we must determine what constitute "components" within the meaning of the Purchase Agreement.
Section 6.6 is not the only relevant provision for consideration of these issues. The terms of that section clearly limit HCC's contribution obligation to expenses incurred in connection with "any claims made by Massey-Ferguson . . . as described in Exhibit 8. " Exhibit 8, in turn, limits the claims at issue to those based upon Hart-Carter's sale of the floating cutter bar (or, more specifically, its components) for the MF 9100 Series. Reading Section 6.6 and Exhibit 8 together, then, it is clear from the Purchase Agreement that HCC was only obligated to contribute if it produced and sold the floating cutter bar for the MF 9100 Series, or its components.
As discussed above, Hart-Carter posits that HCC's production and sale of the floating cutter bar for the MF 9750 Series and the production and sale of the Generation III floating cutter bar are sufficient to trigger HCC's obligation under the Purchase Agreement. For the reasons stated above, however, it is clear that these floating cutter bars were not included in the parties' agreement, and thus can not provide the basis for HCC's liability. Hart-Carter's only response is that Section 6.6 should be read to include all claims actually brought in, or implicated by, the Massey-Ferguson litigation. To do so, however, would effectively read Exhibit 8 out of the Purchase Agreement, contrary to well-established principles of contract law. See, e.g., Chicago Pacific Corp. v. Canada Life Assurance Co., 850 F.2d 334, 338 (7th Cir. 1988) ("When a contract incorporates another document by reference, the incorporated document binds the parties . . . ."). Accordingly, HCC's manufacture of other floating cutter bars does not give rise to a contribution obligation under the terms of the Purchase Agreement.
Having concluded that the "product" at issue is the floating cutter bar for the MF 9100 Series floating cutter bar header, we must determine what constitute its "components" within the meaning of the Purchase Agreement, and whether HCC ever produced and sold those components. Hart-Carter asserts that HCC has, in fact, produced such components, and identifies nine parts which HCC has produced. These parts include five different brackets, a skid plate, an attach pad, and a divot stop. Accordingly, Hart-Carter contends that summary judgment for HCC is inappropriate. We disagree. Section 6.6 unambiguously provides that HCC's liability is triggered only if it produces and sells the "products and/or components that are the subject of " the claims made by Massey-Ferguson. Hart-Carter does not, and presumably can not, allege that the brackets, skid plate, attach pad, and divot stop were subjects of Massey-Ferguson's claim. Instead, it is clear that the components at issue in the Massey-Ferguson suit were akin to those listed in Exhibit 8, including flexible cutter bar assemblies, spring assemblies, and long dividers.
While these components may well have been the basis for Massey-Ferguson's claim against Hart-Carter, there is no allegation that the individual parts that made up these components were the subjects of the Massey-Ferguson third-party action, or of John Deere's suit against Massey-Ferguson. Accordingly, under the plain language of the Purchase Agreement, HCC's production of these individual parts simply does not provide a basis for Hart-Carter's action against HCC.
In sum, we conclude that the Purchase Agreement between Hart-Carter and HCC is unambiguous, and that HCC has not engaged in any action which would give rise to contribution liability under that agreement. Accordingly, HCC is entitled to summary judgment on the breach of contract claim.
B. Plaintiff's Motion for Leave to File Its Second Amended Complaint
Although leave to amend a complaint is to be "freely given," see Fed. R. Civ. P. 15(a), such leave may be denied upon a demonstration of undue delay by the movant, undue prejudice to the opposing party, or the futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). In Cleveland v. Porca Co., 38 F.3d 289 (7th Cir. 1994), the Seventh Circuit addressed a situation virtually indistinguishable from the one presented here:
In this case, the plaintiffs filed their motion to amend after discovery was completed and after the motions for summary judgment were fully briefed. The plaintiffs sought to add an entirely new claim against the [defendant] based on ERISA. This motion came late in the day. The defendants had already filed witness and exhibit lists with the court . . . . Again, under these circumstances the district court did not abuse its discretion in denying the motion to amend the amended complaint. See. e.g., Murphy v. White Hen Pantry Co., 691 F.2d 350, 353 (7th Cir. 1982) (district court did not abuse its discretion in refusing to allow plaintiffs to amend their complaint where motion was filed after parties had completed discovery and where motion would inject an entirely new theory into the litigation); Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618, 625 (7th Cir. 1987) (district court did not abuse its discretion in denying leave to amend complaint where proposed amendment came after the close of discovery and after defendants moved for summary judgment--the motion represents an apparent attempt to avoid the effect of summary judgment).
Cleveland, 38 F.3d at 297-98. In the present case, discovery was long closed, the pretrial order had been filed, and the motion for summary judgment was fully briefed before Hart-Carter sought leave to amend. Even if the McNair declaration, filed on November 1, 1994, provides some explanation as to why Hart-Carter did not assert its fraud claim before that date, Hart-Carter has offered no explanation as to why it waited over one and one-half months before seeking leave to file an amended complaint. Under these circumstances, we conclude that there has been undue delay by Hart-Carter in bringing the present motion, and that this belated motion was, at bottom, an effort to avoid the likely effect of HCC's motion for summary judgment.
Accordingly, Hart-Carter's motion for leave to file its second amended complaint is denied.
For the reasons set forth above, HCC, Inc.'s motion for summary judgment is granted and Hart-Carter Company's motion for leave to file its second amended complaint is denied. It is so ordered.
MARVIN E. ASPEN
United States District Judge