Mach Mold Inc. v. Clover Associates, Inc., No. 03 C 7757.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtCoar
Citation383 F.Supp.2d 1015
PartiesMACH MOLD INC. and Indiana Insurance Co., as subrogee of Mach Mold Inc. Plaintiffs, v. CLOVER ASSOCIATES, INC. d/b/a Machinery Supply and Kingman Dedicated Service, Inc. Defendants. Clover Associates, Inc. Cross-Claim Plaintiff v. Kingman Dedicated Service, Inc. Cross-Claim Defendant Kingman Dedicated Service, Inc. Counterclaim & Third-Party Plaintiff v. KM Industrial Machinery Co.; GES Exposition Services; City of Chicago; F.H. Paschen, S.N. Nielsen, Inc.; Illinois Bell Telephone; & People's Gas Light & Coke Co. Third-Party Defendants.
Decision Date17 August 2005
Docket NumberNo. 03 C 7757.
383 F.Supp.2d 1015
MACH MOLD INC. and Indiana Insurance Co., as subrogee of Mach Mold Inc. Plaintiffs,
v.
CLOVER ASSOCIATES, INC. d/b/a Machinery Supply and Kingman Dedicated Service, Inc. Defendants.
Clover Associates, Inc. Cross-Claim Plaintiff
v.
Kingman Dedicated Service, Inc. Cross-Claim Defendant
Kingman Dedicated Service, Inc. Counterclaim & Third-Party Plaintiff
v.
KM Industrial Machinery Co.; GES Exposition Services; City of Chicago; F.H. Paschen, S.N. Nielsen, Inc.; Illinois Bell Telephone; & People's Gas Light & Coke Co. Third-Party Defendants.
No. 03 C 7757.
United States District Court, N.D. Illinois, Eastern Division.
August 17, 2005.

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Erik W. Nielsen, Dale F. Weigand, Ellison, Nielson, Zehe & Antas, P.C., Chicago, IL, for Plaintiffs.

John J. Moroney, IV, Bollinger, Ruberry and Garvey, Christopher G. Buenik, Morse & Bolduc, Allan C. Zuckerman, Attorney at Law, Chicago, IL, Ronald D. Foster, Botkin, Leone & Eslinger, South Bend, IN, for Defendants.

MEMORANDUM OPINION AND ORDER

COAR, District Judge.


I. FACTS

Plaintiff Mach Mold is a custom builder of plastic molds. Mach Mold has a facility in Benton Harbor, Michigan. In 2001, Mach Mold became interested in acquiring a horizontal milling machine for its facility. Some time during 2001, Mach Mold contacted Leading Edge New Machinery, Inc. ("Leading Edge"), which sold machinery to machine and die shops in the United States, about the possibility of purchasing such a machine. Leading Edge was also an importer of milling machines made by Eumach, a Taiwanese company. Leading Edge put Mach Mold in contact with KM Industrial Machinery Supply, one of the machinery dealerships with which it worked. Mach Mold had purchased machinery through KM several times over an approximately twenty-year period. On July 18, 2001, KM sent Mach Mold a written quote for a Eumach horizontal milling machine ("the Machine") for $315,000. Between July 2001 and late summer 2002, Mach Mold and KM continued to discuss terms of a possible sale. In late summer 2002, KM notified Mach Mold that it could offer the Machine at a discount, if Mach Mold would agree to let the Machine be displayed at the International Machinery and Technology Show ("IMTS") in Chicago, Illinois. KM quoted a new (discounted)

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price of $285,000, but stated that all of the other terms of sale remained the same, in keeping with the written quote and terms of sale provided in July 2001. According to the written terms and conditions attached to the original sales quote, KM would retain title to the Machine until the contract price was fully paid, but the sale would be free on board ("FOB") at the point of shipment and the buyer would bear any risk of loss after KM tendered the machine. KM expressly disclaimed liability for any damages that might occur during or pursuant to shipping and specified that the buyer would have to seek recovery from the carrier directly.

Mach Mold agreed to KM's revised quote, including the requirement that the Machine be displayed at the IMTS. Mach Mold then sought financing for the purchase, specifically a financial lease through a bank. Mach Mold began discussions for a financial lease with Fifth Third Bank, whereby Fifth Third would purchase the Machine and lease it to Mach Mold as the end user. At the conclusion of the lease period, Mach Mold would purchase the Machine for its fair market value. During the lease negotiations, Bill Mach, the president of Mach Mold, attended the IMTS. While there, he verbally agreed on the terms of a related sales deal with Christopher Bologna, the president of Leading Edge. This deal involved the sale of a Numera boring machine that Mach Mold wished to sell or trade-in for additional discounting on the price of the Machine. Because a bank would only offer a financial lease for the amount that Mach Mold actually paid for the Machine, Leading Edge agreed to purchase the Numera machine outright for $45,000, rather than accept it as a trade-in, and to pay Mach Mold with the money it received for the Machine from KM. This served as an indirect rebate of $45,000 of the Machine's $285,000 contract price, but enabled Mach Mold to negotiate for a financial lease for the full $285,000.

The structure of the sales deal for the Machine went as follows: Eumach sold the Machine to Leading Edge, which sold it to a machinery dealer, KM Industrial, which sold the Machine to Mach Mold. Mach Mold was to pay KM Industrial $285,000 for the Machine. KM Industrial was to pay Leading Edge $285,000 or some agreed portion thereof for the Machine. At the same time, Mach Mold sold its Numera machine to Leading Edge, which was to pay Mach Mold with the money from KM Industrial from the sale of the Machine itself. The parties did not reduce the sales agreement to a written memorandum.

Eumach put the Machine on an ocean vessel in Taiwan, at which point ownership transferred from Eumach to Leading Edge, pursuant to the terms of the agreement. Leading Edge brought the Machine to the Port of Seattle and then shipped it via truck to Chicago for the IMTS. The Machine arrived at a warehouse in Chicago still in its sheet metal shipping container. At the warehouse, Leading Edge had the Machine uncrated and prepared for exhibition. The shipping crate and packing material were discarded by the warehouse company. From the warehouse, Leading Edge had the Machine transferred by flatbed truck to McCormick Place convention center in Chicago, where the IMTS took place. GES Exposition Services provided convention services to McCormick Place. During IMTS 2002, GES unloaded the Machine from the flatbed truck and positioned it in Leading Edge's booth on the exhibition floor. At some point during the IMTS show, two large steel electromagnets weighing several hundred pounds each were placed on the table of the Machine. The Machine was "dry-cycled" during the

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IMTS, meaning that it was connected to a power source but that no coolant was loaded and no actual work performed.

At the end of the IMTS 2002 show, Leading Edge filled out a GES outbound material handling services order form, which specified that GES would move the Machine from the exhibition floor to the loading dock and help load the Machine onto a truck trailer. At the bottom of the form in block letters is the phrase, "This is not a bill of lading." No bill of lading was created; however, both Leading Edge and the carrier regarded the outbound material handling services order form as a bill of lading despite the written disclaimer. Leading Edge did not request that GES crate the Machine or provide packing material or dunnage. According to the written sales quote KM provided to Mach Mold in June 2001, the Machine would be shipping free on board ("FOB") from a West Coast Port. The attached "KM Industrial Terms and Conditions of Sale" specified that "All sales are made F.O.B. point of shipment. Seller's title passes to Buyer and Seller's liability as to delivery ceases upon making delivery of material purchased hereunder to carrier at shipping point in good condition; the carrier acting as Buyer's agent. All claims for damages must be filed with the carrier." Leading Edge understood that Mach Mold would arrange for a carrier to pick up the Machine from McCormick Place and informed the GES representative that information about Mach Mold's carrier would be forthcoming.

In late August 2002, Mach Mold contacted Clover Associates, a trucking company it had previously used to transport machinery, and asked it to visit Mach Mold's facility. On August 29, 2002, Clover faxed a written quote to Mach Mold for the transportation of the Machine from Chicago, Illinois to Benton Harbor, Michigan. The quoted cost, including permits and flag cars, was given as $2,614.00. Mach Mold and Clover agreed that Clover would also transport the Machine's tool changer and other components from a Chicago warehouse to Benton Harbor in a separate shipment for a cost of $1,050.00. Because of labor issues at McCormick Place, Clover told Mach Mold in or about September 2002 and advised that it preferred to use a "union carrier" to transport the main section of the Machine from Chicago to Benton Harbor. Clover accordingly contacted Kingman Dedicated Services, which was a "union carrier," and requested a quote for transporting the Machine from Chicago to Benton Harbor, including the cost of obtaining the necessary permits and required escort vehicle for the load. In or about early September, Mach Mold agreed to the use of a second carrier, provided that the carrier carried sufficient insurance to cover the cost of the Machine. Mach Mold requested that Clover provide proof of insurance from Kingman. Mach Mold did not communicate with Kingman prior to September 18, 2002.

Sometime prior to September 16, 2002, Clover notified Kingman that it accepted Kingman's quote to pick up and transport the Machine from McCormick Place in Chicago to Benton Harbor. Kingman then obtained oversize load permits for transporting the Machine from Chicago to Benton Harbor. On September 16, 2002, Kingman's semi-truck, double drop flatbed trailer arrived at McCormick Place with William Golembieski as its driver. Golembieski was not called to a loading dock until September 17, 2002, at which time GES personnel loaded the Machine onto Kingman's flatbed trailer in good condition. Golembieski secured the Machine to the flatbed trailer with four chains, and secured eleven boxes of equipment related to the Machine on his trailer. He then covered the boxes and Machine with a tarpaulin, which was strapped to the trailer.

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The Machine protruded at least one foot over each side of the eight-and-a-half foot wide double drop flatbed trailer. Golembieski signed the order form for outbound material handling services without exception, accepting the...

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21 practice notes
  • Muzi v. N. Am. Van Lines, Inc., 8:14CV267
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • March 18, 2015
    ...recovery of demurrage charges when fumigation effort slowed the unloading of backed-up cars); Mach Mold Inc. v. Clover Assocs., Inc., 383 F. Supp. 2d 1015, 1032 (N.D. Ill. 2005) (stating that an injured party can recover damages for delay, non-speculative lost profits, and all reasonably fo......
  • CorTrans Logistics, LLC v. Landstar Ligon, Inc., No. 1:17-cv-02033-JPH-DLP
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 23, 2020
    ...they ‘accepted and [are] legally bound themselves to transport.’ ") (citing 49 C.F.R. § 371.2(a) ); Mach Mold Inc. v. Clover Assocs. , 383 F. Supp. 2d 1015, 1029–30 (N.D. Ill. 2005).CorTrans cites several cases where courts denied summary judgment because of contested facts relating to whet......
  • Eddie L. Courtney, Jr. & Kreilkamp Trucking, Inc. v. Ivanov, CIVIL ACTION NO. 3:13-227
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • June 23, 2015
    ...arrange transportation while motor carriers engage in the actual transportation. See, e.g., Mach Mold Inc. v. Clover Associates, Inc., 383 F. Supp. 2d 1015, 1030 (N.D. Ill. 2005); see also Wilson v. IESI N.Y. Corp., 444 F. Supp. 2d 298, 313 (M.D. Pa. 2006) (discussing difference between pri......
  • Telebrands Corp. v. My Pillow, Inc., Case No. 18-CV-06318
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 30, 2019
    ...that the statute of frauds does not apply here due to the doctrine of partial performance. See Mach Mold Inc. v. Clover Assocs., Inc., 383 F. Supp. 2d 1015, 1027-28 (N.D. Ill. 2005) (Coar, J.). The UCC doctrine of partial performance is limited to "goods for which payment has been made and ......
  • Request a trial to view additional results
21 cases
  • Muzi v. N. Am. Van Lines, Inc., 8:14CV267
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • March 18, 2015
    ...recovery of demurrage charges when fumigation effort slowed the unloading of backed-up cars); Mach Mold Inc. v. Clover Assocs., Inc., 383 F. Supp. 2d 1015, 1032 (N.D. Ill. 2005) (stating that an injured party can recover damages for delay, non-speculative lost profits, and all reasonably fo......
  • CorTrans Logistics, LLC v. Landstar Ligon, Inc., No. 1:17-cv-02033-JPH-DLP
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 23, 2020
    ...they ‘accepted and [are] legally bound themselves to transport.’ ") (citing 49 C.F.R. § 371.2(a) ); Mach Mold Inc. v. Clover Assocs. , 383 F. Supp. 2d 1015, 1029–30 (N.D. Ill. 2005).CorTrans cites several cases where courts denied summary judgment because of contested facts relating to whet......
  • Eddie L. Courtney, Jr. & Kreilkamp Trucking, Inc. v. Ivanov, CIVIL ACTION NO. 3:13-227
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • June 23, 2015
    ...arrange transportation while motor carriers engage in the actual transportation. See, e.g., Mach Mold Inc. v. Clover Associates, Inc., 383 F. Supp. 2d 1015, 1030 (N.D. Ill. 2005); see also Wilson v. IESI N.Y. Corp., 444 F. Supp. 2d 298, 313 (M.D. Pa. 2006) (discussing difference between pri......
  • Telebrands Corp. v. My Pillow, Inc., Case No. 18-CV-06318
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 30, 2019
    ...that the statute of frauds does not apply here due to the doctrine of partial performance. See Mach Mold Inc. v. Clover Assocs., Inc., 383 F. Supp. 2d 1015, 1027-28 (N.D. Ill. 2005) (Coar, J.). The UCC doctrine of partial performance is limited to "goods for which payment has been made and ......
  • Request a trial to view additional results

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