Opinion
Nos. 04-1494 MMC EDL, 31.
June 21, 2004
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is the motion of defendants Chepstow Shipping Co Ltd. ("Chepstow") and the vessel M/V Sea Cristobal for partial summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. The matter came on regularly for hearing June 16, 2004. Joshua E. Kirsch of Gibson Robb Lindh LLP and C. William Craycroft of Bingham McCutchen LLP appeared on behalf of plaintiff Deltak, L.L.C. Lynn L. Krieger of Cox, Wootton, Griffin, Hansen Poulos, LLP, appeared on behalf of defendants. Having considered the papers submitted and the arguments of counsel, the Court rules as follows.
BACKGROUND
Plaintiff alleges that on February 5, 2004, defendants "received a cargo of heat recovery steam generating equipment, for carriage under bills of lading . . . issued by and/or on behalf of defendants," (see Compl. ¶ 5), and that the cargo was placed on the M.V. Sea Cristobal, (see Compl. ¶ 6). Plaintiff also alleges that while the vessel was en route from Asia to Texas, the vessel lost part of its rudder and stopped in San Francisco for repairs, (see Compl. ¶ 6), which, in turn, prohibited the vessel from arriving in Texas on the previously agreed date of March 23, 2004, (see Compl. ¶¶ 6, 16). According to plaintiff, plaintiff inspected its cargo while the vessel was in San Francisco and discovered the cargo had been damaged as result of "exposure to seawater." (See Compl. ¶ 13.)
The moving defendants are the vessel's owner, Chepstow, and the vessel. The other defendants are the vessel's manager, CEC Shipmanagement ("CEC"), and the vessel's charterer, Industrial Maritime Carriers Worldwide L.L.C. ("IMCW"). To date, IMCW has not appeared in the instant action and CEC, although having made a special appearance for the purposes of contesting the Court's jurisdiction over it with respect to a discovery motion, has not made a general appearance.
In its complaint, plaintiff seeks to recover for the damage to the cargo, (see Compl. ¶¶ 13, 21), as well as for losses occasioned by the delay in receipt of the cargo in Texas, (see Compl. ¶ 16).
Additionally, plaintiff seeks a declaration that it "shall not be required to contribute in general average." (See Compl. ¶ 10.) Plaintiff's claim for declaratory relief is not the subject of defendants' motion.
LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See Celotex, 477 U.S. at 324 (quoting Rule 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial, "`inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" See Matsushita, 475 U.S. at 587 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
DISCUSSION
Defendants seek partial summary judgment as to plaintiff's claims for damages. Defendants argue that, assuming they are liable for the alleged losses, plaintiff's recovery is limited to $500 per "package" of cargo. See Defs.' Answer at 5:1-3 (alleging, as affirmative defense, "The loss or damage complained of is limited to $500 per package pursuant to the terms of the Carriage of Goods by Sea Act and the applicable bills of lading.").
Under the Carriage of Goods by Sea Act ("COGSA"), "[e]very bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports in the United States, in foreign trade, shall have effect subject to the provisions of [COGSA]." See 46 U.S.C. App. § 1300. COGSA provides that a carrier's liability for cargo damaged while in transit to or from the United States is limited, as follows:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.See 46 U.S.C. App. § 1304(5) (emphasis added).
"The $500 limitation is not absolute, since shippers must be given the opportunity to declare a higher value of their shipments, and create a higher limitation of liability." All Pacific Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F. 3d 1427, 1433 (9th Cir. 1993). A carrier has the burden of proving the shipper had notice of its opportunity to declare a higher value.See Mori Seiki USA, Inc. v. M.V. Alligator Triumph, 990 F. 2d 444, 449 (9th Cir. 1993). A carrier can meet this initial burden by relying on language in the bill of lading "to the same effect" as that contained in § 1304(5). See id. Once the carrier meets its initial burden, the shipper, to demonstrate it lacked notice, must offer evidence to support a finding that it was denied an opportunity to declare a higher value. See id. at 449-50. A limitation of liability provision in a bill of lading, however, is void "when the carrier commits an unreasonable deviation" from the contract of carriage. See Vision Air Flight Service, Inc. v. M/V National Pride, 155 F. 3d 1165, 1173, 1175 (9th Cir. 1998) (holding "intentional destruction of cargo" constitutes unreasonable deviation from contract of carriage, thus voiding limitation of liability provision in bill of lading).
Here, plaintiff alleges, and defendants do not dispute, that defendants and plaintiff entered into a contract, evidenced by bills of lading, to carry plaintiff's goods from Asia to the United States. (See Compl. ¶ 5; Leonard Decl. Exs. A, B, and C.) Accordingly, the bills of lading are subject to COGSA.
Defendants offer the three applicable bills of lading and argue that the bills include language "to the same effect" as § 1304(5). Plaintiff does not contend to the contrary and the Court, having reviewed the language, agrees with defendants. Nor does plaintiff contend that it lacked an opportunity to declare a higher value. Moreover, defendant offers evidence that plaintiff insured the cargo. (See Poulos Decl. ¶ 3 and Ex. B.) The Ninth Circuit has held that "a shipper who chooses to insure its cargo through an independent insurance company has made a conscious decision not to opt out of COGSA's liability limitation." See Travelers Indemnity Co. v. The Vessel Sam Houston, 26 F. 3d 895, 900 (9th Cir. 1994). Accordingly, in the absence of a showing that the liability provision is void, the $500 limitation is applicable to plaintiff's cargo.
Plaintiff's complaint alleges that the cargo was shipped under four identified bills of lading "and others." (See Compl. ¶ 5.) Plaintiff, however, offers no evidence to counter defendants' showing that the cargo was shipped under three bills of lading.
Page 1 of each of the bills of lading, in a section titled "U.S. Trade, Period of Responsibility, Limitation, states in relevant part: "In case the Contract evidenced by this Bill of Lading is subject to [COGSA], then the provisions stated in said act shall govern before loading and after discharge and throughout the entire time the goods are in the Carrier's custody. The COGSA U.S. $500 limitation as set forth in section 1304(5) of said Act, shall apply to all goods shipped to and from the United States, unless: 1. The value of said goods has been declared on Page 2 in the box provided and 2. Extra charge for Ad Valorem declaration is paid by the Merchant." (See Leonard Decl. Ex. A.)
Plaintiff argues that the limitation provision is void because plaintiff can establish that defendants engaged in an unreasonable deviation. Plaintiff alternatively argues that if the $500 limitation is applicable, the cargo shipped by plaintiff, with one exception noted below, was not shipped in "packages" and, consequently, the $500 limitation per customary freight unit applies. The Court considers these two contentions in turn.
A. Unreasonable Deviation
"[C]ourts have rejected the argument that gross negligence or recklessness may constitute a deviation." Vision Air Flight Service, 155 F. 3d at 1175. Moreover, "failure to provide a seaworthy ship does not constitute an unreasonable deviation that voids COGSA's liability limitation, even where the carrier is on notice of the defect." See id. at 1174 (citing Iligan Integrated Steel Mills, Inc. v. S.S. John Weyerhaeuser, 507 F. 2d 68, 71-72 (2nd Cir. 1974)). Rather, for conduct to constitute an unreasonable deviation, some "fundamental breach," such as the "intentional destruction of cargo" by the carrier, is required. See id. at 1175 (holding evidence that stevedores unloaded plaintiff's truck from vessel in manner causing visible damage to truck, yet "proceeded to off-load" plaintiff's second truck "in precisely the same manner as the first," was sufficient to raise triable issue of fact as to whether second truck was intentionally destroyed).
Here, plaintiff's complaint alleges that the vessel was "unseaworthy at the commencement of her voyage to the United States," (see Compl. ¶ 9), and that defendant Chepstow "failed to exercise due diligence to make the M.V. Sea Cristobal seaworthy which caused the rudder to fail, and caused the hatch covers to leak thus causing the cargo to be damaged by seawater," (see id.). Such allegations, construed in the light most favorable to plaintiff, are insufficient to support a claim of unreasonable deviation. See Vision Air Flight Service, 155 F. 3d at 1174-75.
Plaintiff, nonetheless, argues there exists a triable issue of fact as to deviation, relying on evidence that, according to plaintiff, demonstrates "the vessel and its owners . . . knowingly furnish[ed] a cargo [ship] with leaky hatches and fail[ed] to apply sealant tape." (See Pl.'s Opp. at 8:7-9.) Assuming, arguendo, plaintiff's evidence supports these allegations, such evidence would, at best, support a finding of negligence, perhaps gross negligence, but not an unreasonable deviation. See Iligan, 507 F. 2d at 69-70 (holding, where cargo damaged by water leaking into hold as result of defective pipe, evidence that shipper was aware of defective pipe before voyage began insufficient to establish unreasonable deviation);see also Sedco, Inc. v. S.S Strathewe, 800 F. 2d 27, 32 (2nd Cir. 1986) (observing "failure to properly handle, stow, care, or deliver cargo, never has constituted deviation. . . . having the effect of voiding either a contractual or statutory limitation of liability"). Consequently, the Court finds plaintiff has failed to establish a triable issue of fact as to an unreasonable deviation.
Plaintiff relies on excerpts from the depositions of Vyacheslav Konstantinov and Andrey Dubinchik. (See Kirsch Decl. Exs. A, C.)
Accordingly, the Court finds the $500 limitation set forth in the bills of lading applies to plaintiff's claims for damages.
B. Application of "Package" Limitation
"There is no question that [a carrier has] the burden of establishing the availability of the $500 limitation." See Servicios-Expoarma, C.A. v. Industrial Maritime Carriers, Inc., 135 F. 3d 984, 994 (5th Cir. 1998) (holding carrier discharged its burden where parties agreed $500 per package limitation applied).
Here, the parties disagree whether the cargo, with one exception, was shipped in "packages" within the meaning of COGSA. As noted, if the cargo was packaged, defendants' liability is limited to $500 per package; if the cargo was unpackaged, defendants' liability is limited to $500 per customary freight unit.
Neither party has offered any evidence or argument pertaining to the limitation for customary freight units.
"`The number appearing under the heading `NO. OF PKGS.' [in the bill of lading] is [the] starting point for determining the number of packages for purposes of the COGSA perpackage limitation, and unless the significance of that number is plainly contradicted by contrary evidence of the parties' intent, or unless the number refers to items that cannot qualify as `packages,' it is also the ending point of [the] inquiry.'" Travelers Indemnity Co., 26 F. 3d at 902 (quoting Seguros "Illimani" S.A. v. M/V Popi P, 929 F. 2d 89, 94 (2nd Cir. 1992)).
Here, as noted, the cargo was shipped under three bills of lading. In one bill of lading, number IMTB303320L001, the number "12" appears under the heading "NO. OF PKGS," and, under the heading "DESCRIPTION OF PACKAGES AND GOODS," the following is set forth:
PKGS 9 PACKAGES H.R.S.G. MODULES 1 PACKAGE WOODEN BOX FOR GAS BAFFLE PLATE 2 SETS DRUM ASS'Y HEAT RECOVERY STEAM GENERATORS FREIGHT PAYABLE AS PER BOOKING NOTE
EXPRESS RELEASE
(See Leonard Decl. Ex. A.)
In the second bill of lading, number IMTB303320K001, the number "20" appears under the heading "NO. OF PKGS," and, under the heading "DESCRIPTION OF PACKAGES AND GOODS," the following is set forth:
PACKAGES HEAT RECOVERY STEAM GENERATORS CASING
FREIGHT PAYABLE AS PER BOOKING NOTE
EXPRESS RELEASE
REMARKS: QTY AND CONDITION SAID TO BE BY C.O.S.T. CO. TALLY
(See Leonard Decl. Ex. B.)
In the third bill of lading, number IMTB303320K002, the number "8" appears under the heading "NO. OF PKGS," and, under the heading "DESCRIPTION OF PACKAGES AND GOODS," the following is set forth:
PACKAGES HEAT RECOVERY STEAM GENERATORS CASING
FREIGHT PAYABLE AS PER BOOKING NOTE
EXPRESS RELEASE
REMARKS: QTY AND CONDITION SAID TO BE BY C.O.S.T. CO. TALLY
(See Leonard Decl. Ex. C.)
The bills of lading evidence that plaintiff shipped 40 "packages," and, accordingly, such number and characterization control "unless the significance of that number is plainly contradicted by contrary evidence of the parties' intent, or unless the number refers to items that cannot qualify as `packages.'" See Travelers Indemnity Co., 26 F. 3d at 902.
Plaintiff concedes that the "wooden box," referenced in the first of three bills of lading set forth above, is a "package" within the meaning of COGSA. (See Pl.'s Opp. at 10:6.) Accordingly, defendants are entitled to partial summary judgment as to the issue of their entitlement to the $500 per package limitation with respect to that item.
As set forth in the bills of lading, and confirmed by the parties, the other items of cargo consist of the following: (1) nine "modules," (2) "casings," also described by plaintiff as "ductwork," and (3) two "steam drums." (See Waddington Decl. ¶ 6; Cullins Decl. ¶ 3.) With respect to these items, plaintiff argues that defendants are not entitled to partial summary judgment on the $500 per package limitation because there exists contrary evidence of the parties' intent and the items are not packages.
1. Intent
Defendants argue that the parties' intent is undisputedly set forth in the bills of lading, which, as noted, refer to the cargo as consisting of packages. As plaintiff points out, however, the term "package" is part of a pre-printed document, apparently prepared and completed by IMCW, the vessel's charterer. There is a triable issue of fact as to whether plaintiff, at any time, referred to the items as "packages." (Compare Leonard Decl. ¶ 5, with Cullins Decl. ¶ 16.) Additionally, both parties have offered evidence that the parties entered into an agreement titled Liner Booking Note, which is the only document pertaining to the subject cargo that is signed by representatives of both parties. (See Cullins Decl. Ex. D; Leonard Decl. Ex. G.) In the Liner Booking Note, in which both parties state the Note would "serve as the Master Contract for multiple vessel voyages," both parties referred to the disputed cargo as "pieces," not "packages." (See id.) Unlike the cases cited by defendants, wherein it was undisputed the shipper provided the number placed under the column "No. of Pkgs." on the bill of lading, there exists in the instant case a factual dispute as to whether plaintiff had any involvement or participation in the preparation of the bills of lading. Cf. Travelers Indemnity Co., 26 F. 3d at 901-02 (observing "the parties filled in the numbers . . . under the column titled `No. of Pkgs.'"; holding where shipper "specif[ied] the number of `packages' involved," shipper "should not now be allowed to argue that the cargo was not packaged");All Pacific Trading, 7 F. 3d at 1433 ("By listing the number of packages and containers [in the bill of lading], the shipper availed itself of the opportunity to clarify the liability limits.")
Defendants fail to address the connection between the parties' Master Agreement, i.e., the Liner Booking Note, and the bills of lading.
As discussed, defendants have the burden of establishing the applicability of its affirmative defense of entitlement to the $500 per package limitation and, as the parties moving for partial summary judgment, additionally have the burden to show there exists no triable issue of fact and that they are entitled to judgment as a matter of law. As set forth above, there exists contrary evidence of the parties' intent sufficient to raise a triable issue of fact as to whether the reference to "packages" in the bills of lading reflects the parties' understanding.
The Court next turns to the question of whether the disputed cargo can fairly be considered a package. See, e.g., Seguros, 929 F. 2d at 95 (considering, after reviewing evidence relevant to parties' intent, whether cargo "could fairly be considered a `package'").
2. Items Not Qualifying As Packages
Alternatively, plaintiff argues that defendants are not entitled to partial summary judgment because the disputed cargo does not qualify as "packages."
The term "package" is not defined in COGSA and "is to be given its plain, ordinary meaning." See Travelers Indemnity Co., 26 F. 3d at 899. The Ninth Circuit has explained that "cargo fully boxed or crated is a `package,' while "freestanding cargo not enclosed in a box or crate clearly constitutes goods not shipped in a package." See id. (internal quotation omitted). As the Ninth Circuit has observed, however, "where some preparation for transportation has been made, but the mode of packaging does not completely conceal or enclose the goods," the determination of whether such cargo constitutes a "package" is "not always obvious." See id. In keeping with that observation, the Ninth Circuit, in one case, concluded that an electronic transformer "bolted to a wooden skid" was not packaged, although the skid "could have been utilized to facilitate the transportation of the transformer,"see Hartford Fire Ins. Co. v. Pacific Far East Line, Inc., 491 F. 2d 960, 965 (9th Cir. 1974), and, in another case, concluded that girders were packaged, where each girder was placed on a "support skid" secured by cables and to which an "elliptical piece of steel" with "securing cable, turnbuckles and wall clamps" was attached, see Travelers Indemnity Co., 26 F. 3d at 901 (distinguishing cargo in Hartford Fire as item "designed to stand freely" and capable of being "simply dumped in a hold and carried without some sort of packaging").
Here, the parties agree that plaintiff placed yellow-painted bars around the modules to prevent warping during transportation, (see Cullins Decl. ¶ 7; Waddington Decl. ¶ 6.a.), and that plaintiff placed the casings in metal "frames," (see Cullins Decl. ¶ 3; Waddington Decl. ¶ 6.a.). Additionally, defendants offer evidence, and plaintiff does not dispute, that plaintiff placed "wooden dunnage" around the steam drums. (See Waddington Decl. ¶ 6.c.) Plaintiff offers evidence, and defendants do not disagree, that none of the disputed cargo was shipped on skids and that, to the extent any cargo was "chained or otherwise secured to the deck of the cargo holds," such chaining or securing occurred as a result of actions of "stevedores or the vessel's crew after [plaintiff] delivered the cargo to the vessel." (See Cullins Decl. ¶ 7.) The only other evidence offered in the parties' respective written submissions on the issue of whether the disputed cargo, in fact, constituted packages consists of rather difficult to interpret photographs. (See Waddington Decl. Ex. 2A-2E (modules); Ex. 2H-2I (steam drums); Ex. 3C-3D (casings).) At the hearing conducted on June 16, 2004, however, counsel for plaintiff represented that the large gray frames shown in the photographs of the modules are part of the modules, (see id. Exs. 2A, 2C), and that the gray support structures shown in the photographs of the steam drums are part of the drums, (see id. Exs. 2H-2I).
The modules are very large. Eight of the nine modules are "almost 25 meters long, over three meters wide, and almost five meters tall, and range in weight from about 131 metric tons to 151 metric tons," (see Cullins Decl. ¶ 3); the ninth module "weighs about 36 tons, is over 18 meters long, almost four meters wide, and over two meters tall," (see id.).
The "dunnage" here consists of narrow, wooden banding, much like cigar bands, placed relatively far apart on the drums.
The Waddington Declaration, to which the photographs are attached, does not indicate when and where the photographs were taken.
At the hearing, counsel for defendants disputed this assertion on the ground that plaintiff's declarant, Thomas J. Cullins, had referred to such frames as "temporary." Cullins, however, does not use that term in describing the modules, and, to the extent he refers to a "shipping frame," it appears such description is with reference to a different item as depicted in Exhibit 2D to the Waddington Declaration. (Although Cullins refers to "Photograph 2H," such reference clearly is a typographical error as that exhibit depicts a steam drum.)
The photographs of the modules and the steam drums appear to show extremely large, entirely freestanding items, to which proportionately slender steel bars, in the case of the modules, and proportionately narrow wooden bands, in the case of the steam drums, have been attached. The Court finds the "mere attachment" of such items to very large freestanding pieces of machinery does not suffice to convert those pieces of machinery into "packages" as that term is ordinarily understood. See Hartford Fire Ins., 491 F. 2d at 965 (holding large, freestanding electrical transformer bolted to wooden skid "not shipped in a package");see also Gulf Italia Co. v. American Export Lines, Inc., 263 F. 2d 135, 137 (2nd Cir. 1959) (holding tractor was not "package" where shipper, in order to minimize possible harm to tractor during transportation, placed "waterproof papering" over part of tractor and partially encased tractor with "wooden planking").
As explained by the Second Circuit in Gulf Italia, "a shipper who attempts to minimize possible harm to his property by putting protective covering on sensitive parts [should not] be placed in a worse position than a shipper who makes no effort to reduce the possibility of loss from inclement weather or pilfering." See id. at 137 (internal quotation omitted). The Ninth Circuit has referred to the cargo discussed in Gulf Italia as an example of "freestanding cargo not enclosed in a box or crate" that "constitute goods not shipped in a `package.'"See Hartford Fire Ins., 491 F. 2d at 964 and n. 7.
With respect to the casings, the two photographs offered and the extremely limited descriptions set forth in the parties' declarations provide the Court with minimal information concerning the manner in which such items were shipped. Although, at first glance, the photographs appear to show items wrapped in plastic, no declarant has described the casings as wrapped in plastic or any other material and, at the hearing, counsel for both parties were unable to provide any further information on that point. Indeed, neither party, either in their papers or at the hearing, described the casings or indicated which portions of the photographs depict them. Defendants' declarant does state that the casings had been placed in "steel framing," (see Waddington Decl. ¶ 6.a.); however, there is no information before the Court to explain the manner in which the casings were so placed or the significance of such framing, and such manner and significance is not apparent from the photographs. Cf. Travelers Indemnity Co., 26 F. 3d at 901 (observing testimony setting forth detailed description of manner in which girders had been shipped "provide[d] strong evidence that the cargo was shipped in packages"). The mere fact that the casings were placed in some relationship to a steel frame, without more, is insufficient to conclusively resolve the issue. See, e.g., General Motors Corp. v. S.S. Mormacoak, 327 F. Supp. 666, 668 (S.D.N.Y. 1971) (holding generator "mounted on steel base" not package), aff'd on other grounds, 451 F. 2d 24 (2nd Cir. 1971).
Simply put, and for the reasons expressed at the hearing, the Court has not been provided with sufficient evidence to determine definitively whether or not the disputed cargo constituted packages. See, e.g., Realini v. Contship Containlines, Ltd., 143 F. Supp. 2d 1337, 1343 (S.D. Fla. 1999) (declining to grant summary judgment on issue of whether yacht constituted package where yacht transported on "flatracks and on wooden cradles" and parties had not presented "evidence or argument as to exactly what flatracks and cradles are, or how they differ from or are similar to skids and wooden saddles").
As discussed above, defendants have the burden of establishing the applicability of the affirmative defense at issue; additionally, as the party moving for summary adjudication, defendants bear the burden of showing there exists no triable issue of material fact as to the matter sought to be adjudicated and that they are entitled to judgment thereon as a matter of law. For the reasons set forth above, the Court finds defendants have not met their burden and, accordingly, are not entitled to partial summary judgment as to the disputed cargo.
CONCLUSION
For the reasons expressed above, defendants' motion for partial summary judgment is GRANTED in part and DENIED in part, as follows:
1. The motion is granted to the extent defendants seek adjudication that the $500 per package limitation is applicable to the "wooden box" referenced in Bill of Lading IMTB303320L001.
2. In all other respects, the motion is denied.
This order closes Docket No. 31.