UPDATE PROVIDED AT BOTTOM OF ARTICLE
January 3, 2014
A class action lawsuit has been filed by plaintiffs Steven Sival and International Samaritan against package delivery giant United Parcel Service Co., alleging that it has been systematically overcharging its customers.
According to the class action lawsuit, UPS has been charging its customers for the first $100 of declared value coverage despite openly stating under its Terms that “the first $100 of coverage is free at no charge, whether or not [the customer] purchases additional declared value coverage.”
The plaintiffs have, from time to time for the past six years, each shipped multiple packages via UPS with a declared value in excess of $300 and claimed to have been overcharged for additional coverage protection in violation of the applicable Terms and shipping rates in effect during the time of shipment.
“When the matter is brought to UPS’ attention, UPS always acknowledges the mistake and credits the account, but it does not fix the problem,” the class action lawsuit states. “This problem has been known for at least the last 18 months by certain persons in the small community of shipping consultants who make a living by auditing large companies’ shipping costs looking for savings and overcharges.”
“Smaller companies and individuals who lack the means or sophistication to hire professional shipping consultants continue to get overcharged by UPS,” the class action lawsuit contends.
The class action lawsuit alleges that the overcharging would “reflect a deliberate breach of contract with the intentional effort to defraud its customers.”
The UPS class action lawsuit also accuses the shipping giant of crediting with refunds the few customers who complain, knowing that the number of customers who “do not catch UPS’ breach of contract and fraud will far outnumber those that do.”
It should be recalled that in November 2013, another package delivery company, Federal Express Corp., reached a $21.5 class action settlement over similar allegations that it had systematically overbilled customers. FedEx allegedly overbilled for deliveries to business and government offices with bogus fees. In addition, the company allegedly failed to advise consumers that there are certain ZIP codes that would necessitate an additional fee due to the addresses’ remote location.
The UPS class action lawsuit is seeking damages for all customers who used UPS to ship a package and paid for additional coverage for loss or damage from UPS.
The UPS Class Action Lawsuit is Steven B. Sivak and International Samaritan vs. United Parcel Service Co., Case No. 2:13-cv-15263-GER-RSW, in the United States District Court for The Eastern District of Michigan.
IV. CONCLUSION For these reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint in its Entirety or, in the alternative, for Judgment on the Pleadings [Dkt. # 14] is GRANTED;
8 At best, Plaintiffs have alleged “on information and belief” that unidentified “shipping consultants” have brought “UPS’s practice of charging for the first $100 . . . to UPS’s attention” and that “UPS routinely acknowledges the overcharge and credits the account.” (Plfs’ Am. Compl., Dkt. # 13, at ¶¶ 5, 8, 33, 42). Such an allegation falls well short of Rule 9(b)’s heightened pleading standards. Plaintiffs have not identified a specific shipping consultant, a shipper who received a credit, or set forth specific facts as to how UPS acknowledged that the charge was improper.
9 It is this Court’s general practice to provide a plaintiff with an opportunity to amend a Complaint when faced with a dismissal that is readily curable because slight defects should not condemn an otherwise viable complaint. This practice need not be followed here, however, because amendment would be futile. See, e.g., Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420-21 (6th Cir. 2000). In response to Defendant’s Motion, Plaintiffs did not hint at additional factual allegations they could add to save their claims from dismissal. Lewis v. Wheatley, 528 F. App’x 466, 470 (6th Cir. 2013) (amendment is futile when, among other things, a plaintiff does not “provide any additional factual allegations that [it] would submit in an amended complaint”). 39 Case 2:13-cv-15263-GER-RSW ECF No. 36 filed 07/01/14 PageID.788 Page 39 of 40
IT IS FURTHER ORDERED that Plaintiffs’ First Amended Complaint is dismissed with prejudice; andIT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to File Sur-Reply in Opposition to Motion to Dismiss [Dkt. # 30] is DENIED.IT IS SO ORDERED.Dated: July 1, 2014s/Gerald E. Rosen Chief, Judge, United States District Court
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