The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Monday, 14 March, 2011 09:29:09 AM
Clerk, U.S. District Court, ILCD
Now before the Court are JESCO Construction Corp.'s Motion for Partial Summary Judgment (#54) and Motion for Oral Argument (#55). The motions are fully briefed, and I have carefully considered the arguments and evidence advanced by the parties. As explained below, the Motion for Summary Judgment is DENIED and the Motion for Oral Argument is DENIED.
SUMMARY JUDGMENT GENERALLY
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995).
The only issue presented by this motion is whether the contract between JESCO and Henderson County is a "unit price" contract or a "cost plus" contract. The motion does not ask for a determination of what amount is due under the contract or to rule on affirmative defenses. It is simply a request for the Court to characterize the contract in question so that the parties can complete discovery and prepare for trial aware of the Court's ruling on this element.
As Henderson County points out, issues have been raised regarding the contract's validity and enforceability, as well as to JESCO's performance of its obligations. Those issues are not presented in the instant motion. For purposes of this Order, the agreement in question will be referred to as the "Contract," and the validity of the Contract will be assumed, but neither that assumption nor use of the word "contract" in this Order shall be construed as a ruling on such issues. Moreover, because issues relating to contract formation, performance, and the like are wholly immaterial to the very narrow issue presented by this motion, facts relevant only to such issues are not included in the statement of Undisputed Facts contained herein.
This case arose out of catastrophic flooding in Henderson County and the Village of Gulfport in 2008. These two governmental bodies*fn1 utilized the services of a number of companies to dewater the affected areas. Various agreements were signed, and significant amounts of work was performed.
The expectation of all involved was that the costs of the dewatering efforts would be borne by FEMA; as of this date, that expectation has not been realized.
This litigation involves one of the companies - JESCO - and one of its subcontractors - RMS -retained by Henderson County. The instant motion involves the agreement between JESCO (referred to as "Contractor") and Henderson County (called "Client"). The document setting out the agreement is entitled "Work Order Contract for Emergency Services." (Exh. M*fn2 , Doc. #54). In pertinent part, that Contract provides that JESCO would perform services for the Clients: in accordance with the terms and conditions contained in this AGREEMENT and as described in individual work orders that shall be issued for each engagement or Project. Work orders issued under this AGREEMENT shall contain a description of the services (the Scope of Work) and shall state the compensation (the Fee) to be paid to Contractor by Client, and shall include a Schedule for completing the services. Each work order so issued shall become a part of this AGREEMENT. Client acknowledges that Contractor will develop the Scope of Work, Fee, and Schedule ...