G&M Variety, Inc. v. Do It Best Corporation

Filing 67

OPINION AND ORDER: Court GRANTS 44 Renewed Motion for Partial Judgment on the Pleadings, and FINDS that G&M Variety breached its Membership Agreement with Do It Best. Signed by Chief Judge Philip P Simon on 12/8/2015. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
G&M VARIETY, INC. and G&M
HARDWARE, INC.,
Plaintiffs,
v.
DO IT BEST CORPORATION,
Defendant.

)
)
)
)
)
)
)
)
)

Cause No. 3:14-cv-1973

OPINION AND ORDER
This case is a contract dispute between G&M Variety, Inc., G&M Hardware, Inc.,
and Do It Best Corporation. G&M Variety alleges Do It Best unilaterally determined
damages and set them off against G&M Variety’s account and the accounts of two
purportedly unrelated parties in violation of the parties’ contracts. (DE 29 at ¶¶ 22–28.)
Do It Best has filed two counterclaims, alleging G&M Variety breached its Membership
Agreement with Do It Best by terminating early and breached a promissory note by
failing to make timely payments. (DE 32 at 50–52.) Do It Best has moved for partial
judgment on the pleadings for the first counterclaim (DE 44), and, for the reasons
below, the motion is granted.
G&M Variety previously operated a hardware store in Northbrook, Illinois.
(DE 29 at ¶ 5; DE 44 at 4.) In early 2009, G&M Variety entered into a Membership
Agreement with Do It Best, which, among other things, made G&M Variety a Do It Best
shareholder and obligated G&M Variety to buy certain discounted Do It Best goods.
1

(See generally DE 32-1 at 1, 4–5.) On February 17, 2009, G&M Variety executed a
Participation Form for Do It Best’s RetailStart® program, under which Do It Best would
provide “special financing, merchandising and other services” to G&M Variety for its
Northbrook store, so long as G&M Variety qualified and was approved for the
program. (DE 32-2 at ¶ 1.) The Participation Form included a provision entitling Do It
Best to certain remedies, in the event G&M Variety “terminates its membership in
Corporation within five (5) years after the Effective Date or, within the same period, has
a store which identifies itself with, belongs to or acquires products from any other
national stocking purchasing cooperative or similarly organized distributor [or]
wholesaler[.]” (Id. at ¶ 2.) By its terms, the Participation Form was an addendum to the
Membership Agreement between the parties. (Id. at ¶ 6.)
Do It Best now moves for partial judgment on the pleadings, pursuant to Federal
Rule of Civil Procedure 12(c). A motion under Rule 12(c) should be granted “if it
appears beyond doubt that the plaintiff cannot prove any facts that would support his
claim for relief.” Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000) (citation and
quotation marks omitted).
Do It Best’s motion seeks judgment only on the issue of whether G&M Variety
breached the RetailStart® Participation Form and therefore the Membership
Agreement, and there is no dispute on that point. (See DE 29 at ¶ 18 (“At the time of its
termination, Variety had completed approximately 2/3 of the 5 year commitment (40 of
the 60 months) as outlined in the Participation Form.”); DE 46 at 2 (“Defendant’s
2

Motion correctly states that G&M . . . withdrew from the Retail Start Program . . . as of
June 30, 2012.”).) Not only do G&M Variety’s pleadings acknowledge they terminated
their participation in the RetailStart® program early, Counsel to G&M Variety
confirmed at the December 4, 2015 status hearing that G&M Variety does not dispute
that its early termination constituted a breach of the Membership Agreement.
Accordingly, Defendant Do It Best Corporation’s Renewed Motion for Partial
Judgment on the Pleadings (DE 44) is GRANTED, and I FIND G&M Variety breached
its Membership Agreement with Do It Best.
SO ORDERED.
ENTERED: December 8, 2015.
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

3