#2107

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

AMERICAN FREIGHT SYSTEM, INC.,

DEBTOR(S)

NO. 88-41050-11

CHAPTER 11

AMERICAN FREIGHT SYSTEM, INC.,

PLAINTIFF(S),

v.

BRIGHT IDEAS,

DEFENDANT(S)

ADV. NO. 90-7237

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

This proceeding is before the Court on the motion of American Freight System, Inc. (AFS), the plaintiff-debtor, for summary judgment. AFS appears by counsel Kurt Stohlgren. Defendant Bright Ideas had appeared in this case by counsel Larry E. Gregg, but he withdrew his appearance, and no one has since appeared on Bright Ideas' behalf. The Court has reviewed the relevant pleadings and is now ready to rule.

In the absence of a response, the facts asserted in AFS's motion must been taken as true, and they establish that Bright Ideas owes AFS the freight charges it seeks to recover. However, in its answer to the complaint and a status report filed in January of 1991, Bright Ideas asserted that the charges AFS claimed are based on unreasonable tariff rates and asked to have the rate reasonableness question referred to the ICC. AFS's motion does not address these assertions.

The Supreme Court has indicated that an allegation that the tariff rates which a carrier seeks to recover are unreasonable is technically a counterclaim, so under Federal Rule of Civil Procedure 54(b), made applicable here by FRBP 7054(a), a court has discretion to enter a separate judgment on the carrier's claims in a case like this one. Reiter v. Cooper, ___ U.S. ___, 113 S.Ct. 1213, 122 L.Ed.2d 604, 615-17 and 619 (1993). However, this Court has ordinarily declined to enter such judgments in AFS's pending freight undercharge cases, and AFS has not asked for a separate judgment or explained why this case should be considered extraordinary. Consequently, even though Bright Ideas has not responded to the motion, AFS has not established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

AFS's summary judgment motion is hereby denied.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this 10th day of January, 1995.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE