United States District Court, N.D. Illinois, Eastern Division
CA ACQUISITION, LLC d/b/a CHICAGO AEROSOL, Plaintiff/Counter-Defendant,
KEY BRANDS INTERNATIONAL, LTD., Defendant/Counter-Plaintiff.
MEMORANDUM OPINION AND ORDER
FEINERMAN UNITED STATES DISTRICT JUDGE.
Acquisition, LLC d/b/a Chicago Aerosol sued Key Brands
International, Ltd. for breach of contract and unjust
enrichment, alleging that Key Brands did not pay for goods
shipped in connection with eight purchase orders. Doc. 16-1.
Key Brands counterclaimed, alleging that Chicago Aerosol sent
defective goods in connection with five earlier purchase
orders. Doc. 19 at 11-20. The court dismissed some of Key
Brands's counterclaims, but allowed ones for breach of
contract and warranty to proceed. Doc. 31 (Zagel, J.).
Aerosol now moves for partial summary judgment on an
affirmative defense asserted by Key Brands to its claims.
Doc. 63. In response, Key Brands moved under Civil Rule 56(d)
for time to complete discovery on whether Chicago
Aerosol's goods were defective. Doc. 75. Chicago
Aerosol's motion is granted, and Key Brands's motion
is denied as moot.
facts are set forth as favorably to Key Brands as the record
and Local Rule 56.1 permit. See Canen v. Chapman,
847 F.3d 407, 412 (7th Cir. 2017). On summary judgment, the
court must assume the truth of those facts, but does not
vouch for them. See Arroyo v. Volvo Grp. N. Am.,
LLC, 805 F.3d 278, 281 (7th Cir. 2015).
Aerosol manufactures aerosol spray can products, and Key
Brands sells haircare products, including aerosol hairsprays.
Doc. 84 at 1-2 ¶¶ 1-2. Chicago Aerosol became Key
Brands' primary hairspray supplier in January 2012.
Id. at 6 ¶ 3.
June 2013 and March 2014, Key Brands issued five purchase
orders to Chicago Aerosol, which Chicago Aerosol filled.
Id. at 8 ¶¶ 10-11. Key Brands paid for
those orders, but now asserts that the goods it accepted were
defective. Id. at 5 ¶ 9. Between May 2014 and
November 2014, Key Brands issued eight more purchase orders,
which Chicago Aerosol again filled. Id. at 9
¶¶ 20-21. Key Brands did not pay for any of those
eight orders, which amounted to $557, 436.22. Id. at
4 ¶¶ 6-7.
Aerosol's suit seeks payment for the eight later purchase
orders, while Key Brands's counterclaims seek
compensation for the allegedly defective goods shipped under
the five earlier purchase orders. Id. at 5 ¶ 9.
While briefing the present motions, Key Brands asserted that
goods shipped under the eight later purchase orders were
defective as well. Ibid.; Id. at 9-11 ¶¶
Aerosol asks the court to hold as a matter of law that: (1)
the thirteen purchase orders were each separate contracts,
not part of one overarching contract; and (2) Key Brands
therefore may not rely on Chicago Aerosol's alleged
shipment of defective goods under the five earlier purchase
orders to defend against Chicago Aerosol's claims for
nonpayment for the goods shipped under the eight later
purchase orders. Doc. 111 at 1. In other words, Chicago
Aerosol seeks summary judgment only as to a set-off
affirmative defense that Key Brands has asserted, based on
the allegedly defective goods that Chicago Aerosol sent under
the five earlier purchase orders, to Chicago Aerosol's
claims on the eight later purchase orders.
Aerosol's motion initially appeared to seek something
more-entry of judgment on its claims. Doc. 63 at 2; Doc. 64
at 2. But the briefs cast matters in a different light, so at
the motion hearing, the court inquired of Chicago Aerosol:
THE COURT: So, what do you think your summary judgment motion
is about? Is it limited to the issue of whether defective
product shipped in conjunction with the five earlier purchase
orders can be used to set off the amounts owed under the
eight subsequent purchase orders?
THE COURT: I know it definitely includes that, but are you
also seeking summary judgment outright on the eight purchase