Opinion
No. 92-2258.
Submitted December 17, 1992.
Decided March 26, 1993.
Alan D. Harris (argued), Bloomington, MN (Paul O. Taylor, on the brief), for appellant.
Ronald H. Usem (argued), Minneapolis, MN, for appellee.
Appeal from the United States District Court for the District of Minnesota.
Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
F.P. Corporation appeals from the order of the District Court granting summary judgment in favor of Twin Modal, Inc. We affirm.
The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
The District Court also dismissed without prejudice Twin Modal's state law counterclaim.
F.P. Corporation is a common and contract motor carrier, presently insolvent. In April 1988, Twin Modal, a property broker, contracted with F.P. for future shipments of freight. F.P. performed the agreed services and invoiced Twin Modal at the agreed rate. Twin Modal paid the invoiced charges. In August 1991, F.P. brought suit against Twin Modal seeking to recover alleged undercharges, that is, the difference between the contract rate Twin Modal paid and the higher rate set forth in the tariff F.P. purportedly had filed with the Interstate Commerce Commission (ICC).
We agree with the District Court that F.P.'s tariff never was effectively filed with the ICC and thus F.P. is barred from collecting the alleged undercharges from Twin Modal. See Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F.2d 281 (8th Cir. 1993).
Twin Modal's alternative ground for affirmance — its claim of exemption from liability for undercharges by reason of a contract carriage relationship between the parties — was not considered by the District Court. The record on the issue has not been fully developed. Further, our conclusion that F.P.'s tariff was not effectively filed makes resolution of the contract carriage issue unnecessary to our decision and we decline to consider the issue. F.P.'s motion to strike certain portions of Twin Modal's argument on this issue, which we have taken with the case, is denied as moot.
F.P.'s suggestion that we remand to the ICC for a determination of rate reasonableness is denied. F.P. did not seek such a remand in the District Court. Instead, in its complaint and in its strategy in that court, F.P. relied solely on its alleged filed rate. F.P. will not now be heard to claim it is entitled to such a remand. See Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F.2d 281 (8th Cir. 1993).
The judgment of the District Court is affirmed.