Hydraulics Int'l. v. Amalga Composites Inc.
| Decision Date | 15 September 2022 |
| Docket Number | 20-CV-371 |
| Parties | HYDRAULICS INTERNATIONAL, INC., Plaintiff, v. AMALGA COMPOSITES, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
DECISION AND ORDER
Over the span of a few months beginning in August 2017 plaintiff Hydraulics International, Inc. purchased over $300,000 of fiberglass wound spools (often referred to as billet) from defendant Amalga Composites, Inc. (ECF Nos. 23, ¶ 18; 79, ¶¶ 1, 31-65.) The first spools Hydraulics received from Amalga were allegedly cracked. (ECF No. 79 ¶¶ 92-110.) The portions of the spools that could be used were manufactured into components for the oil and gas industry. (ECF No. 79, ¶¶ 1, 111.) Hydraulics's customer, a company called Kraken, then experienced problems with the components. (ECF No. 79, ¶ 111.)
Hydraulics alleges that these failures were a result of Amalga's product not meeting its stated specifications. (ECF No. 23, ¶ 59.) It brought this action alleging breach of contract, breach of warranty, and false advertising under Wis.Stat. § 100.18(1). (ECF No. 23, ¶¶ 72-119.) Amalga moved to dismiss Hydraulics's complaint. (ECF No. 9.) The court denied that motion. Hydraulics Int'l, Inc. v. Amalga Composites, Inc., 488 F.Supp.3d 770 (E.D. Wis. 2020).
Currently before the court are several motions. Hydraulics has moved for partial summary judgment (ECF No. 55), to bar Amalga from presenting any undisclosed expert witness opinion (ECF No. 51), for leave to submit a reply in support of its motion to bar Amalga from presenting any undisclosed expert witness opinion (ECF No. 93), and to strike Hydraulics's reply in support of its proposed findings of fact (ECF No. 100). Amalga has moved for summary judgment (ECF No. 62), to exclude the testimony of Matthew Sullivan (ECF No. 64), to exclude the testimony of Randall Nish (ECF No. 66), and to strike Nish's declaration (ECF No. 90).
The briefing on these motions is complete. The court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1332. (ECF No. 79, ¶¶ 3, 4, 6.) All parties have consented to the full jurisdiction of this court under 28 U.S.C. § 636(c). (ECF Nos. 6, 7.)
2.1. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it “might affect the outcome of the suit” and a dispute is “genuine” only if a reasonable factfinder could return a verdict for the non-movant. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment, the court is to “construe all evidence and draw all reasonable inferences from the evidence in” favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008); Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001)). “The controlling question is whether a reasonable trier of fact could find in favor of the non-moving party on the evidence submitted in support of and [in] opposition to the motion for summary judgment.” White v. City of Chi., 829 F.3d 837, 841 (7th Cir. 2016).
2.2. Amalga's Reply in Support of its Proposed Findings of Fact
In support of its proposed findings of fact, Amalga submitted a reply to Hydraulics's response. (ECF No. 95.) The court's Local Rules permit a reply only to “any additional facts submitted by the opposing party .. .." Civ. L.R. 56(b)(3)(B) (emphasis added); Arms v. Milwaukee Cty., No. 18-CV-1835, 2021 U.S. Dist. LEXIS 64654, at *7 (E.D. Wis. Apr. 1, 2021). Amalga separately addressed Hydraulics's additional proposed findings of fact. (ECF No. 98.) Thus, Hydraulics moved to strike the reply. (ECF No. 100.)
Hydraulics's motion to strike (ECF No. 100) is granted and the reply filed as ECF No. 95 is stricken. See Arms, 2021 U.S. Dist. LEXIS 64654, at *7. Insofar as Hydraulics attempted to introduce additional proposed findings of fact in its response to Amalga's proposed facts, Amalga is correct (ECF No. 101 at 2) that this is also improper. Lanning v. Gateway Tech. Coll., No. 19-CV-890, 2020 U.S. Dist. LEXIS 121446, at *1 n.1 (E.D. Wis. July 10, 2020) (citing Pollock v. ManpowerGroup US, Inc., No. 18-CV-107, 2019 U.S. Dist. LEXIS 199665, at *7-8 (E.D. Wis. Nov. 18, 2019)). Although the court has discretion to consider such improper additional facts when the opposing party has had the opportunity to address them, see Eilene A. Shimi v. Associated Fin. Grp., LLC, No. 20-CV-1702, 2022 U.S. Dist. LEXIS 96395, at *1 n.1 (E.D. Wis. May 27, 2022) (accepting additional facts plaintiff offered in response to defendant's proposed findings of fact in light of plaintiff's pro se status), the court declines to do so here.
2.3. Battle of the Forms
After an internet search identified Amalga as a potential supplier (ECF Nos. 79, ¶ 7; 98, ¶ 1), Hydraulics submitted a Request for Quote to Amalga (ECF No. 59-7 at 2-10). Attached to that Request for Quote were six pages of terms and conditions. (ECF Nos. 59-7 at 5-10; 79, ¶¶ 21-24.) Those terms and conditions required a specific warranty from the seller, demanded indemnification from the seller, and stated that the agreement would be governed by Utah law. (ECF No. 59-7 at 5-6.) The terms and conditions also stated: (ECF No. 59-7 at 5.) Hydraulics's terms and conditions also included 23 “Purchase Order Clauses,” the first of which stated:
Each shipment must be accompanied by one legible copy of a Certificate of Compliance/Conformance (C of C). The purpose is to certify that the supplier's material, processes, and finished parts were controlled and tested in accordance with the applicable specifications. All material, components or other goods or services, as applicable, supplied to HII must be traceable to the Original Equipment Manufacturer, as identified on the Purchase Order. The OEM certification must be maintained by the supplier and be made available upon request by HII. The certification shall be signed by a corporate officer or other designated responsible individual.
Amalga responded with a quote. (ECF Nos. 59-31 at 2; 79, ¶ 25; 98, ¶ 9.) Hydraulics then submitted its first of nine purchase orders to Amalga on August 17, 2017. (ECF Nos. 59-9 at 2; 98, ¶ 12.) At the bottom of the purchase order was the following: (ECF No. 59-9 at 2; see also ECF No. 98, ¶ 13.) The links are not functional; it is unclear if they linked to Hydraulics' terms and conditions at the time it sent the invoices to Amalga.[1]
Amalga argues that “Hydraulics has not demonstrated that it ever sent Amalga its proposed Terms and Conditions.” (ECF Nos. 94 at 6; see also 81 at 6 (“Hydraulics' Purchase Orders did not even attach Hydraulics' terms and conditions - the Purchase Orders merely reference them and then list websites where they are purportedly available.”).) However, in responding to Hydraulics's proposed findings of fact, Amalga does not dispute that Hydraulics's purchase order contained its terms and conditions. (ECF No. 79, ¶¶ 23, 24; see also ¶¶ 22, 32, 36, 40, 44, 48, 52, 56, 60, 64 ().) Thus, the court accepts Hydraulics's undisputed proposed findings of fact that its request for quotation and purchase orders contained its terms and conditions.
Amalga responded to Hydraulics's purchase orders with a Sales Order Acknowledgment. (ECF No. 59-10 at 3.) Attached to that document was a page of fine-print terms and conditions. (ECF No. 68-2 at 3.) The first term included the following:
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