
    No. 418-75.
    October 15, 1976
    Leeway Motor Freight, Inc.
    
      Bichard B. Bailey, attorney for plaintiff.
    
      John Charles Banney, with whom was Assistant Attorney General Bex E. Lee, for defendant.
   Carriers. — On October 15, 1976 the court entered the following order:

Before Davis, Judge, Presiding, Kunzig, and Bennett, Judges.

“The court has considered, without oral argument, defendant’s motion for summary judgment filed May 10, 1976; plaintiff’s response to defendant’s motion for summary judgment filed June 10,1976; and defendant’s reply thereto filed June 23, 1976. The court finds that the moving papers pose the following dichotomy: If the ‘petition is, as defendant suggests, no more than a suit for the recovery of freight charges, 49 U.S.C. 304a may be controlling and the plaintiff time-barred, since more than three years have elapsed since the date of the last deduction by defendant. If, instead, the case should be considered as a contract claim (other than ‘charges’), the applicable statute of limitations may be sis years under 28 U.S.C. 2501, and the action not time-barred. The court is aware of the unsettled nature of the law concerning what actions are includable within the purview of the language in 49 U.S.C. 304a — ‘for the recovery of their charges.’ The court finds that this issue and any others deemed pertinent by the parties should be submitted for oral argument before the court, that defendant should be granted leave to file a supplemental statement and brief, and that plaintiff should be granted leave to do the same.

“it is therefore ordered that defendant is granted leave to file a supplemental statement and brief of not more than twenty-five (25) pages which shall include an analysis of the legislative history and applicable case law supporting the contention that 49 U.S.C. 304a (1) was meant to include claims such as plaintiff’s.

“it is further ordered that within twenty (20) days of the filing of defendant’s brief, plaintiff may file a statement and brief not to exceed twenty-five (25) pages in response.

“Both parties are advised that this case is referred to the Clerk of the Court for calendaring for oral argument on an appropriate calendar after the filing of these briefs.”

On January 26, 1977 a stipulation of dismissal was filed, and on the same day the petition was dismissed pursuant to Rule 102 (a) (1) (ii).  