IN RE AMERICANA EXPRESSWAYS, INC.

No. 96-4055.

133 F.3d 752 (1997)

In re: AMERICANA EXPRESSWAYS, INC., Debtor. Kenneth A. RUSHTON, Trustee, Plaintiff-Appellant, v. AMERICAN PACIFIC WOOD PRODUCTS, INC.; United States Gypsum Company, Defendants-Appellees, United States of America and the Surface Transportation Board, Intervenors.

United States Court of Appeals, Tenth Circuit.

December 31, 1997.


Attorney(s) appearing for the Case

Michael N. Zundel (Jeffery J. Devashrayee, also of Jardine Linebaugh & Dunn, Salt Lake City, UT; Professor Richard G. Wilkins, Provo, UT; and Robert B. Walker, Herndon, VA, with him on the briefs), for Plaintiff-Appellant.

Lon Rodney Kump of Richards, Bird & Kump, Salt Lake City, UT (George Carl Pezold and Raymond A. Selvaggio of Augello, Pezold & Hirschmann, Huntington, NY, with him in the brief), for Defendant-Appellee American Pacific Wood Products, Inc.

Brendan Collins (J. Christopher Kohn and Tracy J. Whitaker, also of the Civil Division, Department of Justice, Washington, DC; Henri F. Rush, General Counsel, Ellen D. Hanson, Deputy General Counsel, and Theodore Kalick, Attorney, The Surface Transportation Board, Washington, DC; and Scott M. Matheson, Jr., United States Attorney, Salt Lake City, UT, with him on the brief), for Intervenors the United States of America and The Surface Transportation Board.

Before MURPHY and LOGAN, Circuit Judges, and MILES-LaGRANGE, District Judge.


LOGAN, Circuit Judge.

Plaintiff Kenneth A. Rushton, Chapter 7 bankruptcy trustee (trustee) for debtor Americana Expressways, Inc. (Americana), appeals the district court's grant of summary judgment for defendant American Pacific Wood Products, Inc. (defendant) in the trustee's suit to recover alleged undercharges on shipments Americana made for defendant. See Rushton v. American Pacific Wood Products, Inc. (In re Americana Expressways, Inc.),

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