Fenner Dunlop Americas, LLC v. DRI, Incorporated
Memorandum Opinion and Order granting plaintiff's motion for summary judgment. (Related Doc. # 41 ). Signed by Magistrate Judge William H. Baughman, Jr., on 10/27/2017. (S,MD)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
FENNER DUNLOP AMERICAS, LLC,
CASE NO. 1:16 CV 1758
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
Before me1 in this diversity action by Fenner Dunlop Americas, LLC (Fenner Dunlop)
against DRI Incorporated, d/b/a Diversified Resources Incorporated (DRI)2 is Fenner
Dunlop’s motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.3 DRI has not responded to Fenner Dunlop’s motion, and both parties have
waived oral argument on the motion.4 For the reasons that follow, Fenner Dunlop’s motion
will be granted.
The parties have consented to my exercise of jurisdiction. ECF # 15.
ECF # 1.
ECF # 41.
ECF # 47 (DRI), # 49 (Fenner Dunlop).
The undisputed facts, with citations to the supporting record, are set out by Fenner
Dunlop in its brief in support of its motion as follows:
On 16 occasions from May 27, 2015 to July 23, 2015, at DRI's request, Fenner
Dunlop Americas, Inc. sold conveyor belt and splice materials ("Belt") to DRI in the
transactions identified and for the prices set forth in the Statement of Account attached as
App'x 1 to the Declaration of Raj Gopal ("Transactions").5 DRI has admitted that the
Statements of Account (which were also attached to the First Amended Complaint as Exhibit
A) accurately describe the Transactions, including purchase order numbers, quantity of Belt
purchased, and agreed prices for the Belt.6
Each of the 16 Transactions included a written invoice that described DRI's order and
recited the invoice date, shipment date, quantity, price and payment terms, among other
things, and incorporated Fenner's Standard Terms and Conditions of Sale. At no time did
DRI provide notice to Fenner that it objected to any of the Standard Terms and Conditions
of Sale.7 Copies of the invoices for each of the 16 Transactions ("Invoices") are attached as
App'x 2 to the Gopal Declaration.8 DRI has admitted that the invoices (which were also
attached to the First Amended Complaint as Exhibit B) accurately describe the Transactions,
ECF # 41-2
ECF #41-3 (DRI Responses to Request for Admission No. 6).
ECF # 41-2 at 4.
ECF # 41-2
including purchase order numbers, quantity of Belt purchased, and agreed prices for the
Belt.9 The total purchase price for the Belt was $1,125,568.09.10
Fenner's statements of account to DRI stated: "FDA [Fenner Dunlop Americas]
Standard Terms & Conditions apply. Available at www.fennerdunlopamericas.com and upon
Similarly, the invoices stated:
Unless otherwise agreed to in writing by Fenner Dunlop Americas, Inc., this
invoice is subject to the Standard Terms and Conditions of Sale of Fenner
Dunlop Americas, Inc. posted at www.fennerdunlopamericas.com/termsofsale
(the "Terms and Conditions") and is hereby incorporated by reference into and
made a part of this invoice. Purchaser acknowledges it has read and agrees to
be bound by such Terms and Conditions. Purchaser also acknowledges that
Fenner Dunlop Americas, Inc. may, from time to time and at its discretion,
modify the Terms and Conditions and Purchaser agrees to be bound by such
Terms and Conditions as modified.12
At the time of the Transactions, DRI's President, Jeffery Hurt, read the language on
the statements of account and the invoices that incorporated the terms and conditions.13 Hurt
testified that he never used the internet link provided or requested a copy of the terms and
ECF # 41-3 (See DRI Response to Requests for Admission No. 7.).
ECF # 41-2 at 2, 4.
Id. at App'x 1.
Id. at App'x 2.
ECF # 40-1 (Hurt Dep. at 23-24).
A copy of the Standard Terms and Conditions of Sale in force at the time of the
Transactions is attached as App'x 3 to the Gopal Declaration. At all relevant times, the
Standard Terms and Conditions were available on the website of Fenner Dunlop Americas,
Inc. and by request of any buyer.15 Section 3 of the Standard Terms and Conditions provides
that past due accounts will bear interest at the rate of 3% per month. Section 10 provides that
the transactions will be governed by the laws of the State of Ohio. Section 11 provides that:
In the event of any action or proceeding relating to a Transaction subject to
this Agreement where Fenner is determined to be the prevailing party with
regard to some or all claims, Purchaser [DRI] agrees to pay all of Fenner's
attorney's fees or litigation costs up through and including any appeal.
DRI admits that Fenner delivered the Belt as ordered, that DRI accepted the Belt, that
DRI did not reject the Belt, and that DRI has failed and refused to pay Fenner for the Belt.16
DRI also admits that it never notified of Fenner of any defect with the Belt.17 Indeed, the
only excuse offered by DRI for why it has not paid Fenner is that it did not have the money.18
On February 1, 2016, Fenner Dunlop Americas, Inc. converted to Fenner Dunlop
Americas, LLC, the plaintiff entity in this case. Fenner Dunlop Americas, LLC is the
successor by conversion to all contracts entered into by Fenner Dunlop Americas, Inc. On
this point, Fenner incorporates its prior Opposition to Plaintiff's Motion for Judgment on the
ECF # 41-2 at 4.
ECF # 41-3 (DRI Response to Requests for Admission Nos. 1, 2, 3, 4, and 11;
see also Gopal Decl., ECF #41-2 at 5).
ECF # 41-3 (DRI Response to Requests for Admission No. 5).
ECF # 40 (Hurt Dep., at 28-29).
Pleadings19 and Opposition to Plaintiff's Motion to Dismiss,20 and related exhibits and
declaration,21 which establish that the plaintiff entity is the successor to Fenner Dunlop
Standards of Review
Summary judgment standard
The court should grant summary judgment if satisfied “that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.”22 The moving party bears the burden of showing the absence of any such “genuine
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions answers to interrogatories, and
admissions on file, together with affidavits, if any,’ which it believes
demonstrates the absence of a genuine issue of material fact.23
A fact is “material” only if its resolution will affect the outcome of the lawsuit.24
Determination of whether a factual issue is “genuine” requires consideration of the applicable
ECF # 12.
ECF # 23
ECF #’s 12-1, 12-2, 12-3.
Fed. R. Civ. P. 56(c).
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c)).
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
evidentiary standards.25 The court will view the summary judgment motion “in the light most
favorable to the party opposing the motion.”26
The court should not grant summary judgment if a party who bears the burden of
proof at trial does not establish an essential element of his case.27 Accordingly, “[t]he mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.”28 Moreover,
if the evidence presented is “merely colorable” and not “significantly probative,” the court
may decide the legal issue and grant summary judgment.29
In most civil cases involving summary judgment, the court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party]
is entitled to a verdict.”30 But if the non-moving party faces a heightened burden of proof,
such as clear and convincing evidence, it must show that it can produce evidence which, if
believed, will meet the higher standard.31
Id. at 252.
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
McDonald v. Petree, 409 F.3d 724, 727 (6th Cir. 2005) (citing Celotex Corp.,
477 U.S. at 322).
Leadbetter v. Gilley, 385 F.3d 683, 689 (6th Cir. 2004) (quoting Anderson, 477
U.S. at 248-49).
Anderson, 477 U.S. at 249-50 (citation omitted).
Id. at 252.
March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover.32 The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.”33 The text of
Fed. R. Civ. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of
his pleading, but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial.
“In other words, the movant can challenge the opposing party to ‘put up or shut up’ on a
Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has
concurred that “‘it is well settled that only admissible evidence may be considered by the trial
court in ruling on a motion for summary judgment.’”35 Rule 56(e) also has certain, more
[it] requires that affidavits used for summary judgment purposes be made on
the basis of personal knowledge, set forth admissible evidence, and show that
the affiant is competent to testify. Rule 56(e) further requires the party to
attach sworn or certified copies to all documents referred to in the affidavit.
Anderson, 477 U.S. at 256.
Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
BDT Prods. v. Lexmark Int’l, 124 F. App’x 329, 331 (6th Cir. 2005).
Wiley v. United States, 20 F.3d 222 (6th Cir. 1994) (quoting Beyene v. Coleman
Sec. Servs., 854 F.2d 1179, 1181 (9th Cir. 1988)).
Furthermore, hearsay evidence cannot be considered on a motion for summary
But the district court may consider evidence not meeting this standard unless the opposing
party affirmatively raises the issue of the defect. The burden is on the opposing party to
object to the improper evidence; failure to object constitutes a waiver.
If a party fails to object before the district court to the affidavits or evidentiary
materials submitted by the other party in support of its position on summary
judgment, any objections to the district court’s consideration of such materials
are deemed to have been waived, and [the Sixth Circuit] will review such
objections only to avoid a gross miscarriage of justice.37
As a general matter, the judge considering a motion for summary judgment need
examine “[o]nly disputes over facts that might affect the outcome of the suit under governing
law.”38 The court will not consider non-material facts, nor will it weigh material evidence to
determine the truth of the matter.39 The judge’s sole function is to determine whether there
is a genuine factual issue for trial; this does not exist unless “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.”40
In sum, proper summary judgment analysis entails:
the threshold inquiry of determining whether there is the need for a trial –
whether, in other words, there are any genuine factual issues that properly can
Id. at 225-26 (citations omitted).
Id. at 226 (citations omitted).
Anderson, 477 U.S. at 248.
Id. at 249.
be resolved only by a finder of fact because they may reasonably be resolved
in favor of either party.41
In addition, Magistrate Judge Burke has detailed the controlling law as to addressing
an unopposed motion for summary judgment:
Although the Court generally may grant unopposed motions, see Local Rule
7.2(g), it cannot grant a motion for summary judgment solely because the
non-moving party has failed to respond to the motion. Miller v. Shore Fin.
Servs., Inc., 141 F. App'x 417, 419 (6th Cir.2005). Even in such a case, Rule
56 requires a court to determine that the moving party has demonstrated the
absence of a disputed question of material fact and a right to relief as a matter
of law. Id. That is not to say, however, that the court must do the work of the
non-responding, non-moving party. “[W]here the non-moving party fails to
respond to the motion for summary judgment, the trial court is under no
obligation to ‘search the entire record to establish that it is bereft of a genuine
issue of material fact.’ ” In re St. Clair Clinic, Inc., No. 94–3943, 1996
U.S.App. LEXIS 1416, at *2, 1996 WL 6531 (6th Cir. Jan. 8, 1996) (quoting
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989)).
Instead, the court may rely upon the facts presented and designated by the
moving party. Id. (quoting Guarino v. Brookfield Township Trustees, 980 F.2d
399, 404 (6th Cir.1992)). If those facts establish the moving party's entitlement
to judgment as a matter of law, the Court may properly grant summary
judgment. See Fed.R.Civ.P. 56(e)(3).42
Fenner is entitled to summary judgment on its breach of contract claim.
The elements of a breach of contract claim under Ohio law are "(1) a contract existed,
(2) one party fulfilled his obligations, (3) the other party failed to fulfill his obligations, and
Id. at 250.
People’s United Equipment Finance Corp. v. Bencin Trucking, Inc., 2012 WL
1571534, at * 2 (N.D. Ohio May 3, 2012).
(4) damages resulted from that failure."43 Here, there is no dispute that there were enforceable
contracts for DRI to purchase the Belt, for a total of $1,125,568.09. Moreover, there is no
dispute that Fenner fulfilled its obligations by delivering the Belt and that DRI breached the
contract by failing to pay Fenner for the Belt; DRI has admitted these facts. Finally, there is
no dispute that Fenner has suffered damages from the non-payment, as Fenner is the
successor in interest to Fenner Dunlop Americas, Inc. for purposes of the Transactions with
Accordingly, Fenner Dunlop is entitled to summary judgment on it’s breach of
Fenner Dunlop is entitled to prejudgment interest at the contractually specified
rate of 3% per month.
Fenner Dunlop’s Standard Terms and Conditions, including the fee-shifting provision
and interest rate provision, were expressly incorporated into the Statements of Account and
invoices. "In Ohio, separate agreements may be incorporated by reference into a signed
contract."44 "[I]t is a general principle of Ohio contract law that separate agreements maybe
Blake Homes, Ltd. v. FirstEnergy Corp., 2007-Ohio-4606, 77, 173 Ohio App.
3d 230, 245.
Mohmed v. Certified Oil Corp., 2015-Ohio-2398, 35, 37 N.E.3d 814, 821 (Ct.
App. 2015); see also Garcia v. Wayne Homes, LLC, No. 2001-CA-53, 2002-Ohio-1884,
2002 WL 628619, at *9 (Ct. App. April 19, 2002) ("Regardless of the lack of signatures
on the Specifications, it is clear that the parties expressly incorporated the document by
reference and they are, therefore, bound to the terms contained therein."); Christe v. GMS
Mgt. Co., 124 Ohio App. 3d 84, 88, 705 N.E.2d 691, 693 (1997) ("Where one instrument
incorporates another by reference, both must be read together."); Panzica Constr. Co. v.
Bridgeview Crossing, L.L.C., 2015-Ohio-3478, 55, 39 N.E.3d 529, 546
incorporated by reference into a signed contract and that when done, both instruments must
be read and construed together."45
Courts have concluded that terms and conditions found on a company's website are
enforceable if incorporated into a contract.46 Here, the invoices and statements of account
plainly provided that the Transactions were governed by Fenner's Standard Terms and
Conditions. There is no dispute that the Standard Terms and Conditions were available on
Fenner's website and by request.
The Standard Terms and Conditions provided for interest at the rate of 3% per month.
Thus, this Court should award prejudgment interest at 3% per month.47 As of July 26, 2017,
the interest due was $840,207.75. Interest is continuing to accrue, and Fenner will calculate
and submit the updated interest amount upon entry of judgment on the breach of contract
Section 10 of the Standard Terms and conditions provides that the Transactions
are governed by the laws of the State of Ohio
See, e.g., Spartech CMD, LLC v. Int'l Auto. Components Grp. N. Am., Inc., No.
08-13234, 2009 WL 440905, at *5 (E.D. Mich. Feb. 23, 2009), on reconsideration, No.
08-13234, 2009 WL 2058731 (E.D. Mich. July 15, 2009); MicroMetl Corp. v. TranzAct
Techs., Inc., No. 1:08CV0321-LJM-WTL, 2008 WL 2356511, at*4 (S.D. Ind. June 5,
2008); Oceanconnect.com, Inc. v. Chemoil Corp., No. CIV.A. H-07-1053, 2008 WL
194360, at *2-3 (S.D. Tex. Jan. 23, 2008).
See Ohio Rev. Code §1343.03 (providing that creditors are entitled to interest at
the rate provided in any "written contract"); see also Thompson v. Citizens Nat'l Bank, No
1:14-CV-1197, 2016 WL 7238835, at*10 (N.D. Ohio Dec. 15, 2016) (noting that, under
Ohio law, prejudgment interest in "mandatory for contract claims").
Fenner is entitled to attorneys' fees.
As noted in the supporting record, Fenner's Standard Terms and Conditions provide
that Fenner, as the prevailing party, is entitled to reasonable attorney's fees and costs incurred
in seeking judgment against DRI. Under Ohio law, contractual provisions providing for
recovery of costs and attorneys' fees are enforceable.48 This rule is grounded in the
"fundamental right to contract freely with the expectation that the terms of the contract will
be enforced."49 A contractual attorneys' fees provision will be enforced "so long as the fees
awarded are fair, just and reasonable as determined by the trial court upon full consideration
of all circumstances of the case."50
There is no evidence in the record supporting any of Defendant's affirmative
DRI pled a number of affirmative defenses in its initial Answer.51 But, there is no
evidence in the record supporting any of these defenses. In fact, DRI's 30(b)(6) witness
acknowledged that the "only reason" DRI has not paid Fenner is because it did not have the
money.52 DRI has not yet filed an answer to Fenner's Amended Complaint, nor has it
responded to his motion for summary judgment.
Wilborn v. Bank One Corp., 121 Ohio St. 3d 546, 548-49 (2009); Nottingdale
Homeowners' Assoc. v. Darby, 33 Ohio St. 3d 32, 36-37 (1987).
Wilborn, 121 Ohio St. 3d at 548 (quoting Nottingdale, 33 Ohio St. 3d at 36).
Wilborn, 121 Ohio St. 3d at 548.
ECF # 9.
ECF # 40 (Hurt Dep. at 28-29.)
For the reasons stated, Fenner Dunlop Americas, LLC is granted summary
judgment in its favor as follows:
A judgment for breach of contract and award damages in favor of Fenner
Dunlop Americas, LLC and against DRI Incorporated in the principal amount of
$1,125,568.09; plus $840,207.75 in prejudgment interest through July 26, 2017; plus
continuing prejudgment interest in the amount of 3% per month up through the date of
judgment53 (which amount Fenner is to calculate and submit to the Court by affidavit or
declaration after entry of judgment on this claim);
An of award attorneys' fees and costs in favor of Fenner Dunlop Americas,
And an award of postjudgment interest in favor of Fenner Dunlop
Americas, LLC at the federal statutory rate. See 28 U.S.C. § 1961(a).
IT IS SO ORDERED.
Dated: October 27, 2017
s/ William H. Baughman, Jr.
United States Magistrate Judge
Fenner Dunlop Americas, LLC must calculate and submit to the Court by
affidavit or declaration the amount of prejudgment interest from July 27, 2017 through
the date of entry of judgment no later than 14 days after entry of the judgment.
Fenner Dunlop Americas, LLC must file a bill of costs under Federal Rule of
Civil Procedure 54(d)(1) and a motion for attorney’s fees under Federal Rule of Civil
Procedure 54(d)(2) no later than 14 days after the entry of judgment.
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