United States District Court, D. Maryland
PARCEL DELIVERY EXPRESS, INC. Plaintiff,
VOLPE EXPRESS, INC., Defendant.
Mark Coulson, United States Magistrate Judge.
case concerns a contractual dispute between Plaintiff Parcel
Delivery Express, Inc. (“Plaintiff” or
“PDX”) and Defendant Volpe Express, Inc.
(“Defendant” or “Volpe”) over the
collection of allegedly unpaid fees for transportation
services that PDX provided to Volpe. The parties consented to
proceed before a magistrate judge pursuant to 28 U.S.C.
§ 636(c) and Local Rule 301.4. (ECF Nos. 15 & 22).
Now pending before the Court is Plaintiff's Motion for
Partial Summary Judgment. (ECF No. 17). In considering that
Motion, the Court has also reviewed Defendant's Response
in Opposition and Plaintiff's Reply. (ECF Nos. 20 &
25). A hearing was also held before the Court on March 29,
2018. (ECF No. 32); see Loc. R. 105.6 (D. Md. 2016).
For the reasons that follow, Plaintiff's Motion for
Partial Summary Judgment will be DENIED.
Parcel Delivery Express, Inc. and Defendant Volpe Express,
Inc. are motor carriers engaged in the interstate
transportation and delivery business, providing
transportation services to various consignees and shippers of
freight throughout the Mid-Atlantic region. (ECF No. 2,
Compl. at ¶¶ P3, P4, 2). On March 19, 2010, PDX and
Volpe entered into the Interline Division Contract Agreement
(the “Contract”). Id. at ¶ 1. Under
the terms of the contract, PDX would provide certain
transportation services to Volpe's direct customers and
vice versa, depending on the geographic location of the
companies' customers. Essentially, PDX and Volpe acted as
“interline carriers for one another so they could
extend the reach of their transportation services for their
customers.” Id. at ¶ 2. In accordance
with the percentage splits assigned in the Contract, PDX and
Volpe would then pay one another for their share of the
revenue from the transportation services provided to
customers. Id. at ¶ 9. The Contract called for
payments to be made within 30 days of the presentation of an
invoice. (ECF No. 2-1 at ¶ 1). Occasionally, a third
party carrier would be used to cover certain portions of the
transportation route. On these occasions, PDX and Volpe would
split the shipping charges according to a formula provided in
the Contract. (ECF No. 17-1 at 4). This business partnership
appears to have functioned well for both parties for a number
of years. (ECF No. 2, Compl. at ¶ 9).
PDX alleges that, “by January of 2016, Volpe had fallen
behind” on payments that were due to PDX under the
Contract-i.e., Volpe was in breach of the 30-day payment
provision of the contract. (ECF Nos. 17-1 at 7 & 2-1 at
¶ 1). Notwithstanding some payments from Volpe, PDX
further alleges that 69 invoices, totaling $148, 769.03,
remain unpaid. Id. For its part, Volpe admits to
“fall[ing] behind on payment” due to
“unforeseen issues with a workers' compensation
settlement.” (ECF No. 20 at 2, 5). But Volpe asserts
that the companies reformed their original contract in 2016
to provide flexibility to Volpe to better allow for its
continued repayment of past due amounts given its cash flow
issues. Id. at 5. According to Volpe, under this
reformed agreement, it paid down at least $150, 000 of its
past due amounts, although outstanding invoices remain
next asserts that, sometime in July of 2017, PDX became
frustrated that it had not yet paid off all of its debt and
“sought to unilaterally modify the parties'
agreement [by refusing to service certain locations on
Volpe's behalf] and threatened to terminate all business
if the terms were not accepted.” (ECF No. 20 at 2).
Volpe admits that it made only one additional payment to PDX
and was subsequently “unable to continue [repayment]
without PDX's continued business.” Id. at
2. PDX asserts both that Volpe's last payment was made on
April 28, 2017 and that Volpe “stopped paying PDX
altogether” in August of 2017. (ECF No. 17-1 at 11,
August 23, 2017, PDX filed suit against Volpe. (ECF No. 2,
Compl.). PDX's complaint alleges breach of contract,
breach of implied contract, quantum meruit/unjust enrichment,
intentional interference with contractual relations, breach
of trust, and breach of fiduciary duties of loyalty and care.
Id. at 6-12. On November 9, 2017, PDX filed the
currently pending Motion for Partial Summary Judgment as to
Count I for breach of contract, Count II for breach of
implied contract, and Count III for quantum meruit/unjust
enrichment. (ECF No. 17).
STANDARD OF REVIEW
Rule of Civil Procedure 56(a) requires the Court to
“grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The moving
party bears the burden “to demonstrate the absence of
any genuine dispute of material fact.” Jones v.
Hoffberger Moving Servs. LLC, 92 F.Supp.3d 405, 409 (D.
Md. 2015) (internal citations omitted). A dispute as to a
material fact “is genuine if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” J.E. Dunn Const. Co. v. S.R.P. Dev. Ltd.
P'ship, 115 F.Supp.35 593, 600 (D. Md. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
nonmoving party “opposing a properly supported motion
for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings, ' but rather
must ‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003). The court is “required to view the facts and
draw reasonable inferences in the light most favorable
to” the nonmoving party, Iko v. Shreve, 535
F.3d 225, 230 (4th Cir. 2008) (citing Scott v.
Harris, 550 U.S. 372, 377 (2007)), but must also
“abide by the ‘affirmative obligation of the
trial judge to prevent factually unsupported claims and
defenses from proceeding to trial.'” Heckman v.
Ryder Truck Rental, Inc., 962 F.Supp.2d 792, 799-800 (D.
Md. 2013) (quoting Drewitt v. Pratt, 999 F.2d 774,
778-79 (4th Cir. 1993)).
Count I: Breach of Contract
first argues that Defendant breached the Contract by failing
to pay carrier charges due to Plaintiff within 30 days under
the payment structure in the Contract and, therefore, summary
judgment should be granted in its favor. For its part,
Defendant asserts that Plaintiff cannot now attempt to
enforce the 2010 Contract's 30-day payment provision
having essentially waived Defendant's prior breach of
that condition and having agreed to a new payment arrangement
to deal with its outstanding balance caused by the cash flow
issue. Further, Defendant argues that Plaintiff's own
unilateral decision to restrict certain types of services
(and ultimately terminate all service) once Defendant's
ability to pay in a timely fashion was called into question
constituted yet a second modification of the 2010 Contract.
The Court interprets this as an argument that Plaintiff
breached the Contract, frustrating (and perhaps excusing)
Defendant's responsibility to pay. Plaintiff answers that
no modifications were made to the Contract and that, at all
times, Plaintiff was simply demanding the sums Defendant owed
to it under the Contract and taking steps to mitigate further
losses (when Plaintiff unilaterally modified then terminated
its own performance). The Contract itself contains a clause
stating that all amendments require mutual consent and must
be negotiated in writing with 30 days prior notice absent an
express agreement for a different effective date. (ECF No.
2-1 at ¶ 5).
Maryland Court of Appeals has opined that “the freedom
to contract is not limited to the contract as written,
” and instead “includes the freedom to alter that
contract.” Hovnanian Land Inv. Group, LLC v.
Annapolis Towne Centre at Parole, LLC, 421 Md. 94, 121
(2011). “The parties to a contract may agree to vary
its terms and enter into a new contract embodying the changes
agreed upon and a subsequent modification of a written
contract may be established by a preponderance of the
evidence. Assent to an offer to vary, modify or change a
contract may be implied and found from circumstances and the
conduct of the parties showing acquiescence or
agreement.” Cole v. Wilbanks, 226 Md. 34, 38
(1961). This is true even in the face of a so-called
“non-waiver clause” included in the contract.
Hovnanian Land, 421 Md. at 121-22. Furthermore,
“whether subsequent conduct of the parties amounts to a
modification or waiver of their contract is generally a
question of fact to be decided by the trier of fact.”
Id. at 122 (quoting University Nat'l Bank v.
Wolfe, 279 Md. 512, 523 (1977)). In ...