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INDUSTRIAL SPECIALTY CHEMS. v. CUMMINS ENGINE CO.

February 21, 1996

INDUSTRIAL SPECIALTY CHEMICALS, an Illinois corporation, Plaintiff,
v.
CUMMINS ENGINE CO., INC., an Indiana Corporation; FLEETGUARD, INC., an Indiana Corporation; DOUG HUDGENS and JERRY JOYNER, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Industrial Specialty Chemicals, Inc. ("ISC") brings this six-count Amended Complaint against Cummins Engine Co., its subsidiary Fleetguard, Inc. (the "Corporate Defendants"), and two of Fleetguard's employees, Doug Hudgens and Jerry Joyner (the "Individual Defendants"). Presently before this court is the defendants' motion for summary judgment on Counts I, IV, and V. *fn1" For the reasons set forth below, the motion is granted in part and denied in part.

 I Background

 Before discussing the material facts at issue, we briefly comment on the parties' obligations under General Rules 12(M) and 12(N) of the United States District Court for the Northern District of Illinois ("Local Rule 12(M)" and "Local Rule 12(N)"). According to Local Rule 12(M), a party moving for summary judgment must set forth specific, undisputed facts which it believes entitles it to judgment as a matter of law. Local Rule 12(M)(3). The non-movant must then respond to each of the movant's statements, and include, "in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 12(N)(3)(a). The nonmovant is also entitled to list those facts which it believes require the denial of summary judgment, and the movant must respond in the same manner. The facts asserted in either party's statement will be deemed admitted if the opponent's responses do not cite to specific pieces of evidence supporting its position. See Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990). In this case, the defendants do not adequately respond to several of the statements made by the plaintiff in its Local Rule 12(N) submission. *fn2" Rather than referring to specific pieces of admissible evidence, these responses merely cite to portions of the defendants' unverified answer to the amended complaint. Consequently, to the extent we cannot readily uncover evidence supporting these responses, the assertions made by the plaintiff will be deemed admitted.

 We now proceed with a recitation of the relevant facts at issue. At bottom, this lawsuit stems from the attempts by ISC, a manufacturer and distributor of specially produced chemical products, to foster a business relationship with Cummins, a diesel engine manufacturer, and Fleetguard, a distributor of chemicals and maintenance products for diesel engines. Beginning in 1985, Dr. Jose T. Jacob, the president and founder of ISC, was approached by Doug Hudgens, Fleetguard's research and development manager, about providing Fleetguard with a product known as Diesel Coolant Additive ("DCA"). Although Hudgens asked for and was given samples of DCA, Fleetguard eventually decided not to place any orders for DCA with ISC. Defs.' 12(M) PP 11-14. Jacob later proposed that ISC and Fleetguard enter into a joint venture to produce similar chemical products, but the idea was rejected by Fleetguard. Defs.' 12(M) P 19.

 Jacob claims that despite these setbacks, he continued to propose to do work for Fleetguard because Hudgens had asked ISC to develop a novel radiator cleaner called "Restore Plus." Pl.'s 12(N)(3)(b) P 16. In return for developing and marketing such a product, Jacob claims, Hudgens promised him and George Emerle, the executive vice-president of ISC, that Fleetguard would purchase 50,000 gallons of the cleaner each year, as well as various amounts of DCA and other chemical products. Id. PP 18, 20, 25, 44. Hudgens and Jerry Joyner, Fleetguard's Purchased Finished Manager, deny ever making such a promise. Hudgens Affd. PP 5-6; Joyner Affd. PP 4-5. ISC neither confirmed such a promise in writing nor asked the defendants to do the same. Defs.' 12(M) P 15. Out of all of the correspondence between the parties during the relevant time period, the only written evidence of such promises are (1) a November 1987 handwritten note by Hudgens listing projects that he allegedly wanted ISC to perform, and (2) a 1988 or 1989 handwritten note from Hudgens listing the requirements of Restore Plus. Pl.'s 12(N)(3)(b) PP 26, 28; Exs. 17, 26. Neither of these documents mentions any promises made by the defendants or has any quantity or price terms, and both lack a signature from a representative of the Corporate Defendants. Id.

 Jacob claims that based on Hudgens's representations, in October 1987 he offered ISC's services to Fleetguard to prepare a report on "scale inhibitors." At the time, Jacob told Fleetguard that ISC would charge "less than $ 3000" for the service, in part "because [ISC's] aim is to get other business from your company." Defs.' 12(M), Ex. 7. None of the documents relating to this transaction mention any promises of future business. Fleetguard accepted ISC's offer, and the report was delivered and paid for by mid-1988. Defs.' 12(M) PP 22-24.

 Jacob claims that ISC also began expending considerable time and effort on the development of Restore Plus, primarily because Hudgens, Joyner, and other employees of the Corporate Defendants continued making promises of future business if ISC was successful in its research. For example, Jacob maintains that both Hudgens and Joyner repeatedly told him that if ISC successfully developed Restore Plus and other DCA products, Fleetguard and Cummins would purchase up to 10% of their DCA business from ISC. Pl.'s 12(N)(3)(b) PP 54-55, 59. Hudgens supposedly represented to ISC that Fleetguard would purchase at least $ 200,000 worth of supplies from ISC annually beginning in 1990, id. P 65, and promised Jacob that ISC would be "a major second source supplier" of various chemicals for both Fleetguard and Cummins if its efforts to improve these DCA products and develop Restore Plus were successful, id. PP 44-45. Jacob and Emerle also claim that Joyner and Dale Olson, a Material Manager at Fleetguard's Lake Mills plant, made similar promises at various times between 1987-90. Id. PP 46, 50. However, the only written evidence of these promises is a November 1989 fax transmission from Emerle to Olson and another Lake Mills employee, Bob Crane, which states:

 
Dr. Jacob was informed by Doug Hudgens in a phone conversation yesterday that 10% of the Pellet business is available for ISC for 1990.

 Pl.'s 12(N)(3)(b), Ex. 20. *fn3"

 II. Summary Judgment Standard

 The defendants now move for summary judgment on Counts I, IV, and V, arguing that no genuine factual disputes stand in the way of judgment in their favor. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The party seeking summary judgment bears the initial burden of identifying "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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 Fed. R. Civ. P. 56(c)). The movant may satisfy this burden by presenting specific evidence on a material issue, or by pointing out "an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. Once the moving party has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings; rather, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. ...


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