Bamcor Llc v. Jupiter Aluminum Corp..

• Decision Date: 07 February 2011
• Docket Number: Case No. 2:08 cv 194.
• Citation: 767 F.Supp.2d 959,73 UCC Rep.Serv.2d 658
• Parties: BAMCOR LLC, an Ohio Corporation; Michael Willis, Brian Caputo, Plaintiffsv.JUPITER ALUMINUM CORPORATION, an Illinois Corporation, Defendant.
• Court: U.S. District Court — Northern District of Indiana

767 F.Supp.2d 959

73 UCC Rep.Serv.2d 658

BAMCOR LLC, an Ohio Corporation; Michael Willis, Brian Caputo, Plaintiffs

v.JUPITER ALUMINUM CORPORATION, an Illinois Corporation, Defendant.

Case No. 2:08 cv 194.

United States District Court, N.D. Indiana, Hammond Division.

Feb. 7, 2011.

Stewart D. Roll, Climaco Lefkowitz Peca Wilcox & Garofoli, Cleveland, OH, Ryan P. Kennedy, Todd A. Harpst, Roetzel & Andress, Akron, OH, for Plaintiffs.Robert F. Parker, Burke Costanza & Cuppy LLP, Merrillville, IN, Daniel E. Beederman, David S. Makarski, Schoenberg Finkel Newman & Rosenberg LLC, Chicago, IL, for Defendant.

OPINION AND ORDER

ANDREW P. RODOVICH, United States Magistrate Judge.

This matter is before the court on the Motion to Exclude Expert Testimony of Robert Carbonara and Jeffrey Bookwalter [DE 115] filed by the Defendant, Jupiter Aluminum Corporation, on March 1, 2010; the Motion for Partial Summary Judgment [DE 117] filed by Jupiter Aluminum on March 1, 2010; the Motion for Summary Judgment [DE 120] filed by the plaintiff, Bamcor, LLC, on March 1, 2010; the Motion to Exclude the Testimony of Steven Schmid, Ph.D. and Mark Hineman [DE 121] filed by the plaintiff on March 1, 2010; the Motion to Strike Portions of the Affidavit of Derrick Titchenell [DE 125] filed by the defendant on April 12, 2010; and the Motion to Strike Affidavit of James L. Balogh and Bamcor's Amendment to Interrogatory Responses [DE 140] filed by the defendant on October 7, 2010. For the following reasons, the Motion to Exclude Expert Testimony of Robert Carbonara and Jeffrey Bookwalter [DE 115] is DENIED, the Motion for Partial Summary Judgment [DE 117] is GRANTED IN PART and DENIED IN PART, the Motion for Summary Judgment [DE 120] is DENIED, the Motion to Exclude the Testimony of Steven Schmid, Ph.D. and Mark Hineman [DE 121] is DENIED, the Motion to Strike Portions of the Affidavit of Derrick Titchenell [DE 125] is DENIED, and the Motion to Strike Affidavit of James L. Balogh and Bamcor's Amendment to Interrogatory Responses [DE 140] is GRANTED.

Background

This matter arises from a contract dispute between the plaintiff, Bamcor, LLC, and Jupiter Aluminum Corporation. Jupiter is an aluminum mill that specializes in mill finish and painted aluminum coils. In November 2006, Jupiter's Hammond, Indiana plant experienced a fire that damaged much of its mill equipment, including the gearbox in its No. 2 Cold Mill. Jupiter hired Bamcor, a company specializing in refurbishing and manufacturing fire damaged industrial equipment, to inspect and evaluate the fire damaged equipment to determine whether the equipment could be repaired. Jupiter asked Bamcor to put together an offer to repair three pieces of equipment, including the gearbox. Jupiter shipped the equipment to Bamcor's shop in Cleveland, Ohio, so Bamcor could prepare its quote.

On January 11, 2007, Bamcor sent Jupiter a price quotation to repair and rebuild the gearbox and other equipment. Paragraph 15 of Bamcor's price quote stated: “If this document is incorporated by reference in a purchase order or other document, any commercial terms and conditions printed on the purchase order or other document shall be null and void.” The quotation further limited Bamcor's liability, specifically providing that Bamcor would not pay lost profits in the event of dispute.

Jupiter responded by sending a purchase order to Bamcor. The top of Jupiter's purchase order stated “per qte g 07–010–1 terms 10% down, 3% per week progressive payments net 10 days”. (Purchase Order, Ex. 7 ¶ 1) Jupiter's terms and conditions were stated on the reverse side, and these specifically provided that Bamcor would be liable for lost profits in the event of a breach.

After receiving Jupiter's purchase order, Bamcor proceed to refurbish and rebuild the gearbox. This included the fabrication and installation of a new spray bar inside the gear box. One of Bamcor's machine repairmen, Derek Titchenell, performed the work on the gearbox. In his deposition, Titchenell stated that the spray bar was fitted before installation, but it could not be installed in the gearbox as one piece. Therefore, the spray bar had to be tightened during installation. Titchenell then explained that he used loctite, a liquid plastic thread sealant, to create a seal between the fittings and locks to prevent leakage. Titchenell later supplemented his deposition, stating that the spray bar was installed into the gearbox in one piece and was not manipulated after installation.

Bamcor delivered the rebuilt gearbox to Jupiter in the Spring of 2007. The gearbox was designed to be lubricated by the use of the spray bar that Bamcor installed, but the spray bar had to be fed by an exterior lubrication system at Jupiter. A third-party contractor, Seither & Cherry, installed the gearbox in the No. 2 Cold Mill, and a different contractor, Amex Construction, assembled and connected the exterior lubrication system that fed the spray bar.

Installation was complete, and Jupiter began cold-commissioning the No. 2 Cold Mill in August 2007. Shortly after restarting the plant, Jupiter discovered a blue piece of metal stuck in the gears. Bamcor personnel were called out to inspect and clean the gear teeth that were damaged by the metal. In October 2007, Jupiter hired Amex Construction to remove the oil bath in the gear box by making modifications to the lubrication system and removing the six-inch rise in the lubricant drain line from the gear box. These modifications left the spray bar as the sole source of lubrication. After the modifications were complete, Jupiter began production in the No. 2 Cold Mill. The gearbox ran continuously for a three month period. Jupiter shut down the No. 2 Cold Mill on December 31, 2007, for the New Year Holiday, and Jupiter restarted the gearbox on January 2, 2008. It ran without problems during the first shift, but during the second shift it began making roaring noises, generating heat, and smoking.

Chuck Woodworth, the head of maintenance at Jupiter, and his maintenance personnel removed the cover on the top of the gearbox and viewed the gears. They could not see the spray bar. Woodworth then tried to remove the spray bar by detaching the exterior flange screws that held it on and pulling on the exterior flange. He was able to move the spray bar only three or four inches. Woodworth proceeded to contact Seither & Cherry, an outside vendor that regularly worked inside the Jupiter plant, to disassemble the gearbox.

Seither & Cherry employees found the spray bar in the bottom of the gear box after they removed the gears and promptly reported this to Woodworth. Woodworth went over to the gearbox and saw the broken piece of the spray bar sitting outside of the gearbox where someone had placed it. The rest of the spray bar assembly remained intact inside the gear box. The broken piece of the spray bar was saved by Jupiter's Chief Engineer, Brian Patrick.

Jupiter was forced to close its No. 2 Cold Mill for approximately nine days for repairs as a result of this incident. Jupiter did not notify Bamcor of the problem and relied on third-party contractors to make the repairs. On January 18, 2008, Patrick sent Bamcor a letter claiming it was going to hold Bamcor responsible for the problems it experienced with the gearbox.

In the months that followed, Jupiter personnel are alleged to have made statements to James L. Balogh, a representative of Gilbane, Inc., “the essence of which” was that Bamcor was technically inept and could not be trusted because of its relationship with insurance companies.

Bamcor filed a complaint in the Cuyahoga County Court of Common Pleas, seeking declaratory judgment and damages for defamation. Jupiter removed this action to the Northern District of Ohio, where it was subsequently transferred to the Northern District of Indiana. Jupiter then filed its answer and counterclaim for breach of contract. During the course of discovery, Bamcor retained two experts, Carbonara and Bookwalter, who intend to testify that based on the nature of the break, the spray bar likely broke from an employee using a tool to leverage the pipe. Jupiter also retained two experts, Schmid and Hineman, who theorize that the spray bar broke as a result of Titchenell tightening the pipes during installation or from excessive pressure. Jupiter now moves for partial summary judgment, to strike Bamcor's expert witnesses, and to strike Balogh and Titchenell's affidavit. Bamcor similarly requests summary judgment and to strike Jupiter's expert witnesses.

Discussion

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated that “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.2009). The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at 786. A fact is material if it is outcome determinative under applicable law. There must be evidence on which the jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir.2008).

Summary judgment is inappropriate for determination of claims in which issues of intent, good faith, and other subjective feelings play dominant roles. Ashman v. Barrows, 438 F.3d 781, 784 (7th Cir.2006). Upon review, the court does not evaluate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter; rather, the...