Gyptec Iberica v. Alstom Power Inc.
Filing
62
WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 10/26/2012: The Court grants in part and denies in part Defendant Alstom Power Inc.'s motion for summary judgment 54 . Specifically, the Court grants the motion for summary judgment on Count III, but denies the motion as to Counts I and II. [For further details see minute order.] Mailed notice(kef, )
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Amy J. St. Eve
CASE NUMBER
10 C 128
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
10/26/2012
DATE
Gyptec Iberica vs. Alstom Power Inc
DOCKET ENTRY TEXT
The Court grants in part and denies in part Defendant Alstom Power Inc.'s motion for summary judgment
[54]. Specifically, the Court grants the motion for summary judgment on Count III, but denies the motion as
to Counts I and II.
O[ For further details see text below.]
Notices mailed by Judicial staff.
STATEMENT
On January 1, 2010, Plaitiff Gyptec Iberica (“Gyptec”) filed a three-count complaint against
Defendant Alstom Power, Inc. (“Alstom”) alleging breach of contract, breach of the Illinois Uniform
Commercial Code, and unjust enrichment. (R. 1, Compl.) Alstom moves for summary judgment on all three
counts pursuant to Federal Rule of Civil Procedure 56. The Court grants the motion for summary judgment
on Count III, but denies the motion as to Counts I and II.
I.
BACKGROUND
“For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and
required, component of a litigant’s response to a motion for summary judgment.” Sojka v. Bovis Lend Lease,
Inc., 686 F.3d 394, 398 (7th Cir. 2012). Local Rule 56.1(a)(3) requires the moving party to provide “a
statement of material facts as to which the moving party contends there is no genuine issue.” Cracco v.
Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). The opposing party is required to file ‘a response to
each numbered paragraph in the moving party’s statement, including, in the case of any disagreement,
specific references to the affidavits, parts of the record, and other supporting materials relied upon.’” Id.
(citing N.D. Ill. R. 56.1(b)(3)(B)). Pursuant to the Local Rules, the Court will not consider any additional
facts proposed in the nonmoving party’s Local Rule 56.1(b)(3)(B) response, but must rely on the
nonmovant’s Local Rule 56.1(b)(3)(C) statement of additional facts. See Ciomber v. Coop. Plus, Inc., 527
F.3d 635, 643 (7th Cir. 2008).
Courtroom Deputy
Initials:
10C128 Gyptec Iberica vs. Alstom Power Inc
KF
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Here, Gyptec did not file a Local Rule 56.1(b)(3)(C) statement of additional facts. Gyptec objects to
certain facts in Alstom’s Local Rule 56.1 statement of facts, but repeatedly fails to provide any reference to
specific contrary evidence. (See e.g., R. 60, Pl.’s 56.1 Resp. ¶¶ 13, 17, 23, 27.) The Court disregards Rule 56.1
statements and responses that do not cite to specific portions of the record, as well as those that contain factual or
legal argument. See Cracco, 559 F.3d at 632 (“When a responding party’s statement fails to dispute the facts set
forth in the moving party’s statement in the manner dictated by the rule, those facts are deemed admitted for
purposes of the motion.”); Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (“statement of material facts did
[] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information,
legal arguments, and conjecture”); Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 528 (7th
Cir. 2000) (the requirements for responses under Local Rule 56.1 are “not satisfied by evasive denials that do not
fairly meet the substance of the material facts asserted”).
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute as to
any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In
determining summary judgment motions, “facts must be viewed in the light most favorable to the nonmoving
party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,
167 L. Ed. 2d 686 (2007). The party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986). After “a properly supported motion for summary judgment is made, the adverse party ‘must
set forth specific facts showing that there is a genuine issue for trial.’” Anderson, 477 U.S. at 255 (quotation
omitted). “[D]istrict courts presiding over summary judgment proceedings may not weigh conflicting evidence or
make credibility determinations, both of which are the province of the jury.” Omnicare, Inc. v. UnitedHealth
Grp., Inc., 629 F.3d 697, 704-05 (7th Cir. 2011) (internal citations omitted).
III.
FACTS
“The dispute in this case involves Plaintiff’s purchase of a rotary cutoff knife from the Defendant in May
2008.” (Pl.’s 56.1 Resp. ¶ 4.)1 In or around September 2007, Gyptec contacted Alstom for a quote for a rotary
cutoff knife. (Pl.’s 56.1 Resp. ¶ 7.) On April 22, 2008, Alstom sent Gyptec an email with two documents
attached: (1) a Pro Forma Invoice # 95017 (“Invoice”) and (2) General Terms and Conditions of Sale (“General
Terms”). (Id. ¶ 13); see also (R. 55, Def.’s Mem., Exs. 2, 7; Compl., Exs. A, B.) The Invoice describes the
product, lists a unit price of $74,588 and a “lead time” of 18 weeks, and includes a term that payment would be
“cash in advance via wire transfer.” (Compl., Ex. A; Def.’s Mem., Ex. 2.) Gyptec received both the Invoice and
the General Terms. (Pl.’s 56.1 Resp. ¶ 17.) On May 7, 2008, Gyptec wired $74,588 to Alstom, which Alstom
received on May 9, 2008. (Id. ¶¶ 21-22.) On May 9, 2008, after receiving the wire transfer, Alstom sent Gyptec
an Order Acknowledgment with a copy of the General Terms attached. (Id. ¶ 23.) Alstom asked Dario Sandoval
Forero (“Forero”), the Gyptec employee who facilitated the negotiation process, to provide an official purchase
order acknowledging acceptance. (Id. ¶ 24.) On May 13, 2008 Gyptec sent Alstom a purchase order, signed by
Forero, which included an “Observations” section at the bottom of the page stating, “Terms and Conditions
according to your offer 95017 with date 22/04/08.” (Id. ¶ 25.) According to Gyptec, Forero was not an employee
of Gyptec for the purpose of signing any purchase orders. (R. 59, Pl.’s Mem. at 3.)
1
Citations for uncontested facts will be to Gyptec’s response to Alstom’s 56.1 statement
of facts, R. 60.
10C128 Gyptec Iberica vs. Alstom Power Inc
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Gyptec alleges that Alstom breached the contract by not delivering the cutoff knife by September 2,
2008--18 weeks from the order date. (Compl. ¶ 11.) The Invoice included a “lead time” of 18 weeks, which
reflected Alstom’s “estimate for shipping the product after receiving all criteria necessary to execute the order.”
(Pl.’s 56.1 Resp. ¶¶ 26-27.) On August 6, 2008, Alstom informed Gyptec that there were production delays and
that Alstom expected to deliver the cutoff knife January 9, 2008. (Pl.’s 56.1 Resp. ¶ 30.) Gyptec demanded
delivery by November 8, 2008, but Alstom reiterated it could not deliver the knife before January 2009. (Id. ¶¶
31-33.) On November 21, 2008, Gyptec informed Alstom that it would no longer accept the knife and requested
a full refund. (Id. ¶ 34.) Alstom did not issue Gyptec a refund and instead asked Gyptec to pay $55,866.68 for
the material and labor Alstom already had expended on the order. (Id. ¶ 35.)
IV.
ANALYSIS
Alstom argues that the Court should enter summary judgment on Counts I and II based on provisions in
the General Terms, specifically Article 7.5, which requires the purchaser to bring a suit within one year of the
loss or damage, and Article 17.1, a choice of law provision. (Def.’s Mem. at 12-13; Compl., Ex. B.) Alstom
argues that the agreement at issue includes the Invoice, the General Terms and the May 13, 2008 purchase order.
(Id. at 7-10.) Gyptec contends that the Invoice is the complete contract and that the General Terms do not apply.
(R. 59, Pl.’s Mem. at 4.) The Court cannot resolve this disagreement based upon the factual submissions before
it.
The Invoice includes the following language: “We reserve the right to adjust pricing appearing in this
Proposal or Quotation . . .” (Compl., Ex. A; Def.’s Mem., Ex. 2.) Article 1 of the General Terms states that
“‘Agreement’ means this Proposal and Purchaser’s acceptance of this Proposal, or any purchase order resulting
from the issuance of this Proposal, and includes all documents expressly incorporated by reference and
Attachments to these Standard Terms and Conditions of Sale.” (Compl. Ex. B.) The provisions in the General
Terms do not define or describe “this Proposal.” Gyptec alleges that “this Proposal” and “the General Terms and
Conditions” in this definition both refer to the General Terms document. (Id. at 8.) Alternatively, the use of the
term “this Proposal” in both the Invoice and the General Terms may indicate that the Invoice is the “Proposal.”
Additionally, the Invoice, which Gyptec argues is the stand-alone contract, does not specifically incorporate the
General Terms by reference. See 188 LLC v. Trinity Industries, Inc., 300 F.3d 730, 736-37 (7th Cir. 2002)
(“Illinois requires that incorporation be clear and specific”); Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657,
664 (7th Cir. 2002) (“The contract must show an intent to incorporate the other document and make it part of the
contract itself.”). Based upon the ambiguity on the face the documents, which were attached to the same email
though not attached to each other, a material fact exists regarding the intent of the parties to incorporate the
General Terms into the contract. See Otto v. Variable Annuity Life Ins. Co., 134 F.3d 841, 848 (7th Cir. 1998)
(“In light of the dispute over exactly which documents embodied the contract, the district court was not presented
with a situation where it could simply interpret the contract as a matter of law”).
Because an issue of material fact exists regarding whether the General Terms are part of the contract, the
Court denies the motion as to Counts I and II which rely on provisions in the General Terms.2
2
Alstom argues that the Court should dismiss Count II because breach of contract is not a
separate cause of action under either the New York or Illinois versions of the Uniform
Commercial Code and is duplicative of the Count I breach of contract claim. (Def.’s Mem. at
14.) Alstom does not cite any precedent that a court should enter summary judgment on
duplicative claims. (Id.) Alstom does not cite a single case for the proposition that a plaintiff
cannot assert a “separate and distinct” claim for breach under the Uniform Commercial Code.
(Id.) The Court will not address these undeveloped arguments lacking legal authority. See
10C128 Gyptec Iberica vs. Alstom Power Inc
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Under both Illinois and New York law, a plaintiff cannot recover for unjust enrichment when there is a
specific contract that governs the relationship of the parties. See Omnicare, Inc. v. UnitedHealth Grp., Inc., 629
F.3d 697, 723 (7th Cir. 2011) (upholding grant of summary judgment on an unjust enrichment claim because
under Illinois law a plaintiff cannot raise unjust enrichment when there is a specific contract that governs the
relationship of the parties); National Production Workers Union Ins. Trust v. Cigna Corp., 665 F.3d 897, 905 (7th
Cir. 2011) (affirming grant of summary judgment on an unjust enrichment claim because under Illinois law
“when two parties’ relationship is governed by contract, they may not bring a claim of unjust enrichment unless
the claim falls outside the contract.”) (quotation omitted); see also Appert v. Morgan Stanley Dean Witter, Inc.,
673 F.3d 609, 625 (7th Cir. 2012) (interpreting New York unjust enrichment law). Although a plaintiff may
plead unjust enrichment in the alterative to breach of contract, once the court finds a contract exists, unjust
enrichment is no longer available. See Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 396 (7th Cir.
2003) (granting summary judgment on an unjust enrichment claim when parties signed a contract). Indeed,
Gyptec pled unjust enrichment “[i]n the alternative to Count I, if a contact is not found to exist.” (Compl. ¶ 21).
Because there is no issue of material fact as to whether a contract exists, only as to the scope of the contract, the
Court grants the motion as to Count III.
V.
CONCLUSION
The Court grants Alstom’s motion for summary judgment as to Count III, but denies it as to Counts I and
II.
Wehrs v. Wells, 688 F.3d 886, 891 n. 2 (7th Cir. 2012) (“The lone sentences in his summary of
argument and conclusion sections, lacking any citation to governing law, are insufficient to raise
adequately an issue”); Gross v. Town of Cicero, Ill., 619 F.3d 697, 704 (7th Cir. 2010) (“[I]t is
not this court’s responsibility to research and construct the parties’ arguments”).
10C128 Gyptec Iberica vs. Alstom Power Inc
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