Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Imperial Crane Services, Inc. v. Cloverdale Equipment Co.

United States District Court, Seventh Circuit

November 4, 2013

IMPERIAL CRANE SERVICES, INC., Plaintiff,
v.
CLOVERDALE EQUIPMENT COMPANY, Defendant.

OPINION AND ORDER

JOAN H. LEFKOW, District Judge.

Plaintiff Imperial Crane Services, Inc. ("Imperial") filed a one-count complaint against defendant Cloverdale Equipment Company ("Cloverdale") alleging breach of warranty in connection with two cranes Cloverdale sold to Imperial. Cloverdale has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1391, or, in the alternative, to transfer this action to the United States District Court for the Eastern District of Michigan pursuant to 28 U.S.C. § 1404. For the following reasons, Cloverdale's motion is denied.[1]

BACKGROUND[2]

Imperial is an Illinois corporation that supplies cranes and other equipment and machinery, together with operators for the cranes, equipment and machinery. Cloverdale is a Michigan corporation that sells and rents cranes and related equipment and machinery.

In March 2013, Imperial sought cranes to rent or purchase that it would then rent out to a customer for a construction project in Cartagena, Colombia. Imperial learned that Cloverdale had two 15-ton capacity carry deck cranes that would do the job. Imperial and Cloverdale thus entered into negotiations for the purchase of the two cranes. These negotiations took place entirely over the phone, and were between Imperial's vice president, Bill Tierney, and Cloverdale's president, Todd Moilanen, from their respective offices in Illinois and Michigan. The cranes themselves were located in Texas during the negotiations.[3]

Over the course of the negotiations, Moilanen confirmed for Tierney that the two cranes Imperial sought to purchase were ready to be shipped from Texas to Colombia and immediately put to use. The parties settled on a price of $107, 500 per crane ($215, 000 total), which Imperial was to pay immediately via wire transfer from its bank account in Cook County, Illinois, to Cloverdale's bank account in Ohio.[4] One of the terms of the parties' agreement, which was oral and never memorialized in writing, was that Imperial would take possession of the cranes immediately in Port Houston, Texas, and that Cloverdale would send Imperial the Manufacturer's Statements of Origin for the cranes as soon as possible.

Based on Moilanen's representations regarding the readiness of the cranes for the Colombia project, Imperial accepted and paid for the cranes. After doing so, but before the cranes were operated or used in the project, numerous defects in the cranes were found requiring immediate repair before the cranes could be used. The defects included engine leaks, swing gearbox operation issues, damaged swing bearing and boom wear pads, insecure counterweights, telescope cylinder leaks, boom lift cylinder leaks, steer cylinder leaks, and hydraulic tank leaks. The estimated cost of repairing the cranes was at least $31, 109.72.

When it learned of the repairs necessary to render the cranes usable, Imperial notified Cloverdale that it was revoking its acceptance of the cranes and demanded a full refund of $215, 000 in exchange for return of the cranes. Cloverdale refused to refund to Imperial or take possession of the cranes and has also refused to make or pay for the repairs on the cranes. Imperial is currently incurring costs related to the transportation and storage of the cranes.

Cloverdale has moved to dismiss the complaint for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1391. In the alternative, it has requested that the court transfer the action to the Eastern District of Michigan, where it has a declaratory action pending regarding the same set of facts.[5]

ANALYSIS

I. Federal Rule of Civil Procedure 12(b)(3) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(3) allows a party to move to dismiss an action that is filed in an improper venue. See Fed.R.Civ.P. 12(b)(3); Caballero v. Taylor, No. 12 C 8645, 2013 WL 2898254, at *1 (N.D. Ill. June 13, 2013). When a defendant challenges venue, the plaintiff bears the burden of establishing venue is proper. Nat'l Tech., Inc. v. Repcentric Solutions, No. 13 C 1819, 2013 WL 3755052, at *5 (N.D. Ill. July 16, 2013) (citing Int'l Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 222 (7th Cir. 1981)). If venue is improper, the court can either dismiss the suit or transfer it to a district in which the plaintiff could have filed it initially. See 28 U.S.C. § 1406(a).

The proper bases for venue are found in 28 U.S.C. § 1391(b). Under that statute venue is proper in

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.