C&K NuCo, LLC v. Expedited Freightways, LLC et al

Filing 149

MOTION by Defendants Expedited Freightways, LLC, Chad Rosenberg for judgment (Cross Motion) (Garvey, James)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

C&K TRUCKING, LLC,
Plaintiff,
No. 1:13-CV-4006

v.
EXPEDITED FREIGHTWAYS, LLC,
Defendant.

DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT
Defendant/Counter-Claimant, Expedited Freightways, LLC (“Expedited Freightways”),
files this cross motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure and Rule 56.1 of the Local Rules of the Northern District of Illinois. In support of its
cross motion, Expedited Freightways states as follows:
1.

Expedited Freightways has sued Plaintiff/Counter-Defendant, C&K NuCo, LLC

(“C&K”), for, inter alia, breach of contract based upon C&K NuCo’s failure to pay the purchase
price adjustment, or earn-out, due to Expedited Freightways under the parties’ January 25, 2013
Asset Purchase Agreement (the “APA”). [See Ans., Aff. Def., and Countercl. ¶¶ 35-41, DE 60.]
Expedited Freightways moves for summary judgment on this claim.
2.

C&K has failed and refused to pay Expedited Freightways a Purchase Price

Adjustment as provided for in Section 2.03 of the APA. On June 20, 2013, C&K issued an
Aggregate Direct Profit Statement identifying $464,622.15 in Aggregate Direct Profit. The
Expedited Review Period began on June 21, 2013 and expired on July 5, 2013. Because
Expedited did not object to C&K’s Aggregate Direct Profit Statement within the Expedited

Review Period, C&K’s Aggregate Direct Profit Statement was “deemed approved and binding
upon the parties” pursuant to Section 2.03 of the APA. This plain and unambiguous language of
the APA should end the inquiry in Expedited Freightways’ favor.
3.

Additionally, Expedited is also entitled to summary judgment because the plain

and unambiguous language of the APA defines “Direct Profit” as a function of gross sales – total
sales without deductions for uncollected revenue. In its motion for summary judgment, C&K
erroneously attempts to define Direct Profit by net sales – total sales with deductions for
uncollected revenue. However, the APA expressly defines Direct Profit as “C&K’s . . . net
revenues.” Net revenue is generally defined as gross sales less costs of goods sold. The parties
adopted this definition of net revenue through their statements and course of conduct. Under the
proper definition of net revenue, C&K’s Aggregate Direct Profit totaled $464,622.15.
4.

Because there is no genuine issue of disputed material fact as to Expedited

Freightways’ entitlement to this amount (plus pre-judgment interest thereon), Expedited
Freightways is entitled to judgment as a matter of law in the amount of $329,107.36.
WHEREFORE, Expedited prays for entry of an Order (a) granting summary judgment
for Expedited Freightways on its counterclaim for C&K’s failure to pay a Purchase Price
Adjustment of $329,107.36; (b) granting Expedited Freightways leave to file a petition for
attorneys’ fees and a bill of costs within thirty (30) days of the Court’s ruling on this motion; and
(c) granting such other relief as the Court deems appropriate.
Submitted this 19th day of September, 2016.

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/s/ James V. Garvey
James V. Garvey
IL ARDC # 6224992
[e-mail]
Attorney for Defendant
VEDDER PRICE P.C.
222 North LaSalle Street, Suite 2600
Chicago, Illinois 60601
Telephone: [phone]
Facsimile: [phone]
/s/ T. Brandon Welch
T. Brandon Welch
Georgia Bar No. 152409
[e-mail]
Enan E. Stillman
Georgia Bar No. 324786
[e-mail]
Attorneys for Defendant
STILLMAN WELCH
3340 Peachtree Road NE, Suite 1430
Atlanta, Georgia 30326
Telephone: [phone]
Facsimile: [phone]

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CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for the other parties in the foregoing
matter with a copy of this Defendant’s Cross Motion for Summary Judgment via the Court’s
CM/ECF notification system to:
Jeffrey Kosc, Esq.
Eric L. Zalud, Esq.
J. Allen Jones, III, Esq.
Benesch, Friedlander, Coplan & Aronoff, LLP

Dennis Minichello
Marwedel, Minichello & Reeb, P.C.
Attorneys for Plaintiffs

Submitted this 19th day of September, 2016.

/s/ James V. Garvey
James V. Garvey
IL ARDC # 6224992
[e-mail]
Attorneys for Defendants
Vedder Price P.C.
222 North LaSalle Street, Suite 2600
Chicago, Illinois 60601-1003
Telephone: [phone]
Facsimile: [phone]

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