Spa v. Granite

• Citation: 757 F.Supp.2d 773
• Decision Date: 07 October 2010
• Docket Number: No. 09 C 5529.,09 C 5529.
• Parties: MARMI E. GRANITI D'ITALIA SICILMARMI S.p.A., Plaintiff,v.UNIVERSAL GRANITE AND MARBLE, Defendant.
• Court: U.S. District Court — Northern District of Illinois

757 F.Supp.2d 773

MARMI E. GRANITI D'ITALIA SICILMARMI S.p.A., Plaintiff,

v.UNIVERSAL GRANITE AND MARBLE, Defendant.

No. 09 C 5529.

United States District Court, N.D. Illinois, Eastern Division.

Oct. 7, 2010.Opinion Denying Reconsideration Nov. 24, 2010.

Debra Devassy Babu, Askounis & Darcy, P.C., Chicago, IL, Steven John Lownds, Quilling Selander Cummiskey & Lownds P.C., Dallas, TX, for Plaintiff.John J. D'Attomo, Toussaint & Carlson Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

This is a contract dispute. The plaintiff is an Italian company, which sells granite and marble. It supplied granite to the defendant, an American company that purchases granite for resale to builders, contractors, retailers, and others. The defendant began purchasing granite from the plaintiff in March 2003, but in 2008, things went awry. The plaintiff contends that the defendant has failed to make payment for granite delivered in October 2008, and has sued for breach of contract, quantum meruit, unjust enrichment, and account stated. The defendant answers that a substantial portion of the granite in that delivery was of an inferior grade; i.e., the goods were non-conforming. The plaintiff has moved for summary judgment on its breach of contract claim.¹

I.FACTS

As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion “a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law.” Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir.2008). Each paragraph must refer to the “affidavits, parts of the record, and other supporting materials” that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir.2005) The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both “a response to each numbered paragraph in the moving party's statement,” Local Rule 56.1(b)(3)(B). and a separate statement “consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment,” Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643. Again, each response and each asserted fact must be supported with a precise reference to the record. Local Rule 56.1(b)(3)(B); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir.2009); Bay Area Business Council, Inc., 423 F.3d at 633.

If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n. 1 (7th Cir.2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir.2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir.2006). District courts are “ ‘entitled to expect strict compliance’ ” with Rule 56.1, and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's instructions. Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir.2004). A court is not required to search the record for evidence that supports a party's case. See Bay Area Business Council, 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission). Compare United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”); DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999) (“A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record.”).

The parties agree that they developed a customary way of doing business: Defendant would submit a purchase order for goods to the plaintiff, and plaintiff would deliver the goods, take delivery of the goods, and pay plaintiff the invoiced amount based on the purchase order. ( Plaintiff's Statement of Undisputed Facts (“ Pl.St. ”), ¶ 3; Defendant's Response to Plaintiff's Statement of Facts (“ Def.Rsp. ”), ¶ 3). Plaintiff asserts that the defendant was responsible for all aspects of shipping the goods from the plaintiff's facility in Italy ( Pl.St. ¶ 3), but in fact, Rakesh Malhotra, defendant's chief operating officer, on whose deposition testimony plaintiff relies for this fact, said he didn't know if that's how things worked. (Malhotra Dep., at 66; Def.Rsp. ¶ 3).²

The goods at issue were apparently ordered and transported from Italy to the United States on various dates from March 6, 2008, through October 29, 2008. ( Pl.St. ¶ 4; Def.Rsp. ¶ 4). Contrary to its earlier assertion regarding transport, the plaintiff states—and the defendant agrees—that the “Plaintiff shipped the Goods to [the defendant].” ( Pl.St. ¶ 4; Def.Rsp. ¶ 4). The purchase orders (Plaintiff's Ex. C) specified the unit price, type of goods, and quantity. ( Pl.St. ¶ 4; Def.Rsp. ¶ 4). The defendant received the goods and confirmed the accuracy of the unit pricing. ( Pl.St. ¶ 4; Def.Rsp. ¶ 4). The plaintiff delivered a statement of account to the defendant. ( Pl.St. ¶ 6; Def.Rsp. ¶ 6), The parties agree that since the inception of their relationship in 2003, goods the defendant ordered, received, and paid for were invoiced in the same manner as the goods at issue. ( Pl.St. ¶ 7; Def.Rsp. ¶ 7). Payment on all invoices was due within 120 days of the bill of lading date. ( Pl.St. ¶ 8; Def.Rsp. ¶ 8). With respect to the goods at issue, the parties agree that the date of the latest bill of lading was November 21, 2008, meaning payment was due no later than March 31, 2009. ( Pl.St. ¶ 8; Def.Rsp. ¶ 8).

The plaintiff's contention that the defendant inspected the goods at issue upon receipt ( Pl.St. ¶ 9) relies on the following testimony from Mr. Malhotra's deposition:

Q: Would you agree that when you opened up the containers and confirmed the number of slabs received, that if you wanted to, you could have taken out each slab and measured it if you chose to ?

A: Yes.

Q: Now, earlier you told me that the purpose for freight insurance was in case there was loss to the goods in transit, correct ?

A: Correct.

Q: And you said that loss would include damage where pieces might be broken or defaced, correct?

A: Yeah.

Q: In order to make a claim against insurance for that type of potential loss or damage, it would be necessary for you to check the goods, wouldn't it, upon receipt?

A: Yes.

Q: Did [defendant] check the goods upon receipt to see whether or not it needed to make a claim against its freight insurance for any possible loss to the goods.”

A: Yes. (Malhotra Dep., at 105–06). Mr. Malhotra could not recall if any claims were made on goods received from the plaintiff. ( Id.). The defendant denies that this testimony “establishes that [it] inspected the goods upon delivery” ( Def.Rsp., ¶ 9), but at the very least, it establishes that the defendant inspected the goods for damage during shipment.

According to the declaration of Roberto Caruso, plaintiff's chief executive officer, defendant never objected to the invoices for the goods or the statement of account. ( Pl.St. ¶ 6). Mr. Malhotra, however, states that the defendant communicated the fact that the goods were non-conforming and rejected them in “various communications, including emails dated October 31, 2008 and January 23, 2009.” ( Def.Rsp. ¶ 4; Malhotra Dec. ¶ 6).

The defendant did not provide these emails—or any of the “various communications”—in its response to plaintiff's summary judgment motion, but the plaintiff provided them in its reply submissions. The October 31, 2008 email from Arul Doss of defendant to Giovani Rossi of plaintiff reads:

I have sent you the three cheques yesterday by dhl—8957993623 dated—10/30. As promised, I didn't get any reply for the violetta. When can I move the material from Detroit to Chicago?

Awaiting your confirmation on this.

( Plaintiff's Reply, Ex. A(1)). The January 23, 2009 email, also from Mr. Doss to Sig. Rossi, reads:

In a tough market situation I am sending you 4 invoices [sic] payment.

Ups no—12 97W 3V8 04 9739 0711

You have to remember this for better pricing.

1. Inv—151—$28047.53 check date—3/30/09.

2. Inv—148—$12158.99—ch dt—4/8/09

3. Inv—152—$34283.82—Ch dt—4/1/09

4. Inv—299—$13127.63—Ch dt—4/22/09

( Plaintiff's Reply, Ex. A(2)).

The tab for the granite stands at $275,972.20. ( Pl.St., ¶ 12; Malhotra Dep., at 66). There is no dispute that the defendant did not make payments for the goods at issue. ( Pl.St. ¶ 10; Def.Rsp. ¶ 10). But the defendant says it didn't pay because a substantial portion of the goods were not “1st Choice Quality,” the industry standard for products that are free from material defects and imperfections. ( Defendant's Statement of Facts (“ Def.St. ”), ¶¶ 1, 3). Lesser grades are “Standard Grade” or “Commercial Grade” and, of course, they fetch a lesser price. ( Def.St. ¶¶ 6). The defendant explains that the course of dealing between the parties called for 1st Choice Quality product from the plaintiff. ( Def.St. ¶ 1). The defects in the goods included color variations, fissures, veins, cracks, and pits. ( Def.St. ¶ 3). The plaintiff did not provide instructions as to the disposition of the non-conforming goods and took no steps to repossess them. ( Def.St. ¶ 5). In order to mitigate damages, the defendant sold certain of the goods at a discount. ( Def.St. ¶ 6). The plaintiff does not dispute that the parties' course of dealing called for 1st Choice Quality goods, that the goods at issue were not 1st Choice Quality, or that...