United States 29 January 2003 Federal District Court [Illinois] (Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd.)
[Cite as: http://cisgw3.law.pace.edu/cases/030129u1.html]
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 01 C 5938
CASE NAME:
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Canada (defendant)
BUYER'S COUNTRY: United States (plaintiff)
GOODS INVOLVED: Fluidized bed furnace
UNITED STATES: Ajax Tool Works v. Can Eng Manufacturing 29 January 2003
Case law on UNCITRAL texts (CLOUT) abstract no. 574
Reproduced with permission of UNCITRAL
The issue before the court was whether the claims of the buyer should be dismissed before trial on the ground that there was no genuine issue as to material fact and the seller was entitled to judgment as a matter of law.
The seller, a company with its place of business in Ontario, Canada, agreed to sell a fluidized bed furnace to the buyer, an Illinois corporation with its place of business in the United States. The parties' contract provided that the seller would repair or replace, at its option, any defects in workmanship or material which might develop under normal use during a period of 90 days after the date of shipment. The contract also provided that repair or replacement under this provision constituted the seller's full liability with respect to the furnace and that the seller was not liable for consequential damages. The contract was to be governed by the laws of the Province of Ontario.
During the four years following shipment, the buyer encountered numerous difficulties with the furnace. The buyer notified the seller of the difficulties and the seller attempted many repairs without charge to the buyer. All the buyer's notices were given after 90 days from shipment. The buyer sued the seller for breach of contract and warranties. The buyer moved to dismiss the suit before trial. As to most claims, the court declined to grant summary judgment.
The court found that the parties' contract was governed by the Convention because the parties had their places of business in two different Contracting States pursuant to art. 1(1)(a) CISG. The court also found that the parties had not agreed to exclude application of the Convention according to art. 6 CISG. The contract term making the laws of Ontario govern was read to be a reference to the Convention as the relevant law applicable in Ontario. Although the buyer's pleadings made claims under the domestic sales law of Ontario rather than the Convention, the court concluded that the pleadings gave legally sufficient notice of claims under the Convention.
As for the buyer's claim that the seller had breached express terms with respect to the quality of the furnace (art. 35(1) CISG), the court declined to grant summary judgment because there remained an issue of material fact as to whether the seller had waived the 90-day contract clause or was stopped from enforcing that clause. The court stated that the Convention did not address the issue of waiver and it applied the laws of Ontario to fill the perceived gap. On the basis of art. 7(2) CISG.
On the same ground, the court declined to grant summary judgment with respect to the buyer's claim that the seller had breached its obligations to deliver a furnace fit for its ordinary use and fit for the buyer's particular use (art. 35(2)(a), (2)(b) CISG). The court further found that the parties had not agreed to exclude these obligations as per art. 6 CISG.
The court did, however, grant summary judgment with respect to the buyer's claims for damages for consequential losses. The court stated that the contract term excluding such damages was enforceable according to art. 6 CISG. It also stated that the buyer had failed to produce evidence that the losses were foreseeable by the seller (art. 74 CISG).
Go to Case Table of ContentsAPPLICATION OF CISG: Yes [Article 1(1)(a)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
6A ; 6B [Convention yields to contract: modification of Convention by Contract; Agreement to apply Convention: choice of law of Contracting State]; 7C [Gap-filling]; 35A ; 35B [Conformity of goods: quality, quantity and description required by contract; Requirements implied by law]; 74A ; 74B [General rules for measuring damages: loss suffered as consequence of breach; Outer limits of damages: foreseeability of loss]
Descriptors:
CITATIONS TO OTHER ABSTRACTS OF DECISION
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=834&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (English): Text presented below; see also 2003 U.S. Dist. LEXIS 1306; 2003 Westlaw 223187 (N.D.Ill., Jan 30, 2003); CCH Prod. Liab. Rep. P16,516; <http://www.unilex.info/case.cfm?pid=1&do=case&id=834&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION
English: Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.423; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 110; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 74 para. 20 Art. 95 para. 2; Schwenzer & Fountoulakis ed., International Sales Law, Routledge-Cavendish (2007) at p. 88; Keith A. Rowley, "The Convention on the International Sale of Goods", in: Hunter ed., Modern Law of Contracts, Thomson/West (03/2007) §§ 23:1, 23:5, 23:23, 23:24, 23:39, 23:43, 23:48
Go to Case Table of ContentsNo. 01 C 5938
United States District Court for the Northern District of Illinois, Eastern Division
January 29, 2003, Decided DISPOSITION:
Defendant's motion for summary judgment denied in part and granted in part. COUNSEL:
For Ajax Tool Works, Inc., plaintiff:
Barry Charles Kessler, Thomas Andrew
Christensen, Kessler & Krantz, Chicago, IL. For
Can-Eng Manufacturing Ltd., defendant: Alan L.
Unikel, Christopher Eric Paetsch, Seyfarth Shaw,
Chicago, IL. MEMORANDUM OPINION AND ORDER.
James F. Holderman, United States District Judge: [For purposes of this presentation, Plaintiff Ajax
of the United States is referred to as [buyer];
Defendant Can-Eng of Canada is referred to as
[seller].] On March 15, 2002, plaintiff Ajax Tool Works,
Inc. [buyer] filed a four-count first amended
complaint against Can-Eng Manufacturing Ltd.
[seller] alleging breach of express and implied
warranties and breach of contract. On December
23, 2002, [seller] moved, pursuant to Federal
Rule of Civil Procedure 56, for summary
judgment. Having considered this matter fully, for
the reasons stated herein, [seller]'s motion for
summary judgment is denied in part and granted
in part. Statement of facts [1] Plaintiff [buyer], an Illinois corporation, is a
manufacturer of chisels, hammers, and other
tools. Defendant [seller], an Ontario, Canada
corporation, manufactures industrial furnaces,
including a fluidized bed furnace, which is at issue
in this case. In January 1996, at the request of
Lindberg Technical and Management Services, a
consulting firm retained by [buyer], [seller]
submitted a proposal in which it offered to supply
a fluidized bed furnace to [buyer]. [Buyer] did not
accept this offer. Over the course of 1996, [seller]
submitted two follow-up proposals to [buyer],
neither of which was accepted. On January 27,
1997, [seller] sent [buyer] a fourth proposal to
sell a fluidized bed furnace to [buyer] for $
90,000. After issuance of the proposal, the parties
entered into an agreement whereby [buyer]
purchased the furnace from [seller]. The terms of
the January 27, 1997, proposal formed the parties'
contract.[2]
Page 4 of [seller]'s fourteen-page proposal
contained the following relevant terms and
conditions: "WARRANTY - [Seller] in connection with
apparatus sold will repair or replace, at the option
of [seller], f.o.b. our factory, any defects in
workmanship or material which may develop
under proper and normal use during a period of
ninety days from date of shipment or completion
of installation if installation is undertaken by
[seller]. Such repair or replacement shall
constitute a fulfillment of all [seller] liabilities with
respect to such apparatus. [Seller] shall not be
liable for consequential damages. This warranty
shall not apply if alterations or modifications of
any nature are made by the Purchaser or if
erection, installation or stating up is not
performed under [seller] supervision or under
[seller] approved methods. "[Seller]'s liability for the service of any
refractories, alloy or other component parts
manufactured by other than [seller] but
incorporated in the equipment furnished to
Purchaser, shall be limited to the guarantee or
liability to [seller] of the manufacturer or supplier
of such components. [Seller] is not responsible in
any manner for operation of the equipment in
Purchaser's plant. "[Seller]'s warranties or guarantees do not
cover the process of manufacture or the quality of
the product on which this equipment may be used. .... "OTHER UNDERSTANDINGS - All previous
oral or written agreements between the parties
hereto which are contrary to or inconsistent with
this proposal are hereby abrogated, it being
understood that there are no agreements,
guarantees or understandings which are in conflict
with or inconsistent with this proposal. A
purchase order covering the materials, apparatus
or equipment specified herein shall be considered
by both the Purchaser and [seller] to be merely an
acceptance of this Proposal and the Terms and
Conditions set forth herein, and any other terms
or conditions which may be printed or contained
on such purchase order which are in conflict with
or inconsistent with this proposal shall be not
applicable. This agreement shall be governed by
the laws of the Province of Ontario, Canada. Any
terms and conditions herein, which may be in
conflict with Ontario Law, shall be deleted,
however, all other terms and conditions shall
remain in force and effect." [Seller] shipped the furnace to [buyer] on June
26, 1997, and it arrived at [buyer]'s plant on June
27, 1997. [Buyer] installed and started the
furnace itself. Over the course of the next four
years, [buyer] experienced problems with the
furnace, particularly that the furnace would not
attain and hold the selected temperature, used an
excessive amount of sand, and did not function
properly with compressed air as the atmosphere.[3]
The parties dispute exactly when and how
often [buyer] reported these problems to [seller],
but viewing the evidence in the light most
favorable to [buyer], the non-moving party, as
this court must, this court finds that [buyer]
lodged a considerable number of complaints with
[seller]. It appears that all of these complaints
were made more than ninety days after
installation. In response to many of these
complaints, [seller] attempted to repair or in
some way remedy the problem, some, at least, at
no cost to [buyer]. This court now considers [seller]'s motion for
summary judgment. Standard of Review Under Rule 56(c), summary judgment is proper
"if the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c). In ruling on a
motion for summary judgment, the evidence of
the nonmovant must be believed and all justifiable
inferences must be drawn in the nonmovant's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505
(1996). This court's function is not to weigh the
evidence and determine the truth of the matter,
but to determine whether there is a genuine issue
for trial. A party who bears the burden of proof on a
particular issue, however, may not rest on its
pleadings, but must affirmatively demonstrate, by
specific factual allegations, that there is a genuine
issue of material fact that requires trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d
265, 106 S. Ct. 2548 (1986). There is no issue for
trial "unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict
for that party." Anderson, 477 U.S. at 249. It is not the function of this court to scour the
record in search of evidence to defeat a motion
for summary judgment; the nonmoving party must
identify with reasonable particularity the evidence
upon which that the party relies. Bombard v.
Fort Wayne Newspapers, Inc., 92 F.3d 560, 562
(7th Cir. 1996). The evidence relied upon must be
competent evidence of a type otherwise
admissible at trial. Id. Analysis I. Governing Law As a preliminary matter, this court must
determine what law governs the parties' contract.
In order to provide for the orderly conduct of
international commerce, the United States,
Canada, and the province of Ontario have
adopted the United Nations Convention on the
International Sale of Goods ("CISG" or
"Convention"). 15 U.S.C.A. App. at 332; R.S.C.
1991, c.13; R.S.O. 1990, C.I.10. As Judge
Lindberg pointed out, "federal caselaw
interpreting and applying the CISG is scant."
Usinor Industeel v. Leeco Steel Prods., Inc., 209
F. Supp. 2d 880, 884 (N.D. Ill. 2002). The CISG
"applies to contracts of sale [of goods between
parties whose places of business are in different
States when the States are Contracting States."
CISG Art. 1 § 1(a). By agreement, parties may
exclude application of the CISG by expressly
providing in the contract that the law of a non-CISG jurisdiction applies or that the CISG does
not control. CISG Art. 6; R.S.O., c.I.10, s. 6. In this case, it is undisputed that [buyer], an
Illinois corporation, and [seller], an Ontario
corporation, are parties whose places of business
are in different States and that these states are
Contracting States. Thus, unless the parties have
opted-out, the CISG applies here. The parties'
contract states that the "agreement shall be
governed by the laws of the Province of Ontario,
Canada." Obviously, this clause does not exclude
the CISG. Further, although the parties have
designated Ontario law as controlling, it is not the
provincial law of Ontario that applies; rather,
because the CISG is the law of Ontario, the CISG
governs the parties' agreement. See Asante
Techs., Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d
1142, 1150 (N.D. Cal. 2001) ("Defendant
[seller]'s choice of applicable law adopts the law
of British Columbia, and it is undisputed that the
CISG is the law of British Columbia."). II. Validity of Warranty Although the CISG applies to the parties'
contract, contrary to [buyer]'s argument, the
terms and conditions and all limitations contained
in the contract are not completely superseded by
the provisions of the CISG. ([buyer]'s Mem. in
Opp'n at 4.) The CISG does not preempt a private
contract between parties; instead, it provides a
statutory authority from which contract
provisions are interpreted, fills gaps in contract
language, and governs issues not addressed by the
contract. In fact, Article 6 states that parties may,
by contract, "derogate from or vary the effect of
any of [the CISG's] provisions." CISG Art. 6.
Accordingly, under the CISG, the terms of the
parties' agreement control. In this case, the limited
warranty, as part of the contract executed by the
parties, lawfully limits [buyer]'s remedies. As will
be discussed below, however, there are material
facts in dispute as to whether [seller] has waived
this limited warranty. III. Claims Under the CISG In counts I and II, [buyer] alleges that [seller]
breached an express and implied warranty under
the Ontario Sale of Goods Act. (Count I P 22;
Count II PP 19, 20.) [Seller] argues that because
[buyer] cited to the Ontario Sale of Good Act,
instead of the applicable CISG, summary
judgment in its favor on these counts is
warranted. (Mem. in Support at 13-15; Reply at
5.) Under Seventh Circuit precedent, however, a
plaintiff "cannot plead herself out of court by
citing to the wrong legal theory or failing to cite
any theory at all." Ryan v. Illinois Dep't of
Children & Family Servs., 185 F.3d 751, 764
(7th Cir. 1999); see also Bartholet v. Reishauer
A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir.
1992) (explaining that "the complaint need not
identify a legal theory, and specifying an incorrect
theory is not fatal"). In the case at hand, "it is of
no moment therefore that [buyer's] complaint
identified the wrong statute as the basis for [its]
claim, as long as [its] allegations gave notice of a
legally sufficient claim and [it] brought the legal
support for [its] claim to the district court's
attention in [its] response to [seller's] summary
judgment motion." Ryan, 185 F.3d at 764
(citations omitted). It is clear that under the CISG
actions for breach of express and implied
warranties are actionable. CISG 35(1); CISG
35(2). Thus, summary judgment on the basis that
[buyer] brought its claims under the Ontario Sale
of the Goods Act rather than the CISG is denied. IV. Breach of Express Warranty (Count I)
and Breach of Contract (Count III) Page 7 of the January 27, 1997, proposal states
that the "constant flow of particles assures
tremendously uniform temperatures of +/-5
[degrees] with in [sic] the work space." Further,
the document, also on page 7, states that "the bed
maintains excellent temperature uniformity
throughout." Finally, page 11 states that one of
the atmosphere capabilities is "Air." [Buyer]
alleges that [seller] breached these express
warranties and express provisions of the contract. Articles 30 and 35 of the CISG require a seller to
"deliver goods which are of the quantity, quality
and description required by the contract ...."
CISG Art. 35; see Art. 30 ("The seller must
deliver the goods, hand over any documents
relating to them and transfer the property in the
goods, as required by the contract and this
Convention."). The issue, therefore, is whether
the good delivered, i.e., the furnace, complied
with the express warranties of the contract. The
parties dispute this point. (See [buyer]'s Resp. to
[seller]'s Specific Allegations of Fact PP 38, 39,
40; [seller]'s Resp. to [buyer]'s Stmt. of
Additional Facts PP 24, 31, 32, 34, 35, 36, 37,
40.[4]) [Buyer] asserts, inter alia, that the
furnace did not maintain a constant temperature,
used an excess amount of sand, and, contrary to
the express warranty, did not function properly
with air as the atmosphere to fluidize the furnace.
[Seller] disputes these allegations and maintains
that the furnace worked as specified. Because
there are material facts in dispute as to whether
the furnace conformed to the express warranty
and specifications in the contract, this court
cannot grant summary judgment. [Seller] argues that although there may be
material facts in dispute as to the condition of the
furnace, the limited warranty precludes [buyer]'s
recovery. [Seller] asserts that its only obligation
to [buyer] was to repair or replace any defects in
workmanship or material during a period of
ninety days from the date of shipment. Because
the alleged problems with the furnace occurred
after the ninety-day warranty period, [seller]
contends, [buyer] is prohibited from proceeding
on the claims it has asserted against [seller]. [Seller] advances a strong argument, and [buyer]
fails to address this argument under the CISG in
its response. Because there are material facts in
dispute as to whether [seller] has waived its right
to enforce the limited warranty, however, this
court cannot, as a matter of law, enforce the
limited warranty. A waiver is the "intentional or
voluntary relinquishment of a known right, or
such conduct as warrants an inference of the
relinquishment of such right ...." BLACK's LAW
DICTIONARY 1580 (6th ed. 1990). As this
court has explained above, the CISG is the
governing law in this case. However, the parties
did not present, and this court could not find, any
cases under the CISG that address the issue of
waiver. Article 7 of the CISG provides that in
such a case where "questions concerning matters
governed by this Convention which are not
expressly settled in it are to be settled in
conformity with the general principles on which it
is based or, in the absence of such principles, in
conformity with the law applicable by virtue of
the rules of private international law." Here,
under private international law, because of the
parties' express choice-of-law provision, Ontario
law would apply. Under Ontario law, a party can waive "by its
words and conduct" the right to rely on a limited
warranty. General Refractories Co. of Canada
Ltd. v. Venturedyne Ltd., 2002 WL 32938 at P
157, 2002 Carswell Ont. 36 (Ont. S.C.J. 2002). If
[seller] gave, after the ninety-day period,
"repeated assurance that it would support" the
furnace, a trier of fact could find that it waived its
limited warranty, Id. at P 159. Further, [buyer]
may be able to rely on the doctrine of promissory
estoppel to preclude enforcement of the limited
warranty. The General Refractories court stated
that "[a] promise, whether express or inferred
from a course of conduct, is intended to be legally
binding if it reasonably leads the promisee to
believe that a legal stipulation, such as strict time
of performance, will not be insisted upon ...." Id.
at P 158 (quoting Owen Sound Pub. Library v.
Mial Devs. Ltd. (1979), 102 D.L.R. (3d) 685
(Ont. C.A.), at 691). The record shows that there are material facts in
dispute as to whether [seller], by providing
service and repair, some of which at no charge,
after the ninety-day limited warranty period,
waived its limited warranty or whether [buyer]
can preclude enforcement under the doctrine of
promissory estoppel. (See [buyer]'s Resp. to
[seller]'s Specific Allegations of Fact PP 38, 39,
40; [seller]'s Resp. to [buyer]'s Stmt. of
Additional Facts PP 21,[5] 24, 26, 30, 33, 34,
35, 36, 37, 41; [seller]'s 56.1(a) Stmt.[6] PP 35,
36, 37; [seller]'s Mem. in Support at 9, 12.[7])
Consequently, summary judgment must be denied
as to the claims alleged in counts I and III of
[buyer]'s complaint. V. Breach of Implied Warranty (Count II)
and Breach of Contract (Count IV) Article 30 of the CISG requires the seller to
deliver goods "as required by ... this Convention."
CISG Article 35(2) states: "Except where the parties have agreed
otherwise, the goods do not conform with the
contract unless they: (a) are fit for the purposes for which goods of
the same description would ordinarily be used; (b) are fit for any particular purpose expressly
or impliedly made known to the seller at the time
of the conclusion of the contract, except where
the circumstances show that the buyer did not
rely, or that it was unreasonable for him to rely,
on the seller's skill and judgment ...." Along with the contract, [buyer] alleges that
[seller] has breached these implied warranties.
The same genuine questions of material fact as to
whether the furnace complied with the express
warranties apply with equal force to the implied
warranties. Therefore, this court cannot grant
summary judgment. [Seller] argues, however, that the limited
warranty disclaimed any implied warranties. This
court disagrees. [Seller] misreads the Cook article
cited in its reply memorandum. (Reply at 8.) Ms.
Cook writes: Under CISG, the presumption is that the
goods "are fit for the purpose for which goods of
the same description would ordinarily be used"
and are "fit for any particular purpose expressly
or impliedly made known to the seller at the time
of the conclusion of the contract." However, this
presumption is subject to an express agreement
among the parties to the contrary. Under CISG,
the only question is whether the disclaimer is a
part of the agreement between the parties,
arguably a tougher, yet ultimately fairer standard.
Susanne Cook, CISG: From the Perspective of
the Practitioner, 17 J.L. & COM. 343, 347
(1998). Contrary to [seller]'s assertion, the parties'
agreement does not contain an express disclaimer
of any implied warranties. The parties have not
agreed expressly that the furnace did not have to
perform in a similar fashion as other like furnaces
would perform or as [seller] expressly or
impliedly made known that the furnace would.
The parties' agreement simply limited [buyer]'s
remedies. As stated above, this limited warranty
provision is part of the parties' contract, but a
genuine issue of material fact exists as to whether
[seller] has waived, or is precluded by the
doctrine of promissory estoppel, its right to rely
on the limited warranty. Accordingly, summary
judgment is denied as to the claims alleged in
counts II and IV of [buyer]'s complaint. VI. [Buyer]'s Recovery Although issues of material fact preclude
summary judgment as to liability, because there
are no genuine issues of material fact as to some
of [buyer]'s alleged damages and [seller] is
entitled to judgment as a matter of law, summary
judgment is appropriate in part. A. Consequential Damages It is undisputed that the parties' agreement states
that "[Seller] shall not be liable for consequential
damages." As discussed above, such limited
liability provision is enforceable under the CISG.
Further, although Article 74 of the CISG provides
for consequential damages, "such damages may
not exceed the loss which the party in breach
foresaw or ought to have foreseen at the time of
the conclusion of the contract, in the light of the
facts and matters of which he then knew or ought
to have known, as a possible consequence of the
breach of contract." CISG Art. 74. Because
[buyer] did not address this point in its response
memorandum, as best this court can tell, [buyer]
has not introduced any evidence that the
consequential damages sought were foreseeable
to [seller]. For these reasons and because there
are no facts disputed, summary judgment is
granted as to consequential damages. B. Lost Productivity Damages As discussed above, a judicial admission by a
party takes an issue out of contention. At a
January 15, 2003, hearing before Magistrate
Judge Keys, the court stated on the record that
[buyer]'s counsel had taken "lost productivity,"
"lost profits," and "lost customers" "off the table."
([Seller]'s Resp. to [buyer]'s Stmt. of Additional
Facts, Ex. F at 10.) In addition, the court's minute
order of that date made it clear that "during oral
argument plaintiff [buyer]'s counsel assured the
defendant [seller] that it is not seeking damages
for loss of business and profits." ([Seller]'s Resp.
to [buyer]'s Stmt. of Additional Facts, Ex. F.)
Based on [buyer]'s judicial admissions, there are
no facts in dispute as to this issue; consequently,
[seller] is entitled to summary judgment as to
damages for loss of business and profits. See Soo
Line R. Co., 125 F.3d at 483; Keller, 58 F.3d at
1198 n.8. C. Attorneys' Fees [Buyer]'s complaint seeks attorneys' fees
"pursuant to the law of Ontario, Canada ...."
(Prayers for Relief.) The parties now agree,
however, that attorneys' fees are a procedural
matter governed by the law of the forum. As the
Seventh Circuit recently held, "'loss' in Article 74
does not include attorneys' fees ...." Zapata
Hermanos Sucesores, S.A. v. Hearthside Baking
Co., Inc., 313 F.3d 385, 389 (7th Cir. 2002).
Accordingly, because there is no genuine issue of
fact for trial, summary judgment on this issue is
granted. CONCLUSION For the above stated reasons, defendant's motion
for summary judgment is denied as to counts I, II,
III, and IV of plaintiff [buyer]'s complaint and
granted as to [buyer]'s demand of consequential
damages, lost productivity damages, and
attorneys' fees. ENTER: James F. Holderman
January 29, 2003 FOOTNOTES
Further, [buyer] quotes from the proposal
in support of its breach of express warranty
and breach of contract claims (See Count I
PP 17, 18; Count III PP 18, 19) and
attaches the proposal to its complaint. See
Fed. R. Civ. P. 10(c) ("A copy of any
written instrument which is an exhibit to a
pleading is a part thereof for all
purposes."). Although [buyer] argues in its
memorandum in opposition to summary
judgment that the proposal provisions do
not apply, its judicial admissions withdraw
this fact from contention and establish that
the terms of the January 27, 1997, proposal
were part of the parties' contract and
thereby govern this dispute. 3. As will be discussed infra, the
parties dispute the extent of the problems. As stated in this court's January 28,
2003, Minute Order, this court has
stricken, and thus has not consider, the
affidavit of James Brody. After granting
[seller]'s motion to strike, this court
received [buyer]'s response to the motion
to strike. Because granting the motion to
strike has no effect on the disposition of
this motion for summary judgment, the
response is moot. However, if [seller]
brings a motion in limine to preclude
Brody's testimony at trial, [Buyer] may
respond to such motion with the facts
contained in its response to the motion to
strike. This court will then rule upon such
motion in limine at the final pre-trial
conference.Case text
Ajax Tool Works, Inc., Plaintiff, v. Can-Eng
Manufacturing Ltd., Defendant
United States District Judge
Pace Law School
Institute of International Commercial Law - Last updated January 9, 2008