Bell Independent Power Corp. v. Owens Illinois, Inc. et al

Filing 17

-CLERK TO FOLLOW UP-DECISION AND ORDER denying 8 Motion to Dismiss.Accordingly, the Court denies Defendants motion to dismiss, and orders this case consolidated with the earlier case, Bell Independent Power Corp. v. Owens-Illinois, Inc., No. 10-CV-6057. Signed by Hon. Charles J. Siragusa on 5/22/13. (KAP) (Main Document 17 replaced on 5/22/2013) (KAP).

UNITED STATED DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
BELL INDEPENDENT POWER CORP.,
Plaintiff,

DECISION & ORDER

-vs-

13-CV-6007-CJS

OWENS-ILLINOIS, INC.,
OWENS-BROCKWAY GLASS
CONTAINER, INC.,
Defendants.
____________________________________
APPEARANCES
For Plaintiff:

James A. Hobbs, Esq.
James Scott Wolford, Esq.
The Wolford Law Firm, LLP
600 Reynolds Arcade Building
16 East Main Street
Rochester, NY 14614
[phone]

For Defendants:

Michael A. Oropallo, Esq.
Hiscock & Barclay, LLP
One Park Place
300 South State Street
Syracuse, NY 13221
[phone]

Siragusa, J. Bell Independent Power Corp. (“Plaintiff” or “Bell Independent”)
brought this action against Defendants Owens-Illinois (“Owens-Illinois”) and Owens
Brockway Glass Container Inc. (collectively, “Defendants”) alleging breach of contract. The
case is before the Court on Defendants’ motion to dismiss, Feb. 26, 2013, ECF No. 8.
Defendants, in an earlier case between them and Bell Independent, filed a counter-claim
for breach of contract. See, Bell Independent Power Corp. v. Owens-Illinois, Inc., No. 10-

CV-6057-CJS-JWF (W.D.N.Y. Feb. 1, 2010). Defendants maintain in their motion in this
case that Bell Independent’s breach of contract claim should have been brought as a
compulsory counterclaim in the earlier lawsuit, and consequently, that the subject action
should be dismissed. Fed. R. Civ. P. 13(a). The Court heard oral argument on May 17,
2013.
Putting aside the issue of whether this motion is properly brought under Rule 12(c),
the Court explained at oral argument that this matter is controlled by the Second Circuit’s
ruling in Lucente v. International Business Machines Corp., 310 F.3d 243 (2d Cir. 2002).1
Defendants’s counter-claim in the prior lawsuit was either a breach of its contract with Bell
Independent, or an anticipatory repudiation of the same, and the choice of how to treat it
was Bell Independent’s. Lucente, 310 F.3d at 258–59 (“When confronted with an
anticipatory repudiation, the non-repudiating party has two mutually exclusive options. He
may (a) elect to treat the repudiation as an anticipatory breach and seek damages for
breach of contract, thereby terminating the contractual relation between the parties, or (b)
he may continue to treat the contract as valid and await the designated time for
performance before bringing suit.”). Bell Independent chose to continue operating under
the contract until it could no longer do so. That, according to Bell Independent, occurred
on December 6, 2010, when Defendants’ agent refused to provide information to Bell
Independent. As of December 6, 2010, the deadline to amend pleadings in the earlier
action, April 30, 2010, had passed. Therefore, Bell Independent was not required to bring
its breach of contract claim by way of a compulsory counterclaim in the earlier case.

1

As the Court explained at oral argument, it rejects Defendants’ argument that the contract
was illusory. Defendants’ argument is not consistent with New York law.
2

Accordingly, the Court denies Defendants’ motion to dismiss, and orders this case
consolidated with the earlier case, Bell Independent Power Corp. v. Owens-Illinois, Inc.,
No. 10-CV-6057.
SO ORDERED.
Dated: May 22, 2013
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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