United States District Court, D. Oregon
P. Manning Attorney for Plaintiff Transport Financial
B. Gray Attorney for Defendants Kelly Pipe Company, LLC,
Master Pipe Distribution Company, and B&E Freight, LLC
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
Kelly Pipe Company, LLC, Master Pipe Distribution Company,
and B&E Freight, LLC (hereinafter "Kelly Group
Defendants") move for summary judgment under 49 U.S.C.
§ 14704 to recover economic damages for unpaid
transportation services. Plaintiff Transportation Financial
Services, LLC ("TFS") brought this interpleader
action under 28 U.S.C. § 1335, interpleading Defendant
Solaris Transportation, LLC ("Solaris") as well as
numerous interpleader defendants that may have had claims
against Solaris for unpaid services. TFS filed with the
Federal Motor Carrier Safety Administration a surety
instrument, a "Form BMC-85 Broker's or Freight
Forwarder's Trust Fund Agreement, " ("BMC-85
Trust") in the amount of $74, 150, that TFS held in
trust for Solaris. See Compl. ¶2, ECF
1. TFS deposited the corpus of the MBC-85 Trust with the
Court for disbursement as the Court deems proper.
Id. at ¶¶ 8-9. TFS alleged that the
interpleader defendants, including Kelly Group Defendants,
may have conflicting claims against the BMC-85 Trust.
dismissed the majority of interpleader defendants because
they did not timely file claims in response to the Complaint.
See Notice of Dismissal, ECF 32. Seven interpleader
defendants that have filed claims remain: the three Kelly
Group Defendants; B&G, LLC; Handy Trucking Company, LLC;
Douglas Keck d/b/a Douglas Keck Trucking Company; and
Hamilton Transportation, LLC. Before the Court is Kelly Group
Defendants' motion for summary judgment that it is
entitled to the entirety of the BMC-85 Trust funds and that
the remaining interpleader defendants' claims should be
stricken or dismissed. See Mot. Summ. J., ECF 33;
Mem. in Support of Mot. Summ. J., ECF 34. None of the
remaining interpleader defendants filed a response to Kelly
Group Defendant's summary judgment motion.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial responsibility of informing the court
of the basis of its motion, and identifying those portions
of'"the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)).
the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact, the burden
then shifts to the nonmoving party to present "specific
facts" showing a "genuine issue for trial."
Fed. Trade Comm 'n v. Stefanchik, 559 F.3d 924,
927-28 (9th Cir. 2009) (internal quotation marks omitted).
The nonmoving party must go beyond the pleadings and
designate facts showing an issue for trial. Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 324). The court draws
inferences from the facts in the light most favorable to the
nonmoving party. Earl v. Nielsen Media Research,
Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).
judgment "may not be granted based on a failure to file
an opposition to the motion." Heinemann v.
Satterberg, 731 F.3d 914, 916 (9th Cir. 2013). In other
words, a district court may not grant summary judgment
"by default even if there is a complete failure to
respond to the motion. Id. (quoting Fed.R.Civ.P. 56
Advisory Committee Notes (2010)). Under Rule 56, where a
party "fails to properly address another party's
assertion of fact" the court may: "(1) give an
opportunity to properly support or address the fact; (2)
consider the fact undisputed for purposes of the motion; (3)
grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it; or (4) issue any other
appropriate order." Fed.R.Civ.P. 56(e).
Group Defendants have demonstrated that they are entitled to
recover the BMC-8 5 Trust funds that TFS deposited with the
Court. Kelly Group Defendants were the only interpleader
defendants that filed an answer responsive to TFS's
Complaint. See Answer, ECF 23. In that Answer, Kelly
Group Defendants admitted that they were either
"shippers" or "authorized carriers"
entitled to the BMC-85 Trust under 49 CFR 376.2(a), (k); 49
U.S.C. § 14704. Id. ¶6; Compl.
¶¶ 2, 11-12. Kelly Group Defendants have submitted
affidavits substantiating their claims against Solaris.
See Medal Aff, ECF 35, Matsumoto Aff, ECF 36; Konis
Aff, ECF 37. Kelly Group Defendants claim amounts are as
follows: Kelly Pipe Company, LLC $44, 200.00; B&E
Freight, LLC $37, 100; and Master Pipe Distribution Company
$6, 000.00. Mot. Summ. J. 3. Given that the claims exceed the
amount of the BMC-85 Trust, Kelly Group Defendants request
the following distribution: Kelly Pipe Company, LLC $37,
542.14; B&E Freight, LLC $31, 511.60; and Master Pipe
Distribution Company $5, 096.26. Id.
remaining interpleader defendants, by contrast, have not
substantiated their claims nor have they raised a genuine
issue of material fact as to Kelly Group Defendants'
claims. For example, Douglas Keck Trucking Company submitted
a single-page handwritten request for $850.00 attached to a
Solaris invoice. See Keck Claim, ECF 27. Douglas
Keck Trucking Company has not demonstrated that it is a
"shipper" or "authorized carrier"
entitled to the BMC- 85 Trust funds. In further example,
Hamilton Transportation, LLC submitted as its claim a
four-page document including a copy of its own invoice, a
Solaris invoice, a bill of lading, and a shipping truck log
tally. See Hamilton Claim, ECF 28. In sum, none of
the remaining interpleader defendants' claims are
responsive to TFS's Complaint, nor do those claims
establish that they are legally entitled to the BMC-85 Trust.
Accordingly, the Court concludes that there is no genuine
issue of material fact and Kelly Group Defendants have
demonstrated, based on their papers and affidavits, that they
are entitled to judgment as a matter of law.
Group Defendants' Motion for Summary Judgment  is
GRANTED. The Clerk of the Court shall deposit the
interpleader funds in accordance with the ...