. Second, because the term “charges” is not statutorily defined, it should be interpreted according to its ordinary, everyday meaning. Burton, 127 S. Ct. at 643. The

common meaning of “charges” does not necessarily relate to

debt owed pursuant to a tariff, but also includes a price, cost,

expense, or debt owed under contractual obligation. Simply,

the plain and clear language of § 14705(a) includes no tariff

9750 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES
requirement, and Emmert presents no sound reason why we

should construct one. 

Emmert accurately points out that to determine the meaning

of § 14705(a) we must consider the particular language at

issue in context of the overall statutory scheme. See McCarthy

v. Bronson, 500 U.S. 136, 139 (1991) (citation omitted).

However, consideration of the broader legislative context

belies Emmert’s position. First, under basic principles of statutory interpretation, identical words used in different parts of

the same statute are presumed to have the same meaning. Sullivan v. Stroop, 496 U.S. 478, 484 (1990). Other sections of

the ICCTA use the term “charges” to refer to the price payable for transportation services provided by both carriers subject to a tariff requirement, and those who are not. See, e.g.,

49 U.S.C. § 13708 (describing billing and collection requirements for all carriers subject to jurisdiction under 49 U.S.C.

§ 13501, which includes carriers that must file a tariff, and

those that need not). Accordingly, because the word “charges”

as used in other sections of the ICCTA includes both tariff

and non-tariff charges, the same meaning should apply to the

word “charges” in § 14705(a). 

A separate consideration of the broader statutory context

bolsters our conclusion. The House Report on the ICCTA

emphasized the need for consistent federal commercial rules

“to ensure that all interstate transportation is subject to the

same rules and procedures.” H.R. Rep. No. 104-311, at 85

(1995), reprinted in 1995 U.S.C.C.A.N. 793, 797. The intent

to create uniform regulation is evident throughout the ICCTA,

which establishes various requirements that apply equally to

all carriers, including the limited class subject to the tariff

requirement. See, e.g., 49 U.S.C. §§ 13708 (billing and charge

collection); 13707(a) (transfer of possession upon payment);

14101(a) (provision of safe and adequate service, equipment,

and facilities). Given this clear intent to create a uniform regulatory scheme, we are not persuaded that Congress would,

EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES 9751
sub silentio, simultaneously create different limitations periods for claims by tariff filing and non-tariff filing carriers.3

[3] Emmert’s primary argument to the contrary — that no

federal question jurisdiction exists over a carrier’s claims

absent a filed tariff, and therefore a filed tariff is necessary to

invoke § 14705(a) — can be disposed of quickly. Simply,

nothing in the text or context of § 14705(a) indicates that the

eighteen-month limitations period is restricted to claims seeking charges under a filed tariff, or even to claims arising under

federal law. We accordingly reject Emmert’s proposed statutory construction, and conclude instead that because

§ 14705(a) applies to the first two claims in this “civil action

to recover charges for transportation or service provided,”

Artisan may, as a matter of law, assert the statute’s limitations

period as an affirmative defense to Emmert’s first two claims.

[4] We next consider whether § 14705(a) bars those claims

on the facts of this case. As noted, § 14705(a) requires carriers subject to United States Code Title 49, Subtitle IV, Chapter 135 to bring an action to recover charges owed for

transportation or service performed within eighteen months

after the claim accrues. Emmert does not contest that it is subject to Chapter 135,4

 nor does it challenge the district court’s

conclusion that it is a “carrier” within the meaning of the

ICCTA. Instead, Emmert contends that the district court erred

in concluding that its first two claims are time-barred because

at least some of the charges it seeks to recover are not for

“transportation” within the meaning of the statute, because

they are expenses relating to engineering, research, mobiliz3

It is true that Congress intended some exceptions to a truly uniform

regulatory scheme, as evidenced by the tariff filing requirement that

applies only to “noncontiguous domestic trade” and “the movement of

household goods.” See 49 U.S.C. § 13702(a). We note, however, that

while the ICCTA largely does away with the tariff requirement, it also

requires non-tariff filing carriers, upon request, to disclose the same information contained in a filed tariff. See 49 U.S.C. 13710(a)(1). 

4Nor can Emmert mount such a challenge. See 49 U.S.C. § 13501. 

9752 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES
ing and demobilizing, stand-by time, and fees paid for engineering services provided by third parties. 

The ICCTA defines “transportation” to include: 

(A) a motor vehicle, vessel, warehouse, wharf,

pier, dock, yard, property, facility, instrumentality,

or equipment of any kind related to the movement of

passengers or property, or both, regardless of ownership or an agreement concerning use; and 

(B) services related to that movement, including

arranging for, receipt, delivery, elevation, transfer in

transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property. 

49 U.S.C. § 13102(23). 

In light of this expansive statutory definition of “transportation,” the district court concluded that the term encompasses

all services rendered incident to the carriage and delivery of

an item. And, despite Emmert’s efforts to characterize the services at issue as engineering — or consulting — related, the

district court determined that “they actually arise out of the

transportation of goods.” Accordingly, the district court concluded that Emmert’s first two claims sought reimbursement

for services governed by the ICCTA, and therefore determined those claims were untimely under the eighteen-month

limitations period of § 14705(a). 

[5] This circuit has never directly addressed this issue, and

there is scant case law on point. However, the extant authority

supports the district court’s ruling. Considering the statutory

predecessor to § 13102(23),5 the First Circuit determined that

5Former 49 U.S.C. § 10102(26) was a near-verbatim forebear to

§ 13102(23). That definition of “transportation” was somewhat more

restrictive, however, as it did not include the “arranging for” clause contained in current § 13102(23). 

EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES 9753
“transportation . . . includes all of a motor carrier’s services

incident to carriage and delivery.” PNH Corp. v. Hullquist

Corp., 843 F.2d 586, 590 (1st Cir. 1988) (citations omitted).

The Fifth Circuit reached a similar conclusion when construing former 49 U.S.C. § 1(3)(a), yet another statutory predecessor to current § 13102(23), which defined transportation

as “all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing,

storage and handling of property transported.” Centraal Stikstof Verkoopkantoor, N.V. v. Ala. State Docks Dep’t, 415 F.2d

452, 455-56 (5th Cir. 1969). Emphasizing the statute’s

breadth, the Fifth Circuit concluded that all “services rendered

by a common carrier in connection with transportation of

goods shall be covered by the Act.” Id. at 456 (emphasis

added). While the other circuits do not appear to have considered the reach of the term “transportation,” the First and Fifth

Circuits’ reading of the statute is consistent with longestablished Supreme Court jurisprudence. For example, considering an early statutory definition of “transportation” similar to current § 13102(23), the Court determined that

Congress intended to define the term broadly enough so that

a carrier’s duty to the public “included the performance of a

variety of services that, according to the theory of the common law, were separable from the carrier’s service as carrier,”

and therefore defined the term so that “the entire body of such

services should be included together under the single term

‘transportation.’ ” Cleveland, Cincinnati, Chi. & St. L. Ry. Co.

v. Dettlebach, 239 U.S. 588, 593-94 (1916); see also S. Ry.

Co. v. Reid, 222 U.S. 424, 440 (1912). 

[6] Taking the evidence in the light most favorable to

Emmert, each of the services for which it seeks reimbursement — engineering, research, and operational costs — is

directly related and incidental to the actual transportation of

press components, and each was aimed at furthering that purpose. Although not every service directly involved the physical shipment of goods, each was undertaken specifically as a

means toward that end. Given the expansive statutory defini9754 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES
tion of “transportation” in § 13102(23) we follow the broad

construction our sister circuits have applied to similar definitions, and we conclude that the district court did not err by

ruling that Emmert’s services were at the very least

undertaken while “arranging for” the carriage and delivery of

the presses. Accordingly, the services for which Emmert

seeks to recover charges constitute “transportation” within the

meaning of the ICCTA, and § 14705(a) required that Emmert

bring an action to recover any charges related to those activities within 18 months after the claim accrued, which is the

date on which Emmert delivered, or tendered delivery, of the

goods. 49 U.S.C. § 14705(g). Because Emmert last provided

services for Artisan in May 1997, its eighteen-month window

within which to seek relief had long since closed when it filed

its complaint in June 2003, and § 14705(a) necessarily preempts any state law providing for a longer limitations period.

See Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d

1119, 1128 (9th Cir. 2005); Cal. Fed. Savings & Loan Ass’n

v. Guerra, 479 U.S. 272, 280-81 (1987). We hold that

Emmert’s first two claims are time-barred under 49 U.S.C.

§ 14705(a), and accordingly affirm the summary judgment

granted to Artisan with respect to those two claims. 

Emmert’s Third Claim

Emmert’s third claim alleged an independent breach of

contract arising from Artisan’s refusal to award Emmert further Press Project work in the wake of GM’s letter, and sought

to recover both out-of-pocket expenses and lost profits related

to carriage that Artisan brokered to other carriers. 

As noted, the parties’ short contract identifies Emmert as

“the primary carrier” for Press Project moves “on all components that weigh more than 100,000 pounds.” Considering the

disputed “primary carrier” term, the district court looked to

the dictionary meaning of the word “primary,” which includes

“first in order of time or development,” and “of first rank,

importance, or value.” The district court concluded on that

EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES 9755
basis that the parties’ contract unambiguously contemplated

Artisan’s use of other carriers for the Press Project. Accordingly, it held that Artisan was within its rights to utilize other

carriers, and granted summary judgment on this claim. 

[7] We agree with the district court that the parties’ contract

did not expressly grant Emmert an exclusive right to Press

Project moves. However, it is not clear precisely what rights

Emmert was granted. The contract is ambiguous in that

respect and summary judgment was not appropriate. Moreover, even if Emmert did not possess exclusive rights, it

would not necessarily follow that Artisan did not breach

Emmert’s undisputed contractual right to serve as “the primary carrier” on certain Press Project moves when it refused

altogether to broker further Press Project work to Emmert.

The district court did not address this point. Nor did the district court determine what the parties intended by denominating Emmert as “the primary carrier” on certain Press Project

moves, other than concluding, prematurely at the least, that

the parties did not intend “primary” to mean “exclusive.”

Finally, the district court made no finding regarding the

amount of work necessary for Emmert to perform to be considered “the primary carrier” on moves of components weighing in excess of 100,000 pounds. Because these material

questions of fact regarding the nature and scope of the parties’

agreement remain in dispute, summary judgment on

Emmert’s third claim was error. See Leisek v. Brightwood

Corp., 278 F.3d 895, 898 (9th Cir. 2002). We therefore

reverse the summary judgment with respect to count three in

Emmert’s amended complaint, and remand that claim for further proceedings. 

AFFIRMED in part, REVERSED and REMANDED in

part. Neither party to recover costs on this appeal. 

9756 EMMERT INDUSTRIAL v. ARTISAN ASSOCIATES