United States District Court, D. North Dakota, Northwestern Division
For Western Home Transport, Inc., Plaintiff: Benjamin J. Williams, Ryan C. McCamy, LEAD ATTORNEYS, NILLES LAW FIRM, FARGO, ND.
For Hexco, LLC, doing business as HC Company, Defendant: Thomas M. Jackson, Jackson, Thomason & Weiler, P.C., Bismarck, ND.
ORDER DENYING MOTION TO DISMISS ON RULE 19 GROUNDS AND DENYING MOTION FOR SUMMARY JUDGMENT
Charles S. Miller, Jr., Magistrate Judge.
Before the court are pending motions by plaintiff Western Home Transport, Inc. (" Western" ) for summary judgment and defendant Hexco, LLC, doing business as HC Company (" Hexco" ) to dismiss for failure to join an indispensable party. The court held a telephonic hearing on the motions on April 25, 2014. The facts are either uncontested or stated most favorably for Hexco.
In October 2011, Hexco obtained a quote from Stone Creek Homes, Inc. (" Stone Creek" ) to acquire six modular homes for delivery to Hexco's project site in Williston, North Dakota. The total cost for the six units according to the quote letter originated by Stone Creek was $571,752.00, which included $7,000.00 per modular home for transport FOB Williston. (Doc. No. 25-3).
While the facts are somewhat sketchy, it appears Hexco decided to finance the acquisition of the modular units using lease-purchase financing. On October 31, 2011, Hexco signed a lease-purchase agreement with Midwest Leasing, Inc. (" Midwest Leasing" ) that was accepted on November 7, 2011. (Doc. No. 37-1). Also, on November 7, Stone Creek invoiced Midwest Leasing the sum of $285,876.00 towards the purchase of the homes, and Midwest Leasing wire-transferred the money to Stone Creek. The invoice reflected that the $285,876.00 was 1/2 of the total purchase price of $571,752.00. In addition, Stone Creek's invoice provided a breakdown of what was included in the total purchase price consistent with the quote it had provided earlier to Hexco. Relevant here is the fact that the breakdown of the total purchase price included transport charges of $7,000.00 per unit for a total of $42,000.00. (Doc. No. 25-2).
Midwest Leasing paid Stone Creek the remaining amount due on the total purchase price by wire transfers of $228,700.80 on February 14, 2012, and $57,175.20 on April 2, 2012. Midwest Leasing stated that Stone Creek required the final payments before it would ship the modular homes. Midwest Leasing states in an affidavit that the cost for transportation was Stone Creek's obligation, consistent with its invoice. (Doc. No. 37).
Western is a corporation that specializes in over-the-road transport of modular and manufactured homes and, as already noted, is the plaintiff in this action. Western
claims that it transported five of the modular homes from a location in Central City, Nebraska to Hexco's project site in Williston, North Dakota on various dates beginning in late March 2012, with the last home delivered in the later part of May 2012. (Doc. No. 22, ¶ 3). Western claims its shipping charge for each of the homes was $15,855.00, that none of the charges have been paid, and that it is now owed $79,275.00 plus prejudgment interest. (Doc. No. 22).
To support its claim, Western has proffered for each of the modular homes it claims to have transported a document entitled " Freight Bill and Bill of Lading" (herein " bill" or " bill of lading" ). It appears Western originated the five bills of lading because they contain Western's logo and other company-specific information. For one of the bills, Western provided only an unsigned copy. For the other four, there is both an unsigned copy and a fully executed copy. (Doc. Nos. 23-1 to 23-5).
Each of the bills of lading identified Stone Creek as the shipper and payor and Hexco (referred to as HC-Company) as the consignee. Each of the bills had a section that was ...