Harris Technical Sales Inc vs. Eagle Test Systems, Inc., No. 2:2006cv02471 - Document 160 (D. Ariz. 2008)
Court Description: ORDER granting 81 Defendant Eagle Test Systems, Inc.'s Motion for Summary Judgment. IT IS FURTHER ORDERED denying Plaintiff Harris Technical Sales, Inc.'s 69 Motion for Extension of Time; denying 72 Motion to Continue; and denying [74 ] Motion for Extension of Time; denying 78 Motion to Compel; denying 90 Motion to Seal Order; and denying 92 Motion to Preclude. The Clerk of the Court is directed to enter JUDGMENT in favor of defendant and terminate the case. Signed by Judge Robert C Broomfield on 9/12/08.(LSP)
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Harris Technical Sales Inc vs. Eagle Test Systems, Inc. 1 Doc. 160 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 Harris Technical Sales, Inc., ) an Arizona corporation, ) ) Plaintiff, ) ) vs. ) ) Eagle Test Systems, Inc., ) a Delaware corporation, ) ) Defendant. ) ) No. CIV 06-02471-PHX-RCB O R D E R 18 19 Currently pending before the court are three motions for 20 extensions of time (docs. 69, 72 and 74); a motion to compel 21 production of documents by plaintiff, Harris Technical Sales, Inc. 22 (“Harris”) (doc. 78); a motion for summary judgment by defendant 23 Eagle Test Systems, Inc. (“Eagle”) (doc. 81); a motion for a 24 sealing order by Harris (doc. 90); and Harris’ motion to preclude 25 Eagle’s expert (doc. 92). 26 court denies Eagle’s request in this regard. 27 28 Finding oral argument unnecessary, the Background In Harris Technical Sales, Inc. v. Eagle Test Systems, Inc., Dockets.Justia.com 1 2008 WL 343260 (D.Ariz. 2008), the court set forth the general 2 background of this contract dispute, familiarity with which is 3 assumed. 4 are repeated below, although not verbatim. 5 to reflect the current state of the record. 6 more fully developed herein as necessary to resolve a given issue. 7 For ease of reference, however, those undisputed facts Cites have been updated Other facts will be On November 12, 1998, Harris and Eagle entered into a 8 “Manufacturers Representative Agreement” (“the Agreement”). 9 Larsen Decl’n (doc. 85), exh. 15 thereto at ET000001. See Under that 10 Agreement, Harris was “appoint[ed]” to be Eagle's “Exclusive 11 representative in the geographic area described as Arizona and New 12 Mexico[.]”1 13 dependent upon several factors, such as where the “order[ ][was] 14 placed” and the nature of the items ordered. 15 at ET000003, ¶ 4(a). “For orders placed ... directly ... from 16 [Harris’] region,” Harris was to receive a commission of “10% of 17 the net system base price as ordered.” 18 “purchased from [Eagle] by [a] customer in another region and 19 directly shipped to the [Harris'] region,” Harris would receive a 20 lesser commission of essentially three percent. 21 original). 22 for “system[s ] ... purchased from the region and shipped to 23 another region[.]” 24 Id. The compensation structure thereunder was Id. Id., exh. 15 thereto If a “system” was Id. (emphasis in Harris would receive that same three percent commission Id. Payment of commissions to Harris was to be “provide[d] . . . 25 within 30 Days of receipt of final payment by [Eagle].” 26 15 thereto at ET000003, ¶ 4(e). Id., exh. “[E]ither party” could terminate 27 1 28 For ease of reference, hereinafter the court shall refer to this area as Harris’ “sales territory.” -2- 1 the Agreement “on ninety (90) days written notice” without cause. 2 Id., exh. 15 thereto at ET000004, ¶ 7(a). 3 Agreement further states: “In the event of a breach of any material 4 provision of this agreement it may be terminated upon written 5 notice by either party. The notice must specify the breach upon 6 which termination is based.” 7 7(b). 8 longer ha[d] the right to act as” Eagle's representative, but it 9 could “continue selling any items in inventory at the time of As to termination, the Id., exh. 15 thereto at ET000004, ¶ “Upon termination[,]” the Agreement was explicit: Harris “no 10 termination [.]” Id., exh. 15 thereto at ET000004, ¶ 7(c). 11 Agreement concluded with an integration clause which will be more 12 fully discussed below in addressing the alleged subsequent oral 13 modification. 14 The By letter dated November 29, 2000, plaintiff's president, Mike 15 Harris, advised Eagle's President and Chief Executive Officer, Len 16 Foxman, that “By failing to pay [Harris] for the past 9 months, you 17 have given me no choice but to terminate the [Agreement] effective 18 immediately.”2 19 ET000010. 20 check from [Eagle] since April 2000, and have yet to receive any 21 commissions from bookings in the year 2000. 22 there are other commissions outstanding from 1999.” 23 added that he “fe[lt]” that he was “entitled to at least 3% of all 24 business generated by [his] efforts at ON Semiconductor . . . , and 25 per the contract.” 26 Foxman Decl’n (doc. 83), exh. A thereto at Mr. Harris explained: “I have not received a commission In addition, I believe Id. Harris Id. In that notification letter, Mr. Harris specifically 27 28 2 Hereinafter the court will refer to this as the notification letter. -3- 1 “demand[ed] a full accounting of the commissions due and for 2 [Eagle] to issue a commission check immediately.” 3 also indicated that he was “aware” of “exist[ing] purchase orders 4 which [Eagle] ha[d] yet to deliver against and” that he “expect[ed] 5 those moneys to be paid out in accordance to the terms in the 6 [Agreement].” 7 Harris then explicitly informed Eagle that plaintiff was “no longer 8 represent[ing][Eagle].” 9 Id. Id. Mr. Harris Evidently in light of the foregoing, Mr. Id. Eventually, Harris brought the present action against Eagle 10 for breach of contract; unjust enrichment and “demand for 11 accounting[.]” Co. (doc. 1) at 5:23. 12 defendant’s motion for partial summary adjudication on the issue of 13 so-called perpetual commissions, finding that Harris was not 14 “allow[ed] . . . to passively collect commissions for sales after 15 it terminated the Agreement in 2000 until [defendant] ceases doing 16 business.” 17 marks and citation omitted). 18 on Harris’ remaining claims, focusing heavily on the statute of 19 limitations issue. 20 the court will first address Eagle’s summary judgment motion. 21 any or all of Harris’ claims survive Eagle’s statute of limitations 22 defense, the court will address the merits of such claims; and, if 23 necessary, the remaining motions. 24 25 In Harris, this court granted Harris, 2008 WL 343260, at *18 (internal quotation Eagle is moving for summary judgment Because that issue is potentially dispositive, If Discussion I. Eagle’s Summary Judgment Motion 26 The court assumes familiarity with its prior decision 27 in Harris, containing a fairly comprehensive overview of summary 28 judgment standards, and sees no need to repeat that discussion -4- 1 herein. 2 court will highlight particularly relevant standards herein as 3 necessary. 4 highlight its prior evidentiary rulings which bear directly on this 5 summary judgment motion. 6 See Harris, 2008 WL 343260, at *11 - *12. Instead, the The court will likewise, at the appropriate juncture, Eagle contends that all three causes of action are time 7 barred. 8 this dispute. 9 000006, ¶ 11 (“Should any conflicts arise concerning this agreement 10 which cannot be resolved by mutual agreement, action may be brought 11 to resolve the conflict according to the law of the State of 12 Illinois, U.S.A.”) Therefore, the court must look to Illinois law 13 to resolve the statute of limitations issues herein. 14 A. 15 16 The Agreement expressly provides that Illinois law governs Larsen Decl’n (doc. 85), exh. 15 thereto at ET Breach of Contract 1. Statute of Limitations Under Illinois law, the statute of limitations is different 17 depending upon whether a contract is written or oral. 18 contracts,” an action must be “commenced within 10 years next after 19 the cause of action accrued[,]” 735 ILCS 5/13-206; whereas “actions 20 on unwritten contracts[]” must “be commenced within 5 years next 21 after the cause of action accrued.” 22 constitutes a “written contract” for statute of limitations 23 purposes under Illinois law is “strictly interpreted.” 24 Palisades Collection LLC, 2008 WL 2512679, at *2 (N.D.Ill. 2008) 25 (citing, inter alia, Held v. Held, 137 F.3d 998, 1001 (7th Cir. 26 1998))). 27 statute of limitations if all essential terms are reduced to 28 writing and can be ascertained from the instrument itself.’” Held, For “written 735 ILCS 5/13-205. What Ramirez v. “‘A contract is considered written for purposes of the -5- 1 137 F.3d at 1001 (quoting Toth v. Mansell, 207 Ill.App.3d 665, 669, 2 (1990)). 3 make the contract complete, then the contract must be treated as 4 oral for purposes of the statute of limitations.’” Id. (quoting 5 Toth, 207 Ill.App.3d at 669); see also Ramirez, 2008 WL 2512679, at 6 *2 (citing Armstrong v. Guigler, 174 Ill.2d 281, 294 (1996)) (“If 7 the existence of the contract or an essential term of the contract 8 must be proven by parol evidence, the contract is deemed to be an 9 oral contract; the five-year statute of limitations applies.”) 10 On the other hand, “‘[i]f parol evidence is necessary to There is no dispute as to the existence of a contract between 11 Harris and Eagle. 12 Agreement is written or unwritten for statute of limitations 13 purposes. 14 subsequently orally modified to expand the sales territory to 15 include Asia, Eagle maintains that the Agreement is oral, hence the 16 five year statute of limitations applies. 17 it believes that “parole evidence is necessary to make the contract 18 complete,” Eagle argues that the Agreement is subject to Illinois’ 19 five year statute of limitations for oral contracts. 20 opposite view, Harris maintains that because the Agreement 21 “include[s] all necessary contractual terms[,]” it is a written 22 contract to which the ten year statute of limitations applies. 23 The dispute centers around whether that Based upon Harris’ contention that the Agreement was In other words, because Taking the The Agreement has an integration clause prohibiting oral 24 modification. 25 “[a]ny amendment [thereto] must be authorized in writing by 26 qualified officers of both parties.” 27 15 thereto at ET000006, ¶ 11. 28 law this provision has not been waived because Harris has not come More specifically, the Agreement required that Larsen Decl’n (doc. 85), exh. Eagle asserts that as a matter of -6- 1 forth with clear and convincing evidence of a subsequent oral 2 modification. 3 Agreeing that the standard of proof is clear and convincing 4 evidence, Harris contends that it has met that burden. 5 (doc. 139) at 7:9-16; and at 14:25-26. 6 voluminous record, Harris relies upon only three items to establish 7 a subsequent oral modification: 8 instructions given by Defendant, 2) the statement of Defendant’s 9 former Managing Director for Asia, William Wu and 3) the affidavit See Resp. Despite a relatively “1) [its] Asian travel 10 of Douglas C. Domke regarding the [‘]worldwide’ purchases by ON 11 Semiconductor.” 12 succinctly retorts that none of the foregoing is admissible; and 13 even if it were, it does not “pertain[] to” this “purported 14 modification.” 15 well-taken. 16 Id. at 15:1-3 (citing exh. C to PSOF). Reply (doc. 164) at 7:16. Eagle Eagle’s position is “A contract modification is a change in one or more respects 17 which introduces new elements into the details of the contract and 18 cancels others, but leaves the general purpose and effect 19 undisturbed.” 20 Mortgage Services, Inc., 152 F.Supp.2d 1015, 1022 (N.D.Ill. 2001) 21 (citation omitted). 22 permissible even if the contract contains a provision banning oral 23 modification.” 24 718 (N.D.Ill. 2000) (citations omitted). 25 modification is seen as a waiver of the writing requirement[,]” 26 Harris “has the burden of showing the oral modification by clear 27 and convincing evidence.” 28 2004 WL 3406088, at *4 (M.D.Pa. 2004) (citing, inter alia, Czapla, Household Financial Services, Inc. v. Coastal “In Illinois, oral contract modifications are Czapla v. Commerz Futures, LLC, 114 F.Supp.2d 715, “[B]ecause an oral Shaull Equipment & Supply Co. v. Rand, -7- 1 114 F.Supp.2d at 718; and Roboserve, Inc. v. Kato Kagaku Co., 78 2 F.3d 266, 277 (7th Cir. 1996)). 3 evidence than a preponderance but less than that required for proof 4 beyond a reasonable doubt.” 5 *4 (citing, inter alia, In re. D.T., 212 Ill.2d 347 (2004)) 6 (footnote omitted)) (emphasis added). 7 has the burden of proof at trial on the oral modification issue, it 8 is appropriate to apply this standard at the summary judgment 9 stage. That standard “requires more Shaull Equipment, 2004 WL 3406088, at Given that plaintiff Harris See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 10 (1986) (“[T]he inquiry involved in a ruling on a motion for summary 11 judgment . . . necessarily implicates the substantive evidentiary 12 standard of proof that would apply at the trial on the merits.”) 13 The court has previously considered the sufficiency, albeit in 14 a slightly different context, of the three sources of proof upon 15 which Harris relies to show subsequent oral modification, and 16 concomitant waiver of the integration clause. 17 343260, at *5-*8. 18 somewhat different than they were in Harris. 19 necessary, the court will revisit the sufficiency of plaintiff’s 20 evidence in this regard. 21 See Harris, 2008 WL At this juncture the evidentiary concerns are Thus to the extent First, Harris is relying upon “his Asian travel instructions 22 given by Defendant[.]” Resp. (doc. 139) at 15:1. 23 its SOF plaintiff states that “[i]n January, 1999, Eagle’s 24 President, Len Foxman, sent Harris’ President, Mike Harris, to 25 Singapore to meet with Eagle’s Managing Director for Asia, William 26 Wu.” 27 Overlooking for the moment the deficiencies in the cited exhibits, 28 this statement does not even come close to showing by “clear and In particular, in PSOF (doc. 140), at 2, ¶5 (citing exhs. A and B thereto). -8- 1 convincing” proof that the parties orally agreed to modify the 2 Agreement to expand Harris’ sales territory to include Asia. 3 Harris could have been sent on that trip for any number of reasons. 4 The court declines to speculate as to the purpose of that trip. 5 Indeed, it would be improper for the court to do so. 6 v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) 7 (internal quotation marks and citation omitted) (“[M]ere allegation 8 and speculation do not create a factual dispute for purposes of 9 summary judgment[.]”) 10 Mr. See Soremekun Moreover, as just alluded to, the evidence upon which 11 plaintiff is relying to support this claimed “fact” is deficient. 12 Plaintiff first cites to a January 15, 1999, “Facsimile Cover 13 Sheet” apparently from “Miriam F. Becerra,” Eagle’s “Executive 14 Manager Corporate & Sales Administration[.]” PSOF (doc. 140), exh. 15 A thereto at ET01006. 16 Mr. Wu’s contact information in Singapore, such as his telephone 17 and fax numbers, as well as his office address. 18 Sheet further advises Mr. Harris that Eagle’s President would “be 19 speaking with [Mr.] Wu th[at] weekend” and that Ms. Becerra would 20 be “faxing [Mr. Harris’] schedule” to Mr. Wu. 21 That Cover Sheet provides Mr. Harris with Id. That Cover Id. The first flaw with this exhibit is that it has not been 22 authenticated. 23 authentication, as it did previously. 24 at *8 (internal quotation marks and citations omitted) (invoking 25 the “harmless error exception” to the authentication requirement, 26 including with respect to this same fax cover sheet, where the 27 objection was “based purely on procedural grounds”). 28 will not disregard the second flaw with that Cover sheet, however, The court will disregard this lack of -9- See Harris, 2008 WL 343260, The court 1 which is that it does not even tend to show, much less by clear and 2 convincing evidence, that the parties agreed to modify the 3 Agreement to include Asia as part of Harris’ sales territory. 4 On its face, all this document does is provide Mr. Harris with 5 contact information for Mr. Wu in Singapore. 6 Plaintiff asserts that “[i]t is important to . . . note” that the 7 Fax Cover Sheet indicates that Mr. Foxman “will be ‘speaking with 8 Mr. Wu this weekend[,’]” but plaintiff utterly fails to explain the 9 import of that statement. That is all. Resp. (doc. 139) at 7:14; and PSOF (doc. 10 140), exh. A thereto at ET1006. 11 statement, plaintiff’s failure to explain its supposed importance 12 is all the more problematic. 13 Wu about countless matters, not necessarily expansion of Harris’ 14 sales territory. Given the general nature of that Mr. Foxman could have spoken with Mr. 15 Further, despite the fact that in its SOF plaintiff refers to 16 Mr. Wu as “Eagle’s Managing Director For Asia,” PSOF (doc. 140) at 17 2, ¶ 5, this statement is unsubstantiated, partially because Mr. 18 Wu’s statement is not properly before the court. 19 current state of the record, Mr. Wu’s affiliation is uncertain. 20 So, once again the court declines to impermissibly speculate. 21 cannot find, on the basis of this Fax Cover Sheet alluding to a 22 then pending Singapore trip by Mr. Harris, clear and convincing 23 evidence that the parties agreed to expand Harris’ sales territory, 24 beyond the scope of the written Agreement, to include Asia. 25 Thus, given the It Next, Harris attempts to rely upon Mr. Wu’s statement, as it 26 did in response to Eagle’s earlier motion on the issue of 27 “perpetual” commissions. 28 however, that statement was not properly executed in conformity As thoroughly explained in Harris, - 10 - 1 with 28 U.S.C. § 1746. 2 a result, in Harris this court granted Eagle’s motion to strike Mr. 3 Wu’s statement and declined to consider that “inadmissible evidence 4 in opposition to Eagle’s Rule 56 motion.” 5 omitted). 6 relying upon the exact same statement by Mr. Wu, making no attempt 7 to remedy the procedural defects outlined in Harris. 8 court abides by its prior ruling and will not consider Mr. Wu’s 9 statement in connection with Eagle’s current summary judgment 10 11 See Harris, 2008 WL 343260 at *5 - *6. As Id. at *6 (citation Nothing has changed from that time to this. Harris is Thus, the motion. Third, plaintiff Harris explicitly refers to “the affidavit of 12 Douglas C. Domke regarding the ‘worldwide’ purchases by ON 13 Semiconductor[]” to show clear and convincing evidence of an oral 14 modification. 15 Plaintiff does not cite to any specific part of Mr. Domke’s 16 affidavit though, much less explain how the foregoing statement is 17 indicative of expanding Harris’ sales territory to include Asia. 18 Assuming arguendo that plaintiff is relying upon paragraph five of 19 the Domke affidavit,3 that paragraph reads as follows: 20 Resp. (doc. 139) at 15:2-3 (citing exh. C thereto). At all times when [defendant] Eagle . . . was engaged in doing business with ON Semiconductor, it was my understanding that [plaintiff] Harris . . . was getting full credit for all Eagle[’s] . . . sales worldwide for all ON Semiconductor’s facilities. 21 22 23 24 PSOF (doc. 140), exh. C thereto (Affidavit of Douglas C. Domke) at 25 12, ¶ 5. This affidavit does not mention Asia at all; nor does it 26 27 28 3 Plaintiff cannot rely upon paragraphs four, six and seven of that affidavit as the court previously granted Eagle’s motion to strike those paragraphs. See Harris, 2008 WL 343260 at *6. - 11 - 1 mention the Agreement which is the subject of this litigation. 2 Those omissions coupled with the just quoted sweeping averment fall 3 far short of showing by clear and convincing evidence that the 4 parties modified the Agreement to expand Harris’ sales territory to 5 include Asia. 6 genuine issue of material fact on that narrow issue of oral 7 modification. 8 9 Nor does this averment, standing alone, create a Furthermore, the court finds, as it has before, that “Mr. Domke’s affidavit does not ‘affirmatively’ show that he has 10 ‘personal knowledge’ and ‘is competent to testify to the matters 11 stated’ in th[at] paragraph[].” Harris, 2008 WL 343260, at *6 12 (citing Fed. R. Civ. P. 56(e)). Thus, even if paragraph five of 13 Mr. Domke’s affidavit was probative of the oral modification issue, 14 this lack of foundation would preclude the court from considering 15 it in response to this summary judgment motion. 16 Despite Eagle’s contrary assertion,4 plaintiff did cite to Mr. 17 Harris’ deposition testimony (as well as to Mr. Foxman’s), to 18 support its oral modification argument. 19 enumerating the evidence which plaintiff believes supports such a 20 finding, plaintiff did not mention that deposition testimony. 21 Plaintiff briefly discusses that testimony elsewhere in its 22 response however. 23 court is compelled to consider the potential impact of the cited 24 testimony upon Eagle’s summary judgment motion. 25 It is true that when See Resp. (doc. 139) at 8:7-15. Therefore, the Plaintiff cites to a single comment by Eagle’s President, Mr. 26 27 28 4 Eagle inaccurately states that plaintiff “does not even cite Mr. Harris’ own testimony on the issue[]” of oral modification. Reply (doc. 154) at 9:24, n.5. - 12 - 1 Foxman, that after receiving the November 29, 2000, notification 2 letter, he did not “recall any conversation” with Mr. Harris. 3 at 8:10-11 (citing doc. 115 (Foxman Dep’n) at 77:19-20). 4 contrasts that response with a selected portion of Mr. Harris’ 5 deposition wherein he was questioned about a conversation he claims 6 to have had with Mr. Foxman. 7 Harris testified that Foxman “asked [him] to go to Singapore to 8 meet with Mr. Wu.” 9 asked about whether he had any “follow-up discussions with Mr. 10 11 12 13 14 When Mr. Harris further testified: Yes, we had. [Mr. Foxman] was very curious as to how things went over in Asia and how - who Mr. Wu and I saw. How we did. What other potential opportunities are there. And I’ve been back to Asia several other time and met with Mr. Wu and had follow-up calls on the accounts that we went to see. 15 Id. at 87:22-88:5. 16 which plaintiff cites reads as follows: 17 Plaintiff During that purported conversation, Doc. 125 (Harris Dep’n) at 87:19-20. Foxman about this topic[,]” Id. The last excerpt from Mr. Harris’ testimony to Q. Did you and Mr. Foxman ever document this exchange in writing? 18 A. I wish. 19 20 Id. at 88:6-8. 21 insufficient to meet plaintiff’s burden of proof on the oral 22 modification issue, even taking into account the procedural posture 23 of this case. 24 Simply put, this uncorroborated testimony is Eagle relies primarily upon South Shore Amusements, Inc. v. 25 Supersport Auto Racing Ass’n, 136 Ill.App.3d 284 (1985), to support 26 its argument that plaintiff “has no admissible evidence” of oral 27 modification. 28 executed a written contract wherein plaintiff agreed to lease a Mot. (doc. 81) at 11:33. - 13 - The parties in South Shore 1 building from defendant to broadcast a closed circuit telecast of a 2 boxing match. 3 due to injury, plaintiff’s president claimed that he advised 4 defendant’s president of the delay and the former “orally agreed to 5 make [the building] available to show the match on another date.” 6 Id. at 286. 7 Id. at 284. When the match had to be rescheduled The court held that that “wholly uncorroborated” testimony of 8 oral modification by plaintiff’s president was “insufficient to 9 establish that the original written contract was modified by a 10 subsequent oral agreement.” 11 court noted the absence of “cancelled contracts, cancelled checks, 12 written correspondence, evidence of equipment rescheduling, or any 13 other evidence of subsequent acts to support [plaintiff’s] 14 contention that the written agreement was later modified by an oral 15 agreement.” 16 uncorroborated testimony was insufficient given that it was 17 “emphatically refuted by” defendant’s president and sole 18 shareholder. 19 lack of record evidence “as to the date on which the boxing match 20 was rescheduled to be shown.” 21 Id. at 287. Id. Id. at 287; and 288. Elaborating, the The court further reasoned that that The court in South Shore also pointed to the Id. As Eagle views it, Harris’ oral modification claim “falls 22 squarely within” the holding in South Shore. 23 11:27. 24 the “uncorroborated and disputed testimony” of oral modification. 25 Id. at 12:2. 26 “there is no specificity” in terms of the purported modification. 27 Id. at 12:4. 28 this purported modification, such as the commission structure for Mot. (doc. 81) at Eagle reasons that as in South Shore, plaintiff offers only Eagle further points out that much like South Shore For example, the record is silent as to the terms of - 14 - 1 sales to Asia. 2 Mr. Foxman “[d]id not” say “how much the commissions would be[.]” 3 See Doc. 126 (Harris Dep’n) at 159:22-23. 4 believes that South Shore provides ample authority for finding that 5 Harris cannot, by relying upon the quoted excerpt from Mr. Harris’ 6 deposition, defeat summary judgment on the oral modification issue. 7 Indeed, Eagle notes that Mr. Harris testified that Accordingly, Eagle Plaintiff Harris counters that the South Shore court had the 8 benefit of the “entire trial record,” whereas here the parties are 9 only at the summary judgment stage. Resp. (Doc. 139) at 15:6. 10 Accordingly, plaintiff baldly asserts that a trial is necessary to 11 determine whether its evidence of oral modification is “clear and 12 convincing.” 13 argument by citing to Midwest Enterprises, Inc. v. Generac Corp., 14 1991 WL 169059 (N.D.Ill. 1991). 15 mark on both counts. 16 Id. at 15:7. Plaintiff attempts to buttress this Plaintiff’s argument misses the Admittedly, South Shore involved a trial; the court was not 17 accessing the sufficiency of the proof on a summary judgment 18 motion. 19 distinction, but it is not here. 20 misconceives the nature of its burden at this juncture. 21 enough to simply raise the specter of a genuine issue of material 22 fact. 23 otherwise provided in Rule 56, specific facts showing that there is 24 a genuine issue for trial.,” Harris, 2008 WL 343260, at *12 25 (quoting Anderson, 477 U.S. at 248). 26 explained in Harris: 27 28 In some circumstances that would be a legally significant That is because plaintiff Harris It is not Rather, plaintiff must “set forth by affidavit or as As this court previously This [e]vidence must be concrete and cannot rely on mere speculation, conjecture, or fantasy. . . . Similarly, a mere scintilla of - 15 - 1 2 evidence is not sufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some significant probative evidence to support the complaint. 3 4 Id. (internal quotation marks and citations omitted). 5 Harris had not met that burden. 6 is some metaphysical doubt as to the material facts[,]” but that is 7 not a sufficient basis upon which to oppose summary judgment. 8 id. (internal quotation marks and citation omitted). 9 the difference in procedural posture, the court finds that South Plaintiff At best, it has shown “that there See Thus, despite 10 Shore is applicable here. 11 testimony, quoted herein, does not rise to the level of clear and 12 convincing evidence necessary to survive a motion for summary 13 judgment on the issue of oral modification. 14 Mr. Harris’ wholly uncorroborated Nor does Midwest Enterprises provide an adequate basis upon 15 which to deny Eagle’s motion insofar as it pertains to the issue of 16 oral modification. 17 deny summary judgment, but not because of a factual issue as to 18 oral modification. 19 Midwest Enterprises. 20 inapposite to the oral modification issue herein, and does not 21 alter the court’s view that Harris has not come forth with any 22 evidence, let alone clear and convincing, of oral modification. 23 The court in Midwest Enterprises did partially Indeed, oral modification was not an issue in Accordingly, Midwest Enterprises is wholly The court realizes that ordinarily “the existence of an oral 24 modification - as well as its terms, conditions, and the intent of 25 the parties– are all questions of fact that must be determined by a 26 trier of fact.” 27 Mortgage Services, Inc., 152 F.Supp.2d 1015, 1022 (N.D.Ill. 2001) 28 (citations omitted). Household Financial Services, Inc. v. Coastal This rule presupposes, however, that in the - 16 - 1 first instance a plaintiff has come forth with evidence which is 2 sufficient to raise a genuine issue of material fact. 3 explained, plaintiff Harris has not done that. 4 Markets Corp. v. McKinley Medical LLC, 2007 WL 2757172 (N.D.Ill. 5 2007), plaintiff “makes broad statements regarding a modification, 6 which on their face [may] appear to raise factual issues that 7 cannot be resolved” on summary judgment. 8 Significantly, however, also as in BMO Capital, “a review of the 9 evidence pointed to in support of [plaintiff’s] accusations shows 10 11 As just As in BMO Capital Id. at *10. that [plaintiff] lacks support for its statements.” See id. Additionally, Harris’ “self-serving belief that [the 12 Agreement] was modified is not sufficient to show a modification.” 13 See id. at *11 (citation omitted). 14 that, as a matter of law, plaintiff has not shown oral modification 15 by clear and convincing evidence so as to amount to a waiver of the 16 Agreement’s integration clause. 17 necessarily follows that the Agreement: (1) was not orally modified 18 to expand Harris’ sales territory to include Asia; and (2) it is a 19 written contract to which Illinois’ ten year statute of limitations 20 applies. 21 Consequently, the court finds Based upon this finding, it In its complaint Harris alleges that Eagle “failed and refuses 22 to pay sales commissions to [Harris] for sales to [Harris’] 23 Accounts for the period of November 1998 to present.” 24 at 3:17-18, ¶ 12. 25 a November 1998 accrual date, because Harris filed this action on Co. (doc. 1) Assuming arguendo, based upon that allegation,5 26 27 28 5 Given the present state of the record, there are two other possible accrual dates, as more fully discussed below. Those dates are well after November, 1998, however, and thus easily fall within the ten year statute of limitations. - 17 - 1 October 16, 2006, its breach of contract claim is timely. 2 Therefore, the court denies Eagle’s summary judgment motion to the 3 extent it is arguing that count I, breach of contract, is barred by 4 the statute of limitations. 5 merits of that claim. 6 2. 7 Thus, the court must next address the Merits Harris alleges that Eagle’s “failure and refusal to pay sales 8 commissions due [Harris] on [Harris’] Accounts, constitutes [a] 9 material and unilateral breach of the Agreement[.]” Id. at 5:10-11, 10 ¶ 22. 11 plaintiff must show: “(1) the existence of a valid and enforceable 12 contract; (2) performance by the plaintiff; (3) breach of contract 13 by the defendant; and (4) resultant injury to the plaintiff.” 14 Smith v. Village of Norridge, 2008 WL 697352, at *3 (N.D.Ill. 2008) 15 (internal quotation marks and citation omitted). 16 framed in terms of those elements, Eagle seems to be arguing that 17 summary judgment is proper on what remains of the breach of 18 contract claim because Harris cannot show a breach in that it “has 19 no specific admissible evidence that Eagle owes it any commissions 20 under the Agreement.” 21 To establish a breach of contract under Illinois law, a Although not Mot. (doc. 81) at 2:1-2. It is undisputed that “Eagle paid Harris $152,538.34 in 22 commissions for sales in Harris’ territory of Arizona and New 23 Mexico that were closed from November 12, 1998 through March 1, 24 2001[.]” DSOF (doc. 82) at 3, ¶ 19:13-16 (citations omitted). 25 Eagle arrived at the March 1, 2001, date by relying upon the 26 provision in the Agreement which allowed “either party,” without 27 cause,” to “terminate” that Agreement “on ninety (90) days written 28 notice[.]” See Larsen Decl’n (doc. 85), exh. 15 thereto at ¶ 7(a). - 18 - 1 of termination provision. 2 letter as terminating the Agreement, Eagle then calculated March 1, 3 2001 as being 90 days thereafter. 4 Harris received some commission payments after that March 1, 2001, 5 date “because Eagle had not received payments from its customers as 6 of that date, and therefore, commission payments to Harris were not 7 yet due.” 8 mentioned earlier, Harris received commission payments as late as 9 2003 due to outstanding invoices. Construing Harris’ November 29, 2000, It is also undisputed that Aidikonis Decl’n (doc. 84) at 1:21-23, ¶ 3. In fact, as Aidikonis Dep’n (doc. 119) at 10 20:13-21:12. 11 entitled to summary judgment on the breach of contract claim 12 because it paid Harris in accordance with the Agreement. 13 Harris does not challenge the foregoing in any way. Based upon the foregoing, Eagle maintains that it is Indeed, 14 it would be hard pressed to do so given that in Harris, 2008 WL 15 343260, it did “not controvert the fact that Eagle paid [it] 16 $152,538.34 in commissions for sales that were ordered prior to 17 March 1, 2002, which was 90 days after [plaintiff] terminated the 18 Agreement on November 29, 2000.” 19 marks and citation omitted). 20 “[t]he parties disagree . . . on many material factual issues[,]” 21 thus rendering summary judgment inappropriate. 22 4:21 (emphasis added). 23 Harris only identifies one disputed issue - “when sales commissions 24 should stop.” 25 Harris because of the differing interpretations the parties have as 26 to the significance of the November 29, 2000, notification letter. 27 According to Harris that letter served as “a notice of breach and 28 demand for payment of commissions due[,]” whereas Eagle viewed it Id. at *13 (internal quotation Instead, Harris broadly declares that Resp. (doc. 139) at Despite that sweeping assertion, tellingly, Id. at 10:18. This dispute arises, according to - 19 - 1 as terminating the Agreement. 2 Significantly, Harris does not offer, let alone point to any record 3 evidence, of an alternate date for stopping commission payments. 4 Id. at 4:23-26 (citations omitted). What is more, in highlighting those differing interpretations, 5 Harris refers only to sales to Asia. 6 contends that because the parties disagree as to the meaning of the 7 November 29th letter, Eagle’s “rationale to not pay commission on 8 [Harris’] account’s [sic] purchases that were shipped to the same 9 account facilities in Asia, is nonsensical.” In particular, Harris Id. at 10:2-3. The 10 foregoing leads the court to believe that Harris is arguing that 11 there is a genuine issue of material fact as to commissions 12 purportedly due for sales to Asia. 13 Eagle’s summary judgment motion in this regard. 14 finding, however, that the Agreement does not encompass sales to 15 Asia, this claimed factual dispute as to the meaning of the 16 notification letter does not preclude summary judgment. 17 Hence, the court should deny Given the court’s To the extent Harris may be asserting that it is due 18 commissions under the Agreement for non-Asia sales, still, it is 19 unable to defeat summary judgment. 20 there is no dispute that Eagle paid Harris $152,538.34 in 21 commissions due under the Agreement. 22 its burden, as the non-moving party, of pointing to specific facts 23 demonstrating a genuine issue for trial in terms of commissions 24 allegedly due it under the Agreement. 25 26 27 28 First, as already explained, Second, Harris had not met As to any non-Asia commissions allegedly due Harris, Eagle propounded the following interrogatory to Harris: State the total amount of commissions, if any, YOU contend EAGLE . . . did not pay YOU that YOU were entitled to during YOUR relationship with - 20 - 1 EAGLE . . . pursuant to the . . . Agreement[.] 2 Larsen Decln’ (doc. 85), exh. F thereto at 4:16-19. 3 responded: 4 Harris [It] is entitled to be paid sales commission on all sales made by Defendant [sic] to Motorola, ON Semiconductor, Freescale, Burr-Brown, Texas Instruments, AIT Batam, Alphatec, ASAT, ASE, Carsem Semiconductor, Fairchild, Microchip Technology and Advanced Test Resources. 5 6 7 8 Id., exh. F thereto at 4 (emphasis added). 9 Harris’ claim that it is owed commissions on “all sales” made to 10 the listed entities is that it contradicts the plain language of 11 the Agreement. 12 commissions for sales of certain products associated with its 13 “geographic area described as Arizona and New Mexico[.]” Larsen 14 Decl’n (doc. 85), exh. 15 thereto at ET000001. 15 come forth with any evidence that the sales to which it refers in 16 that interrogatory answer were in any way associated with Arizona 17 and New Mexico. 18 testified that he did not know if the products were shipped in or 19 out of Arizona or New Mexico. 20 omitted). 21 fairly extensive record showing, at a minimum, that there are 22 genuine issues of material fact as to whether it is owed 23 commissions under the Agreement. 24 The obvious flaw with The Agreement is clear that Harris’ is to be paid Yet, Harris has not In fact as to six of those entities, Mr. Harris DSOF (doc. 82) at 47 (citations In short, Harris has not pointed to anywhere in this Lastly, Harris mentions the procuring cause doctrine in 25 passing. 26 responding to Eagle’s motion for partial summary adjudication. 27 court observed then that the applicability of that doctrine was 28 “highly doubtful, especially . . . where plaintiff has not Harris unsuccessfully invoked that doctrine when - 21 - The 1 ‘offer[ed] any evidence tying specific invoices to efforts’ made by 2 it.” 3 Ltd. v. Spalding & Evenflo Companies, Inc., 69 F.3d 845, 850 (7th 4 Cir. 1995)). Harris, 2008 WL 343260, at *17 n. 12 (quoting Hammond Group, 5 Elaborating, the court stated: all that [Harris] has done is to baldy refer to accounts listed by name only i[n] its complaint, without reference to time frame or region. This is an insufficient basis upon which to allow recovery under the procuring cause doctrine. [citing Hammond, 69 F.3d at 850] (under Illinois law, procuring cause doctrine did not entitle a manufacturer’s representative to recover commissions which arose after contract termination where the representative ‘did not offer any evidence tying specific invoices to [its] efforts”). 6 7 8 9 10 11 Id. 12 summary judgment motion. 13 cause doctrine to defeat Eagle’s properly supported motion for 14 summary judgment on Harris’ breach of contract claim. 15 therefore, finds that although Harris’ breach of contract claim is 16 timely, because Harris has not come forth with a genuine issue of 17 material fact as to the merits, summary judgment in Eagle’s favor 18 is proper as to this breach of contract claim. 19 turn to Harris’ remaining claims for an accounting and unjust 20 enrichment. Harris did not even do that much in response to the current Thus, it cannot rely upon the procuring The court, The court will 21 B. 22 In count III of its complaint, Harris “demands a full Accounting 23 accounting from [Eagle] of all sales activity with [Harris’] 24 Accounts, to include a production of all records of same pursuant 25 to 735 ILCS 5/8-402.” 26 two bases for summary judgment as to this count. 27 barred and second, it fails as a matter of law because Harris has 28 an adequate remedy at law. Co. (doc. 1) at 6, ¶ 26:1-3. Eagle asserts First, it is time The court will address these arguments - 22 - 1 seriatim. 2 3 1. Statute of Limitations Relying upon, 735 ILCS 5/13-205, Eagle claims that Harris’ 4 accounting claim is untimely as a matter of law because Harris 5 brought this claim “for commissions allegedly owed under the 6 Agreement over 5 years after it had notice such a claim might 7 exist.” 8 say the least, and hence not particularly enlightening. 9 Mot. (doc. 81) at 14:11-12. This analysis is cursory, to Harris, in effect, makes a tolling argument in response. 10 Based solely upon American Steel Foundries v. The Railroad Supply 11 Co., 235 Ill.App. 228, 1924 WL 3705 (1924), Harris contends that 12 “the Statute of Limitations for an accounting does not start to run 13 while payments are being made and until the transactions are 14 completed.” 15 Relying upon the deposition of Eagle’s Account Payable Manager, who 16 agreed that she “carr[ied]” some commission payments to Harris 17 “over into 2003[,]” Harris maintains, without explanation, that its 18 accounting cause of action is not barred under the five-year 19 statute of limitations. 20 at 20:23-21:1. 21 the accounting cause of action accrued in 2003, due to those 22 “carry-over” payments, and thus because Harris filed its complaint 23 on October 16, 2006, it is timely. 24 Resp. (doc. 138) at 14:8-9 (citation omitted). PSOF (doc. 140), exh. 3 thereto (doc. 119) It is safe to assume that Harris’ reasoning is that Eagle is correct that “Illinois applies a five-year limitation 25 to an accounting claim.” 26 Inc., 71 F.Supp.2d 846, 857 (N.D.Ill. 1999) (citing Kedzierski v. 27 Kedzierski, 899 F.2d 681, 682 (7th Cir. 1990)). 28 accrual date for an accounting cause of action, Illinois also Glovaroma, Inc. v. Maljack Productions, - 23 - In determining the 1 applies the discovery rule. 2 relevant statute of limitations 3 or reasonably should have known of his injury and also knows or 4 reasonably should have known that it was wrongfully caused.” 5 Claus Industries, Inc. v. First National Bank of Chicago, 216 6 Ill.App.3d 231, 236 (1991) (citation omitted). 7 stressed that “‘wrongfully caused’ does not connote knowledge of 8 the existence of the cause of action.” 9 “Instead, it is a general or generic term, signifying the point at 10 which the injured person has sufficient information concerning his 11 injury and its cause to put a reasonable person on inquiry to 12 determine whether actionable conduct is involved.” 13 omitted). 14 The discovery rule “provides that the begins to run when a person knows Santa Courts have Id. (citation omitted). Id. (citation Applying the discovery rule in Santa Claus Industries, the 15 court held that plaintiff’s accounting cause of action against a 16 bank was barred by section 13-205 because it “accrued in April 17 1980, when the final payment under the . . . Note was due.” 18 237. 19 was on notice as to its terms, which included a payment 20 schedule[,]” the court held that “[e]ven if [plaintiff] did not 21 know in late 1978/early 1979 that [a third-party] had prepaid its 22 obligation under the . . Note, it knew that [third-party] was 23 obligated to make quarterly interest payments, commencing July 15, 24 1975, and it knew that the . . . Note was due and payable in April 25 1980.” 26 received any interest payments by April 1980, it knew or should 27 have known that it had been injured and that the injury had been 28 wrongfully caused.” Id. at Reasoning that plaintiff had a “copy of the . . . Note and Id. at 237-238. Accordingly, “when [plaintiff] never Id. at 238. Thus, the court affirmed the - 24 - 1 trial court’s holding that plaintiff had five years from that date 2 within which to file its accounting action; and because it did not, 3 dismissal was proper. 4 (granting summary judgment on accounting claim because it was 5 untimely in that plaintiff “first became aware” of that claim “on 6 April 1989 when she first protested [defendant’s] first royalty 7 report[,]” but she did not commence that action until more than 8 five years later). 9 See also Glovaroma, 71 F.Supp.2d at 857 In arguing that Harris’ accounting cause of action is not 10 timely, Eagle did not even hint at what it believes the accrual 11 date should be. 12 motion overall, however. 13 29, 2000, the date of the notification 14 possible accrual date because in that letter, among other things, 15 Harris explicitly “demand[s] a full accounting of the commissions 16 due, and for [Eagle] to issue a commission check immediately.” 17 Foxman Decl’n (doc. 83), exh. A thereto at 1 (emphasis added). 18 “‘In most instances, the time at which a plaintiff knows or 19 reasonably should have known both of the injury and that it was 20 wrongfully caused will be a disputed question of fact.’” 21 v. Stryker Corp., 2008 WL 2941172, at *2 (7th Cir. 2008) (quoting 22 Castello v. Kalis, 352 Ill.App.3d 736 (2004)). 23 unequivocal language just quoted, summary judgment is proper on 24 this issue however. 25 one conclusion from the evidence[,]” id. (citation omitted); and 26 that conclusion is that on November 29, 2000, Harris had 27 “sufficient information concerning [its] injury and its cause to 28 put a reasonable person on inquiry to determine whether actionable The court gleans two possibilities from Eagle’s First, Eagle could be employing November letter. This is one Aebischer Given the That is so because “the jury could draw but - 25 - 1 conduct is involved.” 2 at 236 (citation omitted). 3 See Santa Claus Industries, 216 Ill.App.3d Several other statements in that November 29, 2000, letter 4 contribute to this finding. 5 had “not received a commission check from [Eagle] since April 2000, 6 and ha[s] yet to receive any commissions from bookings in the year 7 2000.” 8 other commissions outstanding from 1999.” 9 it “fe[lt] that there [we]re moneys due [it], from [its] efforts at 10 ON Semiconductor[,]” and that it “fe[lt] [it] [wa]s entitled to at 11 least 3% of all business generated by [those] efforts . . . , and 12 per the [Agreement].” 13 it was “aware” of the existence of “purchase orders which [Eagle] 14 ha[d] yet to deliver against and [Harris] . . . expect[ed] those 15 moneys to be paid out in accordance” with the Agreement. 16 Before closing, Mr. Harris wrote: 17 the past 9 months, you have given me no choice but to terminate the 18 [Agreement] effective immediately.” 19 Harris expressly stated, “Please use this letter as your formal 20 notification Harris . . . , no longer represents [Eagle].” 21 These protestations by Harris, including the explicit demand for an 22 accounting, easily support using November 29, 2000, as the accrual 23 date herein. 24 October 16, 2006, more than five years after that accrual date, 25 Harris’ accounting claim is time-barred. 26 Id. For example, Harris declared that it Harris continued that it “believe[d] there [we]re Id. Id. Harris added that Furthermore, Harris informed Eagle that Id. “By failing to pay [Harris] for Id. To stress that point, Mr. Id. Thus, because the present action was not filed until Another possible accrual date is less exact, but mandates the 27 same result. 28 Eagle . . .[i]n July 2001[.]” PSOF (doc. 140), exh. 3 thereto (doc. Mr. Harris agreed that “Harris stopped working for - 26 - 1 126) at 131:22-24. 2 action also would be time-barred because this action was filed more 3 than five years later. 4 limitations has run, the court grants Eagle’s summary judgment as 5 to count III -- the “demand for accounting.” 6 Under that scenario, this accounting cause of Accordingly, because the statute of Harris’ tolling argument is unavailing and thus does not 7 require a different conclusion. 8 Steel is misplaced because that was an action “in assumpsit[,]6 not 9 for an accounting. Harris’ reliance upon American American Steel, 235 Ill.App. at ___, 1924 WL 10 3705, at *1. 11 “there was an acknowledgment of the debt by the defendant[.]” Id. 12 at ___, 1924 WL 3705, at *9. 13 similar acknowledgment. 14 advance Harris’ tolling argument. 15 2. 16 Additionally, the statute there was tolled because Obviously Eagle has not made a Thus, American Steel does nothing to Merits Even if timely, Eagle contends that because this accounting 17 claim is equitable, and because Harris has an adequate remedy at 18 law, summary judgment is, nonetheless, proper as to this claim. 19 Plaintiff emphatically responds that its “CLAIM FOR AN ACCOUNTING 20 IS STATUTORY[.]” Resp. (doc. 139) at 16:11 (emphasis in original). 21 To emphasize this point, Harris claims that Eagle is “confus[ing] 22 an equitable action for an accounting with [Harris’] statutory 23 count for an accounting brought under 735 ILCS 5/8-402, as cited in 24 its complaint.” 25 supposed distinction, Harris asserts that the case law discussing Id. at 16:12-13. Continuing to stress this 26 27 28 6 This is “[a] common-law action for breach of [an express or implied promise, not under seal] or for breach of a contract.” Blacks Law Dictionary ( 8th ed. 2004). - 27 - 1 equitable accounting claims, upon which Eagle relies, thus is 2 inapplicable. 3 There is no distinction between an equitable and statutory 4 accounting cause of action, Eagle responds, noting Harris’ lack of 5 authority to support this claimed distinction. 6 accurately responds that 735 ICLS 5/8-402, the alleged statutory 7 basis for Harris’ accounting claim, is merely a discovery device 8 and does not provide a basis for an accounting claim. 9 Further, Eagle Eagle has the stronger argument by far here. First, even 10 accepting Harris at its word, i.e. that it is not seeking an 11 equitable accounting, the court cannot ignore the unequivocal 12 “demand[] [for] a full accounting[]” in Harris’ complaint. 13 Co. (doc. 1) at 6:1, ¶ 26. 14 the complaint can be read as alleging a claim for unjust 15 enrichment, the court grants Eagle’s motion for summary judgment. 16 See Surfers Unlimited, L.L.C. v. Telebrands Corp., 1997 WL 285875, 17 at *1 (N.D.Ill. 1997) (where defendant “explicitly request[ed] an 18 accounting in its Counterclaim[,]” court dismissed such claim for 19 failure to allege no adequate remedy at law, although defendant 20 indicated it had “deliberately” not pled the equitable accounting 21 elements). 22 See Given that broad demand, to the extent Second, shifting gears to Harris’ purported “statutory” 23 accounting claim, there is no legal basis for that claim. 24 does not provide any legal authority supporting such a claim and 25 the court’s research revealed none. 26 plain language of 735 ILCS 5/8-402, the statute upon which Harris 27 relies as the basis for this accounting claim, pertains to 28 discovery. Harris Furthermore, on its face the That statute, entitled “[p]roduction of books and - 28 - 1 writings[,]” reads in its entirety as follows: 2 The circuit courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue. 3 4 5 6 7 735 ILCS 5/8-402. 8 accounting cause of action, expressly or impliedly. Rather, that 9 “statute contemplates the production of evidence[.]” Carden v. Plainly, that statute does not provide for an 10 Ensminger, 329 Ill. 612, 618 (1928). 11 discovery mechanism – nothing more. 12 In other words, 5/8-402 is a Harris’ reliance upon section 5/8-402 to support an 13 independent cause of action is misplaced for another reason. 14 its terms, that statute grants “circuit courts” the power to act 15 thereunder. 16 federal district courts such as this one. 17 States District Court is governed, obviously, by the Federal Rules 18 of Civil Procedure – not by state court statutes. 19 reasons, the court finds no basis for Harris’ statutory accounting 20 claim. 21 cause of action was timely, Eagle is entitled to summary judgment 22 on the alternative basis that that cause of action is insufficient 23 as a matter of law. By “Circuit courts” are Illinois state trial courts – not Discovery in this United For these As the foregoing shows then, even if Harris’ accounting 24 C. 25 As with plaintiff’s accounting cause of action, Eagle asserts Unjust Enrichment 26 that plaintiff’s unjust enrichment cause of action is barred by the 27 statute of limitations; and, in any event, is legally insufficient. 28 . . . - 29 - 1 2 1. Statute of Limitations Actions for unjust enrichment, like accounting actions, are 3 governed by the five year statute of limitations found in section 4 13-205. Frederickson v. Blumenthal, 271 Ill.App.3d 738, 742 5 (1995). Eagle maintains, as it did with respect to Harris’ demand 6 for an accounting, that this cause of action “accrued more than 7 five years before Harris filed suit[,]” and hence it is barred 8 under the applicable statute of limitations. 9 13:14-16. Mot. (doc. 81) at Harris’ response is one sentence: “Applying the same 10 authority as cited . . . for breach of contract and an accounting, 11 [its] alternative cause of action for Unjust Enrichment, is not 12 barred by Illinois’ five . . . year Statute of Limitations.” 13 (doc. 139) at 15:18-20. 14 Resp The court surmises that Harris again is positing that the 15 Eagle’s 2003 “carry over” payments tolled the five year statute of 16 limitations. 17 for breach of written contracts, such as in Krajcir v. Egidi, 305 18 Ill.App.3d 613, 622 (1999), to which Harris cites. 19 action to enforce a non-negotiable promissory note, the court held 20 that the ten year statute of limitations under section 13-206 began 21 when the vendor received a check from the purchasers making partial 22 payment on the amount due under the note. 23 not provide any authority for applying that rule in the unjust 24 enrichment context. 25 Partial payment will toll the statute of limitations There, in an Id. at 622. Harris does Of equal if not more import is that in Krajcir the court was 26 applying section 13-206, which expressly permits tolling for 27 partial payment, unlike the five year statute of limitations which 28 governs this unjust enrichment claim. - 30 - See 735 ILCS 5/13-206 1 (emphasis added) (“[B]ut if any payment . . . to pay has been made, 2 . . . , on any bond, note, bill, lease, contract, or other written 3 evidence of indebtedness, within or after the period of 10 years, 4 then an action may be commenced thereon at any time within 10 years 5 after the time for such payment[.]”) Because section 13-205 does 6 not contain a similar partial payment provision, and because Harris 7 does not provide any legal authority for its argument that an 8 unjust enrichment claim can be similarly tolled, the court declines 9 to adopt this view. Therefore, for the same reasons that Harris’ 10 accounting cause of action is time-barred, so, too, is its unjust 11 enrichment claim. 12 Eagle’s favor on this claim as well. 13 14 2. The court thus grants summary judgment in Merits Even if Harris’ unjust enrichment claim is timely, 15 nonetheless, summary judgment in Eagle’s favor on that claim is 16 proper. 17 a matter of law that theory of recovery is unavailable to Harris. 18 Under Illinois law, “[w]here the subject matter of a suit is Summary judgment is proper because, as set forth below, as 19 governed by a contract, it is axiomatic that there can be no 20 recovery on the basis of a quasi-contractual theory like unjust 21 enrichment.” 22 Casualty & Surety Co., 2007 WL 2122420, at *8 (S.D.Ill. 2007) 23 (citing, inter alia, Borowski v. DePuy, Inc., 850 F.2d 297, 301 24 (7th Cir. 1988) (under Illinois law, “[i]f the parties enter into 25 an agreement, they choose to be bound by its terms . . . [A]n 26 action sounding in quasi-contract will not lie.”) Significantly, 27 the fact that a “specific subject matter is not covered in the 28 express contract[]” does not change this rule. Coy Chiropractic Health Center, Inc. v. Travelers - 31 - See Borowski, 850 1 F.2d at 301 (citations omitted). 2 enrichment still is not a viable theory of recovery. 3 Under those circumstances, unjust Applying those well-established rules to the present case 4 entitles Eagle to summary judgment as to Harris’ unjust enrichment 5 claim. 6 contract” which governs the parties’ dealings herein. Therefore, 7 Harris cannot recover on an unjust enrichment theory. See Murray 8 v. Abt Assocs., Inc., 18 F.3d 1376, 1379 (7th Cir. 1994) (“Illinois 9 does not permit recovery on a theory of quasi-contract when a real 10 contract governs the parties’ relations.”) Significantly, plaintiff 11 cannot avoid that result by asserting that it is entitled to 12 recover based upon unjust enrichment for Asia sales commissions, a 13 subject area not covered in the Agreement. 14 Estate Group, Ltd. v. River Works, L.L.C., 2002 WL 1822913, at *9 15 (N.D.Ill. 2002) (dismissing quantum meruit claim because plaintiff 16 brought that claim “only to redress an area not discussed in the 17 [parties’] Agreement: breach of the Agreement by ‘shopping’ the 18 terms of the loan and the damages resulting from such a breach[]”). 19 Plaintiff attempts to take refuge in the liberal pleading The Agreement between Harris and Eagle is the “real See The Essex Real 20 which Fed. R. Civ. P. 8(e)(2) allows, whereby a party may plead 21 alternative and even inconsistent theories of recovery. 22 Chiropractic, 2007 WL 2122420, at *8 (citations omitted) (“at the 23 pleading stage a plaintiff may assert alternative and inconsistent 24 claims for relief based on contractual and quasi-contractual 25 theories of recovery”). 26 there is a finding, as there has been, that the Agreement was not 27 orally modified to include Asia as part of its sales territory, 28 nonetheless, it can recover commissions allegedly due for sales to See Coy Plaintiff Harris seems to suggest that if - 32 - 1 Asia on a theory of unjust enrichment. 2 carry some weight if this were a Rule 12 motion to dismiss where 3 the focus is solely on the adequacy of the pleadings. 4 summary judgment motion, however, this alternative pleading 5 argument carries no weight. 6 because it is not a viable theory of recovery, the court grants 7 Eagle’s motion for summary judgment as to count II of the complaint 8 alleging unjust enrichment. 9 Plaintiff’s argument might On this Both because it is time barred and In response to Eagle’s previously filed motion for partial 10 summary judgment, Harris relied upon the Illinois Sales 11 Representative Act, 820 ILSC § 820 ILSC § 120/0.01 et seq. 12 Mistakenly referring to that Act as the Illinois Wage Payment and 13 Collection Act,7 Eagle is seeking summary judgment in this regard 14 as well. 15 pointedly noted in Harris, the “complaint does not mention th[at] 16 Act[]; and a plaintiff, . . . , cannot raise a new theory of 17 liability in opposition to summary judgment.” 18 343260, at *17 (internal quotation marks and citations omitted). 19 The primary basis for Eagle’s argument is, as this court Harris, 2008 WL Disregarding this omission in its complaint, Harris baldly 20 counters that it is “covered” as a “‘principal’” under that Act; 21 and that it “disclosed” that Act “as a measure of damages . . . in 22 its Rule 26(e) supplemental disclosure[.]” Resp. (doc. 139) at 23 17:4-9 (citation and footnote omitted). 24 alter the fact, however, that Harris’ complaint does not suggest 25 that the Illinois Sales Representative Act may be a theory of That disclosure does not 26 7 27 28 In its Reply Eagle readily concedes its mistake, explaining that despite the fact that it “erroneously referred to the Illinois Wage Payment and Collection Act, . . . , [it] cited and analyzed the . . . Illinois Sale Representative Act.” Resp. (doc. 154) at 11:22, n. 2. - 33 - 1 liability herein. 2 that plaintiff is precluded from asserting a claim under that Act 3 at this juncture. 4 judgment motion in this regard as well. 5 Thus, consistent with Harris, the court finds Accordingly, the court grants Eagle’s summary The court’s determination that Eagle is entitled to summary 6 judgment as to each of the three causes of action in Harris’ 7 complaint, renders moot the remaining pending motions for 8 extensions of time (docs. 69, 72 and 74); to compel (doc. 78); for 9 a sealing order (doc. 90) and to preclude (doc. 92). 10 therefore denies these motions as moot. 11 12 13 The court To summarize, for the reasons set forth herein, IT IS ORDERED that: (1) Defendant Eagle Test Systems, Inc.’s Motion for Summary 14 Judgment or in the Alternative Partial Summary Judgment (doc. 81) 15 is GRANTED; and 16 (2) Plaintiff Harris Technical Sales, Inc.’s motions for 17 extensions of time (docs. 69, 72 and 74); to compel (doc. 78); for 18 a sealing order (doc. 90) and to preclude (doc. 92) are DENIED. 19 20 21 The Clerk of the Court is directed to enter JUDGMENT in favor of defendant and terminate the case. DATED this 12th day of September, 2008. 22 23 24 25 26 27 28 Copies to counsel of record - 34 -
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