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Asset Recovery, Inc. v. Whitney Holding Corp.

September 16, 2010

ASSET RECOVERY, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
v.
WHITNEY HOLDING CORPORATION, A LOUISIANA CORPORATION, D/B/A WHITNEY NATIONAL BANK, DEFENDANT.



The opinion of the court was delivered by: Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

Plaintiff Asset Recovery, Inc. ("Asset Recovery") filed this diversity lawsuit charging Whitney Holding Corporation d/b/a Whitney National Bank ("Whitney Bank") with breach of contract in connection with a courier services agreement. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Whitney Bank now seeks partial summary judgment on Asset Recovery's claim for liquidated damages. For the reasons explained here, the motion is denied.

BACKGROUND*fn1

Asset Recovery, an Illinois corporation with its principal place of business in Cook County, Illinois, is a successor-in-interest to Davis Bancorp, Inc. ("Davis Bancorp"). One of the services it provides is the collection of outstanding receivables. Whitney Bank, a Louisiana corporation with its principal place of business in New Orleans, is the successor-in-interest to Madison Bank. (Doc. 55 ¶¶ 1-3.)

A. The Courier Services Agreement

On April 19, 1999, Davis Bancorp entered into an agreement to provide Madison Bank with courier services (the "Agreement"). (Id. ¶ 7; Doc. 46 ¶ 1.) By its terms, the Agreement was effective on April 26, 1999, and was to remain in force for five years, until November 30, 2003. Throughout the course of business dealings, however, Davis Bancorp and Madison Bank agreed to certain Schedule Modification and Amendments that extended the terms of the Agreement. (Doc. 46 ¶¶ 3, 4.) On August 20, 2004, Madison Bank merged with and into Whitney Bank, which assumed all rights and obligations under the Agreement. (Id. ¶ 1 n.2; Doc. 55 ¶ 3.)

Nearly two years later, on July 6, 2006, Stan Anderson, Transportation Manager of Whitney Bank, and Tom Davis, Vice President of Davis Bancorp, signed the Schedule Modification and Amendment at issue in this case. Pursuant to the Amendment, Whitney Bank added shipments to the existing schedule of courier services and agreed to an increase in the amount Davis Bancorp charged for its services. (Id. ¶¶ 4, 5; Doc. 55 ¶ 8.) Paragraph 15 of the Amendment further provided:

Should [Whitney Bank] unilaterally terminate this agreement prior to the scheduled termination date of this agreement, then it is agreed that as liquidated damages, and not as a penalty, [Whitney Bank] shall pay to Davis an amount equal to seventy-five (75%) percent of the 'charges' enumerated in the SCHEDULE supra scheduled to be paid through the scheduled termination date of this agreement. (Id. ¶ 9; Doc. 55 ¶ 9.) The Agreement, as amended, was to remain in effect from July 24, 2006 through July 24, 2011. (Id. ¶ 6.)

B. The Termination and Lawsuit

In August 2007, Davis Bancorp attempted to pick up Whitney Bank documents at one of the locations set forth in the Agreement. The building at that location, however, was locked and vacant. As a result, Davis Bancorp deemed Whitney Bank to have unilaterally terminated the Agreement. (Id. ¶¶ 7, 8.) When Whitney Bank refused to pay 75% of the charges remaining to be paid on the Agreement, totaling $289,704.25, Davis Bancorp turned the debt over to Asset Recovery for collection. On March 7, 2008, Asset Recovery, as successor-in-interest to Davis Bancorp, filed a breach of contract action against Whitney Bank in the Circuit Court of Cook County, Illinois. (Id. ¶¶ 10, 11.) Whitney Bank removed the case to federal court on March 27, 2008, and shortly thereafter, the parties consented to the jurisdiction of the United States Magistrate Judge. (Doc. 15.)

Whitney Bank has moved for partial summary judgment that the liquidated damages clause set forth in Paragraph 15 of the Agreement is unenforceable. Davis Bancorp insists that summary judgment is inappropriate because there is a genuine issue of material fact regarding the validity of the clause.

DISCUSSION

A. Standard of Review

Summary judgment is proper when "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 judgment as a matter of law." FED. R. CIV. P. 56(c). In viewing the facts presented on a motion for summary judgment, the court must construe the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). "A court's role is not to evaluate the weight of the evidence, to judge ...


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