Mitsui argues that because the bill of lading issued in Japan was a through bill of lading,
any domestic bills of lading covering portions of the same shipment are of no effect. But the
cases Mitsui cites in support of this argument say only that a separate domestic bill of lading
covering part of a through shipment does not alter the responsibilities of the initiating carrier or
the connecting carrier; they do not say that a separate domestic bill of lading is of no effect for
jurisdictional purposes, See Mexican Light & Power Co. v. Texas Mexican Ry., 331 U.S. 731,
734 (1947); Missouri, Kansas & Texas Ry. v. Ward, 244 U.S. 383, 386-87 (1917). In the Court’s
view, the Seventh Circuit’s statement in Capitol Converting that jurisdiction exists under the
Carmack Amendment for a “domestic segment of [a through] shipment covered by a separate
domestic bill of lading” would be virtually meaningless if the law were as Mitsui argues.

Conclusion
For the reasons stated above, the Court denies defendant’s motion to dismiss for lack of

subject matter jurisdiction.

UML NLM)

MATTHEW F. KENNELLY
United States District Judge
Date: April 21, 2004



was under a through bill of lading issued in a foreign country for shipment from a foreign country
to the United States, unless a domestic segment of the transport is covered by a separate domestic
bill of lading. Jd. at 394. Accord, e.g., American Road Service Co. v. Consolidated Rail Corp.,
348 F.3d 565, 568 (6th Cir. 2003). The court’s rationale was that the Carmack Amendment
applies to common carriers providing service subject to the jurisdiction of the Interstate
Commerce Commission, which does not extend to shipments by water, rail, or motor carriers
from a foreign country to the United States unless a domestic segment is covered by a separate
bill of lading. See Capital Converting, 965 F.2d at 394 (citing 49 U.S.C. §§ 10501, 10521 &
10561).

Nippon Express and Hanjin contend that Capital Converting is no longer good law.
Though we are skeptical of this argument, we need not decide the point, as Nippon Express has
alleged in its complaint that BNSF issued a separate bill of lading in Tacoma covering shipment
to Chicago, and Hanjin has provided evidence in response to the motion to dismiss that Norfolk
Southern also issued a bill of lading in this country, which is sufficient to bring Capitol
Converting’s exception into play. Mitsui argues that the Court should not consider these
arguments, as Nippon Express’ complaint does not identify the purported BNSF bill of lading by
number, and the purported Norfolk Southern bill of lading is not even mentioned in the
complaint. But the identification of a bill of lading is not one of the limited matters that Rule 9
of the Federal Rules of Civil Procedure requires to be pled with particularity, and the law is clear
that evidence outside the pleadings may be considered on a motion to dismiss under Rule
12(b)(1). See Land v. Dollar, 330 U.S. 731 (1947). As a result, it is appropriate to consider the

references to the alleged domestic bills of lading.


‘Minute Order Form (06/97)

United States District Court, Northern District of IMinois

Name of Assigned Judge
or Magistrate Judge

Matthew F. Kennelly

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 03 C 2524 DATE 4/21/2004
CASE Nippon vs. Mitsui Sumitomo Ins.
TITLE
[in the following box (a) indicate the party filing the motion, e-g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
() QO Filed motion of [ use listing in “Motion” box above.]
(2) ia Brief in support of motion due
(3) a Answer brief to motion due. _. Reply to answer briefdue____.
(4) oO Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to} [set for/re-set for) on set for at
(7) o Trial{set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) O FRCP41(a)(2).
(10) + {Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
the Court denies defendant’s motion to dismiss for lack of subject matter jurisdiction. Motion for leave
to file 3" party complaint is withdrawn (30-1). Motion for leave to file counterclaim is granted (31-1).
Motion for extension of discovery deadline is granted to 6/30/04 (29-1). Response to motion for partial
summary judgment is due 6/30/04, Reply brief is due 7/14/04. Plaintiff’s 26(a)(2) disclosures are due
5/17/04, and defendant’s on 6/14/04. Status hearing of 4/27/04 is vacated, and reset to 8/3/04 at 9:30 a.m.
at) a [For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
. . Number
No notices required suinber o noises
Notices mailed by judge’s staff. 5
Notified counsel by telephone. APR ds
o¥ | Docketing to mail notices. a
Mail AO 450 form. -_
Copy to judge/magistrate judge. :

courtroom dave maited notice

deputy's
initials

oR

Date/time received in

central Clerk’s Office mailing deputy initiats



IN THE UNITED STATES DISTRICT COURT aprons,
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCK: § re
EASTERN DIVISION
APR 2 6 2004

NIPPON EXPRESS U.S.A. (ILLINOIS), INC.,
Plaintiff,

vs. Case No. 03 C 2524
MITSUI SUMITOMO INSURANCE CO., LTD.;
HANJIN SHIPPING CO., LTD.; NORFOLK
SOUTHERN RAILWAY CO.; OMNI RAIL
INTERMODAL, INC.; and JAM TRUCKING, INC.,

weeny ee

Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In late September 2002, plaintiff Nippon Express U.S.A. (Illinois), Inc., a common carrier
of goods, issued a bill of lading regarding nine containers, including a container load of Sony
PlayStation games, for carriage from Tokyo, Japan to Bolingbrook, Illinois, where the container
was to be delivered to Sony Computer Entertainment ‘America. Nippon Express hired defendant
Hanjin Shipping Co. to perform the carriage. Hanjin issued a bill of lading for transport of the
nine containers from Tokyo to a Chicago container yard, identifying Nippon Express as the
shipper, and it transported the shipment to Tacoma, Washington. Hanjin made separate
arrangements with Burlington Northern Santa Fe Railway (BNSF) and defendant Norfolk
Southern Railway to transport the shipment from Tacoma to Chicago. BNSF allegedly issued its
own bill of lading, and it transported the shipment to Norfolk Southern. Defendant Omni Rail

Intermodal, Inc. was hired by Norfolk Southern to deliver the goods from Norfolk Southern’s

245,


Chicago rail yard to the proper consignee or its trucker. Defendant Jam Trucking, Inc. was hired
to carry the shipment from Norfolk Southern’s rail yard to Sony in Bolingbrook. However, the
container was never delivered to Sony, and the circumstances surrounding its disappearance were
not immediately known.

Mitsui Sumitomo Insurance Co., Sony’s insurer, advised Nippon Express that it
considered Nippon Express responsible for the loss of the container, whose contents were valued
at over $475,000. Nippon Express has sued Mitsui, Hanjin, Norfolk Southern, Omni Rail, and
Jam, seeking a declaratory judgment regarding responsibility for the loss. Mitsui has moved to
dismiss Nippon Express’ claims for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1). For the reasons stated below, the Court denies Mitsui’s motion.

Discussion

Under 28 U.S.C. § 1337, a federal court has jurisdiction of a claim arising under an Act
of Congress regulating commerce if more than $10,000 is in controversy. Nippon’s claim of
subject matter jurisdiction is based on the Carmack Amendment, 49 U.S.C. § 11706, an
amendment to the Interstate Commerce Act that imposes liability on certain carriers for loss of
goods in shipment.

Mitsui argues that the Court lacks jurisdiction under the Carmack Amendment because
the container was shipped under Nippon Express’ bill of lading, which Mitsui says was a
“through” bill of lading issued in a foreign country. A through bill of lading is one that governs
the shipment of goods throughout its transportation to its final destination. Mitsui relies on
Capital Converting Equipment, Inc. v. LEP Transport, Inc., 9765 F.2d 391 (7th Cir. 1992), in

which the Seventh Circuit held that the Carmack Amendment does not apply where the shipment