CLEf&/('3 CIFFICE U.S. DISX COURTAT ROANOKE, VA

FILED

S-EF 2 i 2012

JULI UDLEM CLERKBY; '

- L R

IN TH E UN ITED STATES DISTRICT COURTFOR TH E W ESTERN DISTRICT OF W RGIN IA

ROAN OU DIVISION

D RU M M ON D COM , SM .ES, IN C.,

Plaintiff,

N ORFOLK SOUTH ERN RM LW AYCOM PAN Y,

D efendant.

Civil Action N o. 7:16-cv-489

By: M ichael F. Utbansld

Chief United States District Judge

M EM ORAN DUM OPIN ION

The matter presently before the court is N otfolk Southern Railroad Company's

rfNorfolk Southetn') motion for clarification, ECF No. 274, of tlae court's ruling on its tlnitd

m otion in limine, ECF N o. 220, to exclude evidence relating to transportadon contracts

entered into prior to the execution of a January 2010 mutual release between it and

Dtnlmmond Coal Sales, lnc.rrtnlmmond'). Norfolk Southern seeks clarifkation of t'wo

aspects of the court's July 22, 2019 memorandum opiion, ECF No. 267, granting in pat't and

denying in part its modon, namely: (1) ffgwjhether the gclourt's ruling with respect to C-9290

excludes evidence and argument relating to rates that were unchap ed by post-release

amendments>'; and (2) Kfgwjhether the gcjourt's ruling w1t.1'1 respect to C-9290 excludes evidence

and argum ent relating to volume cormnitments that were unchan ed by post-telease

amendments.'' ECF No. 274, at 1.

In its original m otion in limine, ECF N o. 220, Norfolk Southetn' asserted that the

mutazal release executed by and between the parties in January 2010 in the course of settling

Norfolk Southezn Railwa Com an v. Dmmmond Coal Sales lnc., No. 7:08cv340 (W.D.

Va.), barred certnin claims and the introduction of any evidence associated wit.h Dvstinadon

Contzacts that could have been brought in that prior acdon.l The zelease in queséon, executed

onlanuary 14, 2010, states, in televant part, that Drummond releases Norfolk Southezn:

from all clmims, demands, debts, causes of acéon, or obligadonsof any ldnd whatsoever, known or unknown, adsing or accnlingfrom the beginning of time to the Effecéve Date of this muttzalzelease, and arising out of the formation or jerformance of theContract, including but not limited to al1 cbims: defenses oravoidances m ade or asserted in the Action, and a1l claims,defenses or avoidances that could have been made or asserted inthe Action.

ECF No. 249 (Ex. B). Norfolk Southern asserted that the mutual release should be construed

to preclude Drummond from introducing evidence o.r testimony related to the rates and

minimum volume commi% ents set forth in three Destinaéon Conttacts: (1) C-9290, (2) C-

7545, and (3) C-9289. The present modon concerns only (2-9290, wllich was executed onluly

1, 2009, and subsequently amended at least four times after the execution of the mumalrelease

in January 2010: Amendment 1, ECF No.132-31, at 25 (executed Febl'uary 24, 2010)9

Amendment 2, ida at 12 (executed July 1, 2011); Amendment 3, ida at 9 (executed February 26,

2013)9 and Amendment 4, ids at 2 (effecdve January 1, 2014)Sereinafter, collectively,

ffAmendments7)

A.

W itla respect to C-9290, the queséon pzesented in N orfolk Southezn's third motion in

limine was whether the patties' mutazal release operated as a waiver of all clnims connected

1 Destinaéon Contracts refers to Norfolk Southem's separate contracts with the Utiliées that ffownted) and operatetd) theDestinadons in the Appendices to C-9337.'' ECF N o. 1O, at 1.

with (2-9290 and, relatedly, Dtum mond'sright to introduce evidence of tllis Destination

Conttact in support of its pzior m aterial breach clnim under (2-9337. Drummond atgued that

because the aforem entioned Amendments pertain to ratl' rates, rninimum volume

requirements, and lklzidated damages provisions in C-9290, as well as postdate the January

2010 zelease, they supply it with new bases foz clnim s undez C-9337 which fall outside the

scope of the release. Norfolk Southern argued that the post-release Amendm ents do not give

rise to new clnims because all the ostensibly new ffclnims'' existed under and related back to

the orkinal terms of C-9290, and could have, but were not, bzought in the prior action. ECF

No. 221, at 4. Norfolk Southern averred that at all tim es since the effective date of C-9290,

ffthe relevant contractual tet'm s have been the sam e.'' 1d.

ln its July 2l, 2019 memorandum opinion, ECF No. 267, the couzt flrst noted that

thete is little doubt that any 'clnim and/or cause of action arising or accraing prior to the

parées' execudon of the mutual release in January 2010 is barred by the express tetms of the

release. The coutt also noted, however, that it is equally clear that the release only applies to

ffclnims, dem ands, debts, causes of action, or obligaéons'' which existed prior to the effecdve

date of the mutaml release. In other words, the release was held not to be a prospective waiver

of the right to sue for subsequent violadons of C-9337 which occutred afterlanuary 14, 2010.

The court, relying on the mchfood, Inc. v. Jennings, 255 Va. 588, 499 S.E.2d 272 (1998) and

Noell Crane S s. GmbH v. Noell Czane & Serv. Inc., 677 F. Supp. 2d 852 (E.D. Va. 2009),

observed that the fçexecudon of subsequent am endments after the release date modifying

and/or reimposing the volume requirement and liquidated damages provision gto (2-9290J

constitutes disctete post-release conduct for which a new, albeit substanévely similar, clnim

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potendally exists.'' ECF N o. 267, at 47.2 The couzt noted that ffunlike in Noell Crane, this is a

case where alleged post-zelease clnim s arose out of post-release conduct,'' and as such, ffC-

9290 may be relied upon to the extent the terms of the am endments only form the basis of

Dm mm ond's cbims.'' ECF No. 267, at 47. ln its discussion of C-7545, the court also held

that certain post-release conduct, such as the extension of a contract, which was clearly

pzovided for in a self-executing term contained in the original contract, does not pzovide

grounds for a post-release cbim .

In (2-7545, for example, j 3,the durational clause, states that the ffterm of this

Agreement shall be extended for up to tavo (2) consecutive additional five (5) year periods

without addiéonal action by either gp1atty . . . .'' Given that j 3 of C-7545 pzovides for futtzre

extensions of (2-7545, a post-release amendm ent m erely memorializing such an extension

provided for in the original contract would not give rise to a post-release clqim under the broad

language of the muttzal zelease. ln its m odon for clarifkation, Norfolk Southern asserts that

as with a hypotheécal extension of C-7545 pursuant to j 3 of that contract, the rate changes

in the post-release Amendments to (2-9290 Tfmerely reflected the previously existing rates as

escalated pursuant to gC-9290'sj original tetms.'' ECF No. 275, at 2. For this reason, Norfolk

Southern asserts that the Kfputative'; rate changes represent changesof Trform rather than

substance,'' and therefore do not alter the underlying paym ent obligation provided for in the

original term s of C-9290. To illusttate its atgument further, Norfolk Southern provided the

following hypothetical. Nozfolk Southetn states that if a hypotheécal transportadon contract

2 Taken togethet, Richfood and Noell Ctane stand for the proposidon that where a release applies only to claims and/orcauses of acdon acclnling or conduct occuzzing before its execudon, post-releasè conduct giving lisç to post-releaseclaims may serve as a basis for post-release lidgalion.

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were to provide foz a base rate of $100 in yeat one, to be escalated annually by 1004, then the

tate aftet yeaz :ve would be $181.55. Thus, if the patties wete to replace - in yeat five - the

contract's original rate provision of <f$100 in year one, to be escalated annually by 10747' with

a zate pzovision that provided foz a rate of $181.55, there would be no change to the contract's

oziginal zate because the substantive paym ent obligatbn of the conttacting party rem ains the

same. Norfolk Southetn assetts that ffgtlhis is ptecisely what happened w1:.11 the post-zelease

amendments to (2-9290 as they telate to the televant Sllipyatd p vetq Terrninal IICSRTAII rates.''

Norfolk Southern notes that pursuant to the Adjustment Clause of Article 14 in C-

9290, the base rates foundinAppendixA are adjusted quarterly based upon anindex published

by the Association of American Rniltoads, plus a 5% increase after the adjustments of July 1,

2010, 2013, and 2016.3 Norfolk Southezn asserts that although the base rates listed in

Amendment 4 for shipments from SRT to Roxboro and Mayo ($28.38 for rapid trainload and

$29.62 for all others) appear higher than the base rates forsuch shipments listed in

Amendment 2 ($23.17 for rapid trainload and $24.17 for all others), the Amendment 4 rates

merely represent the tates that would have otherwise been in effect at the ém e of the

3 Atdcle 14, Adjustment Clause.(a) The base transportaûon rates in Appenclices A - D, as well as Incentive Refllnds listed in Re6lnds listed in

Ardcle 30 and the Private Car Reftmd listed in Ardcle 31 (incliddually and collecdvely the ffReftmds''), shall beadjusted quarterly, upward or downward, as applicuble, on each Januaty 1, April 1, July 1, and October 1 dllringthe Term by the All-lnclusive Index, Less fuel (AII-LQ published by AAA but shall not be adjusted below theBase Rate or the Revised Base Rates, or below the Base Re6lnd or Revised Base Refilnd, wllichever is thenapplicable. The first adjustment shall occur onyuly 1, 2009. 'I'he ffBase Rates'' are those rates in Appendices A -D shown in this Amendment 1 and the Base Reflpnds are the Reftmds shown in Ardcles 30 and 31 of thisAmendment 1. 'The zestzlt of each such adjustment will be zounded to the nearest cent. Subsequent adjustmentsshall be made to the then-curzent rates and refllnds. NS or PEC, as applicable, will refilnd the difference, if any,between (i) the transportadon rates paid by PEC betweenluly 1, 2009 and the date on which the pardesexecute this Amended Contract and @ the Base Rates; as adjusted, puzsuant to this Amended C ontract.

@ ln addidon to the quarterly adjustments descdbed in Ardcle 14(a), immediately following the fate adjustmentsonltlly 1 of each of 2010, 2013 and 2016, the then-clzrrent tzansportadon rates and zefltnds shall increase by5% and shall become the fflkevised Base Rates'' and rfRevised Base Refhlnds.'' Quarterly adjustments pursuantto AMcle 14(a) shall continue through the end of the Term.

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amendment, putsuant to the Atticle 14 escalation provision calling for quarterly adjustments.

Norfolk Southern also notes that although Amendment 2 purported to replace all the base

rates in (2-9290, it left unchanged the original, pre-release base rates for shipments from the

SRT to Roxboro and M ayo.4 Norfolk Southern further notes that the only distincéon between

tlw manner in which the originalbase zates were zeflected in Am endment 2 and in Amendment

4 is that the text of Amendm ent 2 contained the applicable escalation languages, whereas

Am endment 4 ç<baked the same escalation language and calculations into the ntzmbers

themselves shown ginq the Appenclices.7' ECF No. 275, at 3. ln sum, Norfolk Southezn clnims

that neither Amendment 2 nor Amendm ent 4 altered tlae base rates from the SRT to Roxboro

and M ayo that would have otherwise been in effect, and as such, Drummond has failed to

allege any wrongful conduct with respeqt to those rates that occuzred after the date of the

mutazal release. N orfolk Southezn argues that evidence of these rates, therefore, shotzld be

excluded undet mchfood, Inc. v. Jennings, 255 Va. 588, 499 S.E.2d 272 (1998).

In ltichfood, the Supreme Couzt of Vitginia provided that post-release claims must be

based upon post-release conduct:

The alleged wrongful conduct giving zise to the cbim now

asserted by mchfood and Market lnsurance againstlennings andDembinski did not transpire before the execution of theAgreement. It may well be that m chfood and M arket lnsurance,as well as Dembinsld and Jennings, knew that there would be aprenlium refund from the workers' compensation insurancecatrier. However, in the ptesent action, Richfood and M arket

4 'The court reviewed the rates from SRT to Roxboro and Mayo contained in C-9290, ECF No. 132-31, at 48, against therates for SRT to Roxboro and Mayo contained in Amendment 2, ti at 12, and confirmed that the oziginal, prelease rateswere tmchanged.5 See ECF No. 132-31, at 14 (Am. 2) rTor the sake of clarity, the rates set forth in the attached Appendices do notreoect, but are subject to, the adjustments called for by Article 14(a) of the Contract onltzly 1 and October 1, 2009;January 1, April 1,Ju1y 1 and October 1, 2010; and Januat'y 1 and April 1, 2011; the adjustments called for by AMcle14$) of the Contract; as well as all futtue adjustments called for by the Contract begirmingluly 1, 2011 and continuingfor the duration of the Contract's term.'').

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lnslzrance allege that Jennings and Dembinski wrongfullyretained that refund. Tllis alleged conduct by Jennings andD embinsld occurred after m chfood initially received the refundcheck in M ay 1995, long after the parties executed theAgzeement. Thus, we conclude that the provision of theAgreement at issue does not bar the clnim asserted by m chfoodand M aêket Insurance in this case.

J-t.k at 275. ln mchfood, the alleged wzongful conduct bylennings and Dembinsld- zeceiving

and failing to reftznd a check- occtuzed after the date of the mutual zelease. J-1.L Norfolk

Southern argues that in this case, the alleged wrongful conduct- imposing zates to Roxboro

and M ayo from the SRT that differ from Drumm ond's rates- occurred before the date of the

mutual release. Norfolk Southern argues that if the situation here were applied to Richfood,

the appropriate analogy would be if the parées had received the check prior to the date of the

m umal zelease and then continued to withhold the refund following the date of the mutual

release. Norfolk Southern argues that ceztainly, the Supreme Court of Virgirlia would have

reached a clifferent result in m chfood if the only allegedly wrongful post-release conduct in

that case had been a conénuation of the status quo. ECF No. 275, at 4.

Norfolk Southern clnim s that because there was no ffsubstantive change'' in the rates

from the SRT to Roxboro or M ayo after the date of the mutual zelease, it would be ffplacing

fotm over substance to rely on the restatement of the LSRX rates in Amendment 4 as the basis

for a post-release clnim, when the rates found in that amendment simply reflected the

escalation called for by the original conttact.'' 1d. at 4-5 (citing ECF No. 267, at 44 n.7 rfunder

Noell Crane, any claims for relief related to the extensions contained in tlais rself-executing

evergreen provisionq, prospective oê otherwise, existed pzior to the execution of the mutual

release in January 2010 and, accozdingly, are barred by the release.'l). Norfolk Southern uzges

the court to exclude Drumm ond from offezing evidence and argument in support of its breach

of contract clnim that relies on tlze rates from the SRT to Roxboro and M ayo contained itz the

post-release Am endm ents because those rates are the Tfsam e as the zates called for by C-9290

prior to the release.'' ECF No. 275, at 5. N orfolk Southern also argues that D4umm ond should

not be allowed to introduce evidence or atgument related to the non-existence of a tate in the

Am endments from the SRT to Asheville, as such was tlae case in the otiginal vetsion of C-

9290 prior to the mutual release. Id. at 5 n.1

Dtnlmm ond contends that despite Norfolk Southern's claim that none of the

Am endments to (2-9290 actually altered any of the rates to the SRT in that contzact,

Amendment 2, Amendment 3,and Amendm ent 4 fdall substantively changed important

aspects of C-9290,7: and all wete executed after the parties' signed the mutualzelease inlanuary

2010. ECF No. 280, at 2. With zespect to C-9290's base rates, Drummond notes: (1) that

Amendment 4 effectively reduced all of the rates in C-9290 by adding a TY olume Incentive

R, efund'; of $1.00 per ton in 2014 and 2015, and $1.65 in 2016, 2017, and the fust half of

2018; (2) that Amendment 2 Rdeleted in their entirety and replacedJ' the Appendices to (2-9290

containing the rail rates, reducing the Illinois Basin r<ILB7) and Northern Appalachian

(TTNAPP7) rates betvveen 7.5% and 15î49 (3) that Amentlment 2 changed all of the SRT zates

applicable to smaller ttain sizes; and (4) that Norfolk Southern continued to exclude SRT from

tlae Asheville rate. Drummond contends that Norfolk Southern's Tfputposeflzl decisions to

change the rate schedules in C-9290 while renewing its . . . exclusion of SRT from the Asheville

rate schedule are separate, acéonable wrongs that occurred well after D lnlmm ond executed

the gmjuttzal grjelease.'' ECF No. 280, at 3. Lastly, Drtzmmond asserts that Norfolk Southetn's

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m otion improperly construes the Amendments to C-9290 in isolation, eliding the fact that

Amendment 4 to C-9290 was signed contemporaneously wit.h Amendm ent 4 to C-9545.

Dm mmond asserts that those amendments were Tfpart of a package deal'' between Duke

Eneêgy Cazolinas, LLC (TfDuke') and Nozfolk Southezn that increased tlze nainimum volume

commitment at Duke's Marshall plant (a Destination in Appendix A to C-9337) from 25% to

plant ffsolely serv'ed by Norfolk Southern'' and

f'eviscetating the value of Drummond's C-9337 rate to M arshai'' ECF N o. 280, at 4.

Dtnzmmond contends that Norfolk Southern's internal docum ents ffconfit.m that, in exchange

effectively rendering the M arshall

for various refunds and zate reductions it gave to D uke . . . , N orfolk Southern specihcally

bargained for the reinstatem ent of the lninim um volume commitments in C-9290.77 Id.

B .

W ith tespect to Am endment 3 to C-9290, the court previously described its substanceas follows:

Am endment 3 deleted and replaced Article 26, the nlinimtunvolume and liquidated dam ages pzovision of C-9290. Thezeplacement pzovision included, inter alia, a nitnety-five (95)percent nairlimtu'n volum e commir ent at Roxboro and M ayostaéons, an eighty-five (85) percent voltune commitment atAsheville, and a 1,125,000-ton nlinimum zequirement ftom theW aynesburg and Fnif-mont districts.

The court also noted that:

Rlhe substance of the amendments to C-9290, especially thoserelated to the tninimum voltmae tequirem ent and liquidateddam ages provision in Am endment 3, are of the sort explicitlyalleged by Drummond to have impaired its ability to use theschedule of rates set forth in Ardcle 13 of C-9337. Clearly, asimilar clnim based on the original term s of C-9290, inclucling theminimum voltmae and liquidated damages provision (Article 26),is barzed per the mum al zelease and for the reasons discussedabove with respect to (2-7545.

Nozfolk Southern arguesin the pzesent motion that because tvvo of the three nairzimlam

volume commitments cited by the court in Amendment 3, iata, the 95% commitment for

Roxboro and M ayo and the 85% commitment for Asheville, are ffoziginal tetms of C-9290,7:

Drummond may not rely on those terms in support of its Ardcle 13 clnim. In other words,

Norfolk Southern assetts that Drummond should only be able to rely on the m inimum volume

comnaitment that was added by Amendment 3 to C-92907s oziginal term s, i.e., the 1,125,000-

ton comnlitment from the W aynesbutg and Faizmont districts.

In sum, N orfolk Southern asserts that, as with Amendments 2 and 4, Amendm ent 3

did not substanévely altez the nzinimum volume commir ents to Roxboro, M ayo, and

Asheville that would have Ttotherwise been itl effect,': and allowing evidence of such minimIxm

volume commi% ents would conflict with mchfood, lnc. v.lennings, 255 Va. 588, 499 S.E.2d

272 (1998), as well as the court's prior tnzling that the muttzal release bars Drllmmond's clnims

to the extent those clnims concezn tet'ms found in the origm' al conttact. See Notfolk S. R .

Co. v. Drummond Coal Sales, Inc., 2016 U.S. Dist. LEXIS 115485, 20-21 (W.D. Va. 2016)

rfcount One may reference the Amended Conttact, but Drummond's allegations plainly

concern term s fotmd in the original 2006 Transportation Conttact - not ptovisions that were

amended or added in 2010 . . . gandj gajs such, Count One . . . is batred by Drummond's

release.'). Norfolk Southern notes that ffgfjor simplicity in #afting, (it) opted to restate the

entizety of Arécle 26 in Amendm ent 3,as opposed to formatting the am endment as an

addidon of the nlinimum voltune commi% ent to the W aynesbtug and Fnitvnont gdjistricts.''

ECF No. 275, at 7. Norfolk Southern avers that if it ffhad foêm atted the amendm ent as an

addidon instead of a replacement, then the volum e com mi% ents to Roxboro and M ayo would

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have zemained in place by vitt'ue of the Tftzll force and effect' clause found in Secdon 4 of

Amendment 3.77 Ld-, at 8. Norfolk Southern argues that it cannot be the case that the choice of

whether to type out the text of the volum e commitments or to rely upon the full force and

effect clause is tlae allegedly wrongful conduct giving rise to a post-release clnim . N orfolk

Southern notes that the court already found that reafftming exisdng obligations found in the

origm' al conttact through a full force and effect clause did not give rise to a post-release cllim .

Id. (citing ECF No. 267, at 44).

Drumm ond argues that although Norfolk Southern disrnisses Amendm ent 3 as simply

restadng term s from Ardcle 26 of C-9290, rather than imposing new commitments, the

amendm ent Tfadded a new lninimum volume requirem ent from NAPP origins, and it also

removed the nninim um volum e zequirements for Cape Fear and Lee plants,'' both of wlùch

were Destinaéons in Dmlmmond's contact (C-9337). Further, Drummond asserts that

Norfolk Southern also <fmade the deliberate decision to reinstate the minimum volume

requitements applicable to Roxboro and M ayo plants to exclude SRT . . . as an ozigin wit.h

respect to the Asheville plant.': ECF No. 280,at 3. Dslmmond clqims that Tfgaqs w1:.11

Amendm ents 2 and 4, Norfolk Southezn's purposeful decision to delete and reinstate those

tninimum volume requirements and exclude SRT from the Asheville rate schedule consétutes

a separate, actionable wrong that occurred after Drummond executed the mutual release.'' Id.

at 4.

C.

N orfolk Southern notes that it does not oppose Drummond's introducitag evidence

and argument relating .itzte..ly to the post-release changes to (79290 flagged by Drummond,

including the: (1) addidon of a ftvoltzme Incentive Refund'' in Amendment 49 (2) alteraéon of

rates from origins other than SRT, including the ILB and NAPP, in Amendment 2 and

Amendment 49 (3) elimination of SRT rates applicable to smaller train sizes in Amendment 29

(4) addition of a new nninimtma volume requirement from NAPP origins in Amendment 3; (5)

removal of the tninimum volume requirement foz Cape Fear and Lee plants in Amendment 39

and (6) increase of the rninimum volume comrnitment to Duke's plant from 25% to 95% in

C-9545. See ECF No. 284, at 1-2. Indeed, Norfolk Southern concedes that allowing such

evidence and argument is consistent with the coutt's July 22, 2019 memotandllm qpinion that

found that <:(2-9290 m ay be relied upon to the extent the terms of the amendm ents only form

the basis of Drummond's clnims.'' ECF N o. 267, at 47 n.8. The court concurs that to the

extent Amendm ents 2, 3, and 4 contain obligations absent from the original contract, they

may be introduced in support of Dmpmmond's material breach clqims.

The court f'urther finds, however, that certain language contained in Am endments 2, 3,

and 4 compels a hnding that Drumm ond may rely upon these same amendm ents in thei.t

entirety, rather than on just those terms wlnich do not mirror terms in the original contract.

The following provisions in Amendm ents 2, 3, and 4, broadly deleting and replacing Article

13 and Ardcle 26, portions of which N orfolk Southern considers fforiginal tet-ms'' barred by

the telease, draws these am endments in thei.t entitety outside the scope of the mutual release:

Am endm ent 2

Ardcle 13 of tlae Contract, Base Rates, is hezeby deleted in itsentirety and replaced . . .

Am endm ent 3

12

Ardcle 26 of the Contract, M inimum Voltzme and LiquidatedD amages, is hezeby deleted in its entirety and replaced . . .

Am endm ent 4

Ardcle 13, Base Rates, is hereby replaced in its entirety witla thefollowing for shipments occurring on or afterlanuary 1, 2014 . .

The court need not go beyond the plain wording of the above prefatory pzovisions to hold

that amendments ate not metely restating ot tepublislling tetm s of an eatlier conttact as alleged

by Notfolk Southezn. Under accepted canons of contract intem retation, the only fair reading

of the above provisions is as displacing, wholesale, the preexisting obligaéons under Arécle

13 and Atticle 26 under (2-9290 thzough the substitution of modified vetsions of these same

articles. W hile some of the tetm s remnined the same, the above provisions signify that the

original terms of Article 13 and Article 26, in their entirety, are no longer operative. lndeed,

the inclusion of full force and effect clauses in all three amendments stating, ffExcept as herein

mended . . . ,'' alla othez provisions of (2-9337 zemain in effect, by negadve implication,

underscores that those provisions which weze deleted in their entirety and/or replaced, i.e.,

f%mended'' are legally disdnct from the original contract inasmuch as they became opetative

after the execuéon of the mutazal release, and thetefore fall outside its scope.6

6 This Stlrling comports with the cotut's pzioz holding in Norfolk S. R . Co. v. Dnmamond Coal Ssles Inc., 2016 U.S.Dist. LEX-IS 115485 20-21 (W.D. Va. 2016), wherein the court excluded Cotmt One of Dmmmond's Alabama complaint.In that case, Colmt One sought a declaradon that the Amended Contract was void because Norfolk Southern enjoyedeither monopolisdc or oligopoliséc bargaining power with respect to tlle destinations covered in the agreement. J.Z at *19.Drtzmmond specihcally complained of the Tfcancellaéon'' provision that gave Norfolk Southern sole disczedon to ceasesetvice to all contract destinadons at any time, as well as the ffdouble clipping'' provisions that provided foz lloth rateescaladon and fuel surcharges. LcL 'Fhe court held that although Comzt One referenced the f'Amended Contract'' asamended by ffztmendment Number 1 to the Transportadon Contzact NS-9337,'' the terms at issue in Cotmt One werenot those that were amended by Amendment Number 1, namely Arécle 3, Ardcle 20(a), (b) and (c), Article 27(e)(1), (2)and (3), Article 27(g), and Ardcle 29. Here, by contrast, Arécle 13 and Article 26 are the explicit subject of Amendments2, 3, and 4. In other words, the terms at issue here concern provisions that were amended or.added afterlanuary 2010.

In sum , Drummond may rely upon the rates contained in Am endments 2 and 4, the

nainimum volum e comrnitments at issue in Am endm ent 3, as well as those other conttactual

provisions N orfolk Southern concedes were not part of the original contract. Dnzmmond may

also introduce evidence and/or argument related to the non-existence of a rate from the SRT

to Asheville.

It is SO O RD ERED .

sntaed, ag/ o ) z.a/ q@. *

- ' k ) ' '.' 'ï-'*'' ''' '* *P i ' X '* f 5 'Y

M ichae . Urbanski .

C ' nited States Distdctludge

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