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GSS Salvage v. Alter Trading Corp.

May 14, 2009

GSS SALVAGE AND SHAFFER & SONS CONSTRUCTION, INC., PLAINTIFFS,
v.
ALTER TRADING CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge

OPINION

Defendant Alter Trading Corporation, relying on the deposition of William Shaffer, moves for summary judgment on Counts 5 and 6.

Plaintiff Shaffer & Sons Constructions, Inc., opposes the motion and relies on an affidavit containing further representations made by Shaffer.

Because Shaffer & Sons failed to comply with Local Rule 7.1(D) and because the later filed affidavit is inconsistent with Shaffer's deposition testimony, Alter's motion for summary judgment is granted.

I. BACKGROUND

Alter is an Iowa corporation with its principal place of business in Missouri. Shaffer & Sons Construction, Inc., is an Illinois corporation with its principal place of business in Adams County, Illinois.

Plaintiffs filed a ten-count complaint against Alter, seeking various damages arising from the alleged breach of a series of contracts. Four counts are relevant to the pending summary judgment motion.

Count 2 alleges that in October 2004, Alter "orally agreed to pay [Shaffer & Sons] the sum of $110.00 per ton of scrap transported by [Shaffer & Sons] to [Alter's] scrap processing yard in Quincy, Illinois, from the Celotex Building . . . ." (Compl. Count 2, ¶ 3.) The delivered items, however, were sold by Alter prior to weighing. As such, Shaffer & Sons seeks to recover $70,477.25, a figure arrived at "by applying equipment and labor charges at customary rates." (Compl. Count 2, ¶ 4.)

Count 5 also relates to work at the Celotex Building. According to the Complaint, Alter entered into an oral agreement in December 2004 to pay Shaffer & Sons "to clear the fire lane at building six of the Celotex plant and to clear out the basement at that location." (Compl. Count 5, ¶ 3.) The Complaint alleges that the unpaid bills from this project total $228,986.50.

Also relevant are Counts 3 and 6. The former relates to allegedly unpaid bills stemming from salvage work in several locations, including Keytesville, MO. The latter seeks payment for unloading a gondola.

II. APPLICABLE STANDARDS

"Summary judgment is proper when the evidence on file demonstrates that there is no genuine issue as to any material fact." Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009) (citing Fed. R. Civ. P. 56(c)). All facts and reasonable inferences are construed in the light most favorable to the non-moving party. Id.

III. ANALYSIS

A. Summary ...


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