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Plymouth Tube Co. v. Pilepro Steel, LP

United States District Court, N.D. Illinois, Eastern Division

October 19, 2017

PLYMOUTH TUBE COMPANY, Plaintiff,
v.
PILEPRO STEEL, LP, Defendant.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo Chief Judge United States District Court.

         Plymouth Tube Company ("Plaintiff) brings this breach of contract action against Pilepro Steel, LP ("Defendant"), alleging that Defendant failed to pay for steel connectors that Plaintiff fabricated for Defendant. (R. 18, Am. Compl.) Before the Court is Plaintiffs unopposed motion for summary judgment. (R. 41, Mot.) For the reasons stated below, Plaintiffs motion is granted. The Court will enter a judgment of $210, 144.15 in favor of Plaintiff and proceed to consider the post-judgment issues of interest, attorney's fees, and costs to which Plaintiff is entitled.

         RELEVANT FACTS

         The following facts are undisputed. They are taken entirely from Plaintiffs Local Rule 56.1 statement of material facts, (R. 43, Rule 56.1 Statement of Material Facts [hereinafter "SOMF"]), and supporting evidence because Defendant has not opposed or otherwise responded to Plaintiffs motion for summary judgment or statement of material facts. Defendant is therefore deemed to have admitted Plaintiffs version of the facts. See N.D. ILL. L.R. 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."); Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012) ("The obligation set forth in Local Rule 56.1 is not a mere formality. Rather it follows from the obligation imposed by Fed.R.Civ.P. 56(e) on the party opposing summary judgment to identify specific facts that establish a genuine issue for trial." (citation, internal alteration, and quotation marks omitted)); Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012) ("Because [the non-moving party] failed to file a response to [the moving party]'s Local Rule 56.1 statement of facts in the district court, we credit [the moving party]'s uncontroverted version of the facts to the extent that it is supported by evidence in the record.").

         Plaintiff makes steel products, including steel connectors. (R. 43, SOMF ¶ 2.) Defendant gave Plaintiff specifications for steel connectors it wanted Plaintiff to fabricate from raw steel materials. (Id. ¶¶ 17, 19.) Plaintiff agreed to fabricate connectors to Defendant's specifications as set forth in a series of purchase orders that Defendant sent to Plaintiff. (Id. ¶¶ 18, 20; R. 41 -1, Phillips Aff.¶ 10, Ex. A.)

         After receiving Defendant's purchase orders, Plaintiff sent Defendant purchase order "acknowledgments" in order to confirm acceptance and indicate the terms of acceptance of each purchase order. (R. 43, SOMF ¶ 21; R. 41-1, Phillips Aff. ¶ 11, Ex. B.) One of the "terms and conditions of acceptance" of each order acknowledgment provides that:

Irrespective of any terms to the contrary in the customer order, this sales order acknowledgment is deemed to supersede any customer terms and conditions and incorporate by reference, as if fully set forth herein, the Plymouth Tube Company order acknowledgement/invoice terms and conditions as stated and available on our web site www.plymouth.com[.]

(E.g., R. 41-1, Phillips Aff. Ex. B at 2.) Another term and condition of acceptance provides that "buyer's authorization to proceed to production shall be deemed to be buyer's consent to the terms of this sales order acknowledgement [, ]" (E.g., id.) An additional term and condition of acceptance provides that the terms and conditions from Plaintiffs website governing the parties' agreement were those terms and conditions "reflected on [Plaintiffs] web site as of the date of the order acknowledgment. (E.g., id.)

         Plaintiff submitted with its motion the terms and conditions reflected on its website from June 10, 2009, through June 30, 2014, and the terms and conditions reflected on the website from July 1, 2014, through present, which vary slightly from the terms and conditions previously in effect. (See Id. Exs. D, E.) The order acknowledgements for the steel connectors at issue in this case are not dated, nor has Plaintiff specified the date of those order acknowledgments. (See Id. Ex. B.) Both the June 10, 2009, through June 30, 2014, website terms and conditions and the July 1, 2014, through present website terms and conditions provide for recovery of interest, attorney's fees, and costs. (See Id. Exs. D, E.) With respect to recovery of interest, the website terms and conditions provide that any amounts not paid by the due date as indicated on the face of Plaintiff s invoices are subject to an interest charge of one and one half percent per month until paid, which is equivalent to an interest charge of eighteen percent per year. (Id. at Ex. D ¶ 3, Ex. E ¶ 3.) With respect to attorney's fees and costs, the website terms and conditions provide that: "If [Defendant] shall fail to make payments in accordance with the terms as set forth in this acknowledgment, [Plaintiff] shall be entitled to reimbursement for all collection and related reasonable attorney fees and legal costs from [Defendant] in order to secure the payments due." (Id. at Ex. D ¶ 12(c), Ex. E ¶ 12(c).) The terms and conditions also provide that Illinois law governs the parties' agreement. (Id. at Ex. D ¶ 15, Ex. E ¶ 15.) Plaintiff states that these terms and conditions from its website were part of the parties' agreement. (R. 43, SOMF ¶¶ 59-60; R. 41-1, Phillips Aff.¶¶ 33-34.)

         Upon fabrication and shipment of each order, Plaintiff issued invoices to Defendant consistent with the parties' agreement. (R. 43, SOMF ¶ 22; R. 41-1, Phillips Aff. Ex. C.) The invoices included freight charges to Defendant pursuant to the parties' agreement and course of dealing. (R. 43, SOMF ¶ 23; R. 41-1, Phillips Aff ¶ 13.) The particular unpaid invoices that form the basis of the present dispute (the "Invoices") were issued to Defendant as summarized in this chart:

Invoice Number

Purchase Order Number

Invoice Date [1]

Date Order Shipped

Invoice Amount

141316

648

July 30, 2014

July 29, 2014

$15, 156.15

143253

637

September 19, 2014

September 19, 2014

$34, 408.30

143430

637

September 24, 2014

September 23, 2014

$27, 720.90

141339

651

July 30, 2014

July 30, 2014

$21, 377.82

144649

644 Rev A

October 28, 2014

October 27, 2014

$20, 114.17

144650

645 Rev A

October 28, 2014

October 27, 2014

$19, 853.60

144651

646 Rev A

October 28, 2014

October 27, 2014

$20, 351.86

144784

636 Rev C

October 31, 2014

October 30, 2014

$28, 805.88

144785

643 Rev A

October 31, 2014

October 30, 2014

$22, 355.47

Total:

$210, 144.15

         (See R. 41-1, Phillips Aff. Exs. A, C.) Each Invoice contains the following language: "This Invoice is subject to Plymouth Tube Co. Invoice Terms and Conditions as stated and available on our web-site WWW.PLYMOUTH.COM." (E.g., R. 41-1, Phillips Aff. Ex. C at 1.)

         The parties agreed that Invoices were to be paid within thirty days upon shipment of the steel connectors. (See R. 41-1, Phillips Aff. ¶ 14, Ex. A (stating that payment was required within "net 30" days); R. 43, SOMF ¶¶ 18, 24, 29.) Plaintiff shipped the steel connectors referenced in the Invoices, and Defendant received and accepted those steel connectors. (R. 41-1, Phillips Aff. ¶¶ 21-22, 30-31; R. 43, SOMF ¶¶ 36-38, 43-44, 51, 56.) Plaintiff fabricated and shipped them in the quantities described in the Invoices, and in compliance with the purchase orders and Defendant's specifications. (R. 41-1, Phillips Aff. ¶¶ 20-21, 28-29, 35; R. 43, SOMF ¶¶ 35-36, 42-43, 49-50, 54.) Defendant never disputed Plaintiffs performance under the purchase orders, nor did Defendant ever dispute the amounts invoiced. (R. 43, SOMF ¶¶ 31-32, 39, 45; R. 41-1, Phillips Aff. ¶¶ 23-24, 38-39, 41.) Defendant never returned or rejected any of the steel connectors; rather, Defendant continues to retain the steel connectors referenced in the Invoices. (R. 43, SOMF ¶¶ 37-38; R. 41-1, Phillips Aff. ¶¶ 30-31, 40.)

         Defendant did not pay the Invoices, (R. 43, SOMF ¶¶ 40, 55, 57; R 41-1, Phillips Aff. ¶¶ 32, 36, 44), even though it paid all other invoices Plaintiff issued, which were subject to the same terms and conditions as the Invoices in question. (R. 43, SOMF ¶ 54; R. 41-1, Phillips Aff. ¶ 43.)

         PROCEDURAL ...


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