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Solo v. United Parcel Service Co.

United States District Court, E.D. Michigan, Southern Division

September 6, 2017

JOE SOLO and BLEACHTECH, L.L.C., Plaintiffs,




         This case was randomly reassigned from Judge Gerald E. Rosen to this Court upon Judge Rosen's retirement. The case was filed on July 11, 2014. On August 29, 2014, Defendant filed a Motion to Dismiss, and Judge Rosen issued an Order granting Defendant's Motion to Dismiss on March 27, 2015. On March 18, 2016, the Sixth Circuit issued an Opinion reversing Judge Rosen's Order as to three of the four counts. The parties filed a joint discovery plan and a scheduling conference was held on May 17, 2016. Six months later, on November 18, 2016, Defendant filed the instant Motion to Stay or Dismiss Proceedings[1] (“Motion to Stay”). Dkt No. 76. The Motion to Stay, which has been fully briefed, is premised on the belief that Plaintiffs' claims are covered by an arbitration provision, such that Plaintiffs are obligated to arbitrate those claims.

         For the reasons that follow, the Court denies Defendant's Motion to Stay or Dismiss Proceedings.


         Many of the facts of this case and additional procedural history are set forth in the Sixth Circuit's Opinion, see Solo v. United Parcel Service Co., 819 F.3d 788, 791-93 (6th Cir. 2016), all of which are incorporated herein. The following additional information is material to addressing the Motion to Stay.

         There are three remaining claims for relief on behalf of each Plaintiff and a putative nationwide class of purchasers for declared value “coverage . . . in excess of $300.00”: (1) breach of contract; (2) unjust enrichment; and (3) declaratory relief. Dkt. No. 1, at ¶¶ 45, 53-64, 73-83. All three claims are based on the theory that Defendant charges more for declared value of packages than permitted by contract. Id. The Complaint pleads the breach of contract and unjust enrichment claims in the alternative.

         BleachTech alleges it “uses UPS's package shipping services” and paid declared value charges on eight packages. Id. at ¶ 16. Solo alleges that from “time to time [he] ships packages using UPS, ” including one package with more than $300 in declared value on December 26, 2013. Id. at ¶¶ 12-13. Plaintiffs seek to recover for 21 UPS shipments by BleachTech between January 18, 2010 and December 29, 2013, each with a declared value over $300, and 1 UPS shipment by Solo at The UPS Store in Marina Del Ray, California on December 26, 2013, a shipment with a declared value over $300. BleachTech proposes to represent a class of similarly situated “direct” shippers; Solo proposes to represent a class of similarly situated “indirect” shippers.

         The basic shipping contract between UPS and shippers is comprised of: (1) the UPS Tariff/Terms and Conditions of Service (“UPS Terms”); (2) the UPS Rate and Service Guide (“UPS Guide”); and (3) the Source Document used to tender the shipment to UPS. Dkt. No. 76, Ex. A §§ 2, 54.[2] Shippers can also negotiate customized agreements that modify provisions or prices set forth in the UPS Terms or Guide. Even where a shipper has a customized agreement, the UPS Terms still set forth the “general terms and conditions of contract under which [UPS] is engaged in the transportation of shipments.” Id. at § 1.

         The UPS Terms provide that “[i]n tendering a shipment for service, the shipper agrees that the version of the [UPS] Terms and the applicable [UPS] Guide in effect at the time of shipping will apply to the shipment and its transportation.” Id. The UPS Terms further state that “[a]ll shipments are subject to the terms and conditions contained in the [UPS] Terms.” Id. at § 54. The UPS Terms are published periodically in the UPS Guide and the current version is available electronically at all times at Id. at § 1.

         As of December 30, 2013, the UPS Terms have contained an agreement to individually arbitrate all claims arising from or related to UPS services. Id. § 50. The obligation is mutual. Section 50 provides prominently, in bolded type:

Claimant and UPS agree that, except for disputes that qualify for state courts of limited jurisdiction (such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits on their jurisdictions over civil disputes), any controversy or claim, whether at law or equity, arising out of or related to the provision of services by UPS, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration.

Id. “Claimant” is defined as “the person asserting the claim or seeking recourse[.]” Id.

         The UPS Terms include other provisions related to arbitration, ...

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