United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1677
                         ___________________________

  Joe R. Whatley, Jr., solely in his capacity as the WD Trustee of the WD Trust

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

Canadian Pacific Railway Limited; Canadian Pacific Railway Company; Soo Line
                   Corporation; Soo Line Railroad Company

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                   Appeal from United States District Court
                  for the District of North Dakota - Bismarck
                                 ____________

                            Submitted: March 13, 2018
                            Filed: September 14, 2018
                                  ____________

Before GRUENDER, BEAM, and KELLY, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

      Joe Whatley, Trustee of the wrongful death claimants' trust (WD Trust),
appeals the district court's order finding that his claim under the Carmack
Amendment, 49 U.S.C. § 11706, against Canadian Pacific Railway was untimely. We
reverse and remand for further proceedings.
I.    BACKGROUND

        On June 29, 2013, a train carrying crude oil left New Town, North Dakota,
destined for an oil refinery near Saint John, New Brunswick, in Canada. The bill of
lading for the train's cargo designated Western Petroleum Company1 (WFE) as the
shipper, Irving Oil Ltd. as the consignee, and Canadian Pacific Railway (CP) as the
carrier. (CP is the parent company of the other rail defendants, including Soo Line
Railroad Company, and we will refer to the defendants collectively as CP). The bill
of lading was drafted and issued by CP and accepted by WFE through an online
process. The online form did not indicate or designate any particular tariffs, price
lists or any limitations of liability by CP. Soo Line transported the train from New
Town, North Dakota, to just over the Canadian border. From there, Canadian Pacific
took the train to its rail yard outside of Montreal, Quebec, where it turned the train
over to Montreal Maine & Atlantic Railway (MAR) Canada.

         Around midnight on July 5, 2013, MAR parked the train on the main tracks and
left it unattended. At some point early in the morning of July 6, 2013, the unattended
train began rolling downhill toward Lac-Mégantic, Quebec. As the runaway train
entered Lac-Mégantic, sixty-three of the train's seventy-two tanker cars derailed,
spilling crude oil and causing a series of massive explosions. The derailment and
subsequent explosions killed approximately forty-seven people and destroyed nearly
the entire town of Lac-Mégantic. Obviously, neither the tanker cars nor the cargo
made it to the intended destination and Irving did not receive the shipment.

       On August 7, 2013, MAR filed for bankruptcy protection. On November 5,
2013, WFE sent a notice of damages related to the derailment to CP. This letter
notified CP that it was making a claim under Canadian law, and expressly stated that


      1
        Western Petroleum is one of several related entities that we collectively refer
to as the World Fuel Entities (WFE).

                                         -2-
it was not making a claim under the Carmack Amendment. See 49 U.S.C. § 11706
(codifying the exclusive remedy for the liability of rail carriers under receipts and
bills of lading). This WFE letter further stated that a Carmack Amendment claim
would be sent at a later date. On November 27, 2013, CP responded to WFE by
denying the Canadian claim, and by noting that the Canadian claim was indeed not
a claim pursuant to the Carmack Amendment. CP also stated in the November 27
denial that,

      even if [WFE] were to submit a proper Carmack Amendment claim, CP's
      liability, if any, could not exceed the value of the lading (crude oil) and
      would not encompass rail-car damage claims or indemnity against third-
      party tort or governmental environmental claims. Those matters
      unquestionably go beyond the value of the property that CP received for
      transportation.

Appellant's App. at 1944.

        On April 4, 2014, WFE sent a notice of claim to CP under the Carmack
Amendment for all damages arising out of the derailment, including any amounts that
WFE might be liable for to injured parties or for environmental cleanup. CP sent a
letter in response to WFE on April 24 acknowledging that the April 4 claim was
proper notice for the Carmack Amendment claim, and that WFE's November 5 claim
was under Canadian law, but ultimately disallowing the Carmack Amendment claim
based upon WFE's alleged negligent conduct.2



      2
       In its November 2013 and April 2014 denial letters, CP references several
different tariffs, including ones that allegedly incorporate the Uniform Straight Bill
of Lading. Addendum at 21-24; 28-31. However, the actual tariffs or their contents
are apparently not in the record. In a submission to a Canadian Minister of the
Environment, WFE references a similar tariff which allegedly incorporates the
Uniform Straight Bill of Lading. App. at 2246.

                                         -3-
       Irving sent CP a letter on April 16, 2015, notifying it of potential derailment
claims under various laws, including the Carmack Amendment. CP did not respond
to Irving's letter. In October 2015, a bankruptcy court in Maine confirmed the MAR
bankruptcy plan, and the federal district court in Maine adopted this order. CP
withdrew its objections to confirmation of the plan. As may be relevant, the
bankruptcy plan tolled any and all applicable limitations periods.

       WFE and Irving settled its negligence claims against MAR's Chapter 11
Trustee and the Canadian insolvency monitor for $110 million U.S. dollars and $75
million in Canadian currency, respectively. The Trustee assigned Whatley, the
Trustee of the WD Trust, the rights of both WFE and Irving to bring any possible
claims against CP under the Carmack Amendment. Whatley brought claims pursuant
to the Carmack Amendment in the District Court of North Dakota on behalf of WFE
and Irving on April 12, 2016. CP filed an answer to the complaint in May 2016, and
a motion for judgment on the pleadings or in the alternative, for summary judgment,
in November 2016, seeking to dismiss the Carmack Amendment claims as untimely
and for other reasons. In March 2017, the district court granted the motion. The
court rejected Whatley's arguments that CP was barred by res judicata from denying
the claims because it did not object when the bankruptcy Trustee was considering
whether to assign the Carmack Amendment claims to the WD Trust. The court
determined that it should consider WFE's and Irving's claims separately, and ruled
that WFE's Carmack Amendment claim was untimely because suit was not filed
within two years of the denial letter sent by CP on November 27, 2013. The court
further held that while Irving had standing to pursue its claim, it was also untimely
because it did not provide notice of the claim within nine months of the incident. The
district court did not specify whether the ruling was on the pleadings or on summary
judgment grounds. Whatley appeals.




                                         -4-
II.   DISCUSSION

       A motion for judgment on the pleadings is reviewed de novo and should be
granted only if the moving party has clearly demonstrated that no material issue of
fact remains and the moving party is entitled to judgment as a matter of law. Elnashar
v. U.S. Dep't of Justice, 

, 794 (8th Cir. 2006). We construe the facts in
the complaint as true, and all reasonable inferences are drawn in the plaintiff's favor.

outside the pleadings are considered by the court, the motion shall
be treated as one for summary judgment. McAuley v. Fed. Ins. Co., 

,
787 (8th Cir. 2007).

         The Carmack Amendment "imposes upon 'receiving rail carrier[s]' and
'delivering rail carrier[s]' liability for damage caused during the rail route under the
bill of lading, regardless of which carrier caused the damage." Kawasaki Kisen
Kaisha Ltd. v. Regal-Beloit Corp., 

, 98 (2010) (alterations in original)
(quoting 49 U.S.C. § 11706(a)). Its purpose is to relieve cargo owners "of the burden
of searching out a particular negligent carrier from among the often numerous carriers
handling an interstate shipment of goods." Reider v. Thompson, 

, 119
(1950). To help achieve this goal, the Carmack Amendment constrains carriers'
ability to limit liability by contract. 49 U.S.C. § 11706(c).

      As noted, a claim under the Carmack Amendment is the exclusive remedy to
recover under a bill of lading. The statute sets forth the following language regarding
when claims for recovery can be made:

      A rail carrier may not provide by rule, contract, or otherwise, a period
      of less than 9 months for filing a claim against it under this section and
      a period of less than 2 years for bringing a civil action against it under
      this section. The period for bringing a civil action is computed from the
      date the carrier gives a person written notice that the carrier has
      disallowed any part of the claim specified in the notice.

                                          -5-
49 U.S.C. § 11706(e) (emphasis added). Thus, the statute sets forth the floor–the
minimum period which a carrier must give the shipper to give notice of a claim under
section 11706. See Louisiana & W. R.R. Co. v. Gardiner, 

, 284 (1927)
(noting that similar language from an earlier version of the Carmack Amendment was
not "intended to operate as a statute of limitation" but rather was meant to "restrict[]
the freedom of carriers to fix the period within which suit could be brought"). An
appendix to the implementing regulation, 49 C.F.R. pt. 1035, on the other hand,
appears to set forth a clear time limitation. See 49 C.F.R. pt. 1035, App. B, § 2(b)
(stating that when a carrier fails to deliver cargo, "[a]s a condition precedent to
recovery, claims must be filed in writing with the [carrier] . . . within nine months
after a reasonable time for delivery has elapsed" and further specifying that a lawsuit
must be filed "within two years and one day from the day" the carrier gave written
notice denying the claim). The regulation states that rail carriers "are required to use
straight bills of lading as prescribed in Appendix . . . B." 49 C.F.R. pt. 1035.1(a).3
The record in the instant matter contains a rather generic bill of lading but there is
nothing specific in the bill of lading in this record about whether the parties agreed
to the uniform language set forth in the regulation.

       Whatley pleaded a prima facie case under the Carmack Amendment by setting
forth facts establishing: (a) that WFE delivered the cargo to CP in good order and


      3
        However, we are perplexed by the fact that this regulation appendix language
seems to mandate a nine-month notice and two-year lawsuit ceiling when the
unambiguous statute sets a floor for these same time limits. This makes the
regulation completely at odds with the statute; for instance, the regulation requires
that notice of a claim be given within nine months, while the statute clearly states that
a carrier may not provide a period of less than nine months for filing a claim. 49
C.F.R. pt. 1035, App. B, § 2(b); 49 U.S.C. § 11706(e). However, the validity of this
particular regulation has not been called into question in this case and we express no
opinion on the subject.

                                          -6-
condition; (b) that the cargo did not arrive; and (c) the amount of damages incurred.
See Mo. Pac. R.R. Co. v. Elmore & Stahl, 

, 138 (1964) (listing elements
of prima facie case under the Carmack Amendment). Thus, if the district court erred
in finding the claim to be untimely, reversal is warranted at this stage of the
proceedings–either judgment on the pleadings or summary judgment. Although
Whatley has been assigned the right to bring claims for both entities, because WFE
and Irving are somewhat differently situated, we discuss them separately.

      A.     WFE

      As stated, it is unclear from the current record whether the parties agreed to the
uniform language from the regulation appendix setting a nine-month time period for
notice, and a two-year (and a day) time limit for filing suit from the date that the
claim was denied. Because of the outcome of our WFE analysis, we will assume that
those time limits did, indeed, apply to WFE in this case. Given that assumption,
unless the November 2013 exchange of correspondence between WFE and CP can
be construed as a claim and a denial under the Carmack Amendment, WFE's claim
based upon the claim letter and denial in April 2014 make Whatley's April 2016
lawsuit timely in any event.

        Whatley alleges that the claims in the complaint were timely pursuant to the
April 4, 2014, notice, the April 24, 2014, response and the filing of this April 12,
2016, suit in federal court. It is clear that WFE timely filed its notice of claim by
sending its Carmack Amendment notice on April 4, 2014. The incident occurred on
July 7, 2013. April 4 is less than nine months later. Thus, the essence of WFE's
dispute centers on the effect of the November 27, 2013, denial issued by CP for
WFE's Canadian claims. If, as CP asserts, the November denial was a blanket denial
of all claims, including any possible future Carmack Amendment claims, the two-year
"limitations" period bars Whatley's claim because it ran in November 2015. If,
however, the November 2013 denial did not affect the future, as-yet-to-be-asserted

                                          -7-
Carmack Amendment claims, the suit was timely brought within two years of the CP
denial in April 2014.

       CP alleges WFE's written notice in November 2013 started the two-year clock,
and the fact that the November 5, 2013, letter from WFE specifically disclaims any
reference to a Carmack Amendment claim does not matter because the notice of claim
need not reference the Carmack Amendment; instead, CP asserts, any form of claim
denial starts the limitations period, citing Adams Express Co. v. Croninger, 

(1913); Gulf Rice Arkansas, LLC v. Union Pacific Railroad Co., 

(S.D. Tex. 2005); Zarnoski-McCathern v. Eagle Van Lines, No. 04-CV-0155,

(N.D. Tex. Feb. 8, 2005); and Conagra, Inc. v. Burlington Northern,
Inc., 

, 1268 (D. Neb. 1977) ("Any written document which
identifies the damaged shipment and indicates an intention to hold the carrier
responsible is sufficient."), in support of its arguments.

       The two Texas district court cases are quite distinguishable as they involve
shippers' attempts to bring state law claims against the carriers, and once the cases
were removed to the Texas federal district courts, the courts appropriately found the
state claims preempted by the Carmack Amendment. Gulf Rice Ark., 

at 719; Eagle Van Lines, 

, at *2. Moreover, the courts in these
cases analyzed the specific language of the agreements entered into by the parties to
assess timeliness, and therefore these cases do not support the assertion that any form
of claim denial will start the running of a two-year limitations period as a matter of
law. See Gulf Rice Ark., 

at 724; Eagle Van Lines, 

,
at *3. And the Burlington Northern case cited by CP is not at all on point; in that case
the issue was whether the Carmack Amendment notification needed to be a
"[d]etailed documentation of the claim," rather than a simple 

. It was not a situation where a claim other than one under the Carmack
Amendment was initially alleged or a matter discussing the adequacy of a denial. 

case is one of the first few Supreme Court cases construing the

                                          -8-
Carmack Amendment, which was enacted in 1906 as an amendment to the Interstate
Commerce Act (although the Amendment has been altered and recodified over the
last century). See Kawasaki Kisen 

. Among other things,
Croninger addressed the shipper's limited recovery options when it elected a lower
shipping rate in exchange for releasing its goods at the standard value of the 

. While Croninger does stand for the proposition that common law
claims against carriers are preempted by the Carmack Amendment, 

nothing in Croninger suggests that a carrier can preemptively deny a Carmack
Amendment claim before it has been asserted.

         Here we have the unusual situation where the first claim made was pursuant to
Canadian law. According to the November letter, WFE was required by Canadian
law to submit notice of this claim within four months of the occurrence. WFE's
November 5 notice expressly denied that WFE was making its Carmack Amendment
claim, and noted that it would do so at a later time. The statute itself defines a
Carmack Amendment claim as one being brought "under this section." 49 U.S.C. §
11706(e). Indeed, if WFE had failed to make its April 2014 claim, CP might be
arguing that the November notice did not assert a Carmack Amendment claim. See,
e.g., Am. Rock Salt Co., LLC v. Norfolk S. Corp., 

, 204
(W.D.N.Y. 2005) (holding that shipper who gave written notice that it would be filing
a claim "at some unspecified later date" but did not do so within nine months, did not
adequately preserve its Carmack Amendment claim). To be sure, American Rock Salt
is a bit distinguishable because the "will be filing" notice contained no specifics about
damages. 

Here, by necessity and due to the operation of Canadian law,
damages (in the amount of approximately $4.9 million) were mentioned in the
November 2013 correspondence. But equally clear in WFE's November
correspondence was the notation that WFE was not yet making its Carmack
Amendment claim. When it ultimately gave its Carmack Amendment notice in April
2014, WFE asked for damages in the amount of $6,670,593.27 and also noted that
other damages (for property and wrongful death) were yet to be determined. We

                                          -9-
think it would be unwise policy, and actually unfair in this unusually complicated
multi-national case, to allow the carrier to start the two-year clock when the shipper
had not yet broken the huddle. We certainly agree that a denial starts the clock; but
according to the statute, the denial must be from a claim brought "under this section."
49 U.S.C. § 11706(e). WFE's November claim was assuredly and explicitly not
brought pursuant to 49 U.S.C. § 11706. Accordingly we reverse the district court's
grant of judgment on the pleadings (or summary judgment) as to Whatley's claim on
behalf of WFE.

      B.     Irving

       Whatley's Irving claim is more problematic because Irving first gave notice in
April 2015. If, indeed, the time limitations presumed in the previous section applied
to the bill of lading in this case, Whatley's claim on behalf of Irving could be time-
barred. Whatley alleges that since Irving was not a party to the bill of lading, it was
not bound by any possible nine-month period for bringing suit. And, Irving alleges
it was not required to provide notice of a claim until it was able to calculate its
damages with reasonable precision. Because many of the claims against Irving were
not alleged until the MAR bankruptcy case took shape, and the bankruptcy plan was
confirmed in October 2015, Irving argues that its claim, made in April 2015, was as
timely as reasonably possible. Finally, it alleges that the bankruptcy plan tolled any
applicable statutes of limitations, including ones that may apply to the Carmack
Amendment claims. However, CP points out that Irving cannot both escape the
timing rules (that CP alleges are in the bill of lading and tariffs) and reap the benefits
of the damages provisions by way of the bill of lading through the Carmack
Amendment.

       More persuasively, however, Whatley alleges that there is a genuine dispute
over the very existence of contractual terms in the bill of lading providing for a nine-
month notice period and a two-year suit limitation, precluding both dismissal on the

                                          -10-
pleadings or summary judgment as a matter of law. Whatley alleged in the pleadings
that the bill of lading did not contain terms setting forth the nine-month notice and
two-year period for bringing suit. And as previously noted, the specific language
and/or the tariffs themselves do not appear to be in the record on appeal. This
omission and factual dispute precludes judgment on the pleadings or summary
judgment in favor of CP with regard to Irving's claims. See Shao v. Link Cargo
(Taiwan) Ltd., 

, 707-08 (4th Cir. 1993) (holding that the record was
insufficient to determine whether contractual time limits applied to bar the Carmack
Amendment claim, and thus, remand was warranted); Tr. of Oral Decision, In re:
Maine Montreal & Atlantic Ry., Ltd., Adv. No. 13-01033 (Bankr. D. Me. June 22,
2018) (rejecting argument that the bill of lading governing the same train at issue in
the instant dispute automatically incorporated the terms of the uniform bill of lading).
Although WFE may have arguably conceded this point, see ante n.2, Irving has not.
If on remand it becomes clear that the nine-month notice and two-year lawsuit limits
contractually apply, then Irving's Carmack Amendment claim is untimely, unless
Irving's tolling arguments, based upon MAR's bankruptcy action, are meritorious. As
the district court did not address Irving's tolling arguments below, we leave it to the
district court to discern the applicability of any tolling, if necessary.

III.   CONCLUSION

      Accordingly, we reverse and remand for proceedings consistent with this
opinion.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

       Over the past several decades, deregulation has revolutionized the law
governing the interstate shipment of goods. See 22 Richard A. Lord, Williston on
Contracts § 59:1 (4th ed. 2018). While these changes have given shippers and
carriers greater freedom in making contracts, in this case the law mandated the

                                         -11-
contractual terms at issue. For this reason, I disagree that there is a genuine dispute
over the contractual terms governing Whatley’s Irving Oil claim, and I respectfully
dissent from Part II.B of the court’s decision. Because the two-year limitation on
Whatley’s WFE claim ran from the April 24, 2014 denial letter rather than the
November 27, 2013 denial letter, I agree that the WFE claim is timely and concur in
that portion of the court’s opinion and judgment.

        For shipments subject to the Carmack Amendment, rail carriers must use the
uniform straight bill of lading prescribed by federal regulations.4 49 C.F.R. § 1035.1;

apps. A, B; see also C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc.,

, 478 (9th Cir. 2000) (explaining that rail and water carriers, but not
motor carriers, must use the uniform straight bill of lading). Under § 2(b) of the
uniform straight bill of lading, claims involving a failure to make delivery must be
filed in writing with the carrier “within nine months after a reasonable time for
delivery has elapsed.” 49 C.F.R. pt. 1035, app. B. Likewise, § 2(b) permits a lawsuit
to be filed “only within two years and one day from the day when notice in writing
is given by the carrier to the claimant that the carrier has disallowed the claim or any
part or parts thereof specified in the notice.”5 

Carmack Amendment does not necessarily apply to rail shipments. As
part of the deregulation of the transportation industry, “shippers and carriers [may]
sidestep federal regulation of transportation agreements by entering into private
contracts” that are not subject to the Carmack Amendment, 49 U.S.C. § 11706, but
instead are governed by 49 U.S.C. § 10709. Babcock & Wilcox Co. v. Kansas City
S. Ry., 

, 138 (3d Cir. 2009); see also 1 Saul Sorkin, Goods in Transit
§ 5.02 n.167 (2018). But the parties here have made no argument that this contract
is governed by § 10709. On the contrary, Whatley states that his claims arise under
§ 11706.
      5
        As Whatley notes, 49 U.S.C. § 11706(e) requires a minimum of nine months
for claims and two years for instituting suits but otherwise allows parties to negotiate
limitations periods. Before the ICC Termination Act of 1995, these floors were
codified at 49 U.S.C. § 11707(e) and applied to carriers generally. For rail and water

                                         -12-
       As the court points out, it is not clear from the record whether WFE and Irving
Oil expressly agreed to this language. Ante, at 7. But because the uniform bill of
lading is required by federal law, the time limitation requirements bind the parties
regardless. See Comsource Indep. Foodservice Cos. v. Union Pac. R.R., 

, 443-44 (9th Cir. 1996); Glenn Hunter & Assocs. v. Union Pac. R.R., No.
3:01-CV-7602, 

, at *1 (N.D. Ohio Jan. 22, 2003) (“The omission of
the required language does not relieve the Union Pacific of its effect, because the
applicable regulation requires the inclusion of that language in the bill of lading.”);
2 

n.1, § 10.02 (“If the contractual limitation of action is provided for
in the tariff and regulations, no other notice[] is required to the shipper.”).
Consequently, I disagree with the court that “there is a genuine dispute over the very
existence of contractual terms in the bill of lading” that precludes dismissal of the
untimely Irving Oil claim.

        Under the uniform straight bill of lading, Irving Oil had nine months after “a
reasonable time for delivery has elapsed” to submit its claim to Canadian Pacific, but
it did not submit any claim until April 16, 2015. Given that the accident occurred on
July 6, 2013, this was well more than nine months after a reasonable time for delivery

carriers, the Interstate Commerce Commission (“ICC”) prescribed the uniform
straight bill of lading, which mandated the precise time periods described above. See
Bills of Lading, 58 Fed. Reg. 60797 (Nov. 18, 1993) (to be codified at 49 C.F.R.
pt. 1035); Bills of Lading, 9 I.C.C.2d 1137 (1993). Thus, there was no inconsistency
between the statute, which generally gave carriers the freedom to impose time
limitations by rule or contract subject to the statutory floors, and the regulation, which
imposed more stringent standards on rail and water carriers by requiring them to use
the uniform straight bill of lading. The ICC Termination Act transformed § 11707
and created separate statutory provisions for different types of carriers. 49 U.S.C.
§ 11706 (rail carriers), § 14706 (motor carriers and freight forwarders), § 15906
(pipeline carriers). But because the ICC Termination Act contains a savings clause
stipulating that previous ICC regulations remain in force, Pub. L. No. 104-88, § 204,
109 Stat. 803, 941 (1995), there is no reason to read § 11706(e) as casting doubt on
the continuing validity of 49 C.F.R. § 1035.1.

                                          -13-
had elapsed. See Imperial News Co. v. P-I-E Nationwide, Inc., 

, 644 (2d
Cir. 1990) (finding 124 days “more than a reasonable time” for delivery). Whatley
tries to excuse Irving Oil’s failure to submit a timely claim by arguing that it waited
until it could calculate damages with reasonable precision in light of the ongoing
bankruptcy proceedings. See Pathway Bellows, Inc. v. Blanchette, 

, 905
n.10 (2d Cir. 1980). But Whatley did not make this argument below. Gap, Inc. v. GK
Dev., Inc., 

, 748 (8th Cir. 2016) (“Ordinarily, this court will not consider
an argument raised for the first time on appeal.” (internal quotation marks omitted)).
And in any event, a party cannot wait until its total financial burden is clear to bring
a claim if it reasonably knows the value of the damaged cargo. See 5K Logistics, Inc.
v. Daily Express, Inc., 

, 336 (4th Cir. 2011). Moreover, Irving Oil could
at least have filed a partial claim. See Am. Rock Salt Co. v. Norfolk S. Corp., 387 F.
Supp. 2d 197, 205 (W.D.N.Y. 2005). Indeed, the fact that WFE filed its claim within
a year of the accident undermines Whatley’s argument that Irving Oil was unable to
file a claim until almost two years had lapsed.6 See 

the court’s opinion and judgment on the more difficult question of the
timeliness of the WFE claim. And though Canadian Pacific has made several other
arguments that might justify dismissal of that claim, I agree that we should allow the
district court to consider them in the first instance.
                         ______________________________




      6
        For these reasons, the Irving Oil claim would be untimely even if the
limitations periods are tolled pursuant to Whatley’s interpretation of the bankruptcy
plan. Under that plan, statutes of limitations must be tolled from the Execution
Date—here March 2, 2015—to the Plan Implementation Date. By the time the tolling
period began, however, Irving Oil’s claim was already untimely.

                                         -14-