VLM Food Trading International, Inc. v. Illinois Trading Company et al

Filing 57

MOTION by Plaintiff VLM Food Trading International, Inc. for judgment as a matter of law (Attachments: # 1 Text of Proposed Order)(Keaton, Michael)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
VLM FOOD TRADING INTERNATIONAL,
INC.
Plaintiff,
v.
ILLINOIS TRADING CO., et al.,
Defendants.

)
)
) CIVIL ACTION
)
) Case No: 1:12-CV-08154
)
) Hon. Harry D. Leinenweber
)
)

MOTION FOR PARTIAL JUDGMENT ON PRINCIPAL AND
INTEREST AMOUNTS BASED ON ADMITTED FACTS
The plaintiff, VLM Food Trading International, Inc.(the "Plaintiff"), respectfully moves this
Honorable Court, pursuant to Fed. R. Civ. P. 52(c), for entry of a judgment as a matter of law in
Plaintiff’s favor as to the principal amount and contractual interest amount against the defendants,
Illinois Trading Co. (the “Company”), The Obee Family Partnership (“OFP”) and Lawrence N.
Oberman, individually (“L. Oberman”) (OFP and L. Oberman are collectively referred to as the
“Principals,”) (the Company and the Principals are collectively referred to herein as the “ ITC
Defendants”). In support of this motion, Plaintiff states as follows:

STATEMENT OF FACTS
1.

On October 10, 2012, the Plaintiff filed its compliant against the ITC Defendants to

enforce its rights as a valid trust beneficiary pursuant to the Perishable Agricultural Commodities
Act 1930, 7 U.S.C. §§ 499a-499t (2009 & Supp. 2011)(the "PACA").
2.

The ITC Defendants finally obtained new counsel on February 5, 2013 (DE #49& 51).

3.

On February 5, 2013, the ITC Defendants filed their Motion To Vacate the Default

Judgment (DE #50).

4.

On February 11, 2013, the Plaintiff filed an objection to the ITC Defendants’ motion.

(DE #54).
5.

On February 11, 2013, the ITC Defendants filed a response to the Plaintiff’s objection

(DE #55) (the “Response”).
6.

The Response stated as follows: “[ITC] Defendants, at this time, do not dispute the

underlying debt at issue in this case.” See DE#55 at p.1.
7.

The Response also stated as follows: “The ITC Defendants, as correctly stated by

Plaintiff in their objections, have little quarrel with the value of the Plaintiff’s claims for the
underlying debt.” See DE#55 at p.2.
8.

The Response goes on to state the ITC Defendants only “meritorious defense” is

whether the invoice based fee-shifting provision is enforceable. There is no further mention to any
defenses to the admitted principal amount or the admitted interest rate or amount.
9.

The “underlying” principal is $184,978.00, being the unpaid principal due to Plaintiff

on the nine (9) unpaid invoices at issue in this matter.
10.

The “underlying”debt also includes the contract rate of interest at “1.5% per month

(18% per annum)” as stated on the Plaintiff’s invoices to the ITC Defendants. As of February 19,
2013, that amount is $15,694.88 and carries a per diem of $92.49.
ARGUMENT
11.

Under Fed. R. Civ. Pro. 52(c), this Honorable Court is expressly empowered to enter

a judgment on partial findings, such as when defendants admit outcome determinative facts.
12.

The rule “authorizes to enter judgment at any time that it can appropriately make a

dispositive finding of fact on the evidence.” See Advisory Committee Notes, 1991 Amendments.
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13.

In the present case, the ITC Defendants have clearly admitted they “do not dispute

the underlying debt at issue in this case.” See DE#55 at p.1. See also Fed. R. Evid. 801(d)(2)(D).
14.

The Plaintiff’s claim consists of three (3) components: principal, interest and fees.

15.

Now that the ITC Defendants have admitted the first two (principal and interest) are

no longer disputed, those claims can, and should be, reduced to judgment.
16.

That partial judgment will help to narrow the focus of the bench trial re-set for

February 19, 2013 to the (admittedly) only issue that remains disputed in this case - the ITC
Defendants’ claim of a “meritorious defense” to the 3rd component of the debt in this case, the feeshifting provision.
17.

The judgment should include the “no longer disputed” principal of $184,978.00 and

the “no longer disputed” contract right to 18% pre-judgment interest.
18.

As of February 19, 2013, that interest figure is $15,694.88 and carries a per diem of

$92.49. Together, the admitted principal amount and admitted interest amount adds up to
$200,672.88 as of February 19, 2013.

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WHEREFORE, the Plaintiff respectfully requests this Honorable Court to enter a partial
judgment in favor of Plaintiff and against the ITC Defendants, jointly and severally, in the current
amount of $200,672.88, plus additional interest at the per diem of $92.49 from and after February
19, 2013 and for such other and further relief as this Honorable Court may deem appropriate upon
consideration of this matter.

Dated: February 14, 2013

Respectfully submitted,
VLM FOOD TRADING
INTERNATIONAL, INC.
By: /s/ Michael J. Keaton, Esq.
One of Its Attorneys
Michael J. Keaton, Esq.
Kevin P. Kelley, Esq.
KEATON LAW FIRM, P.C.
707 Lake Cook Road, Suite 300
Deerfield, Illinois 60015
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Counsel for Plaintiff

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CERTIFICATE OF SERVICE
I, the undersigned counsel for the Plaintiff, hereby certify that he has served a true and correct
copy of the foregoing document and all attachments upon all counsel of record properly registered
with this Honorable Court’s ECF system this day, February 14, 2013, or served, via fax, e-mail or
first class mail with proper postage prepaid, upon the following recipients:
George L. Grumley, Esq.
Richard C. Carey, Esq.
GRUMLEY, KAMIN & ROSIC, LLC
70 West Madison Street, Suite 2100
Chicago, Illinois 60602-4253

By:

/s/ Michael J. Keaton

Michael J. Keaton, Esq.
KEATON LAW FIRM, P.C.
707 Lake Cook Road, Suite 903
Deerfield, Illinois 60015
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Counsel for Plaintiff

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