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February 22, 1995

HCC, INC., Defendant.

The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Hart-Carter Company brings this action, alleging breach of contract by defendant HCC, Inc. Presently before the court is defendant's motion for summary judgment and plaintiff's motion for leave to amend its complaint. For the reasons set forth below, defendant's motion for summary judgment is granted and plaintiff's motion to amend is denied.

 I. Background

 In 1987, plaintiff Hart-Carter Company and defendant HCC entered into an Asset Purchase Agreement. In the agreement, Hart-Carter transferred agricultural equipment manufacturing facilities located in Illinois to HCC. During the course of the negotiations leading up to the agreement, Hart-Carter learned that it faced potential indemnification liability in a lawsuit brought by John Deere, Inc. against Massey-Ferguson Corporation, a purchaser of Hart-Carter products. *fn1" Accordingly, the parties included a clause in their Purchase Agreement which read as follows:

 Exhibit 8, in turn, provided:

 List of Pending and Threatened Litigation

1. Massey-Ferguson (Varity) has communicated to Hart-Carter Company by letter dated December 23, 1986 from Robert L. Farris to James M. Frederick, that it has been charged by John Deere Company with infringement of Deere Patent No. 3,982,383, Harvesting Platform with Floating Cutter Bar, and that it is looking to Hart-Carter for indemnification under paragraph 5 of Massey-Fergusons' standard purchase order because Hart-Carter supplies flexible cutter bar assemblies, spring assemblies, long dividers and some other components on the drive side of the Massey Ferguson MF 9100 Series floating cutter bar headers. Hart-Carter Company does not believe that the component parts that it supplies to Massey-Ferguson infringe the Deere Patent and, as a result, does not believe that Massey-Ferguson is entitled to any indemnification under the terms of the Massey-Ferguson purchase order.

 Hart-Carter and HCC, Inc. executed the agreement on March 27, 1987.

 In 1988, Massey-Ferguson joined Hart-Carter as a third-party defendant in the John Deere litigation, seeking indemnity for contributory infringement. In 1991, Massey-Ferguson settled with John Deere, and, in January 1992, settled its indemnification dispute with Hart-Carter for $ 160,000. Throughout the course of the litigation, Hart-Carter asked HCC to contribute pursuant to Section 6.6 of the agreement, but HCC refused. Hart-Carter then brought this suit, asserting that HCC breached Section 6.6 of the Purchase Agreement. HCC has moved for summary judgment, arguing that Hart-Carter can not demonstrate that HCC has "continued to produce and sell the products and/or components that [were] the subject of" the claims identified in the agreement.

 On December 19, 1994, approximately three and one-half months after the close of discovery, some seven weeks after the pretrial order and motion for summary judgment were filed, and three weeks after the motion for summary judgment was fully briefed, Hart-Carter filed a motion for leave to file an amended complaint to include a claim for fraud. Hart-Carter bases this proposed claim on the declaration of Carl E. McNair, which was an exhibit to HCC's summary judgment motion filed on November 1, 1994. Hart-Carter asserts that the declaration demonstrates that HCC had no intention of producing the MF 9100 Series floating cutter bar header at the time it entered into the Purchase Agreement. If this is in fact the case, Hart-Carter contends, then HCC committed a fraud. HCC has opposed the amendment, and we shall therefore address it below.

 II. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and . . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read ...

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