                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2005

Roadmaster (USA) v. Calmodal Freight Sys
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3970




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"Roadmaster (USA) v. Calmodal Freight Sys" (2005). 2005 Decisions. Paper 342.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                               Nos. 04-3970 and 04-3995




                            ROADMASTER (USA) CORP.,
                              a New Jersey Corporation,
                                            Appellant/Cross-Appellee

                                           v.

                      CALMODAL FREIGHT SYSTEMS, INC.,
                                     Appellee/Cross-appellant




          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY

                                (D.C. No. 01-CV-1364)
                   District Court Judge: Honorable Garrett E. Brown

                              Argued September 29, 2005




          Before: ALITO and AMBRO, Circuit Judges, and RESTANI,* Judge

                           (Opinion Filed: October 26, 2005)

GREGORY A. LOMAX (Argued)
DREW WIXTED
Wolf, Block, Schorr and Solis-Cohen


      *
         Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation
1940 Route 70 East, Ste 200
Cherry Hill, NJ 08003
Counsel for Appellant/Cross-Appellee

GEORGE W. WRIGHT (Argued)
George W. Wright & Associates
401 Continental Avenue
Hackensack, NJ 07601
Counsel for Appellee/Cross-Appellant




                                OPINION OF THE COURT


PER CURIAM:

       Before us are an appeal and cross-appeal from a judgment entered after a bench

trial. We affirm.

                                              I.

       Roadmaster, an importer, sued Calmodal, claiming that Calmodal breached an

oral agreement dealing with the interstate transport of goods. At trial, Roadmaster argued

that Calmodal acted as an interstate carrier, rather than as a broker, as defined by the

Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 13102. Under the

statute, it was necessary for Roadmaster to prove that Calmodal was an interstate carrier

rather than a broker in order to recover the damages it alleged. See, e.g., Graham v.

Malone Freight Lines, Inc., 314 F.3d 7, 15 (1st Cir. 1999) (transportation broker is not

liable for the negligence of the trucker it hires as independent contractor). The District

Court, finding that Calmodal did not act as an interstate carrier, held in Calmodal’s favor.

                                              2
In doing so, the Court cited testimony by Calmodal’s president that he had merely

“arrang[ed]” for but had not “provid[ed]” insterstate transportation. A15-16.

       Calmodal counterclaimed, seeking compensation for unpaid invoices submitted to

Roadmaster from March 2000 through January 2001. On this issue, the District Court

found that Roadmaster indeed owed Calmodal some money, but found no evidence that

Calmodal’s damage calculation of $238,165.81 was correct. Because Calmodal could not

provide a reliable accounting of its damages, the Court turned to the testimony of

Roadmaster’s Chief Financial Officer and Controller, who admitted that Roadmaster had

not paid all of Calmodal’s invoices, and testified that Roadmaster held back $129,269.50

against its damage claim. Based on this testimony, the District Court held that

Roadmaster was liable for $129,269.50.

       Roadmaster filed a timely motion to amend the Court’s findings of fact and

conclusions of law pursuant to Fed R. Civ. P. 52(b). Roadmaster argued that, if Calmodal

did not act as an interstate carrier, it must have acted as a broker and that if Calmodal

acted as a broker, it did so without a license, violating 49 U.S.C. § 13901 and thus

rendering the contract illegal and unenforceable. The District Court denied Roadmaster’s

motion, chastising Roadmaster for “taking [the] Court’s findings of fact out of context.”

A-22. Both Roadmaster appealed and Calmodal cross-appealed.

                                             II.

       We review the District Court’s denial of the Rule 52(b) motion under an abuse of

discretion standard. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d

                                              3
669, 673 (3d Cir. 1999). Fed R. Civ. P 52(b) states that “[o]n a party's motion . . ., the

court may amend its findings - or make additional findings - and may amend the judgment

accordingly.” The purpose of this rule is to allow the court to correct plain errors of law

or fact, or, in limited situations, to allow the parties to present newly discovered evidence.

See Gutierrez v. Ashcroft, 289 F. Supp. 2d 555, 561 (D.N.J. 2003). Here, Roadmaster

presented no new evidence, and the Court saw no errors to correct. Given that

Roadmaster based its reconsideration argument on the “implications” it drew from the

wording of the District Court’s own findings, it is well within the Court’s broad discretion

to clarify that Roadmaster’s interpretation was incorrect. We therefore conclude that the

District Court did not abuse its discretion by denying Roadmaster’s Rule 52(b) motion.




                                              II.

       Throughout the bench trial, Roadmaster argued that, because it contracted with

Calmodal as an interstate motor carrier (and not as a broker), Calmodal was liable for the

value of the goods transported. Only after the District Court found that Calmodal was not

a carrier did Roadmaster argue, as it does in this proceeding, that the contract was invalid

because Calmodal acted as an unlicensed broker. We hold that Roadmaster has waived

this argument because it failed to present it to the District Court. This Court generally

does not consider issues that are raised for the first time on appeal. Frank v. Colt

Industries, Inc., 910 F.2d 90, 100 (3d Cir. 1990). Roadmaster claims to have presented

the issue prior to its Rule 52(b) motion, but an examination of the record of proceedings

                                              4
reveals nothing of the sort. See id.; Kiewit Eastern Co., Inc. v. L & R Construction Co.,

Inc., 44 F.3d 1194, 1203-04 (3d Cir. 1995) (upholding a district court's finding that a

party had waived an issue when memoranda made only vague references to the issue).

Thus, by failing to properly raise this argument before the District Court, Roadmaster

waived this argument.

       Even if Roadmaster had not waived the right to present the issue, its argument

lacks merit. Roadmaster seeks to invalidate the contract between itself and Calmodal as

illegal, and therefore unenforceable, because Calmodal allegedly violated the Interstate

Commerce Act by acting as a broker without a license. However, the Act provides a

specific penalty for brokers operating without a license. See 49 U.S.C. § 14901(a)

(providing that a person that “does not comply with section 13901 ... is liable to the

United States for a civil penalty of not less than $500 for each violation and for each

additional day the violation continues). It is inappropriate to “add judicially to the

remedies” by rendering a private contract void when a congressional statute provides

specific penalties for violation. See Kelly v. Kosuga, 358 U.S. 516, 519 (1959) (holding

that a promisor may not avoid performing a legal promise because he elsewhere violated

the Sherman Act); Concord Industries, Inc. v. K.T.I. Holdings, Inc., 711 F. Supp. 728,

729 (E.D.N.Y. 1989). Because the subject matter of the Roadmaster-Calmodal contract

is legal, it is controlled by Kosuga. See Northern Indiana Public Service Co. v. Carbon

County Coal Co., 799 F.2d 265, 273 (7th Cir. 1986) (declining to void a contract for

illegality because the subject matter of the contract was not illegal).

                                              5
                                             IV.

          Calmodal also appeals the District Court’s damage award of $129,269.50. We

review the District Court’s calculation of Calmodal’s damages for clear error. See

Lerman v. Joyce Intern., Inc., 10 F.3d 106, 113 (3d Cir. 1993).

          Damages must be proven to a reasonable degree of certainty, though absolute

precision is not required. Berg Chilling Systems, Inc. v. Hull Corp. 369 F.3d 745, 764 (3d

Cir. 2004) (internal citations omitted). Considering the evidence presented at trial,

$129,269.50 in damages remains the most reliable calculation available. Calmodal

cannot convincingly show that Roadmaster owes a different amount, and we therefore

affirm.
