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THREE D DEPTS., INC. v. K MART CORP.

March 7, 1990

THREE D DEPARTMENTS, INC., Plaintiff,
v.
K MART CORPORATION, Defendant


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Three D Departments, Inc. and K Mart Corporation have filed cross-motions for summary judgment in their dispute over K Mart's termination of a license. The court described this dispute and Three D's initial allegations in Three D Departments, Inc. v. K Mart Corp., 670 F. Supp. 1404 (N.D.Ill. 1987). Since that decision, Three D has reduced its complaint to two counts, although it alleges the same central facts as in id. This court has granted summary judgment in favor of K Mart on one count, leaving Three D with a claim for improper termination of its license.

 The court's decision on the present motions turns to a great degree on the way the parties have not followed the local rules governing summary judgment proceedings. Local Rules 12(l)-(m) of this court state (emphasis added):

 
l. Motions for Summary Judgment; Moving Party. With each motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure the moving party shall serve and file. . . a statement of material facts as to which the moving party contends there is no genuine issue. . . . That statement shall consist of short numbered paragraphs, including within each paragraph specific references to affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for denial of the motion.
 
m. Motions for Summary Judgment; Opposing Party. Each party opposing a Rule 56 motion shall serve and file -- . . . a concise response to the movant's statement. That response shall contain (1) a response to each numbered paragraph in the moving party's statement, including, in case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (2) a statement, consisting of short numbered paragraphs, of any additional facts which require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.

 The parties have submitted statements purporting to comply with these rules, but most do not contain appropriate citations to the record. *fn1" This has forced the court to deny many aspects of the parties' motions, and thereby undermines the purpose of summary proceedings. A carefully prepared motion for summary judgment reveals to the parties the strengths and weaknesses of their respective positions. It further assists the court in narrowing the issues for trial. A poorly prepared motion for summary judgment wastes the parties' money and the court's time. The court hopes that other litigants will do better in their summary proceedings than both parties have here.

 For the moment, the court will turn to Three D's motion for summary judgment. It is undisputed that on February 6, 1984, Three D and K Mart entered into a License Agreement. This agreement allowed Three D to operate its "Designer Depot" departments within several K Mart stores. Paragraphs 1(a) and 1(b) of the Agreement provided:

 
1. TERM :
 
(a) The License shall pertain only to the DESIGNER DEPOT (stores) listed on Exhibit B with respect to sale of bed, bath and related merchandise set forth on Exhibit A. . . . The individual term of the license for each store included in this Agreement shall commence as of the date of the first opening of the department at such store by [Three D] and shall terminate on the last day of the forty-eighth month subsequent to such opening unless terminated earlier in accordance with (b) through (f) below. Thereafter, the individual term for each store shall be extended on a month-to-month basis (subject to termination in accordance with (b) through (f) below).
 
(b) In the event K Mart shall elect to close any of the (stores) covered by this license, it may do so upon at least thirty (30) days prior notice to [Three D] and the individual license for such store shall terminate on the date of such closing.

 Paragraph 23 of the Agreement provided that the License was to be governed by Michigan law. *fn2" It also stated that it constituted "the entire agreement between the parties and may not be modified or any provision waived, except in writing."

 On or about November 7, 1986, K Mart advised Three D that it would close the Depots as of January 25, 1977. K Mart followed through on its decision. *fn3" Three D contends that this amounted to a breach of the Agreement, notwithstanding K Mart's greater-than-thirty-days notice to Three D of its decision. This is because, in Three D's opinion, the word "any" in para. 1(b) does not mean "any or all." According to Three D, para. 1(a) set the general term for the license, while para. 1(b) gave K Mart flexibility to terminate the license with respect to particular stores. Paragraph 1(b) did not give K Mart, however, the power to terminate the license with respect to all stores upon thirty-days notice, at least as Three D understood the contract. K Mart's motion for summary judgment suggests otherwise.

 Three D says it deserves summary judgment regardless of which interpretation of the Agreement is the correct one. Three D contends that if it shows merely that the Agreement was ambiguous, it deserves the benefit of its construction, since Michigan law requires this court to construe an ambiguous clause against the party who drafted it. See, for example, Powers v. Detroit Auto. Inter-Ins. Exchange, 427 Mich. 602, 398 N.W.2d 411 (1986). In order to receive the benefit of this rule on its motion for summary judgment -- were it a correct statement of the law *fn4" -- Three D would have to establish that there is no genuine issue of fact as to who drafted the Agreement. Three D has not established this, as it did not ...


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