           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2     Am. Road Serv. Co. v.                     No. 02-1475
        ELECTRONIC CITATION: 2003 FED App. 0396P (6th Cir.)                       Consolidated Rail Corp.
                    File Name: 03a0396p.06
                                                                                               _________________
UNITED STATES COURT OF APPEALS                                                                      COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED: David A. Byers, Eden Prairie, Minnesota, for
                     _________________                                      Appellant. Jonathan F. Ball, JANSSEN & KEENAN,
                                                                            Philadelphia, Pennsylvania, for Appellee. ON BRIEF:
 AMERICAN ROAD SERVICE            X                                         David A. Byers, Eden Prairie, Minnesota, for Appellant. Paul
 COMPANY ,                         -                                        D. Keenan, JANSSEN & KEENAN, Philadelphia,
           Plaintiff-Appellant,    -                                        Pennsylvania, Dirk H. Beckwith, FOSTER, SWIFT,
                                   -  No. 02-1475                           COLLINS & SMITH, Farmington Hills, Michigan, for
                                   -                                        Appellee.
           v.                       >
                                   ,                                                           _________________
                                   -
 CONSOLIDATED RAIL                 -                                                               OPINION
 CORPORATION ,                     -                                                           _________________
          Defendant-Appellee. -
                                   -                                          RICHARD MILLS, District Judge. American Road
                                  N                                         Services Company (“American”) filed a subrogation action
      Appeal from the United States District Court                          against Consolidated Rail Corporation (“Conrail”) seeking
     for the Eastern District of Michigan at Detroit.                       compensation for damaged property.
   No. 00-74640—Victoria A. Roberts, District Judge.
                                                                              The district court concluded that American’s complaint was
                   Argued: September 9, 2003                                untimely and entered summary judgment for Conrail.

            Decided and Filed: November 6, 2003                                 We AFFIRM.

 Before: MOORE and GILMAN, Circuit Judges; MILLS,                                I. FACTS AND PROCEDURAL BACKGROUND
                 District Judge.*                                             Larry Krueger, a Ford Motor Company (“Ford”) employee,
                                                                            was stationed on an overseas work assignment in the Czech
                                                                            Republic. At the conclusion of his stay, his household goods
                                                                            and personal belongings were packed, crated, and placed in a
                                                                            container by Interdean, an international moving company, and
                                                                            shipped to port at Bremerhaven, Germany. Mark VII, an
                                                                            international transportation company, issued a bill of lading
    *                                                                       to Interdean and forwarded the goods overseas via Maersk
     The Hon orable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.

                                   1
No. 02-1475                            Am. Road Serv. Co. v.          3    4       Am. Road Serv. Co. v.                            No. 02-1475
                                     Consolidated Rail Corp.                       Consolidated Rail Corp.

Sea Lines to port at Newark, New Jersey. Conrail transported               claims that the court entered summary judgment sua sponte
Krueger’s goods by rail to their final destination in Detroit,             and did not allow American an opportunity to respond.
Michigan. Two days later, Conrail employees discovered that
the 45-foot container holding Krueger’s goods had been                       “The clearly established rule in this circuit is that a district
broken into and set on fire. American, an affiliate of Ford,               court must afford the party against whom sua sponte
paid Krueger $182,587.60 for his loss.                                     summary judgment is to be entered ten days notice and an
                                                                           adequate opportunity to respond.” Yashon v. Gregory, 737
  On September 23, 1998, American notified Conrail of its                  F.2d 547, 552 (6th Cir. 1984). “Noncompliance with the time
intent to pursue subrogation and on January 25, 1999 gave                  provision of the rule deprives the court of authority to grant
notice of the final amount of the claim. Conrail denied the                summary judgment, unless the opposing party has waived this
claim on June 8, 1999.1 On October 18, 2000, American filed                requirement, or there has been no prejudice to the opposing
suit in district court alleging a negligence claim and a claim             party by the court’s failure to comply with this provision of
pursuant to the Carmack Amendment.                                         the rule.” Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir.
                                                                           2001) (quoting Kistner v. Califano, 579 F.2d 1004, 1006 (6th
  On March 13, 2002, the district court entered summary                    Cir. 1978)).
judgment in favor of Conrail because American’s complaint
was untimely.                                                                At the final pretrial conference, according to both parties,
                                                                           the district court requested that the parties brief certain
  On appeal, American claims that the district court erred                 dispositive issues. At the end of Conrail’s Brief, Conrail
when it failed to provide American notice and an opportunity               requested “the entry of judgment as a matter of law.”
to respond before entering summary judgment sua sponte.                    American responded to the issues raised and asked the court
American also claims genuine issues of material fact                       to deny Conrail’s request for judgment.
precluded summary judgment. Finally, American argues that
the district court erred when it considered testimony of a                    American therefore had notice, was aware of the relevant
witness who was not disclosed in accordance with Rule 26 of                issues, had an opportunity to respond and did in fact respond
the Federal Rules of Civil Procedure.                                      to Conrail’s request for judgment as a matter of law.
                                                                           Accordingly, the Court rejects American’s characterization of
                           II. ANALYSIS                                    the judgment in this case as sua sponte.2
A. Sua Sponte                                                              B. Genuine Issue of Material Fact
  American claims that the district court’s order granting                    The district court found that the Mark VII bill of lading was
judgment in favor of Conrail was inappropriate because the                 a through bill of lading and that the Carmack Amendment’s
time for filing dispositive motions had expired. American

                                                                               2
    1
                                                                                 Even if it were possible to characterize the grant of summary
      Conrail denied the claim because American failed to provide a more   judgment as sua sponte, Ame rican suffered no prejudice, as is evident in
explicit description of its claim.                                         Section B of this opinion.
No. 02-1475                        Am. Road Serv. Co. v.        5    6     Am. Road Serv. Co. v.                         No. 02-1475
                                 Consolidated Rail Corp.                   Consolidated Rail Corp.

two-year period of limitation for filing a civil action therefore      Determining whether a shipment is governed by a through
did not apply. The court then examined the Mark VII bill of          bill of lading is a question of fact. Capitol, 965 F.2d at 394.
lading to determine whether the time to commence a suit was          In Capitol, LEP Transport was hired by Capitol to arrange for
limited by contract. Section XVIII of the Mark VII bill of           the transportation of machinery from Italy to Chicago. The
lading states, “Carrier shall be discharged from all liability for   machinery never arrived and Capitol sued LEP under the
loss of damage to goods unless suit is brought within 9              Carmack Amendment. The district court held that the
months after delivery of the goods.” Based on that language,         shipment was governed by a through bill of lading, making
the district court found American’s complaint, filed almost          the Carmack Amendment inapplicable, because the bill of
two years after the fire in the rail yard, was untimely.             lading was issued in Italy, showed Chicago as the place of
                                                                     delivery, was prepaid and was not followed by a separate,
  American argues on appeal that the Carmack Amendment               domestic bill of lading. Id.
applies to this case and that a genuine issue of material fact
precluded summary judgment. We review a district court’s                Here, the district court concluded that the shipment was
grant of summary judgment de novo. Cherrington v. Skeeter,           covered by a through bill of lading because (1) the final
344 F.3d 631, 636 (6th Cir. 2003).                                   destination was included in the bill of lading issued by Mark
                                                                     VII to Interdean; (2) the freight was prepaid for the entire
   The Carmack Amendment was enacted in 1906 as an                   shipment to Detroit; and (3) no separate bill of lading was
amendment to the Interstate Commerce Act of 1887 and                 issued for the trip from Newark to Detroit.
addresses the liability of common carriers for goods lost or
damaged during a shipment over which the Interstate                     American disputes the accuracy of the district court’s
Commerce Commission (“ICC”) has jurisdiction. Capitol                findings. Specifically, American claims there is evidence
Converting Equipment, Inc. v. LEP Transport, Inc., 965 F.2d          Conrail issued a domestic bill of lading. That evidence is
391, 394 (7th Cir. 1992). The Amendment requires, among              found in Conrail’s claim notes, which state that “this
other things, that a carrier transporting property issue a bill of   document does not constitute a claim within the meaning of
lading to the shipper, and makes the carrier liable to the one       section 2(b) of bill of lading contract.” American states that
entitled to recover under the bill of lading for loss of or injury   a “section 2(b)” is not listed in the bills of lading issued by
to the property.                                                     Maersk or Mark VII and argues “[w]hether there is a third
                                                                     Conrail bill of lading that also governs the transaction is a
  “A bill of lading issued in a foreign country to govern a          question of fact that precludes summary judgment.”
shipment throughout its transportation from abroad to its final
destination in the United States, is termed a ‘through’ bill of        To support a claim under the Carmack Amendment,
lading.” Capitol, 965 F.2d at 394. The ICC’s jurisdiction            American must present some proof that a domestic bill of
does not extend to a shipment under a through bill of lading         lading was issued. Speculation, unsupported by facts in the
unless a domestic segment of the shipment is covered by a            record, is insufficient to create a genuine issue of material fact
separate domestic bill of lading. See 49 U.S.C. § 10501; Swift       and falls short of what is required to survive summary
Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701       judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
(11th Cir. 1986); Capitol, 965 F.2d at 394; Shao v. Link             252 (1986) (holding that “[t]he mere existence of a scintilla
Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir. 1993).              of evidence in support of the plaintiff’s position will be
No. 02-1475                             Am. Road Serv. Co. v.             7
                                      Consolidated Rail Corp.

insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff”).
  Without evidence to the contrary, the Court agrees with the
district court’s finding that the Mark VII bill of lading was a
through bill of lading. Such a finding renders the Carmack
Amendment inapplicable to the shipment at issue.3
  As a result, the Mark VII bill of lading’s nine-month period
of limitation controls and American’s negligence claim, filed
almost two years after the goods were destroyed by fire, was
too late.
AFFIRMED.




    3
      American raises another issue on appeal: whether the district court
abused its discretio n when it considered the d epo sition testimony of
Maersk’s claims manager, Massoud M esskoub. American argues that the
testimony was inadmissible because Co nrail failed to disclose M esskoub’s
identity until nine months after the witness disclosure deadline. The
district court relied o n M esskoub’s testim ony to conclude that American’s
complaint was untimely even if the Carmack Amendment applied.
Because the Court has concluded the Carmack A mendme nt is
inapplicable, a ruling on whether M esskoub’s testim ony wa s adm issible
is unnec essary.
