United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
diversity matter is before the Court on defendant Davis
Transfer Company, Inc.'s (“Davis”) motion for
summary judgment. Plaintiff Hogan Logistics, Inc.
(“Hogan”) opposes the motion and it is fully
briefed and ready for decision. Hogan filed suit against
Davis in state court asserting claims for breach of contract
(Count I), breach of the implied duty of good faith and fair
dealing (Count II), and tortious interference (Count III).
Davis removed the case to this Court based on diversity of
citizenship jurisdiction pursuant to 28 U.S.C. §
1332(a). Following removal, Hogan filed an Amended Complaint
(Doc. 39) and later dismissed its claims in Counts II and III
without prejudice (Doc. 75). Only the breach of contract
claim in Count I remains pending. For the following reasons,
Davis's motion for summary judgment will be denied.
Eighth Circuit has articulated the appropriate standard for
consideration of motions for summary judgment as follows:
Summary judgment is proper if the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.
The movant bears the initial responsibility of informing the
district court of the basis for its motion, and must identify
those portions of the record which it believes demonstrate
the absence of a genuine issue of material fact. If the
movant does so, the nonmovant must respond by submitting
evidentiary materials that set out specific facts showing
that there is a genuine issue for trial. On a motion for
summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine
dispute as to those facts. Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge. The nonmovant must do more than simply show that there
is some metaphysical doubt as to the material facts, and must
come forward with specific facts showing that there is a
genuine issue for trial. Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043
(8th Cir. 2011) (en banc) (internal citations and quotation
Hogan is a freight broker and third-party logistics company
that provides nationwide shipping services for its customers,
which at one time included Imperial Sugar Company
(“ISC”). Hogan contracts with motor freight
carriers, such as defendant Davis, to complete the actual
transport of its customers' goods.
to July 2009, ISC hired Davis and others to transport cargo
from its Port Wentworth and Savannah, Georgia warehouses.
Davis hauled more than 1, 900 ISC shipments in ISC's 2008
fiscal year. In 2009, ISC discontinued its direct employment
of motor carriers, and instead decided to contract with Hogan
to arrange for all motor carrier transportation of cargo from
its Port Wentworth and Savannah warehouses. ISC suggested
that Davis bid for the transportation business to be brokered
exclusively by Hogan, and Hogan subsequently awarded Davis
ISC's cargo shipments to destinations in several southern
statutes. Davis had previously hauled ISC's cargo to each
of these destinations.
conjunction with the award of the ISC business in 2009, Hogan
sent Davis and other carriers its standard Broker-Carrier
Agreement, which included a Traffic Solicitation clause at
paragraph 10. The parties refer to the Traffic Solicitation
clause as a “back-solicitation” clause. On July
15, 2009, Hogan's Director of Logistics, Ben Strickler,
sent all carriers an email advising that it had revised the
Broker-Carrier Agreement, including by revising the terms of
the back-solicitation clause, and informed them they must
sign and submit the revised updated version by July 20, 2009.
president Todd Davis replied to Strickler's email,
inquiring about the back-solicitation clause:
On the back solicitation part; as we were a carrier for
Imperial prior to our relationship, if they ever decided to
switch from Hogan, would this affect our ability to do
business? I know this is a bit technical, but it is probably
something we would need to clarify. I am sure Hogan would do
the same if you all were in our position.
My understanding of the back solicitation involved customers
we are currently doing business with. If they moved on from
Hogan they wouldn't be a current customer[.]
Ok, if we can just get this clarified, obviously a company
the size of Hogan and/or Davis we would have mutual customers
and would see new customers, but I would never solicit a
customer where I am doing business. Imperial is a bit
different since we were a customer of Imperial prior to being
a customer of Hogan.
Also on the [I]mperial business we need to make sure that it
is noted that we were a customer of Imperial prior to being a
customer of Hogan so we are never in a situation where there
would be a back sale if Imperial decided to call me about
Can we get something drawn up on ...