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John W. Jentz; Justin Becker and Amber Becker; and Robert v. Conagra Foods

April 16, 2012


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



Pursuant to Federal Rules of Civil Procedure 12(c) and 56, Defendant, West Side Salvage, Inc., moves for judgment on the pleadings and for summary judgment on third-party claims and cross-claims asserted by ConAgra Foods, Inc., for common law indemnity and breach of contract (Doc. 195).

West Side submits that ConAgra is trying to pass the buck for its neglect of its facilities and for its policies of placing profits ahead of safety. West Side contends that ConAgra attempts to deflect blame by filing a third-party complaint and cross-claim against West Side, a small contractor untimely retained by ConAgra to address the deteriorating bin contents.

Grounds for judgment on the pleadings or summary judgment asserted by West Side are threefold: (1) ConAgra cannot maintain its claims for "common law indemnification" because Illinois law has long abolished such causes of action absent a specific "pre-tort relationship" that does not exist in this case; (2) ConAgra's claim for breach of contract fails as a matter of law because no contract existed at the time of the accident; and (3) even if West Side had a contract with ConAgra, summary judgment is appropriate on those allegations regarding indemnity because such claims are not recognized under Illinois law.

On March 29, 2012, the Court denied on the record and in detail ConAgra's motion for summary judgment as to Third-Party Defendant West Side Salvage, Inc.'s, Waiver of the Protection under Kotecki v. Cyclops (Doc. 186). The Court found that "there is a genuine issue of material fact as to whether the April contract was intended by the parties to be a fully integrated final expression of their agreement and govern their relationship." Doc. 255, Transcript, 19:6-12; see also Doc. 261. Because the Court has already determined that the validity of the April contract is a jury question, the Court will not address express contractual indemnification -- or any alleged contractual breach - herein.

ConAgra responds that, rather than attempting to pass the buck to a small contractor, it reasonably relied on West Side's being the expert in bin cleaning operations and salvage that it holds itself out to be. ConAgra asserts that an extensive factual record evidences a pre-tort relationship between ConAgra and West Side that developed over the course of several weeks, including numerous communications and visits, during which ConAgra negotiated and contracted with West Side to address the hot bin. Secondly, ConAgra contends that West Side entered into a contract with ConAgra and controlled the scope of the work on the bin for a full week before the explosion. Thirdly, according to ConAgra, a contract between the parties was executed on West Side's behalf by West Side's Director of Operations and, under Illinois law, such contracts are valid. Lastly, ConAgra asserts that West Side attempts to conflate ConAgra's separate and distinct claims for common law indemnity and breach of contract. ConAgra submits that its breach of contract claim is predicated upon multiple breaches by West Side -- including requirements that West Side maintain sufficient insurance, require its sub-contractors to maintain sufficient insurance, assume responsibility for all actions of the contractor's and subcontractor's employees, remedy all damages and loss caused to the property by the contractor and/or the sub-contractor -- and not solely upon indemnity.

B.Standard of Review

Rule 12(c) of the Federal Rules of Civil Procedure allows a party to move for judgment on the pleadings after both the complaint and answer have been filed. A court reviewing motions brought pursuant to Rule 12(c) employs the same standard that it applies when reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6). Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009), citing Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). A 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811 (7th Cir. 2009). Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).

In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), the Seventh Circuit emphasized that even though Bell Atlantic"retooled federal pleading standards" and "retired the oft-quoted Conley formulation," notice pleading is still all that is required. "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id. Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008)("surviving a Rule 12(b)(6) motion requires more than labels and conclusions"; the allegations "must be enough to raise a right to relief above the speculative level").

Summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008).

When the non-moving party bears the burden of proof, though, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Regetv. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). To survive summary judgment, the non-movant must provide admissible evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

In deciding a summary judgment motion, the court may not evaluate the weight of the evidence, judge the credibility of witnesses or determine the truth of the matter. The court's only role is to determine whether there is a genuine issue of triable fact. National Athletic, 528 F.3d at 512, ...

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