The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Alexander Chemical Corporation ("Alexander") sold chemicals to G.S. Robins & Company ("Robins") for 26 years, shipping the chemicals in containers. Alexander asked Robins to return the containers when through with them, collecting a deposit as security. Robins re-sold the chemicals to customers of its own and then tried to re-collect the empty containers and ship them back to Alexander.
In 2010 Robins stopped buying chemicals from Alexander. Alexander reckoned that Robins had not returned several thousand containers, and it demanded that Robins either return them or pay their replacement value. When Robins refused, Alexander filed this lawsuit.
Alexander says seven legal theories entitle it to recover from Robins
for the unreturned containers. It has filed a motion for partial
summary judgment as to liability, based on the theory that Robins has
breached its duties as bailee of the
containers.*fn1 As always in this District Court, the
parties have proceeded in accordance with our LR 56.1.*fn2
For the reasons stated here, the Rule 56 motion is
Summary Judgment Standard
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986)).*fn3 For that purpose courts consider the entire evidentiary record and must view all of the evidence and draw all inferences from that evidence in the light most favorable to nonmovants (Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 665 F.3d 800, 811 (7th Cir. 2011)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010), quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). As Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) has explained:
[T]he Federal Rules of Civil procedure require the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56(e). Conclusory allegations, unsupported by specific facts, will not suffice.*fn4 Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the relevant facts, viewed of course in the light most favorable to non-movant Robins.
From 1986 until 2010 Alexander sold Robins chemicals such as ammonia, chlorine, hydrogen chloride and sulfur dioxide (A. St. ¶¶7, 13). Alexander shipped those chemicals to Robins in containers (id. ¶9), which were delivered in good condition, and it included with each shipment a bill of lading that included a set of Additional Terms and Conditions (id. ¶10). Alexander asked Robins to return the containers when finished with them and required that Robins pay a deposit on each container (id. ¶¶17-18). Robins accepted each shipment and signed the accompanying bill of lading (id. ¶12).
Robins then re-sold the chemicals to its customers, shipping the chemicals in Alexander's containers (A. St. ¶27). Robins collected a deposit from some but not all of its customers, and it did not obligate any of its customers to return the containers (id. ¶28).
Alexander accounted for the containers in its internal records on a first in, first out basis (A. St. ¶25) -- that is, it treated each container returned by Robins as if it were the container that had been in Robins' possession the longest. Alexander thus kept a running total of the number of containers outstanding. When Robins returned a container to Alexander, Alexander would return the deposit that Robins had paid or issue a credit for the amount of the deposit (id. ¶23). Robins recorded the deposits that it paid to Alexander as accounts receivable, reducing that amount each time that it returned a container and received a credit for its deposit from Alexander (id. ¶26).
Each party thus kept its own running count of the number of containers outstanding. Representatives from Alexander and Robins met twice -- once in 1994 and again in 2000 -- to compare their counts and reconcile differences (R. St. ¶¶9, 13). There is a dispute between the parties as to some of what took place at these meetings. For its part, Robins says that at the meetings Alexander learned that Robins had a practice of "writing off" containers three years after delivery, removing the deposits from its accounts receivable and giving up the search for the containers
(R. St. ¶¶5-7). But Alexander says that Robins never informed it of that accounting practice (A. Resp. ¶13). For purposes of the current motion, of course, Robins' version must be credited if it is properly supported by evidence.
In March 2010 Robins stopped buying chemicals from Alexander (A. St. ¶30). Alexander demanded that Robins return any containers still in its possession or pay their full replacement value (id. ¶31). Alexander claims that 3,195 containers are still outstanding (id. ¶32). Robins admits that 1,940 containers are ...