The opinion of the court was delivered by: Geraldine Soat Brown, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Chicago Prime Packers, Inc. ("Chicago Prime" or "Plaintiff") moved for summary judgment against both defendants, Northam Food Trading Co. ("Northam"), and Nationwide Foods, Inc. ("Nationwide"). Northam moved for summary judgment against Chicago Prime. Subsequently, Chicago Prime and Nationwide entered into a settlement, and Count II of Chicago Prime's Amended Complaint, which was its claim against Nationwide, was dismissed with prejudice. [Dkt #79.] Consequently, Chicago Prime's motion for summary judgment against Nationwide is moot. For the reasons set out herein, Plaintiffs Motion for Summary Judgment as to Northam [dkt #59] is denied. Defendant Northam's Motion for Summary Judgment [dkt #57] is also denied.
Federal jurisdiction exists in this case because of diversity of citizenship. 28 U.S.C. § 1332. Chicago Prime is a Colorado corporation with its principal place of business in Colorado; Northam is a Canadian corporation with its principal place of business in Montreal, Quebec; and Nationwide is a Delaware corporation with its principal place of business in Illinois.*fn1 (Am. Compl. ¶¶ 1-3; Northam's Plaintiffs LR Res. ¶¶ 1-3; Nationwide's Plaintiff LR Res. ¶¶ 1-3.) It is not disputed that the amount in controversy exceeds $75,000. The parties have consented to the jurisdiction of a Magistrate Judge. [Dkt ##16, 37.]*fn2
Although, as discussed above, Chicago Prime's claim against Nationwide was dismissed, certain facts relating to Nationwide are relevant to the other pending motions. Chicago Prime is a wholesaler of meat products, Northam is also a wholesaler of meat products, and Nationwide (doing business as Brookfield Farms) is a meat processor. (Nationwide's Plaintiff LR Res. ¶¶ 5-7.) Chicago Prime purchased a quantity of pork ribs from Nationwide pursuant to a invoice dated April 6, 2001. (Plaintiffs Brookfield LR Res. ¶ 6; Pl.'s Mot. Sum. J. at 2.) Chicago Prime also contracted to sell 40,500 pounds of pork ribs to Northam. (Northam's Res. to Pl.'s Request to Admit ¶ 1.) Chicago Prime states that it resold the ribs to Northam "within seconds" and without taking physical possession of the ribs. (Pl.'s Mot. Sum. J. at 2.) On or about April 23 or 24, 2001, Brown Brothers Produce Co., Inc. ("Brown Brothers"), acting for Northam, picked up 40,500 pounds of ribs that Nationwide had produced and sold to Chicago Prime from B & B Cold Storage, a storage facility that Nationwide used. (Nationwide's Plaintiff LR Res. ¶ 11; Northam's Res. to Pl.'s Request to Admit ¶¶ 6-7; Northana's Nationwide LR Res. ¶¶ 10, 12.) When Brown Brothers picked up the ribs, it signed a straight bill of lading stating, "property above in apparent good order." (Northam's Res. to Pl.'s Request to Admit ¶¶ 8-9; Nationwide's Plaintiff LR Res. ¶¶ 12-13.) The ribs were loaded from B & B Cold Storage onto a truck belonging to Brown Brothers. (Northam's Nationwide LR Res. ¶ 12.) Brown Brothers delivered the ribs to Beacon Premium Meats ("Beacon") of Robinson, Illinois on April 25, 2001. (Nationwide's Northam LR Res. ¶ 10; Northam's Nationwide LR Res. ¶ 14; Northam's Res. to Pl.'s Request to Admit ¶¶ 21, 25.) Chicago Prime and Nationwide suggest that Beacon is now out of business. (Plaintiffs Brookfield LR Res. ¶ 23.) When the ribs were delivered, Beacon prepared a receiving log noting that the condition of the product was "good with the exception of 21 boxes that had holes gouged in them and the meat inside shows signs of freezer burn." (Id. ¶ 16.)*fn3
On April 30, 2001, Chicago Prime paid Nationwide for the ribs. (Nationwide's Plaintiff LR Res. ¶ 20.) According to Northam, Beacon began processing the ribs on May 4, 2001. (Northam's Mot. Sum. J. ¶ 10.) However, Chicago Prime denies that statement, and Northam does not cite any direct evidence of that fact. (Plaintiffs Northam LR Res. ¶ 10.) On May 4, 2001, Inspector Ken Ward of the United States Department of Agriculture ("USDA") inspected ribs being processed by Beacon, found that they did not look good, and ordered Beacon to stop processing them. (Plaintiffs Northam LR Res. ¶ 11.) On May 23, 2001, Dr. John Maltby of the USDA examined certain of the ribs identified by Ward and ultimately ordered that all of the ribs be destroyed. (Plaintiffs Northam LR Res. ¶¶ 12-14; Northam's Mot. Sum. J. Ex. D, Maltby dep. at 56.) [Dkt #60.] Dr. Maltby concluded that the ribs in question arrived at Beacon in the spoiled condition. (Plaintiffs Northam LR Res. ¶ 17.) On May 24, 2001, Northam informed Chicago Prime of Dr. Maltby's inspection. (Plaintiffs Northam LR Res. ¶ 21.) On June 18, 2001, Northam informed Chicago Prime that Northam would not pay under the contract. (Id. ¶ 23.) Chicago Prime then filed this lawsuit to recover the contract price from Northam, and subsequently joined Nationwide as a defendant on a second count.
Chicago Prime and Nationwide contest Northam's assertion that the ribs inspected by Inspector Ward and Dr. Maltby were the ribs delivered by Brown Brothers to Beacon. (Plaintiffs Northam LR Res. ¶ 13; Nationwide's Northam LR Res. ¶ 10.) Assuming that they are the same ribs, each party denies that the ribs spoiled while under its ownership or control.
The court may properly grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must construe all facts and draw all reasonable and justifiable inferences in favor of the nonmoving party. Id. at 255.
The court "is not required to draw unreasonable inferences from the evidence." St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir. 1997). The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met the initial burden, the opposing party must support its contentions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Id. at 324. The nonmoving party must designate specific facts showing that there is a genuine issue for trial. Id. It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which it relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). "[N]either `the mere existence of some alleged factual dispute between the parties' . . . nor the existence of' some metaphysical doubt as to the material facts, is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997) (quoting Anderson, 477 U.S. at 247 and Matushita Electrical Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Thus, "[t]he mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson, 477 U.S. at 252.
When cross-motions for summary judgment are filed, the same standard is applied to each motion. Stimsonite Corp. v. NightLine Markers, Inc., 33 F. Supp.2d 703, 705 (N.D. Ill. 1999). This can result in the denial of both motions. Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D. Ill. 1992).
Northam and Chicago Prime have filed cross-motions for summary judgment on Count I. Northam alleges that it is not obligated to pay for the ribs because they failed to conform with the contract by virtue of being spoiled at the time they were delivered. (Northam's Mot. Sum. J. at 6.) Chicago Prime argues that Northam waited an unreasonable amount of time to revoke its acceptance or that the ribs spoiled following their transfer to Northam (or those acting ...