United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GERALDINE SOAT BROWN, Magistrate Judge.
Before the court is Plaintiff's Motion for Summary Judgment for breach of contract (Pl.'s Mot.) [Dkt 33.] For the reasons set forth below, Plaintiff's motion is granted.
There is jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 (a)(2). Plaintiff Sunshine Import & Export Corporation ("Sunshine") is a Canadian corporation doing business in Asia, Canada, and the United States. (Pl.'s LR Stmt. ¶ 4.) Defendant Luxury Car Concierge, Inc. ("Luxury") was an Illinois corporation that was doing business in Chicago at the time the events in this case occurred. (Def.'s LR Resp. ¶ 5.) The parties agree that complete diversity exists and the amount in controversy exceeds $75, 000. (Id. ¶ 2.) The parties also agree that venue is proper under 28 U.S.C. § 1391, because a substantial part of the events or omissions giving rise to the claims asserted occurred in the Northern District of Illinois, and because Luxury was an Illinois corporation with its principal place of business in Chicago at the time of the events. (Id. ¶ 3.)
Sunshine previously filed a breach of contract suit against Luxury in the Circuit Court of Cook County, Illinois, which was dismissed for want of prosecution in October 2013. (Pl.'s Resp. Add'l Facts ¶ 25.) Sunshine filed this lawsuit in December 2013 claiming breach of contract and seeking damages, specific performance, and other relief the court deemed appropriate. (Compl. at 3.) [Dkt. 1.] Luxury filed an answer denying Sunshine's allegations and asserting seven affirmative defenses including: criminal acts of a non-party; failure to join an indispensable party; assumption of risk; failure to mitigate damages; failure to plead; and void contract. (Def.'s Ans. at 5-7.) [Dkt 12.] The parties consented to the jurisdiction of a magistrate judge. [Dkt 23.]
Sunshine moved for summary judgment and filed a memorandum of law in support of its motion. (Pl.'s Mem.) [Dkt 34.] Luxury filed a response in opposition to Sunshine's motion (Def.'s Resp.) [dkt 38], and Sunshine replied (Pl.'s Reply) [dkt 43].
The facts largely are undisputed, except as noted. Sunshine procures automobiles in North America for resale in Chinese markets. (Pl.'s Resp. Add'l Facts ¶ 1.) Hao "Kelly" Kang ("Kang") is the proprietor of Sunshine. (Id. ¶ 2.) At the time of the events, Luxury procured and facilitated the sale of luxury automobiles in the United States to North American resellers such as Sunshine, who in turn sold the vehicles to resellers abroad. (Id. ¶ 8.) Erol Dimmitt ("Dimmitt") was the proprietor of Luxury. (Id. ¶ 10.) Luxury and Sunshine started doing business together shortly after Dimmitt and Kang met in 2008 or 2009. (Id. ¶ 11.) Sunshine purchased approximately 50-60 cars per year from Luxury during the course of their business relationship. (Id. ¶¶ 12-13.)
On or about September 24, 2012, Luxury entered into a written contract to sell Sunshine a Mercedes GL550 automobile. (Def.'s LR Resp. ¶ 6; Pl.'s Mot., Ex. A(1).) The contract stated the sale price of $101, 530, broken down into a $1, 000 non-refundable deposit and a balance of $100, 530 to be paid within five business days of invoicing. (Def.'s LR Resp. ¶ 7.)
Sunshine paid Luxury the $1, 000 deposit for the Mercedes. (Id. ¶ 9.) Sunshine also wired $157, 630 to Luxury which included payment for the balance due on the Mercedes and payment for a Toyota Sienna that is not at issue. (Id. ¶ 10.) Luxury received the payment from Sunshine on September 26, 2012. (Id. ¶ 11.) The Mercedes was never delivered to Sunshine. (Def.'s LR Resp. ¶ 12.) Luxury did not refund the money Sunshine paid for the Mercedes. (Id. ¶ 13.)
Luxury asked a Tennessee-based entity known as B2K Consulting, LLC ("B2K") to procure the Mercedes, along with two other vehicles for other clients, and wired B2K $330, 000 for the vehicles. (Pl.'s Resp. Add'l Facts ¶ 15.) Luxury asserts that it is common practice for vehicles sold by companies like Luxury to entities like Sunshine to be procured from unaffiliated third-parties, who, in turn, rely on their own third-party-purchasers. (Id. ¶ 9.) Sunshine disagrees that the practice is common in the industry. (Id. ) Luxury also states that it previously dealt with B2K and never had problems, and therefore had no reason to anticipate any problems. (Id. at ¶ 16.) Sunshine takes issue with Luxury's allegation that these previous dealings meant it had no reason to anticipate problems, calling it a legal conclusion. (Id. ) Luxury states B2K entrusted the $330, 000 to another third-party with instructions to obtain the specific vehicles, and the third-party absconded with the funds. (Id. ¶¶ 17-18.) Sunshine takes issue with this statement only insofar as the source affidavit constitutes inadmissible hearsay. (Id. ) Luxury advised Sunshine of the incident and Sunshine does not dispute what happened to the funds. (Id. ¶¶ 19-20.) B2K filed a bankruptcy petition in the Middle District of Tennessee, and Sunshine did not file a claim in that proceeding. (Id. ¶¶ 23-24.) The parties do not state whether Luxury filed a claim or was listed as a creditor.
Prior to filing suit, Sunshine told Luxury that it had breached the contract and demanded that Luxury return the money Sunshine paid for the Mercedes. (Def.'s LR Resp. ¶ 14.) Luxury states that it explained to Sunshine it did not have the resources to refund the money Sunshine paid, but also states it proposed several ways to pay back the amount it lost over a short period of time, which Luxury asserts Sunshine rejected. (Pl.'s Resp. Add'l Facts ¶¶ 21-22.) Sunshine accepts that Luxury made those statements but ...