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Tuesday, 12 December 2006 11:41

Mapfre Tepeyac, SA v. Robbins Motor Transp., Inc.S.D.Tex.,2006.

United States District Court,S.D. Texas,Houston Division.

MAPFRE TEPEYAC, SA, Plaintiff,

v.

ROBBINS MOTOR TRANSPORTATION, INC., Defendant.

 

 

Dec. 13, 2006.

 

 

MEMORANDUM, RECOMMENDATION AND ORDER

STEPHEN WM SMITH, United States Magistrate Judge.

The following motions are before the court in this cargo damage case: Robbins Motor Transportation, Inc.'s motion to dismiss pursuant to Rule 12(b)(6) and for summary judgment (Dkts.55, 56); Mapfre Tepeyac, S.A.'s motion for summary judgment (Dkt.58); Robbins Motor Transportation, Inc.'s motion to dismiss for forum non conveniens (Dkt.56); and counsel for Robbins Motor Transportation, Inc.'s opposed motion to withdraw (Dkt.54). Having considered the record and law, this court recommends granting Robbins's motion for summary judgment; denying Mapfre's motion for summary judgment; and granting Robbins's forum non conveniens motion. The court conditionally grants the motion to withdraw.

 

 

1. Robbins's 12(b)(6) Motion

 

Mapfre has asserted causes of action against Robbins under the Carmack Amendment and common law negligent bailment. Robbins's motion pursuant to Rule 12(b)(6) is based on its contention that it did not issue a through bill of lading for the cargo at issue, and thus the Carmack Amendment does not apply. At the same time, Robbins argues that Mapfre's common law claim for negligent bailment is preempted by the Carmack Amendment. Robbins further contends that Mexican law applies to Mapfre's negligence claim.

 

 

Mapfre's complaint asserts numerous negligence theories, including res ipsa loquitur, as well as breach of contract. Based on its representations in its briefing to the court, Mapfre is deemed to have abandoned its common law claims other than negligent bailment. See Mapfre's response to Robbins's motion to dismiss (Dkt.64), at 4; Mapfre's motion for summary judgment (Dkt.58), at 2.

 

Robbins has filed its 12(b)(6) motion concurrently with a motion for summary judgment asserting the same arguments. Both sides have presented evidence for the court's consideration. Rule 12(b) provides that if the parties present and the court considers matters outside the pleading on a motion under Rule 12(b)(6), then “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Because the parties have had sufficient notice and opportunity to present evidence as required by Federal Rule of Civil Procedure 56(c), the court converts Robbins's motion to dismiss to a motion for summary judgment and considers the parties' submissions in connection with its summary judgment analysis below. See Geraghty and Miller, Inc. v. Conoco Inc., 234 F.3d 917, 923 (5th Cir.2000).

 

 

2. Motions for Summary Judgment

 

A. Summary Judgment Standards

 

 

Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir.2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir.2001). “An issue is material if its resolution could affect the outcome of the action.” Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir.2002).

 

If the movant meets this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Littlefield v. Forney Indep. Sch. Dist ., 268 F.3d 275, 282 (5th Cir.2001) (quoting Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995)). If the evidence presented to rebut the summary judgment is not significantly probative, summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). In determining whether a genuine issue of material fact exists, the court views the evidence and draws inferences in the light most favorable to the nonmoving party. Id. at 255.

 

In sum, in order to avoid summary judgment, Robbins must create a fact issue on at least one element of Mapfre's cause of action. In order to be awarded summary judgment, Robbins must negate at least one element of Mapfre's cause of action as a matter of law.

 

 

B. Undisputed Facts

 

This case arises out of damage incurred during shipment to an injection molding machine owned by Rosti Mexico, S.A. de C.V., a Mexican corporation. Mapfre, a Mexican insurance company, paid Rosti's claim for $82,823.95 for damage to the injection molding machine. Mapfre, under assignment from Rosti and under subrogation from Uni-Trade Forwarding, L.C., is seeking reimbursement from Robbins for its loss of $82,823.95 and for its attorney's fees.

 

 

The Carmack Amendment does not authorize recovery of attorney's fees. Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir.1996). Under Texas law, a party may recover attorney's fees only if provided for by statute or by contract. Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 567 (Tex.2002). No Texas statute provides for recovery of attorney's fees in a negligence action. Id. at 568. Therefore, Mapfre's claim for attorney's fees should be dismissed regardless of the court's decision on summary judgment.

 

In the summer of 2004, Rosti hired Uni-Trade, a Texas corporation, as a freight forwarder to arrange for delivery of the equipment from New Braunfels, Texas to Zapopan, Mexico. Guadalupe Dominguez, an independent broker working out of Monterrey, Mexico, contacted C & J Motor Express, a Laredo company working under contract to Louisiana Transportation, Inc., about handling the New Braunfels to Laredo leg of the shipment. Dominguez informed Carlos Barrios, co-owner of C & J, that Robbins had trailers in the vicinity of New Braunfels that C & J could use. C & J loaded the equipment onto two flat bed trailers owned by Robbins in New Braunfels and delivered it to Laredo, Texas. The cargo was in good condition at the time of loading in New Braunfels and was delivered to Laredo in good condition. According to Barrios, C & J billed Uni-Trade for its services, as directed by Dominguez.

 

 

Luis Hinojosa of Uni-Trade testified that he arranged for the carriage with Dominguez, who in turn was in contact with Larry Vidaurri of Robbins. Hinojosa Dep. at 110.

 

Apparently, C & J actually subcontracted to yet another carrier, Cardenas, to carry the load. Neither C & J or Cardenas are parties to this lawsuit. To avoid further confusion, the court refers to C & J as the carrier for the domestic leg of the shipment.

 

The cargo was then picked up by Transportes Gordillo, a Mexican company, for delivery to its final destination in Zapopan, Mexico. The yard at which Transportes Gordillo picked up the trailers is also used by a Mexican company called Transportes Perez. It is a matter of dispute whether Robbins or Uni-Trade hired Perez or Gordillo. The cargo remained on Robbins's trailers throughout its journey; it was not unloaded or transferred at any time. The cargo arrived damaged in Zapopan. It is undisputed that the damage occurred during the Mexican leg of the journey, although the record contains no evidence regarding the nature of the accident causing the damage.

 

 

The record does contain an invoice from Transportes Gordillo listing Robbins as the client. Vidaurri testified that Javier Gordillo, the owner of Transportes Gordillo, told him this was a mistake and was issued only because the Transportes Gordillo dispatcher saw the Robbins name on the trailers.

 

Vidaurri testified that Robbins offers “seamless service” for transport of shipments into Mexico. However, he denied that Robbins provided such service for the cargo in this case. The only documentation reflecting any communication between Uni-Trade and Robbins is a July 15 e-mail from Hinojosa to Vidaurri confirming the location of the cargo for pick up. Vidaurri never responded to Hinojosa's e-mail or sent any paperwork to UniTrade. Nor did Robbins send Uni-Trade an invoice.

 

The record contains two documents identified as bills of lading. Hinojosa identified a document titled “remision” that he called a bill of lading for the Mexican leg of the journey. Barrios identified another document as a bill of lading issued by Uni-Trade covering the shipment from New Braunfels to Laredo. It is undisputed that Robbins did not issue a written bill of lading for any segment of the shipment.

 

 

Hinojosa Dep., at 10, Exhibit 18. This document, entirely in Spanish, identifies the shipper as “MEGATRANS Del Norte, S.C.,” with a business address in “Colombia, Nuevo Leon.” It also identifies the destination as the Rosti facility in Zapopan, Mexico. However, it does not state the origin of the shipment.

 

Barrios Dep., at 50, Exhibit 3.

 

C. The Carmack Amendment Claim

 

The Carmack Amendment, codified at 49 U.S.C. §  14706(a), imposes liability on certain carriers and freight forwarders for the loss of goods in transit.  Section 14706(a) provides that an interstate carrier is “liable to the person entitled to recover under a receipt or bill of lading ... for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States or from a place in the United States to a place in an adjacent foreign country when transported under a through bill of lading .... Failure to issue a receipt or bill of lading does not affect the liability of a carrier.” A “through bill of lading” is on

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