Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1749
___________________________
Chavis Van & Storage of Myrtle Beach, Inc.
lllllllllllllllllllll Plaintiff - Appellant
Bruton Properties, LLC
lllllllllllllllllllll Plaintiff
v.
United Van Lines, LLC; Transportation Services Group, Inc.; Unigroup, Inc.
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 14, 2015
Filed: April 27, 2015
____________
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
____________
SMITH, Circuit Judge.
Chavis Van & Storage of Myrtle Beach, Inc. ("Chavis") appeals from the
district court's1 adverse grant of summary judgment on its breach-of-contract claim
against United Van Lines, LLC.; Transportation Services Group, Inc.; and UniGroup,
Inc. (collectively, "United"). Chavis also appeals the district court's denial of its
motion to compel certain discovery requests. After reviewing the record de novo, we
hold that the district court properly granted summary judgment to United. We also
hold that the district court did not abuse its discretion in denying the motion to
compel. Accordingly, we affirm.
I. Background
United operates a nationwide household goods moving network with over 400
independently owned and operated agents, each of which has entered into a separate
agency agreement with United. Since 1993, Chavis has been a full-service United
agent. The parties' relationship is governed by an Agency Agreement dated
September 10, 2007. The Agency Agreement identifies Chavis as the "Agent" and
United as the "Carrier." United, as "the Carrier . . . appoint[ed] [Chavis,] the Agent[,]
. . . as its non-exclusive agent solely for the purposes" delineated in the agreement,
subject to the terms and conditions set forth in the agreement. The Agency Agreement
requires Chavis to comply with all carrier policies, defined as
such rules, regulations, procedures, and directives issued by the Carrier
[United] or directives and decisions of the Carrier's [United's] Board of
Directors, whether now existing or as may be issued or amended from
time to time during the term of this Agreement, all of which are or shall
be adopted and incorporated herein by reference.
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
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Section 3 of the Agency Agreement outlines "[t]he duties of the Agent
[Chavis],"2 which provides in relevant part:
P. To appoint an origin or destination agent when the Agent
[Chavis] is at a point other than point of origin or destination and the
Agent [Chavis] is not prepared to perform the necessary origin
Transportation Services . . . for a shipper; and the Agent [Chavis] agrees
the Carrier [United] will divide the appropriate compensation in
accordance with Carrier Policies.
Q. To appoint an agent of the Carrier [United] as origin agent
when the Agent [Chavis] secures an order involving a Shipment
originating from the warehouse of an agent of the Carrier [United]; and
the Agent [Chavis] agrees the Carrier [United] will divide the booking
compensation in accordance with Carrier Policies.
In turn, United's duties, as the Carrier, includes, among other things,
compensat[ing] the Agent [Chavis] for Transportation Services rendered
in accordance with Carrier Policies and the Pooling Plan, including
paying to the Agent a commission on Shipments booked by the Agent
[Chavis] or upon Shipments concerning which the Agent [Chavis] has
performed Transportation Services, which are accepted and served by
the Carrier [United] at rates established by Carrier Policies.
The Agency Agreement provides that Missouri law governs the agreement and
concludes as follows:
R. This is the entire Agreement between the Carrier and the
Agent and supercedes all previous agreements between the parties. No
change in this Agreement shall be valid unless made in writing and
signed by both parties. No failure to require strict performance or to
2
(All caps omitted.)
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exercise any right or remedy hereunder will preclude requiring strict
performance or exercising any right or remedy in the future. Any notice
required to be given by one party to the other will be effective hereunder
when and only when placed in writing and delivered personally or
deposited in the United States mail, certified, postage prepaid to the
appropriate party.
Chavis filed suit against United for, among other things,3 breach of contract,
alleging that United breached the Agency Agreement by unilaterally changing the
roles that United agents play in servicing shipments. Specifically, Chavis alleged that
United breached the Agency Agreement and longstanding policies incorporated into
it by not assigning Chavis to certain roles in the chain of interstate shipments.
According to Chavis, it should have been assigned the roles of origin agent and
destination agent (1) based on its status as the "local" or "authorized" agent in the
case of non-military shipments, i.e., its status as the agent closest to the original or
destination address, and (2) based on its designation as the United agent "authorized"
to service Shaw Air Force Base ("Shaw AFB") in South Carolina in the case of
military shipments. Chavis alleged that these policies were initially contained in an
Agency Manual provided to all United agents and in other written policies and
documents.
United moved for summary judgment on the breach-of-contract claim, arguing
that (1) the Agency Agreement did not incorporate the Agency Manual, and (2) the
Agency Manual did not mandate or prohibit any conduct by United in any event.
United attached a September 3, 1996 bulletin in support of summary judgment, which
notified its carriers that "[t]he United Van Lines Agency Reference Manual (ARM)
3
Chavis also brought claims for breach of implied contract, breach of the
covenant of good faith and fair dealing, promissory estoppel, fraudulent
misrepresentation, negligent misrepresentation, tortious interference with business
expectancies, and civil conspiracy. The district court dismissed these claims, and
Chavis does not challenge those dismissals on appeal.
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. . . replaces the former hard-copy Agency Manual." The district court found that the
Agency Agreement "plainly provides that Chavis is a 'non-exclusive' agent and is not
entitled to act as the sole agent servicing Shaw AFB as a mater of law." The district
court also agreed with United that the Agency Manual was not part of the parties'
contract based on the "undisputed fact that any hard copy policies pre-dating the
bulletin date of September 3, 1996 were replaced by the online agency manual."
Nevertheless, the court ordered Chavis to file a supplemental brief to "identify
specific carrier policies currently in existence that are allegedly being breached by
United" based on Chavis's allegation that "United is violating current, existing
policies and not just policies contained in the old written policy manual that has now
been replaced."
In its supplemental briefing, Chavis argued that "[i]t is United's current existing
policy that the authorized agent in a market is to be appointed as origin and
destination agent." In support of this argument, Chavis relied on (1) three sections
from "United Van Lines, LLC Policies, May 2005" ("2005 Policies"); (2) ¶¶ 3P and
3Q of the Agency Agreement; and (3) a 2009 resolution adopted (and subsequently
rescinded) by the Board of Directors of UniGroup ("2009 Rescinded Resolution").
Chavis also argued that "[f]or military shipments the United agent to be
appointed as origin or destination agent is the local United agent authorized for that
military installation." In support of this argument, Chavis relied on (1) three sections
from the 2005 Policies; (2) United "Government 01-07" Bulletin issued on March 14,
2007 ("Government Bulletin"); (3) The Wire: Important News for Mayflower and
United Agents, dated April 24, 2009 ("Newsletter"); and (4) United's Military
Directory listing Chavis as the "Qualified Agent" for "Shaw AFB, SC" ("Military
Directory").
After reviewing all of the cited documents, the district court granted summary
judgment in United's favor. As to non-military shipments, the court concluded that
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"[e]ven if [the cited documents] were actual carrier policies, they do not give Chavis
any rights to serve as exclusive origin and destination agent."
"To the extent Chavis continue[d] to assert that it is entitled to be the exclusive
agent for military shipments to and from Shaw AFB," the court reiterated its prior
"rul[ing] that this claim is precluded as a matter of law by the unambiguous language
of the agency agreement." Additionally, it found that "the alleged carrier policies
cited by Chavis in its supplemental brief do not support this contention or change [the
court's] decision that any breach[-]of-[-]contract claim premised on this argument
fails."
Finally, the court found the Agency Agreement "unambiguous"and noted its
inclusion of an integration clause. As a result, the court determined that "the terms of
the parties' agreement cannot b[e] varied by extrinsic evidence."
II. Discussion
On appeal, Chavis argues that the district court erroneously granted summary
judgment to United because a genuine issue of material fact exists as to whether
United breached its own policies. According to Chavis, United's longstanding
policies, incorporated by reference into the Agency Agreement, provide that Chavis
is the only authorized agent for Shaw AFB and for its home market and that this
status entitles Chavis to serve as the origin and destination agent in those markets.
Chavis contends that because substantial evidence demonstrates that these
longstanding policies remain in force, the district court erred in concluding United
was entitled to summary judgment on Chavis's breach-of-contract claim.
Additionally, Chavis argues that the district court erred in denying Chavis's motion
to compel discovery.
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A. Breach of Contract
"We review de novo the district court's grant of summary judgment to [United]
on the breach[-]of[-]contract claim." Myers v. Richland Cnty., 429 F.3d 740, 750 (8th
Cir. 2005) (citation omitted). The Agency Agreement provides that it "shall be
interpreted in accordance with the laws of the State of Missouri," and both parties
agree that Missouri law governs the present dispute.
"Under Missouri law, '[a] breach of contract action includes the following
essential elements: (1) the existence and terms of a contract; (2) that plaintiff
performed or tendered performance pursuant to the contract; (3) breach of the
contract by the defendant; and (4) damages suffered by the plaintiff.'" Smith Flooring,
Inc. v. Pa. Lumbermens Mut. Ins. Co., 713 F.3d 933, 941 (8th Cir. 2013) (alteration
in original) (quoting Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010)
(en banc)). "'Under Missouri law, summary judgment is appropriate [in a contract
case] where the language of the contract is clear and unambiguous such that the
meaning of the portion of the contract in issue is so apparent that it may be
determined from the four corners of the document.'" Deal v. Consumer Programs,
Inc., 470 F.3d 1225, 1229 (8th Cir. 2006) (alteration in original) (quoting Family
Snacks of N.C., Inc. v. Prepared Prods. Co., 295 F.3d 864, 867 (8th Cir. 2002)). A
court must enforce as written a contract that "'uses plain and unequivocal language.'"
Id. at 1230 (quoting Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 436 (Mo. Ct. App.
1996)).
"Whether a contract is ambiguous is a question of law." Lafarge N. Am., Inc.
v. Discovery Grp. L.L.C., 574 F.3d 973, 979 (8th Cir. 2009) (citing Edgewater Health
Care, Inc. v. Health Sys. Mgmt., Inc., 752 S.W.2d 860, 865 (Mo. Ct. App. 1988)). "To
determine whether a contract is ambiguous, we consider the instrument as a whole,
giving the words contained therein their ordinary meaning." Deal, 470 F.3d at 1229
(citing Young Dental Mfg. Co. v. Engineered Prods. Inc., 838 S.W.2d 154, 156 (Mo.
Ct. App. 1992)). The parties may disagree about the contract's meaning without it
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being necessarily ambiguous. Id. (citing Sligo, Inc. v. Nevois, 84 F.3d 1014, 1019 (8th
Cir. 1996)). "If the contract is unambiguous, then the intent of the parties is to be
gathered from the contract alone, and 'any extrinsic or parol[] evidence as to the intent
and meaning of the contract must be excluded from the court's review.'" Lafarge, 574
F.3d at 979 (quoting Vidacak v. Okla. Farmers Union Mut. Ins. Co., 274 S.W.3d 487,
490 (Mo. Ct. App. 2008); see also Smith Flooring, 713 F.3d at 938 ("[T]he parol
evidence rule bars admission of extrinsic evidence to vary or contradict the terms of
an unambiguous and completely integrated written agreement." (citation omitted)).
"Where a contract is ambiguous and unclear, however, 'a court may resort to
extrinsic evidence to resolve an ambiguity.'" Lafarge, 574 F.3d at 979 (quoting
Burrus v. HBE Corp., 211 S.W.3d 613, 616 (Mo. Ct. App. 2006)). An ambiguous
contract is one that "'is reasonably susceptible to different constructions.'" Id.
(quoting Burrus, 211 S.W.3d at 616). "If a contract is ambiguous, 'then a question of
fact arises as to the intent of the parties, and thus it is error to grant summary
judgment.'" Id. (quoting Essex Dev., Inc. v. Cotton Custom Homes, L.L.C., 195
S.W.3d 532, 535 (Mo. Ct. App. 2006)).
1. Non-military Shipments
"Missouri law considers 'the existence and terms of a contract' to be essential
elements of a breach-of-contract action." Smith Flooring, 713 F.3d at 938 (citing
Keveney, 304 S.W.3d at 104). Thus, our first task is to determine which documents
that Chavis identifies are United "policies" incorporated into the Agency Agreement.
The Agency Agreement provides that "Carrier Policy(ies)," "whether now existing
or as may be issued or amended from time to time during the term of this Agreement,
. . . are . . . incorporated herein by reference."
We begin with those documents that Chavis cites in support of its argument
that it is the only "authorized" agent for its home market for non-military shipments
and that such status entitles it to serve as the origin and destination agent in that
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market: (1) the Agency Manual and Agency Reference Manual (ARM); (2) the 2005
Policies; (3) ¶¶ 3P and 3Q of the Agency Agreement; and (4) the 2009 Rescinded
Resolution.
a. Agency Manual and Agency Reference Manual (ARM)
Part II of the Agency Manual addresses the origin agent's appointment. It
provides that "[t]he booking agent appoints the United agent closest to the origin
address as origin agent." (Emphasis added.) Part III concerns the destination agent's
appointment and provides that "[t]he booking agent appoints the United agent closest
to the delivery address as destination agent on residential and national account
shipments." (Emphasis added.)
The district court agreed with United that the Agency Manual was not a part
of the parties' contract based on the "undisputed fact that any hard copy policies
pre-dating the bulletin date of September 3, 1996 were replaced by the online agency
manual," i.e., the ARM. Recognizing the district court's conclusion based on the
undisputed facts that the online ARM replaced the Agency Manual, Chavis argues
that a genuine issue of material fact exists as to whether the ARM contains the same
policies or is merely an online version of the Agency Manual.
"The burden of proof rests with the party claiming breach of contract." Scheck
Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 723 (Mo. Ct. App. 2014) (citation
omitted). Thus, it is Chavis's burden—not United's—to prove that the online ARM
is a part of the parties' agreement. The difficulty for Chavis, however, is that neither
party can locate a hard copy version of the ARM. As a result, the ARM's contents are
unknown, and Chavis is left to speculate as to whether it contained the same material
terms as the Agency Manual.
But the ARM's contents are ultimately of no consequence because the
undisputed facts show that the ARM, like the Agency Manual, was eliminated years
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ago. Sonja Pullaro of United testified that the ARM was available through the library
of Office Automation but that "Office Automation is old, this [the ARM] is very old."
She explained that Office Automation "was the precursor to e-mail, so to speak, on
a Main Frame System" and was no longer in use. Likewise, Steve Dawkins of United
testified that the ARM is "defunct, and it was . . . superseded or taken over by the
Agency Resource Guide." Dawkins explained that by "defunct" he meant that the
ARM was "no longer in existence" and that the ARM became "defunct" "in the
nineties, late nineties, middle nineties." Chavis has offered no evidence challenging
or contradicting Pullaro's or Dawkins's testimony. See Fatemi v. White, 775 F.3d
1022, 1046 (8th Cir. 2015) ("[O]nce the defendants moved for summary judgment,
Dr. Fatemi was required to discard the shielding cloak of formal allegations and meet
proof with proof by showing a genuine issue as to a material fact." (quotation and
citation omitted)).
Because the Agency Resource Guide superseded the online ARM in the
nineties, the ARM was not a part of the parties' 2007 Agency Agreement; therefore,
it does not matter whether the ARM contained the same terms as the hard copy of the
Agency Manual or whether its terms support Chavis's claim. In summary, neither the
Agency Manual, which the ARM replaced in 1996, nor the ARM, which the Agency
Resource Guide superseded in the nineties, are a part of the parties' 2007 Agency
Agreement, as those documents were not in existence at the time of the agreement or
thereafter.
b. 2005 Policies
Chavis also relies on the 2005 Policies in support of its argument that the
policies at issue are still in effect, even without reference to the Agency Manual or
ARM. The first relied-upon 2005 policy is entitled "Operations—Household Goods"
and provides the following concerning "Origin Agents":
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Booking agents are required to appoint fully authorized United Van Line
agents to represent them as origin and destination agents on all
household goods moves[.] If an agent appoints itself as origin or
destination agent, such agent shall be responsible for all costs to provide
origin or destination services incurred as a result of the failure of such
agent to provide or complete such services[.] If a United agent is not
available, a Mayflower agent should be selected[.] If a booking agent
wishes to use a non-UniGroup agent, approval must be obtained from
the appropriate area planner at Headquarters Operations[.]
The second relied-upon 2005 policy is entitled "Agency Business
Development" and provides the following concerning "Relocation Within Market":
"Approval of agency relocation within a market shall be based on the facts of each
case and substantive issues/concerns raised by incumbent agents[.]"
The third relied-upon 2005 policy is entitled "Agency Business Development"
and provides the following concerning "Agency Acquisition & Expansion": "When
the Board considers agency applications for van line representation, the Director
representing an agency making such application and any Directors with agency
locations in the relevant market shall be permitted to make a statement to the
Board[.]"
United does not dispute that the 2005 Policies are a part of the parties'
agreement. But we agree with United that none of these policies support Chavis's
breach-of-contract claim because they do not guarantee to Chavis—or any United
agent—a single shipment. The first policy merely states that the booking agent must
appoint a "fully authorized United agent"; it does not require the booking agent to
appoint a particular United agent based on locale or proximity, nor does it use the
descriptors "closest," "local," or "exclusive" to describe "fully authorized United
agents." As the district court explained, this policy "merely requires a booking agent
(which is not even United) to appoint an authorized agent. It does not require the
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appointment of any particular United agent (whether defined by proximity or
otherwise) and in fact contemplates the appointment of any number of agents to
provide origin or destination services." (Footnote omitted.) Furthermore, this policy
confirms that a booking agent need not appoint any other agent but may instead
"appoint[] itself as origin or destination agent."
While Chavis contends that the second and third policies demonstrate "[t]hat
United agents are authorized by United for a particular market," we agree with the
district court that these provisions "do not speak to Chavis'[s] alleged right to serve
as origin or destination agent for any shipment." The second policy "simply states that
United shall consider 'the facts of each case' when deciding whether to permit an
agent to relocate," and the third policy "merely permits an existing agent to comment
on a prospective new agent's application."
c. Paragraphs 3P and 3Q of the Agency Agreement
Chavis cites ¶¶ 3P and 3Q of the Agency Agreement in support of its argument
that an "authorized" United agent is the "local" agent in the market that must be
appointed as origin and destination agent. Those paragraphs provide that the duties
of the Agent—Chavis—are:
P. To appoint an origin or destination agent when the Agent
[Chavis] is at a point other than point of origin or destination and the
Agent [Chavis] is not prepared to perform the necessary origin
Transportation Services . . . for a shipper; and the Agent [Chavis] agrees
the Carrier [United] will divide the appropriate compensation in
accordance with Carrier Policies.
Q. To appoint an agent of the Carrier [United] as origin agent
when the Agent [Chavis] secures an order involving a Shipment
originating from the warehouse of an agent of the Carrier [United]; and
the Agent [Chavis] agrees the Carrier [United] will divide the booking
compensation in accordance with Carrier Policies.
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Chavis interprets these paragraphs to mean that
when a booking agent—the agent receiving a request from a customer
for a move—is not located in the place where the shipment originates,
it must appoint as the origin agent the local United agent where the
shipment originates. Similarly, when the booking agent is not located in
the place where the shipment is destined to go, the booking agent must
appoint as the destination agent the local United agent at the destination.
As a threshold matter, we note that ¶¶ 3P and 3Q speak to Chavis's duties as
the agent, not the duties of United or other United agents. At oral argument, Chavis
confirmed that it has not pleaded its breach-of-contract claim under a third-party
beneficiary theory; that is, that it has a third-party beneficiary interest in United's
agreements with other agents. Instead, it argues that under the Federal Aviation
Administration Authorization Act of 1994 (FAAA), 49 U.S.C. § 13907(a), United is
responsible for the acts and omissions of its agents; therefore, Chavis argues that
United is liable for other United agents' failure to appoint it as the origin or
destination agent when it is the "local United agent."
We need not determine whether United is liable for the acts or omissions of its
agents because we, like the district court, conclude that ¶¶ 3P and 3Q do not grant
Chavis any rights to serve as an exclusive origin and destination agent. First, ¶ 3P
provides that the booking agent may provide origin and destination services for any
United order that it obtains when it is located at the place of origin or destination and
is prepared to perform—thus, it need not appoint another agent at all.
Second, ¶ 3P directs the booking agent "[t]o appoint an origin or destination
agent when the Agent is at a point other than point of origin or destination and the
Agent is not prepared to perform the necessary origin Transportation Services . . . ."
(Emphasis added.) "[T]he articles 'a' and 'an' . . . are general in description
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encompassing any of the class," while "[t]he article 'the' is a word of specificity."
Shelter Mut. Ins. Co. v. Brooks, 693 S.W.2d 810, 812 (Mo. 1985) (en banc) (quotation
omitted); see also Flandreau Santee Sioux Tribe v. United States, 197 F.3d 949, 952
(8th Cir. 1999) ("Grammatical niceties should not be resorted to without necessity;
but it would be extending liberality to an unwarrantable length to confound the
articles 'a' and 'the'. [sic] The most unlettered persons understand that 'a' is indefinite,
but 'the' refers to a certain object." (alteration in original) (quoting Black's Law
Dictionary 1324 (5th ed. 1979)). As the district court explained:
Although Chavis argues that this policy requires a booking agent to
appoint "the local United agent where the shipment originates [or
terminates]," this argument is contrary to the plain language of the
agreement which unambiguously says "an" agent, not "the" agent. Once
again, Chavis fails to grasp the distinction between "an" and "the." This
distinction, however, is fatal to Chavis'[s] breach[-]of[-]contract claim.
Moreover, this provision of the agreement does not use the phrase "local
agent" as argued by Chavis. Chavis cannot rewrite the unambiguous
language of the agency agreement to create a requirement that the
booking agent appoint "the local agent" when no such requirement
exists. The language plainly permits the appointment of any origin or
destination agent and cannot be read to state otherwise. The same
analysis applies to the agency agreement's requirement to appoint "an
agent of the Carrier as an origin agent when the Agent secures an order
involving a shipment originating from the warehouse of an agent of the
carrier." (emphasis supplied).
d. 2009 Rescinded Resolution
Chavis also argues that the 2009 Rescinded Resolution is a part of the parties'
agreement and supports its breach-of-contract claim. The 2009 Rescinded Resolution
provides, in relevant part:
Following discussion, the Board unanimously adopted the following
proposal, which was later rescinded (see below):
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RESOLVED, where United Van Lines and/or Mayflower Transit
has an authorized agent either in the market or within 100 miles
of origin or within the local agent's public service radius ("Local
Agent"), an agent operating under a United or Mayflower agency
agreement, or any entity affiliated with that agent, is required to
assign a Local Agent for origin and destination service. This
requirement will apply even if the booking agent intends to pack,
load and haul a shipment from the origin location.
***
Notwithstanding the adoption of such proposal, it was later
rescinded by the Board by a vote of seventeen to one. In connection
with the rescission, the Board instructed the Operations Committee to
consider the matter further before any policy change is presented to the
Board for consideration.
(Emphases added.)
Chavis acknowledges the Board's stated rescission of the resolution but argues
that "the circumstances of the supposed rescission are highly questionable." It
maintains that United "produced a new version of the meeting minutes of April
28–29, 2009, for the first time on December 19, 2012," and that "[t]his later-produced
version reflects that it is the fifth version of the minutes." Chavis questions the
reference in the minutes to the resolution being "later rescinded" but failing to reflect
that someone made a motion to rescind. Chavis also points to the failure of any of
United's witnesses who were present to recall the details of the rescission. And, it
contends that while the Board purportedly approved the April 28–29, 2009 minutes
on August 19–20, 2009, "other information United produced reflects that the fifth
version of the April 28–29, 2009 board minutes were not even created until February
9, 2010, which was around the time that Chavis started threatening litigation." Chavis
maintains that a genuine issue of material fact exists as to whether a rescission of the
2009 Resolution actually occurred.
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"Although a district court must rule on a motion for summary judgment after
viewing the facts in the light most favorable to the non-moving party, it is not
required to 'accept unreasonable inferences or sheer speculation as fact.'" Reed v. City
of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir. 2009) (quoting Howard v. Columbia
Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004)). As United points out, Chavis has
offered no evidence contradicting "the express and unambiguous rescission of the
2009 resolution documented in the Board minutes. No conflicting testimony. Not a
bulletin communicating the resolution to agents. Nothing." While Chavis asserts that
United's own witnesses could not recall details about the purported rescission, United
cites record evidence in its brief detailing its witnesses' recollection of the rescission.
United notes that only one witness testified to not "recalling" the details; this is not
the same as a witness testifying that a rescission of the resolution did not occur. Cf.
Unterreiner v. Volkswagen of Am., Inc., 8 F.3d 1206, 1210–11 (7th Cir. 1993),
overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967–68 (7th Cir.
2013) ("Statements of Volkswagen's Personnel Manager, on the other hand, are
unequivocal. He claims to have posted a notice which remained on the bulletin board
at all times during Unterreiner's employment. Unterreiner might have established a
'genuine' issue of fact by obtaining the deposition testimony or affidavits of other
employees who had a better recollection of the bulletin board. He did not do so, and
we are left only with his own statement based on a vague and somewhat conflicting
recollection. This does not create a genuine issue of material fact.").
Even if we considered the 2009 Rescinded Resolution as part of the parties'
agreement, it would not, as the district court explained, "afford Chavis the relief it
seeks because the resolution speaks only of assigning 'a' local agent for origin and
destination services." As explained supra, the article "a" is "general in description"
and "encompass[es] any of the class." Shelter, 693 S.W.2d at 812 (quotation and
citation omitted).
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e. Conclusion as to Non-military Shipments
Having reviewed the record, we conclude that none of the documents that
Chavis identifies support its argument that it is the only "authorized" agent for its
home market for non-military shipments.
2. Military Shipments
We next consider those documents that Chavis cites in support of its argument
that it is the only authorized agent for Shaw AFB: (1) the 2005 Policies; (2) the
Government Bulletin; (3) the Newsletter; and (4) the Military Directory. According
to Chavis, these "documents confirm that it is United's policy that, for military
shipments, United's designated agent for the military installation is to be appointed
as origin and destination agent."
a. 2005 Policies
Chavis relies on three policies. The first relied-upon 2005 policy is the
"Operations—Household Goods" policy concerning "Origin Agents," discussed
supra. For the reasons set forth above, we conclude that this policy does not support
Chavis's breach-of-contract claim because it does not guarantee to Chavis—or any
United agent—a single shipment. See supra Part II.A.1.b.
The second relied-upon 2005 policy concerns "Agent Military Agency
Systems" and provides, in relevant part:
United Agents with their own DOT and Military Traffic Management
Command authority are allowed to establish a Military Agency System.
Except as provided herein, all such shipments booked shall be hauled on
United authority, and all such arrangements will be subject to approval
on a case-by-case basis by United[.] These arrangements shall not be
permanent and are subject to modification to comply with any eventual
new Military Traffic Management procedure[.]
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Military agency systems established by United Van Lines agents will be
made up of United agents whenever possible[.] If current United agents
are fully represented at a specific military installation, military carrier
agents may seek non-United agent representation[.]
(Emphases added.)
The third relied-upon 2005 policy concerns "Military Only Agents" and
provides:
Management is authorized to appoint MILITARY ONLY agents at
military bases where the corporation has no current representation and
that, as a last resort, Management be authorized to appoint MILITARY
ONLY agents in situations where present agent refuses to book tonnage
at recommended rate levels . . . .
United does not contest that these policies are part of the parties' agreement.
But these policies do not support Chavis's contention that it is the exclusive agent for
military shipments to and from Shaw AFB. The second policy addresses the servicing
networks formed by United agents acting as independent military carriers under their
own Department of Transportation-issued operating authority and contracting directly
with the military. Thus, as the district court explained, this "policy only applies to
United agents when they act independently as carriers to contract directly with the
military. Moreover, it leaves the determination of when and whether to use United
agents to service these shipments to the independent carrier agents themselves." The
policy refers to "agents," not "agent." And it does not contain the descriptors
"exclusive," "closest," or "local."
The third policy authorizing United "to appoint MILITARY ONLY agents at
military bases where the corporation has no current representation" permits United
to appoint non-United booking agents on military shipments that United obtains at
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bases not currently serviced by anyone in the United-agency system. As the district
court explained, this policy "certainly does not apply here, where Chavis and other
United agents service Shaw AFB. Moreover, this alleged policy does not speak to
which destination and origin agents should be appointed: it deals instead with
booking agents, which is not even part of Chavis'[s] claim." And, like the previously
discussed policy, this policy refers to "agents," not "an" agent.
b. Government Bulletin
Chavis also argues that the Government Bulletin supports its argument that it
is the only United agent that is qualified to service Shaw AFB. The Government
Bulletin provides:
1. The booking agent is responsible for selecting a DoD approved
UniGroup agent to provide SIT for DoD shipments. The agent
selected must be approved through a military inspection process
before they can store DoD household goods. If there are no
UniGroup agents4 available at destination to provide SIT, the
booking agent should contact the origin transportation office and
request permission to store the shipment at origin to avoid out of
area storage at destination. This should be done before a van is
assigned and the shipment loads.
2. UniGroup agents must be used to provide SIT for UniGroup DoD
shipments unless approved by the UniGroup Government
Transportation department. This is to preclude loss and damage
problems associated with non-UniGroup storage locations which
impact the UniGroup quality score and future UniGroup DoD
business. This policy also helps to prevent claims adjudication
problems . . . .
***
4
UniGroup is the parent company of two sister household goods carriers,
United Van Lines and Mayflower Transit. "UniGroup agents" thus refers to both
independent United and Mayflower agents.
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4. If the hauling agent or destination agent is unable to clear the
shipment for direct delivery and the prearranged storage is no
longer available, the booking agent must find the closest
UniGroup agent who can provide storage. Agent information is
available in the on-line Military Directory on the UniGroup
intranet for reference. If the agent selected is outside the local
storage area, ask the destination Traffic Manager for approval to
store the shipment outside the local area and authorization for the
long delivery out of SIT. The booking agent must approve any
change in DA assignment. If the base will not approve storage
outside the area, call your area Household Goods
planner/manager or the UniGroup Government Transportation
department for Instructions. DO NOT store the shipment in a non-
UniGroup (foreign) warehouse unless approved by the UniGroup
Government Transportation department. . . .
Again, United does not contest that the Government Bulletin constitutes an
applicable "policy"; instead, it argues that this policy does not support Chavis's claim
that it is United's exclusive agent for Shaw AFB. We agree. As the district court
explained, this Government Bulletin "deals with emergency situations where storage
must be found on short notice and does not even address appointment of origin or
destination agents." Furthermore, as United points out, the Government Bulletin
provides that the booking agent "could select 'the closest' United or Mayflower agent
with available military-approved storage or, alternatively, a nearby non-UniGroup
agent with United's approval."
c. Military Directory
Chavis cites the Military Directory as listing it "as the only United agent that
is a 'Qualified Agent' for Shaw Air Force Base." In response, United characterizes the
Military Directory as extrinsic evidence that is not part of the parties' agreement. The
Military Directory provides, in relevant part:
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Qualified Agents Location:
Shaw AFB, SC
U528—Chavis Van & Stg of Myrtle Beach Conway, SC
M1516—Nilson Van & Storage Sumter, SC
Chavis has not produced any evidence that the parties intended this document
to be part of their agreement; in any event, even if the Military Directory were a part
of the parties' agreement, it does not support Chavis's claim to exclusivity. It uses the
descriptor "qualified," not "only," "exclusive," or "closest."
Furthermore, as United points out, while Chavis is the only listed United agent,
it is not the closest UniGroup agent listed in the Military Directory to Shaw AFB;
instead, Nilson Van & Storage in Sumter, South Carolina, is the closest agent. Chavis,
by contrast, is in Conway, South Carolina, over 80 miles away from Shaw AFB. This
is a fact that we may take judicial notice of. See Hartman v. United States, 538 F.2d
1336, 1346 (8th Cir. 1976) ("[T]he district court properly took judicial notice of the
fact that Fort Smith is more than one hundred miles distant from St. Louis; similar
notice may be taken with respect to all of Logan County, Arkansas in which
Booneville is located.").
d. Newsletter
Finally, Chavis relies on the Newsletter in support of its exclusivity claim; this
article states, in relevant part:
DP3 Shipment Allocation for UniGroup DoD TSPs . . . There are several
factors used when making decisions regarding allocation of United and
Mayflower authority DP3 shipments to booking/origin agents. Some of
these factors include current DoD five-star ratings, agent proximity to
origin of shipment, current DoD-approved warehouses and availability
to service the shipment. When a Transportation Service Provider (TSP)
is tendered a shipment in DPS, the shipment must be serviced in a high-
quality manner to generate higher best-value scores. Poor service or
failures of any kind will result in lower best-value scores for the TSP
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and could result in nationwide suspension. In situations when agents in
the area are unable to provide the required services, the selection of the
booker/origin agent will move outside the area of responsibility. It is
important for agents to monitor their DoD five-star ratings. These
ratings are available through DSPA, NGS Agent or the DoD
Government section on The U (www.unigroupinc.net). Additional DoD
five-star rating information is provided in Mayflower Bulletin #2045,
United Bulletin #08-06 and DP3 information is provided in Agent
Communication #208090098. If you have questions, contact the
Government Transportation department.
As with the Military Directory, Chavis has not produced any evidence that the
parties intended the Newsletter to be part of their agreement. In any event, as the
district court recognized, the article "says nothing of Chavis'[s] alleged right to
exclusivity and does not support its breach[-]of[-]contract claim in any way."
e. Conclusion as to Military Shipments
Having reviewed the record, we conclude that none of the documents that
Chavis identifies support its argument that it is the exclusive agent for military
shipments to and from Shaw AFB.
3. Conclusion as to Breach-of-Contract Claim
We conclude that the parties' agreement is unambiguous. The terms of the
parties' agreement do not provide that Chavis is the only "authorized" agent for its
home market for non-military shipment or that Chavis is the exclusive agent for
military shipments to and from Shaw AFB. As a result, United did not breach the
agreement.5
5
Because we find the parties' agreement clear and unambiguous, we are
prohibited from resorting to extrinsic evidence to establish the intent and meaning of
the parties' agreement. As a result, we will not consider witness testimony, emails, or
other documents purporting to explain the agreement. See Lafarge, 574 F.3d at 979.
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B. Discovery
Chavis argues that the district court erred in denying its motion to compel
discovery. Specifically, it challenges the district court's ruling on document requests
concerning United's "policies, rules, procedures, or directives" and interrogatories and
document requests concerning alleged damages.
Chavis made 64 document requests to United. United agreed to produce some
responsive documents but also lodged several objections based on the requests being,
among other things, overbroad, unduly burdensome, vague, or ambiguous. Chavis
filed a motion to compel, which the district court denied without prejudice. The court
denied the motion based on its belief that Chavis's counsel did not satisfy "his
obligation to attempt to resolve this dispute in good faith before filing the motion to
compel under Local Rule 3.04." The court advised Chavis that
[a]ny future discovery motions should demonstrate that counsel invested
sufficient time and effort into resolving these discovery disputes (instead
of simply highlighting them in anticipation for future Court
involvement) before the motion was filed, and in no event shall any
party file a motion relating to ESI [electronically stored information]
without demonstrating that they discussed in good faith a plan for
discovery of ESI with the opposing party. Good faith requires a party
affirmatively propose a plan for the discovery of ESI.
Thereafter, Chavis filed a second motion to compel, representing that it had
conferred in good faith. The district court again denied Chavis's motion to compel
and warned Chavis "that [Chavis] and [its] counsel will be sanctioned if [it] file[s]
another motion to compel without first using sincere, good faith efforts to resolve
every topic raised in the motion to compel." (Bold and underline omitted.) Chavis
then filed a motion asking the court to reconsider its "finding that Chavis had not
engaged in sincere, good faith efforts to resolve the discovery disputes so that
Chavis'[s] Motion to Compel Discovery could be addressed on the merits." The court
denied the motion for reconsideration, stating that Chavis "mistakenly believe[s] that
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[its] motion was denied for failure to meet and confer as required by Local Rule
3.04." The court clarified that the motion "was denied on the merits, and there is
nothing in the motion for reconsideration that convinces me my prior ruling was in
error."
Thereafter, in its memorandum and order granting summary judgment to
United, the district court commented:
Incredibly, Chavis attempts to blame the Court for its inability to state
a breach[-]of[-]contract claim because I declined to compel defendants
to respond to Chavis'[s] irrelevant and overly burdensome discovery
requests. Yet Chavis cannot explain how it could even bring, no less
maintain, a breach[-]of[-]contract claim without even knowing what
contract terms defendants allegedly breached. Throughout this case,
Chavis has employed a "throw everything against the wall and see what
sticks" approach to litigation. The resulting mess is of its own—not the
Court's—making.
We review for an abuse of discretion a district court's discovery decision.
United States ex rel. Kraxberger v. Kan. City Power & Light Co., 756 F.3d 1075,
1082 (8th Cir. 2014) (citation omitted). "'A district court has very wide discretion in
handling pretrial discovery and [this court is] most unlikely to fault its judgment
unless, in the totality of the circumstances, its rulings are seen to be a gross abuse of
discretion resulting in fundamental unfairness in the trial of the case.'" Id. (quoting
Voegeli v. Lewis, 568 F.2d 89, 96 (8th Cir. 1977)). "If [Chavis] can demonstrate a
gross abuse of discretion, then [it] must also demonstrate prejudice." Carr v.
Anheuser-Busch Cos., Inc., 495 F. App'x 757, 767–68 (8th Cir. 2012) (citing Ranger
Transp., Inc. v. Wal-Mart Stores, 903 F.2d 1185, 1187 (8th Cir. 1990) (per curiam)).
"Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1).
Broad discovery is an important tool for the litigant, and so "[r]elevant
information need not be admissible at the trial if the discovery appears
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reasonably calculated to lead to the discovery of admissible evidence."
Id. That said,
the [district] court must limit the frequency or extent of
discovery otherwise allowed . . . if it determines that
. . . the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties' resources, the
importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir.
2011) (alterations in original) (quoting Fed. R. Civ. P. 26(b)(2)(C)(iii)).
Here, the district court explained why it denied the motion to compel—the
discovery requests were overly burdensome in that Chavis could not first identify
what contract terms it was alleging that United breached. Having reviewed the full
record, we conclude that the district court's denial of Chavis's motion to compel was
not an abuse of discretion.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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