The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
These cases come before the Court on Motions for Summary Judgment on
Plaintiffs' unjust enrichment claims filed by Defendant Artist Colony
Limited and Defendant Sink, LLC. As with the previous motions for summary
judgment, see Farraro v. Sink., LLC, No. 01 C 6956, 2002 WL
31687671 (N.D. Ill. Nov. 27, 2002), the issues presented in both
Farraro v. Sink. LLC, No. 01 C 6956, and Markiewicz v.
Sink, LLC. No. 01 C 6957, are essentially identical. For efficiency
purposes, the Court will once again dispose of the motions from both
cases in a single opinion. For the reasons set forth in this opinion,
Artist Colony Limited's Motions for Summary Judgment are granted in part
and denied in part and Sink, LLC's Motions for Summary Judgment are
granted in part and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court will only briefly discuss the facts relevant to the issues in
Defendant Artist Colony Limited, formerly known as Rousseau
Acquisitions, purchased Artist Colony, LLC (now known as Sink, LLC) in
February 2001. Artist Colony Limited manufactures novelty furniture
items, primarily bean bag chairs. Both Plaintiffs, Markiewicz-Cook,
Associates, Inc. ("Markiewicz") and Frank C. Fararo ("Fararo") had oral
agreements with Defendant Artist Colony, LLC whereby Plaintiffs were to
place Defendant's products in catalogs, including J.C. Penney, Spiegel,
Sears, and others.
When Artist Colony, LLC sold its assets to Rousseau Acquisitions (which
became Defendant Artist Colony Limited), neither the seller corporation
nor the buyer corporation promptly notified Plaintiffs of the sale. Once
Plaintiffs learned of the sale, they inquired whether the new entity,
Artist Colony Limited, would continue to employ them to find catalog
space for the products. Artist Colony Limited elected not to employ
When Rousseau Acquisitions acquired the assets of Artist Colony, LLC in
February 2001, Plaintiffs had already secured the catalog space for
Artist Colony, LLC's products in the lucrative Christmas and Fall sale
issues of the catalogs. Defendant Artist Colony Limited received and
filled orders from the catalog placements that Plaintiffs secured for
Artist Colony, LLC. Plaintiffs brought lawsuits in Illinois state court
to recover commissions from the sales their catalog placements generated.
Defendant Artist Colony Limited removed the cases to federal court where
jurisdiction is based upon diversity of citizenship.
Plaintiffs had several corporate law theories of recovery against
Defendant Artist Colony Limited: successor liability, de facto merger,
and implicit acceptance of obligation. On November 25, 2002, this Court
granted Defendant Artist Colony Limited summary judgment on
those theories of relief. The only theory of recovery remaining
against Defendant Artist Colony Limited after the summary judgment stage
was unjust enrichment. Artist Colony Limited now seeks summary judgment
on Plaintiffs unjust enrichment claim.
Plaintiff's complaint details two theories of recovery against
Defendant Sink, LLC, both arising under Illinois state law: the
"procuring cause" rule and exemplary damages under the Illinois Sales
Representative Act. Sink, LLC did not seek summary judgment on those
The parties were unable to agree on the scope of issues for trial prior
to the pretrial conference on January 17, 2003. Additionally, the
pretrial order that Plaintiffs submitted in advance of the pretrial
conference was substantially out of compliance with the local rules. At
the pretrial conference, the Court ordered Defendant Sink, LLC, to set
forth its objections to Plaintiffs' pretrial order in writing. Sink, LLC
presented three objections to the pretrial order. First, Sink, LLC
contended that Plaintiffs were not entitled to proceed or recover against
it on an unjust enrichment theory. Second, Sink, LLC objected to
Plaintiffs' claims for commissions based on catalog sales that were not
disclosed during discovery. Third, Sink, LLC objected to Plaintiffs'
attempted recovery of pre-judgment interest under the Illinois Interest
Act. The Court sustained the second objection, denied the third
objection, and treated the first objection as a motion for summary
judgment on Plaintiffs' unjust enrichment claim.
Presently before the Court are Sink, LLC's Motions for Summary Judgment
against Plaintiffs Fararo and Markiewicz on the unjust enrichment theory
and Artist Colony Limited's Motions for Summary Judgment on the unjust
enrichment theory against the same Plaintiffs. The Defendants are
situated very differently with respect to Plaintiffs' unjust enrichment
claims, so the Court will proceed with a separate analysis as to each
II. SUMMARY JUDGMENT STANDARD
According to the Federal Rules of Civil Procedure, summary judgment is
proper "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);
Kamler v. H/N Telecommunication Services. Inc., 305 F.3d 672,
677 (7th Cir. 2002). A genuine issue of material fact exists for trial
when a reasonable jury could return a verdict for the party opposing
summary judgment. Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928,
931 (7th Cir. 1995). When determining whether a genuine issue of material
fact exists, the Court considers the evidence and all proper inferences
therefrom in the light most favorable to the non-moving party. See
Neuma, Inc. v. AMP. Inc. 259 F.3d 864, 871 (7th Cir. 2001).
Because the purpose of summary judgment is to isolate and dispose of
factually unsupported claims, the non-movant must set forth specific
facts showing that there is a genuine issue for trial in its response.
See Fed, R. Civ. P. 56(e); Michael v. St. Joseph County,
et al., 259 F.3d 842, 845 (7th Cir. 2001); Albiero v. City of
Kankakee, 246 F.3d 927, 932 (7th Cir. 2001). To successfully oppose
the motion for summary judgment, the non-movant must do more than raise a
"metaphysical doubt" as to the material facts, see Wolf v. Northwest
Ind. Symphony Soc'y, 250 F.3d 1136, 1141 (7th Cir. 2001) (citation
and quotation omitted), and instead must present definite, competent
evidence to rebut the motion. See Albiero, 246 F.3d at 932.
Rule 56(c) mandates the entry of summary judgment against a party "who
fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and in which that
party will bear the burden of proof at trial." Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); see also Civil Liberties
for Urban Believers v. City of Chicago, 3 ...