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Ronald A. Chisholm, Ltd. v. Fulton Market Cold Storage Company LLC

December 13, 2011

RONALD A. CHISHOLM, LTD. PLAINTIFF,
v.
FULTON MARKET COLD STORAGE COMPANY LLC, DEFENDANT.



The opinion of the court was delivered by: Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER

Plaintiff Ronald A. Chisholm, Ltd. ("Chisholm") filed a complaint against defendant Fulton Market Cold Storage Company ("Fulton") alleging damage to certain meat products that Chisholm stored in Fulton's warehouse. The complaint asserts claims of breach of bailment, breach of contract and negligence. Fulton now moves for summary judgment on six of its affirmative defenses. For the reasons that follow the Court grants in part and denies in part Fulton's motion.

Fulton's Motion to Strike

Before considering the substance of the summary judgment motion, the Court will address Fulton's motion to strike paragraphs 16 through 34 of Chisholm's Local Rule 56.1 statement of additional facts. Specifically, Fulton argues the Chisholm has asserted 98 statements of fact in 34 paragraphs and the first 15 paragraphs contain all 40 of Chisholm's allotted additional facts. The Court declines to strike the paragraphs.

Local Rule 56.1(b)(3)(C) permits the respondent to file 40 numbered paragraphs containing short statements of "any additional facts that require the denial of summary judgment." However, the rule does not mandate that each numbered paragraph contain only a single discreet fact in a single sentence. This Court's review of the Chisholm's additional statements of fact does not agree with Fulton's estimation. Put another way, each sentence does not contain a separate and individual allegation.

The Court notes however that Chisholm is pushing the boundaries of what can be called short statements of only one or two individual allegations. Ultimately, the Court has discretion to determine whether to strike the statements of fact. Ammons v. Aramark Unif. Servs., 368 F.3d 809, 817 (7th Cir. 2004). Here, this Court disagrees with Fulton's calculations that Chisholm has stated 98 separate statements of fact. The Court further notes that Fulton easily responded to each of Chisholm's additional statements of fact. Fulton's Motion to Strike is denied.

Motion for Summary Judgment

Fulton moves for summary judgment on its fifth, sixth, seventh, ninth, tenth and eleventh affirmative defenses. The fifth, sixth and seventh affirmative defenses relate to the subject ham products and the ninth, tenth, and eleventh affirmative defenses are the same but relate to the subject rib meat. Essentially there are three issues for the Court to consider as each relates to two different claims for damaged products: (1) whether there is a factual dispute that Chisholm failed to give Fulton written notice of its claim for damaged products (both ham and rib) within the 60 day time period in the warehouse receipt; (2) whether there is a factual dispute that Chisholm failed to bring an action against Fulton for the damaged meat products within the 12 month time period in the warehouse receipt; and (3) whether the warehouse receipt limits Fulton's maximum liability to fifty cents per pound.

Background

The following facts are undisputed unless otherwise noted. Chisholm is a Canadian corporation that buys and sells meat, dairy, and food raw materials. (Def. Statement of Material Facts "SOF", Dkt. 47 at ¶¶ 1, 2.) Fulton is a Delaware corporation with a USDA approved warehouse and cold storage facility for meat products in Chicago, Illinois. (Id. at ¶¶ 3, 4.) Fulton is engaged in the business of receiving, storing, handling, and shipping of meat products. (Id. at ¶ 4.) In its complaint filed on July 30, 2009, Chisholm brought claims against Fulton alleging breach of bailment, breach of contract and negligence for damage to two types of meat products: freezer burn to three piece ham products and spoilage to frozen single rib bone products. (Compl. Dkt. 1.)

Fulton issues warehouse receipts for goods stored on its premises. (SOF, Dkt. 47 at ¶ 9.) Fulton's warehouse receipt contains a section limiting liability, which contains the following relevant provisions:

Section 10(a): "The warehouseman shall not be liable for any loss, damage or destruction to goods, however caused, unless such loss, damage or destruction resulted from the Warehouseman's failure to exercise such care in regards to the goods as a reasonably careful person would exercise under like circumstances."

Section 10(e): "in the event of loss, damage or destruction to stored goods for which the warehouseman is legally liable, storer declares and agrees that the warehousman's liability for damages shall be limited to 50ó per pound." (id. At ¶ 6, ex. C.)

Section 10(g): "claims by the storer must be presented in writing within a reasonable time and in no event longer than 60 days after delivery of the goods. The warehouseman shall be offered a reasonable opportunity to inspect the goods. No action may be maintained by the storer or others against the warehouseman for loss or damage to goods covered hereunder unless a timely written claim has been made and the warehouseman has been offered reasonable opportunity to inspect the goods and ...


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